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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 18, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-4
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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SIMON DEBARTOLO GROUP, L.P.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 6798 34-1755769
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
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NATIONAL CITY CENTER
115 WEST WASHINGTON STREET, SUITE 15 EAST
INDIANAPOLIS, IN 46204
(317) 636-1600
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF THE
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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JAMES M. BARKLEY, ESQ.
GENERAL COUNSEL
NATIONAL CITY CENTER
115 WEST WASHINGTON STREET, SUITE 15 EAST
INDIANAPOLIS, IN 46204
(317) 636-1600
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPIES TO:
DUNCAN J. STEWART, ESQ.
WILLKIE FARR & GALLAGHER
787 SEVENTH AVENUE
NEW YORK, NEW YORK 10019
(212) 728-8000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: As soon as practicable after the effective date of this Registration
Statement.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER SECURITY PRICE FEE
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6 5/8% Notes due 2003................... $375,000,000 100% $375,000,000 110,625
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6 3/4% Notes due 2005................... $300,000,000 100% $300,000,000 88,500
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7 3/8% Notes due 2018................... $200,000,000 100% $200,000,000 59,000
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7% MandatOry Par Put Remarketed
Securities due 2028................... $200,000,000 100% $200,000,000 59,000
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Total................................... 317,125
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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PROSPECTUS
SIMON DEBARTOLO GROUP, L.P.
OFFER TO EXCHANGE $1,000 IN PRINCIPAL AMOUNT OF 6 5/8% NOTES DUE 2003,
6 3/4% NOTES DUE 2005, 7 3/8% NOTES DUE 2018 AND
7% MANDATORY PAR PUT REMARKETED SECURITIESSM ("MOPPRSSM")
SIMON DEBARTOLO GROUP LOGO
DUE 2028 FOR EACH $1,000 IN PRINCIPAL AMOUNT OUTSTANDING OF LIKE SERIES OF NOTES
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Simon DeBartolo Group, L.P. (the "Operating Partnership") hereby offers,
upon the terms and subject to the conditions set forth in this Prospectus and
the accompanying Letter of Transmittal (which together constitute the "Exchange
Offer"), to exchange an aggregate of up to $375,000,000 principal amount of
6 5/8% Notes due 2003 (the "Exchange 2003 Notes"), $300,000,000 principal amount
of 6 3/4% Notes due 2005 (the "Exchange 2005 Notes"), $200,000,000 principal
amount of 7 3/8% Notes due 2018 (the "Exchange 2018 Notes," and, together with
the Exchange 2003 Notes and the Exchange 2005 Notes, the "Exchange Notes") and
$200,000,000 principal amount of 7% MandatOry Par Put Remarketed SecuritiesSM
("MOPPRSSM") due 2028 (the "Exchange MOPPRS," and, together with the Exchange
Notes, the "Exchange Securities") of the Operating Partnership, which have been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
for a like principal amount of 6 5/8% Notes due 2003 (the "Original 2003
Notes"), 6 3/4% Notes due 2005 (the "Original 2005 Notes"), 7 3/8% Notes due
2018 (the "Original 2018 Notes," and, together with the Original 2003 Notes and
the Original 2005 Notes, the "Original Notes") and 7% MOPPRSSM due 2028 (the
"Original MOPPRS," and, together with the Original Notes, the "Original
Securities"), respectively, of the Operating Partnership with the holders (the
"Holders") thereof. The Original 2003 Notes and the Exchange 2003 Notes are
referred to herein as the "2003 Notes," the Original 2005 Notes and the Exchange
2005 Notes are referred to herein as the "2005 Notes," the Original 2018 Notes
and the Exchange 2018 Notes are referred to herein as the "2018 Notes," the
Original MOPPRS and the Exchange MOPPRS are referred to herein as the "MOPPRS,"
the Original Notes and the Exchange Notes are referred to herein as the "Notes,"
and the Original Securities and the Exchange Securities are referred to herein
as the "Securities."
The terms of the Exchange Securities are identical in all material respects
to the terms of the Original Securities of the same series, except that (i) the
Exchange Securities will be freely transferable by holders thereof (except as
provided below) and (ii) the Exchange Securities will be issued without any
covenant of the Operating Partnership regarding registration. There will be no
cash proceeds to the Operating Partnership from the Exchange Offer.
Interest on the Securities is payable semi-annually on each June 15 and
December 15, commencing December 15, 1998, except that with respect to the
interest payable on the MOPPRS in June 2008, the interest payment date shall be
June 16, 2008. The Securities are redeemable at the option of the Operating
Partnership at a redemption price equal to the sum of (i) the principal amount
of the Securities being redeemed plus accrued interest to the redemption date
and (ii) the Make-Whole Amount (as defined herein), if any, at the times
provided under "Description of Securities -- Optional Redemption." Unless
earlier redeemed, the 2003 Notes will mature on June 15, 2003, the 2005 Notes
will mature on June 15, 2005, the 2018 Notes will mature on June 15, 2018 and
the MOPPRS will mature on June 15, 2028. The Securities will not be subject to
any mandatory sinking fund. See "Description of Securities."
THE MOPPRS ARE SUBJECT TO MANDATORY TENDER ON JUNE 16, 2008 (THE
"REMARKETING DATE"). The annual interest rate on the MOPPRS to the Remarketing
Date is 7%. If Merrill Lynch, Pierce, Fenner & Smith Incorporated, as the
remarketing dealer (the "Remarketing Dealer"), has elected to remarket the
MOPPRS as described herein, the MOPPRS will be subject to mandatory tender to
the Remarketing Dealer at 100% of the principal amount thereof for remarketing
on the Remarketing Date, except in the limited circumstances described herein.
See "Description of the Securities -- Tender of MOPPRS; Remarketing." If the
Remarketing Dealer for any reason does not purchase all tendered MOPPRS on the
Remarketing Date or elects not to remarket the MOPPRS, or in certain other
limited circumstances described herein, the Operating Partnership will be
required to repurchase the MOPPRS from the holders thereof at 100% of the
principal amount thereof plus accrued interest, if any. See "Description of
Securities -- Repurchase of MOPPRS."
The Operating Partnership issued and sold $1.075 billion aggregate principal
amount of Original Securities on June 22, 1998. Such sale was not registered
under the Securities Act in reliance upon the exemptions provided by Section
4(2) and Rule 144A of the Securities Act. Accordingly, the Original Securities
may not be reoffered, resold or otherwise pledged, hypothecated or transferred
in the United States unless so registered or unless an applicable exemption from
the registration requirements of the Securities Act is available. Based on
existing interpretations of the Securities Act by the staff of the Commission
(the "Staff") set forth in several no-action letters to third parties, and
subject to the immediately following sentence, the Operating Partnership
believes that the Exchange Securities to be issued pursuant to the Exchange
Offer may be offered for resale, resold and otherwise transferred by the holders
thereof (other than holders who are broker-dealers) without further compliance
with the registration and prospectus delivery provisions of the Securities Act.
However, any purchaser of Securities who is an affiliate of the Operating
Partnership or who intends to participate in the Exchange Offer for the purpose
of distributing the Exchange Securities, or any broker-dealer who purchased the
Securities from the Operating Partnership for resale pursuant to Rule 144A or
any other available exemption under the Securities Act, (i) will not be able to
rely on the interpretations of the Staff set forth in the above-mentioned
no-action letters, (ii) will not be entitled to tender its Securities in the
Exchange Offer and (iii) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with any sale or
transfer of the Securities unless such sale or transfer is made pursuant to an
exemption from such requirements. See "The Exchange Offer -- Terms of the
Exchange" and "Plan of Distribution."
The Exchange Offer is not conditioned upon any minimum aggregate principal
amount of Original Securities being tendered for exchange. The Exchange Offer
will expire at 5:00 p.m., New York City time, on , 1998, unless
extended (the "Expiration Date"). The date of acceptance for exchange of the
Original Securities (the "Exchange Date") will be the first business day
following the Expiration Date, upon surrender of the Original Securities.
Original Securities tendered pursuant to the Exchange Offer may be withdrawn at
any time prior to the Expiration Date; otherwise such tenders are irrevocable.
This Prospectus, together with the Letter of Transmittal, is being sent to all
registered holders of Original Securities as of , 1998.
SEE "RISK FACTORS" ON PAGE 8 FOR A DESCRIPTION OF CERTAIN FACTORS THAT
SHOULD BE CONSIDERED BY PARTICIPANTS IN THE EXCHANGE OFFER.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this Prospectus is , 1998.
"MANDATORY PAR PUT REMARKETED SECURITIESSM" AND "MOPPRSSM" ARE SERVICE MARKS
OWNED BY MERRILL LYNCH & CO., INC.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are incorporated by reference in this Prospectus
except as superseded or modified herein or therein:
1. Annual Report of Simon DeBartolo Group, Inc. ("SDG") on Form 10-K
and Form 10-K/A for the year ended December 31, 1997;
2. SDG's Quarterly Reports on Form 10-Q for the quarters ended March
31, 1998 and June 30, 1998;
3. SDG's Current Reports on Form 8-K filed on February 19, 1998, March
30, 1998, May 27, 1998, June 9, 1998 and August 12, 1998;
4. Proxy Statement dated August 13, 1998 for Special and Annual
Meeting of Stockholders of SDG to be held on September 23, 1998;
5. The Operating Partnership's Annual Report on Form 10-K and Form
10-K/A for the year ended December 31, 1997;
6. The Operating Partnership's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1998 and June 30, 1998; and
7. The Operating Partnership's Current Report on Form 8-K filed on
September 18, 1998.
The Exchange Act filing numbers of SDG and the Operating Partnership are
1-12618 and 333-11491, respectively.
All documents filed by the Operating Partnership or SDG with the Securities
and Exchange Commission (the "Commission") pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the Exchange Offer shall be deemed to be incorporated by
reference in this Prospectus and to be a part thereof from the date of filing of
such documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein or contained in this Prospectus shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent any statement contained herein or in any subsequently filed document
which is also deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed to constitute a part hereof except as so modified or superseded.
The foregoing documents of SDG filed under the Exchange Act have been
incorporated by reference herein because they contain information concerning
business, properties, operations and management of the Operating Partnership
through which SDG conducts its operations.
The Operating Partnership hereby undertakes to provide without charge to
each person to whom a Prospectus is delivered, upon the written or oral request
of such person, a copy of any and all of the information incorporated by
reference in this Prospectus (excluding exhibits to such information). Such
requests should be directed to Simon DeBartolo Group, L.P., c/o Simon DeBartolo
Group, Inc., National City Center, 115 West Washington Street, Suite 15 East,
Indianapolis, IN 46204, Attention: Investor Relations; telephone (317) 636-1600.
AVAILABLE INFORMATION
SDG and the Operating Partnership are subject to the information
requirements of the Securities Exchange Act of 1934 and in accordance therewith
file reports and other information with the Commission. Such reports and other
information can be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth St., N.W.,
Washington, D.C. 20549, and at the Regional Offices of the Commission at 7 World
Trade Center, 13th Floor, New York, New York 10048 and Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such
material can be obtained by mail from the Public Reference Section of the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549 at prescribed rates. The Commission maintains a Web
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site (http://www.sec.gov) that contains reports, proxy and information
statements and other materials that are filed through the Commission's
Electronic Data Gathering, Analysis and Retrieval (EDGAR) system. In addition,
the SDG Common Stock is listed on the NYSE and SDG is required to file reports,
proxy and information statements and other information with the NYSE. These
documents can be inspected at the principal office of the NYSE, 11 Wall Street,
New York, New York 10005.
FORWARD-LOOKING STATEMENTS
Certain statements under the captions "Pending CPI Merger," "Description of
Securities" and appearing elsewhere or incorporated by reference in this
Prospectus constitute "forward-looking statements" within the meaning of the
Private Securities Litigation Reform Act of 1995 (the "Reform Act"). Such
forward-looking statements involve known and unknown risks, uncertainties and
other factors which may cause the actual results, performance or achievements of
SDG, the Operating Partnership or Corporate Property Investors, Inc., or
industry results to be materially different from any future results, performance
or achievements expressed or implied by such forward-looking statements. Such
forward-looking statements include, but are not limited to, the following:
general economic and business conditions, which will, without limitation, affect
demand for retail space or retail goods, availability and creditworthiness of
prospective tenants, lease rents and the availability of financing; adverse
changes in the real estate markets including, without limitation, competition
with other companies; risks of real estate development and acquisition; the
continuing ability of SDG and Corporate Property Investors, Inc. to qualify as
real estate investment trusts; adverse changes in federal income tax law
(including the enactment of certain proposals currently pending in or enacted by
Congress); risks relating to year 2000 issues; governmental actions and
initiatives; and environmental/safety requirements.
TABLE OF CONTENTS
SUMMARY..................................................... 3
RISK FACTORS................................................ 8
PENDING CPI MERGER.......................................... 9
RATIO OF EARNINGS TO FIXED CHARGES.......................... 11
USE OF PROCEEDS............................................. 11
THE EXCHANGE OFFER.......................................... 11
DESCRIPTION OF SECURITIES................................... 19
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS..... 35
STATE AND LOCAL TAX CONSIDERATIONS.......................... 38
PLAN OF DISTRIBUTION........................................ 39
VALIDITY OF THE EXCHANGE SECURITIES......................... 40
EXPERTS..................................................... 40
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SUMMARY
The following Summary is qualified in its entirety by, and should be read
in conjunction with, the more detailed information appearing elsewhere in this
Prospectus or incorporated herein by reference. All references to the "Operating
Partnership" or "SDG" in this Prospectus include the Operating Partnership or
SDG, as the case may be, and those entities owned or controlled by each and its
or their predecessors, unless the context indicates otherwise.
THE OPERATING PARTNERSHIP
Simon DeBartolo Group, L.P. (the "Operating Partnership") is a majority
owned subsidiary partnership of Simon DeBartolo Group, Inc., a general partner
of the Operating Partnership ("SDG"). SDG is a self-administered and
self-managed real estate investment trust ("REIT") under the Internal Revenue
Code of 1986, as amended (the "Code"). The Operating Partnership is engaged
primarily in the ownership, operation, management, leasing, acquisition,
expansion and development of real estate properties, primarily regional malls
and community shopping centers. As of June 30, 1998, the Operating Partnership
owned or held an interest in 216 income-producing properties, which consisted of
131 regional malls, 75 community shopping centers, three specialty retail
centers, four mixed-use properties and three value-oriented super-regional malls
located in 34 states (the "SDG Properties"). As of that same date, the Operating
Partnership also owned direct or indirect interests in one specialty retail
center and one value-oriented super-regional mall under construction, an
additional two community centers in the final stages of preconstruction
development and eight parcels of land held for future development (collectively,
"SDG Development Properties," and together with the SDG Properties, "SDG
Portfolio Properties"). The Operating Partnership self-manages SDG Properties
wholly owned, directly or indirectly, by the Operating Partnership. In addition,
the Operating Partnership holds substantially all of the economic interest in
M.S. Management Associates, Inc. (the "SDG Management Company"), while
substantially all of the voting stock is held by Melvin Simon, Herbert Simon and
David Simon. The SDG Management Company manages SDG Properties not wholly owned
by the Operating Partnership and certain other properties, and also engages in
certain property development activities. The Operating Partnership also holds
substantially all of the economic interest in, and the SDG Management Company
holds substantially all of the voting stock of, DeBartolo Properties Management,
Inc. ("DPMI"), which provides architectural, design, construction and other
services to substantially all of the SDG Portfolio Properties, as well as
certain other regional malls and community shopping centers owned by third
parties. At June 30, 1998, SDG's ownership interest in the Operating Partnership
was 63.9% and the Simons (which term means Melvin Simon, Herbert Simon, David
Simon, certain of their affiliates and includes certain other Simon family
members and estates, trusts and other entities established for their benefit)
and certain third parties (collectively, "Limited Partners") held the remaining
interests in the Operating Partnership not held directly or indirectly by SDG.
THE EXCHANGE OFFER
The Exchange Offer............ The Operating Partnership is offering to
exchange (the "Exchange Offer") an aggregate of
up to $375,000,000 principal amount of 6 5/8%
Notes due 2003 (the "Exchange 2003 Notes"),
$300,000,000 principal amount of 6 3/4% Notes
due 2005 (the "Exchange 2005 Notes"),
$200,000,000 principal amount of 7 3/8% Notes
due 2018 (the "Exchange 2018 Notes," and,
together with the Exchange 2003 Notes and the
Exchange 2005 Notes, the "Exchange Notes") and
$200,000,000 principal amount of 7% MandatOry
Par Put Remarketed Securities(SM)
("MOPPRS(SM)") due 2028 (the "Exchange MOPPRS,"
and, together with the Exchange Notes, the
"Exchange Securities") of the Operating
Partnership, which have been registered under
the Securities Act, for a like principal amount
of 6 5/8% Notes due 2003 (the "Original 2003
Notes"),
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6 3/4% Notes due 2005 (the "Original 2005
Notes"), 7 3/8% Notes due 2018 (the "Original
2018 Notes," and, together with the Original
2003 Notes and the Original 2005 Notes, the
"Original Notes") and 7% MOPPRS(SM) due 2028
(the "Original MOPPRS," and, together with the
Original Notes, the "Original Securities"),
respectively, of the Operating Partnership. The
terms of the Exchange Securities are identical
in all material respects to the terms of the
Original Securities of the same series, except
that (i) the Exchange Securities will be freely
transferable by holders thereof except as
provided herein (see "The Exchange Offer --
Terms of the Exchange" and "-- Terms and
Conditions of the Letter of Transmittal") and
(ii) the Exchange Securities will be issued
without any covenant regarding registration
under the Securities Act.
Exchange Securities issued pursuant to the
Exchange Offer in exchange for the Original
Securities may be offered for resale, resold
and otherwise transferred by holders thereof
(other than any holder which is (i) an
"affiliate" of the Operating Partnership within
the meaning of Rule 405 under the Securities
Act, (ii) a broker-dealer who acquired Original
Securities directly from the Issuer or (iii)
broker-dealers who acquired Original Securities
as a result of market making or other trading
activities) without compliance with the
registration and prospectus delivery provisions
of the Securities Act, provided that such
Exchange Securities are acquired in the
ordinary course of such holders' business and
such holders are not engaged in, and do not
intend to engage in, and have no arrangement or
understanding with any person to participate
in, a distribution of such Exchange Securities.
Minimum Condition............. The Exchange Offer is not conditioned upon any
minimum aggregate principal amount of Original
Securities being tendered for exchange.
Expiration Date............... The Exchange Offer will expire at 5:00 p.m.,
New York City time, on , 1998
unless extended (the "Expiration Date").
Exchange Date................. The first date of acceptance for exchange for
the Original Securities will be the first
business day following the Expiration Date.
Conditions to the Exchange
Offer......................... The obligation of the Operating Partnership to
consummate the Exchange Offer is subject to
certain conditions. See "The Exchange
Offer -- Conditions to the Exchange Offer." The
Operating Partnership reserves the right to
terminate or amend the Exchange Offer at any
time prior to the Expiration Date upon the
occurrence of any such condition.
Withdrawal Rights............. Tenders may be withdrawn at any time prior to
the Expiration Date. Any Original Securities
not accepted for any reason will be returned
without expense to the tendering holders
thereof as promptly as practicable after the
expiration or termination of the Exchange
Offer.
Procedures for Tendering
Original Securities........... See "The Exchange Offer -- How to Tender."
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Federal Income Tax
Consequences.................. The exchange of Original Securities for
Exchange Securities by holders will not be a
taxable exchange for federal income tax
purposes, and as a result holders will not
recognize any taxable gain or loss or any
interest income as a result of such exchange.
Effect on Holders of Original
Securities.................. As a result of the making of this Exchange
Offer, and upon acceptance for exchange of all
validly tendered Original Securities pursuant
to the terms of this Exchange Offer, the
Operating Partnership will have fulfilled a
covenant contained in the terms of the Original
Securities and the Registration Rights
Agreement (the "Registration Rights
Agreement"), dated as of June 22, 1998, among
the Operating Partnership and the initial
purchasers of the Original Securities (the
"Initial Purchasers") and, accordingly, the
holders of the Original Securities will have no
further registration or other rights under the
Registration Rights Agreement, except under
certain limited circumstances. See "Description
of Securities -- Registration Rights." Holders
of the Original Securities who do not tender
their Original Securities in the Exchange Offer
will continue to hold such Original Securities
and will be entitled to all the rights and
limitations applicable thereto under the
indenture, dated as of November 26, 1996,
between the Operating Partnership and The Chase
Manhattan Bank, as Trustee (the "Trustee"), as
supplemented by an Indenture Supplement dated
as of June 22, 1998 relating to the Original
Securities and the Exchange Securities
(together, the "Indenture"). All untendered,
and tendered but unaccepted, Original
Securities will continue to be subject to the
restrictions on transfer provided for in such
Original Securities and the Indenture. To the
extent that Original Securities are tendered
and accepted in the Exchange Offer, the trading
market, if any, for the Original Securities
could be adversely affected. See "Risk
Factors -- Consequences of Failure to
Exchange."
Exchange Agent................ The Chase Manhattan Bank, the Trustee under the
Indenture, is serving as exchange agent (the
"Exchange Agent") in connection with the
Exchange Offer. The address of the Exchange
Agent is: 55 Water Street, Room 234, North
Building, New York, NY 10041, Attention: Carlos
Esteves. For information with respect to the
Exchange Offer, the telephone number for the
Exchange Agent is (212) 638-0828 and the
facsimile number for the Exchange Agent is
(212) 638-7375 or (212) 344-9367.
TERMS OF THE SECURITIES
The Exchange Offer applies to each series of Original Securities. The form
and terms of the Exchange Securities are the same as the form and terms of the
Original Securities of the same series for which they may be exchanged except
that the Exchange Securities have been registered under the Securities Act and,
therefore, will not bear legends restricting the transfer thereof. The Exchange
Securities will evidence the same debt as the Original Securities of the same
series and will be entitled to the benefits of the Indenture. The following
summary of the terms of the Securities does not purport to be complete and is
qualified in its entirety by reference to the detailed information appearing
elsewhere herein, including under the heading "Description of Securities."
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Issuer........................ Simon DeBartolo Group, L.P. The principal
executive office of the Operating Partnership
is located at National City Center, 115 West
Washington Street, Suite 15 East, Indianapolis,
IN 46204, and its telephone number at that
address is (317) 636-1600.
Maturity...................... Unless, in each case, redeemed prior to
maturity as described below, the 2003 Notes
will mature on June 15, 2003, the 2005 Notes
will mature on June 15, 2005, the 2018 Notes
will mature on June 15, 2018 and the MOPPRS
will mature on June 15, 2028 (the "Stated
Maturity Date").
Optional Redemption........... The Notes are redeemable at any time at the
option of the Operating Partnership, in whole
or in part, at a redemption price equal to the
sum of (i) the principal amount of the Notes
being redeemed plus accrued interest to the
redemption date and (ii) the Make-Whole Amount,
if any. See "Description of Securities --
Optional Redemption." The MOPPRS will be
redeemable at the option of the Operating
Partnership, (x) prior to the Remarketing Date
with the consent of the Remarketing Dealer and
(y) if the Remarketing Dealer remarkets the
MOPPRS, after the Remarketing Date, in either
case, in whole or in part, at a redemption
price equal to the sum of (i) the principal
amount of the MOPPRS being redeemed plus
accrued interest to the redemption date and
(ii) the Make-Whole Amount, if any. The MOPPRS
are subject to redemption from the Remarketing
Dealer, in whole but not in part, at the option
of the Operating Partnership on the Remarketing
Date at the MOPPRS Optional Redemption Price.
The MOPPRS are not otherwise subject to
redemption by the Operating Partnership prior
to the Remarketing Date. See "Description of
Securities -- Tender of MOPPRS; Remarketing."
Mandatory Tender of MOPPRS;
Remarketing and
Repurchase.................. Provided that the Remarketing Dealer gives
notice to the Operating Partnership and the
Trustee on a Business Day not later than five
Business Days prior to the Remarketing Date of
its intention to purchase MOPPRS for
remarketing, each MOPPRS will be automatically
tendered, or deemed tendered, to the
Remarketing Dealer for purchase on the
Remarketing Date, except in the circumstances
described under "Description of the
Securities -- Repurchase of the MOPPRS" or
"-- Redemption of the MOPPRS."
The purchase price to be paid by the
Remarketing Dealer for the tendered MOPPRS will
be equal to 100% of the principal amount
thereof. When the MOPPRS are tendered for
remarketing, the Remarketing Dealer may
remarket the MOPPRS for its own account at
varying prices to be determined by the
Remarketing Dealer at the time of each sale. If
the Remarketing Dealer for any reason does not
purchase all tendered MOPPRS on the Remarketing
Date or elects not to remarket the MOPPRS, or
in certain other limited circumstances
described herein, the Operating Partnership
will be required to repurchase the MOPPRS from
the holders thereof at a price equal to 100% of
the principal amount thereof plus all accrued
and unpaid interest, if any, on the
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MOPPRS to the Remarketing Date. See
"Description of the Securities -- Repurchase of
the MOPPRS."
Interest Payment Dates........ Interest on the Securities is payable
semi-annually in arrears on June 15 and
December 15, commencing December 15, 1998
("Interest Payment Dates"); provided that, for
the MOPPRS, the Interest Payment Date occurring
in June 2008 shall be June 16, 2008.
Ranking....................... The Securities will rank pari passu with each
other and with all other unsecured and
unsubordinated indebtedness of the Operating
Partnership except that the Securities will be
effectively subordinated to (i) the prior
claims of each secured mortgage lender to any
specific assets which secure such lender's
mortgage and (ii) any claims of creditors of
subsidiaries of the Operating Partnership to
the extent of the assets of such subsidiaries.
Limitations on Incurrence of
Debt.......................... The Securities contain various covenants,
including the following:
(1) The Operating Partnership will not incur
any Debt if, after giving effect thereto,
the aggregate principal amount of all
outstanding Debt is greater than 60% of the
sum of (i) the Operating Partnership's
Adjusted Total Assets as of the end of the
most recent fiscal quarter and (ii) any
increase in Adjusted Total Assets from the
end of such quarter, including any pro
forma increase resulting from the
application of proceeds of such additional
Debt.
(2) The Operating Partnership will not incur
any Secured Debt if, after giving effect
thereto, the aggregate principal amount of
all outstanding Secured Debt is greater
than 55% of the sum of (i) the Operating
Partnership's Adjusted Total Assets as of
the end of the fiscal quarter prior to the
incurrence of such additional Secured Debt
and (ii) any increase in Adjusted Total
Assets from the end of such quarter,
including any pro forma increase resulting
from the application of proceeds of such
additional Secured Debt.
(3) The Operating Partnership will not incur
any Debt if the ratio of EBITDA After
Minority Interest to Interest Expense for
the four consecutive fiscal quarters most
recently ended prior to the incurrence of
such Debt, on a pro forma basis, is less
than 1.75 to 1.
(4) The Operating Partnership is required to
maintain Unencumbered Assets of not less
than 150% of the aggregate outstanding
principal amount of Unsecured Debt.
For definitions of the capitalized terms used
in the foregoing description of covenants, see
"Description of Securities -- Certain
Covenants."
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RISK FACTORS
CONSEQUENCES OF FAILURE TO EXCHANGE
Issuance of the Exchange Securities in exchange for the Original Securities
pursuant to the Exchange Offer will be made only after timely receipt by the
Operating Partnership of such Original Securities, a properly completed and duly
executed Letter of Transmittal or an Agent's Message and all other required
documents. Therefore, holders of Original Securities desiring to tender such
Original Securities in exchange for Exchange Securities should allow sufficient
time to ensure timely delivery. The Operating Partnership is under no duty to
give notification of defects or irregularities with respect to the tenders of
Original Securities for exchange. Original Securities that are not tendered or
that are tendered but not accepted pursuant to the Exchange Offer will continue
to be subject to the restrictions on transfer of such Original Securities as set
forth in the legend thereon and, upon consummation of the Exchange Offer,
certain registration rights under the Registration Rights Agreement will
terminate. In general, the Original Securities may not be offered or sold unless
registered under the Securities Act and applicable state securities laws or
pursuant to an exemption therefrom. Except under certain limited circumstances,
the Operating Partnership does not intend to register the Original Securities
under the Securities Act. In addition, any holder of Original Securities who
tenders in the Exchange Offer for the purpose of participating in a distribution
of Exchange Securities may be deemed to have received restricted securities and,
if so, will be required to comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any resale transaction.
Each Participating Broker-Dealer that receives Exchange Securities for its own
account in exchange for Original Securities, where such Original Securities were
acquired by such Participating Broker-Dealer as a result of market-making
activities or any other trading activities, must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
See "Plan of Distribution." To the extent Original Securities are tendered and
accepted in the Exchange Offer, the trading market, if any, for the Original
Securities not tendered and the price at which they may be sold, could be
adversely affected. See "The Exchange Offer."
ABSENCE OF A PUBLIC MARKET COULD ADVERSELY AFFECT THE VALUE OF THE EXCHANGE
SECURITIES
The Exchange Securities are new securities for which there is currently no
market. The Operating Partnership does not intend to apply for listing of the
Exchange Securities on any securities exchange or for the inclusion of the
Exchange Securities in any automated quotation system. The Original Securities
have been designated for trading in the PORTAL market. Although the Initial
Purchasers may, following completion of the Exchange Offer, make a market in the
Exchange Securities, they are not obligated to do so and any such market making
activities may be discontinued at any time without notice. Accordingly, there
can be no assurance as to the development or liquidity of any market for the
Exchange Securities. If a trading market does not develop or is not maintained,
holders of the Exchange Securities may experience difficulty in reselling the
Exchange Securities or may be unable to sell them at all. If a market for the
Exchange Securities were to develop, the Exchange Securities could trade at
prices that may be higher or lower than their initial offering price depending
upon many factors, including, among other things, prevailing interest rates, the
Operating Partnership's operating results and the markets for similar
securities.
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PENDING CPI MERGER
TERMS OF THE CPI MERGER AGREEMENT
General
SDG has entered into a definitive merger agreement dated as of February 18,
1998 (the "CPI Merger Agreement") with Corporate Property Investors, Inc.
("CPI") and its "paired share" affiliate, Corporate Realty Consultants, Inc.
("CRC"). The CPI Merger Agreement provides that the Operating Partnership will
directly or indirectly acquire all of the assets and liabilities of CPI and the
current stockholders of SDG and CPI will become stockholders of CPI, which will
be renamed Simon Property Group, Inc. in connection with the CPI Merger
(referred to herein as "Simon Group") and will receive or retain beneficial
interests in all of the outstanding common stock of CRC (such transactions, the
"CPI Merger"). The CPI Merger will result in the combination of the existing
businesses and properties of SDG and CPI. The businesses will be conducted and
such properties will be held through the Operating Partnership and/or its
subsidiaries. See "-- Structure of Simon Group After the CPI Merger."
The CPI Merger Agreement provides for (i) (X) the merger of a substantially
wholly owned subsidiary of CPI with and into SDG, and (Y) the conversion of each
outstanding share of SDG Common Stock into the right to receive one share of
common stock, par value $0.0001 per share, of CPI ("CPI Common Stock" and, after
consummation of the CPI Merger, "Simon Common Stock," as the case may be) and
(ii) immediately prior to the consummation of the CPI Merger, the declaration of
a dividend for each outstanding share of CPI Common Stock consisting of: (a)
$90.00 cash (subject to adjustment, as described below) (the "CPI Cash
Dividend"); (b) 1.0818 shares of CPI Common Stock; and (c) 0.19 shares of CPI's
Series B Convertible Preferred Stock, par value $.01 per share, having a
liquidation value of $100 per share ("CPI Series B Preferred Stock," which from
and after the effective time of the CPI Merger shall be referred to as "Simon
Series B Preferred Stock") ((a), (b) and (c), collectively, the "CPI Merger
Dividend"). Each share of Simon Common Stock outstanding or issued in connection
with the CPI Merger will be paired with a beneficial interest in shares of
common stock of CRC ("CRC Common Stock") held by certain trusts.
The CPI Cash Dividend is subject to adjustment as follows: (i) if the
Market Price (as defined below) for the SDG Common Stock at the effective time
of the CPI Merger exceeds $38.67, then the CPI Cash Dividend shall be reduced by
an amount equal to such excess multiplied by 2.0818 and (ii) if the Market Price
for SDG Common Stock at the effective time of the CPI Merger is less than
$28.58, then the CPI Cash Dividend shall be increased by an amount equal to such
deficiency multiplied by 2.0818. The "Market Price" shall be the average of the
closing prices per share for the SDG Common Stock on the New York Stock Exchange
("NYSE") for the 20 consecutive trading days ending on the fifth trading day
prior to the effective time of the CPI Merger.
Conditions to Consummation of the CPI Merger
The CPI Merger is subject to certain conditions, including (i) the approval
and adoption of the CPI Merger Agreement and certain related matters by the
requisite votes of the SDG stockholders, (ii) the approval of the issuance of
shares and related beneficial interests by the requisite vote of CPI and CRC
stockholders (holders representing more than a majority of CPI Common Stock and
more than two-thirds of CPI preferred shares have entered into stockholder
voting agreements agreeing to vote their shares in favor of the CPI Merger and
the adoption of the CPI Merger Agreement); (iii) the Registration Statement on
Form S-4 relating to the issuance of shares of Simon Common Stock to
stockholders of SDG in the CPI Merger having become effective in accordance with
the Securities Act of 1933, as amended (the "Securities Act") and no stop order
suspending the effectiveness of the Registration Statement having been issued
and remaining in effect and no proceeding seeking such an order being pending or
threatened; (iv) the receipt of all state securities or "blue sky" permits and
other authorizations necessary to issue securities (a) pursuant to the CPI
Merger Agreement, (b) under CPI and SDG stock option plans after the CPI Merger
and (c) upon conversion of (I) the 6.50% First Series Preferred Stock of CPI
("CPI Series A Preferred Stock," which from and after the effective time of the
CPI Merger shall be referred to as "Simon Series A Preferred Stock") and
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(II) the CPI Series B Preferred Stock; (v) the Simon Common Stock issued
pursuant to the CPI Merger Agreement, the CPI Common Stock previously
outstanding and issuable under certain SDG and Company option plans or upon
conversion of the Simon Series A Preferred Stock and Simon Series B Preferred
Stock after the CPI Merger having been authorized for listing on the NYSE; (vi)
no court of competent jurisdiction or other competent governmental or regulatory
authority having enacted, issued, promulgated, enforced or entered any law or
order (whether temporary, preliminary or permanent) that is then in effect and
has the effect of making illegal or otherwise restricting, preventing or
prohibiting consummation of the CPI Merger or the other transactions
contemplated by the CPI Merger Agreement; and (vii) each party to the CPI Merger
Agreement having received a satisfactory opinion of its special counsel as to
certain matters. All of the foregoing conditions to consummation of the CPI
Merger are subject to the waiver of the parties to the CPI Merger Agreement.
The Operating Partnership currently expects that the CPI Merger will be
consummated in September 1998, although no assurance can be given that the CPI
Merger will be consummated.
STRUCTURE OF SIMON GROUP AFTER THE CPI MERGER
The CPI Merger will result in the combination of the existing businesses
and properties of SDG and CPI. Substantially all of the businesses will be
conducted and such properties will be held through the Operating Partnership and
one or more subsidiaries of the Operating Partnership. In the CPI Merger, a
substantially wholly owned subsidiary of CPI will merge with and into SDG, with
SDG being the surviving company and becoming a subsidiary of Simon Group (with
Simon Group owning in excess of 99.9% of its outstanding common stock). In
exchange for each of their shares of SDG Common Stock, the stockholders of SDG
will receive one share of Simon Common Stock. Based upon the capitalization of
SDG and CPI on June 30, 1998, the stockholders of SDG would own in the aggregate
approximately 67% of the outstanding shares of Simon Group common stock
following the CPI Merger.
The Operating Partnership will continue in existence after the CPI Merger
under an amended and restated limited partnership agreement. At the effective
time of the CPI Merger, Simon Group will transfer, or direct the transfer of,
substantially all of the assets (i.e., all of the assets other than assets
valued at approximately $153.1 million, including Ocean County Mall, valued at
approximately $145.8 million) and liabilities that, prior to the CPI Merger,
were CPI's assets and liabilities to one or more subsidiaries of the Operating
Partnership, in consideration for 49,859,698 limited partnership units and
5,175,287 preferred partnership interests in the Operating Partnership, which
transfer will result in a reduction of the aggregate percentage interests in the
Operating Partnership held by the Limited Partners from 36.1% to 28.2% assuming
the CPI Merger had occurred on June 30, 1998. The assets and liabilities to be
transferred by Simon Group are valued at approximately $2.4 billion, based on
the consideration to be received or retained by the stockholders of CPI in
connection with the CPI Merger, which amount equals the value of the limited
partnership interests in the Operating Partnership to be transferred to Simon
Group and is based on the closing trading price per share of SDG Common Stock of
$33 5/8 on February 18, 1998, the last trading date preceding public
announcement of the CPI Merger. On June 30, 1998, Melvin and Herbert Simon,
Simon Group's Co-Chairmen, and David Simon, Simon Group's Chief Executive
Officer, held 9.7%, 5.7% and 1.3%, respectively, of the Operating Partnership,
and after such transfer will hold 7.6%, 4.4% and 1.0%, respectively, assuming
such transfer had taken place on June 30, 1998. Each of SDG and SD Property
Group, Inc. (of which SDG owns in excess of 99.9% of the outstanding common
stock) will continue as general partners of the Operating Partnership. Simon
Group, both directly and indirectly through its ownership of SDG, will own
approximately a 71.8% interest in the Operating Partnership and will be a
general partner of the Operating Partnership assuming the CPI Merger had
occurred on June 30, 1998.
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RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the historical consolidated ratio of
earnings to fixed charges of the Operating Partnership and its predecessors for
the periods indicated.
SIX MONTHS ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
- ----------------- -------------------------------------
1998 1997 1997 1996 1995 1994 1993
- ------- ------- ----- ----- ----- ----- -----
1.44x 1.71x 1.68x 1.64x 1.67x 1.43x 3.36x(1)
- ---------------
(1) Prior to the commencement of business by Simon Property Group, L.P. ("SPG,
LP") in December 1993, the predecessor of SPG, LP maintained a different
ownership and equity structure. The operating properties of the predecessor
of SPG, LP historically generated positive net cash flow. The financial
statements of the predecessor of SPG, LP show net income for the period
January 1, 1993 through December 19, 1993. The ratio of earnings to fixed
charges for the period January 1, 1993 through December 19, 1993 was 1.11x.
For purposes of computing the ratio of earnings to fixed charges, earnings
have been calculated by adding fixed charges, excluding capitalized interest, to
income (loss) from continuing operations including income from minority
interests which have fixed charges, and including distributed operating income
from unconsolidated joint ventures instead of income from unconsolidated joint
ventures. Fixed charges consist of interest costs, whether expensed or
capitalized, the interest component of rental expense and amortization of debt
issuance costs.
USE OF PROCEEDS
There will be no proceeds to the Operating Partnership from the exchange
pursuant to the Exchange Offer. The net proceeds from the issuance of the
Original Securities were approximately $1,070.4 billion. The Operating
Partnership used such proceeds to repay amounts outstanding under certain credit
facilities and for general corporate purposes.
THE EXCHANGE OFFER
PURPOSE OF THE EXCHANGE OFFER
The Operating Partnership issued and sold $1.075 billion aggregate
principal amount of Original Securities on June 22, 1998 (the "Closing Date").
Such sale was not registered under the Securities Act in reliance upon the
exemptions provided by Section 4(2) and Rule 144A of the Securities Act. In
connection with the sale of the Original Securities, the Operating Partnership
agreed to use its reasonable efforts to file with the Commission a registration
statement relating to an exchange offer (the "Exchange Offer Registration
Statement") pursuant to which additional series of each issue of Original
Securities of the Operating Partnership, the Exchange Securities, covered by
such registration statement and containing substantially the same terms as the
same series of Original Securities, except as set forth in this Prospectus,
would be offered in exchange for such Original Securities tendered at the option
of the holders thereof. If (i) because of any change in law or in currently
prevailing interpretations of the Staff, the Operating Partnership is not
permitted to effect the Exchange Offer, (ii) the Exchange Offer is not
consummated within 180 days of the Closing Date, or (iii) in the case of any
holder that participates in the Exchange Offer, such holder does not receive
Exchange Securities on the date of the exchange that may be sold without
restriction under state and federal securities laws (other than due solely to
the status of such holder as an affiliate of the Operating Partnership within
the meaning of the Securities Act or as a broker-dealer), then in each case, the
Operating Partnership will (x) promptly deliver to the holders written notice
thereof and (y) at the Operating Partnership's sole expense (a) as promptly as
practicable (but in no event more than 60 days after so required or requested
pursuant to the Registration Rights Agreement), file a shelf registration
statement covering resales of the Original Securities (the "Shelf Registration
Statement"), (b) use its reasonable best efforts to cause the Shelf
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Registration Statement to be declared effective under the Securities Act and (c)
use its reasonable best efforts to keep effective the Shelf Registration
Statement until the earlier of two years (or, if Rule 144(k) is amended to
provide a shorter restrictive period, the end of such shorter period) after the
Closing Date or such time as all of the applicable Securities have been sold
thereunder. In the event that (i) the Operating Partnership has failed to file
the Exchange Offer Registration Statement or, if applicable, the Shelf
Registration Statement, (ii) the Exchange Offer Registration Statement, or, if
applicable, the Shelf Registration Statement, has not been declared effective by
the Commission, or (iii) the Exchange Offer has not been consummated or the
Exchange Offer Registration Statement or the Shelf Registration Statement ceases
to remain effective, in each case within specified time periods, the interest
rate borne by the Original Securities will be increased. See "Description of
Securities -- Registration Rights."
The sole purpose of the Exchange Offer is to fulfill the obligations of the
Operating Partnership under the Registration Rights Agreements.
TERMS OF THE EXCHANGE
The Operating Partnership hereby offers to exchange, upon the terms and
subject to the conditions set forth herein and in the Letter of Transmittal
accompanying this Prospectus (the "Letter of Transmittal"), $1,000 in principal
amount of Exchange Securities for each $1,000 in principal amount of Original
Securities of the same series. The terms of the Exchange Securities are
identical in all material respects to the terms of the Original Securities of
the same series, except that the Exchange Securities will generally be freely
transferable by holders thereof, and the holders of the Exchange Securities (as
well as remaining holders of any Original Securities) will not be entitled to
registration rights under the Registration Rights Agreement. See "Description of
Securities -- Registration Rights." The Exchange Securities will evidence the
same debt as the Original Securities of the same series and will be entitled to
the benefits of the Indenture. See "Description of Securities."
The Exchange Offer is not conditioned upon any minimum aggregate principal
amount of Original Securities being tendered for exchange.
Based on existing interpretations of the Securities Act by the staff of the
Commission (the "Staff") set forth in several no-action letters to third
parties, and subject to the immediately following sentence, the Operating
Partnership believes that the Exchange Securities to be issued pursuant to the
Exchange Offer may be offered for resale, resold and otherwise transferred by
the holders thereof (other than holders who are broker-dealers) without further
compliance with the registration and prospectus delivery provisions of the
Securities Act. However, any purchaser of Securities who is an affiliate of the
Operating Partnership or who intends to participate in the Exchange Offer for
the purpose of distributing the Exchange Securities, or any broker-dealer who
purchased the Securities from the Operating Partnership for resale pursuant to
Rule 144A or any other available exemption under the Securities Act, (i) will
not be able to rely on the interpretations of the Staff set forth in the
above-mentioned no-action letters, (ii) will not be entitled to tender its
Securities in the Exchange Offer and (iii) must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with any
sale or transfer of the Securities unless such sale or transfer is made pursuant
to an exemption from such requirements. See "Plan of Distribution."
Each holder of Original Securities (other than certain specified holders)
who wishes to exchange Original Securities for Exchange Securities in the
Exchange Offer will be required to represent that (i) it is not an affiliate of
the Operating Partnership, (ii) the Exchange Securities to be received by it
were acquired in the ordinary course of its business and (iii) at the time of
the Exchange Offer, it has no arrangement with any person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange
Securities. In addition, in connection with any resales of Exchange Securities,
any broker-dealer who acquired the Security for its own account as a result of
market-making or other trading activities (a "Participating Broker-Dealer") must
deliver a prospectus meeting the requirements of the Securities Act. The
Commission has taken the position that Participating Broker-Dealers may fulfill
their prospectus delivery requirements with respect to the Exchange Securities
(other than a resale of an unsold allotment from the original sale of the
Securities) with the prospectus contained in the Exchange Offer Registration
Statement. Under the
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Registration Rights Agreement, the Operating Partnership is required to allow
Participating Broker-Dealers and other persons, if any, subject to similar
prospectus delivery requirements to use the prospectus contained in the Exchange
Offer Registration Statement in connection with the resale of such Exchange
Securities for a period of 180 days from the issuance of the Exchange
Securities.
Tendering holders of Original Securities will not be required to pay
brokerage commissions or fees or, subject to the instructions in the Letter of
Transmittal, transfer taxes with respect to the exchange of the Original
Securities pursuant to the Exchange Offer.
The Exchange Securities will bear interest from and including their
respective dates of issuance. Interest on Original Securities that are accepted
for exchange will accrue to, but not including, the date of issuance of the
Exchange Securities, such interest to be payable with the first interest payment
on the Exchange Securities to holders of record 15 calendar days prior to such
interest payment date. See "Description of Securities-Principal and Interest."
EXPIRATION DATE; EXTENSIONS; TERMINATION; AMENDMENTS
The Exchange Offer expires on the Expiration Date. The term "Expiration
Date" means 5:00 p.m., New York City time, on , 1998, unless the
Operating Partnership in its sole discretion extends the period during which the
Exchange Offer is open, in which event the term "Expiration Date" means the
latest time and date on which the Exchange Offer, as so extended by the
Operating Partnership, expires. The Operating Partnership reserves the right to
extend the Exchange Offer at any time and from time to time prior to the
Expiration Date by giving written notice to the Exchange Agent, and by timely
public announcement communicated, unless otherwise required by applicable law or
regulation, by making a release to the Dow Jones News Service. During any
extension of the Exchange Offer, all Original Securities previously tendered
pursuant to the Exchange Offer will remain subject to the Exchange Offer.
The initial Exchange Date will be the first business day following the
Expiration Date. The Operating Partnership expressly reserves the right to (i)
terminate the Exchange Offer and not accept for exchange any Original Securities
for any reason, including if any of the events set forth below under
"-- Conditions to the Exchange Offer" shall have occurred and shall not have
been waived by the Operating Partnership and (ii) amend the terms of the
Exchange Offer in any manner, whether before or after any tender of the Original
Securities. If any such termination or amendment occurs, the Operating
Partnership will notify the Exchange Agent in writing and will either issue a
press release or give written notice to the holders of the Original Securities
as promptly as practicable. Unless the Operating Partnership terminates the
Exchange Offer prior to 5:00 p.m., New York City time, on the Expiration Date,
the Operating Partnership will exchange the Exchange Securities for the Original
Securities as promptly as practicable after the Expiration Date.
If the Operating Partnership waives any material condition to the Exchange
Offer, or amends the Exchange Offer in any other material respect, and if at the
time that notice of such waiver or amendment is first published, sent or given
to holders of Original Securities in the manner specified above, the Exchange
Offer is scheduled to expire at any time earlier than the expiration of a period
ending on the fifth business day from, and including, the date that such notice
is first so published, sent or given, then the Exchange Offer will be extended
until the expiration of such period of five business days.
This Prospectus and the related Letter of Transmittal and other relevant
materials will be mailed by the Operating Partnership to record holders of
Original Securities as of , 1998 and will be furnished to brokers,
banks and similar persons whose names, or the names of whose nominees, appear on
the lists of holders for subsequent transmittal to beneficial owners of Original
Securities.
HOW TO TENDER
The tender to the Operating Partnership of Original Securities by a holder
thereof pursuant to one of the procedures set forth below will constitute an
agreement between such holder and the Operating Partnership in accordance with
the terms and subject to the conditions set forth herein and in the Letter of
Transmittal.
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General Procedures. A holder of an Original Security may tender the same
by (i) properly completing and signing the Letter of Transmittal or a facsimile
thereof (all references in this Prospectus to the Letter of Transmittal shall be
deemed to include a facsimile thereof) and delivering the same, together with
the certificate or certificates representing the Original Securities being
tendered and any required signature guarantees (or a timely confirmation of a
book-entry transfer (a "Book-Entry Confirmation") pursuant to the procedure
described below), to the Exchange Agent at its address set forth on the back
cover of this Prospectus on or prior to the Expiration Date or (ii) complying
with the guaranteed delivery procedures described below.
Any financial institution that is a participant in DTC's book-entry
transfer system may make book-entry delivery of the Original Securities by
causing DTC to transfer such Original Securities into the Exchange Agent's
account and to deliver an Agent's Message on or prior to the Expiration Date in
accordance with DTC's procedures for such transfer and delivery. If delivery of
Original Securities is effected through book-entry transfer into the Exchange
Agent's account at DTC and an Agent's Message is not delivered, the Letter of
Transmittal (or facsimile thereof), with any required signature guarantees and
any other required documents must be transmitted to and received or confirmed by
the Exchange Agent at its address set forth on the back cover of this Prospectus
prior to 5:00 p.m., New York City time, on the Expiration Date. DELIVERY OF
DOCUMENTS TO DTC IN ACCORDANCE WITH ITS PROCEDURES DOES NOT CONSTITUTE DELIVERY
TO THE EXCHANGE AGENT.
The term "Agent's Message" means a message, transmitted by DTC to and
received by the Exchange Agent and forming a part of a confirmation of the
book-entry tender of a participant's Original Securities into the Exchange
Agent's account at DTC, which acknowledgment states that such participant has
received and agrees to be bound by, and makes the representations and warranties
contained in, the Letter of Transmittal and the Operating Partnership may
enforce the Letter of Transmittal against such participant.
THE METHOD OF DELIVERY OF ORIGINAL SECURITIES AND ALL OTHER DOCUMENTS IS AT
THE ELECTION AND RISK OF THE HOLDER. IF SENT BY MAIL, IT IS RECOMMENDED THAT
REGISTERED MAIL, RETURN RECEIPT REQUESTED, BE USED, PROPER INSURANCE BE
OBTAINED, AND THE MAILING BE MADE SUFFICIENTLY IN ADVANCE OF THE EXPIRATION DATE
TO PERMIT DELIVERY TO THE EXCHANGE AGENT ON OR BEFORE THE EXPIRATION DATE.
Only a holder of Original Securities may tender such Original Securities in
the Exchange Offer. The term "holder" with respect to the Exchange Offer means
any person in whose name Original Securities are registered on the books of the
Trustee or any other person who has obtained a properly completed bond power
from the registered holder, or any person whose Original Securities are held of
record by DTC who desires to deliver such Original Securities by book-entry
transfer at DTC.
Any beneficial owner whose Original Securities are registered in the name
of a broker, dealer, commercial bank, trust company or other nominee and who
wishes to tender Original Securities should contact such holder promptly and
instruct such holder to tender Original Securities on such beneficial owner's
behalf. If such beneficial owner wishes to tender such Original Securities
himself, such beneficial owner must, prior to completing and executing the
Letter of Transmittal and delivering such Original Securities, either make
appropriate arrangements to register ownership of the Original Securities in
such beneficial owner's name or follow the procedures described in the
immediately preceding paragraph. The transfer of record ownership may take
considerable time.
If tendered Original Securities are registered in the name of the signer of
the Letter of Transmittal and the Exchange Securities to be issued in exchange
therefor are to be issued (and any untendered Original Securities are to be
reissued) in the name of the registered holder, the signature of such signer
need not be guaranteed. In any other case, the tendered Original Securities must
be endorsed or accompanied by written instruments of transfer in form
satisfactory to the Operating Partnership and duly executed by the registered
holder and the signature on the endorsement or instrument of transfer must be
guaranteed by a firm (an "Eligible Institution") that is a member of a
recognized signature guarantee medallion program (an "Eligible Program") within
the meaning of Rule 17Ad-15 under the Exchange Act. If the Exchange Securities
and/or Original Securities not exchanged are to be delivered to an address other
than that of the registered holder
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appearing on the note register for the Original Securities, the signature on the
Letter of Transmittal must be guaranteed by an Eligible Institution.
Book-Entry Transfer. The Exchange Agent will make a request to establish
an account with respect to the Original Securities at The Depository Trust
Company ("DTC") for purposes of the Exchange Offer within two business days
after receipt of this Prospectus, and any financial institution that is a
participant in DTC's systems may make book-entry delivery of Original Securities
by causing DTC to transfer such Original Securities into the Exchange Agent's
account at DTC in accordance with DTC's procedures for transfer. However,
although delivery of Original Securities may be effected through book-entry
transfer at DTC, the Letter of Transmittal (or facsimile thereof or an Agent's
Message in lieu thereof), with any required signature guarantees and any other
required documents, must, in any case, be transmitted to and received by the
Exchange Agent at the address specified on the back cover page of this
Prospectus on or prior to the Expiration Date or the guaranteed delivery
procedures described below must be complied with.
Guaranteed Delivery Procedures. If a holder desires to accept the Exchange
Offer and time will not permit a Letter of Transmittal or Original Securities to
reach the Exchange Agent before the Expiration Date, a tender may be effected if
the Exchange Agent has received at its office listed on the back cover hereof on
or prior to the Expiration Date a letter or facsimile transmission from an
Eligible Institution setting forth the name and address of the tendering holder,
the names in which the Original Securities are registered and, if possible, the
certificate numbers and series of the Original Securities to be tendered, and
stating that the tender is being made thereby and guaranteeing that within three
New York Stock Exchange trading days after the date of execution of such letter
or facsimile transmission by the Eligible Institution, the Original Securities,
in proper form for transfer, will be delivered by such Eligible Institution
together with a properly completed and duly executed Letter of Transmittal (and
any other required documents). Unless Original Securities being tendered by the
above-described method (or a timely Book-Entry Confirmation) are deposited with
the Exchange Agent within the time period set forth above (accompanied or
preceded by a properly completed Letter of Transmittal and any other required
documents), the Operating Partnership may, at its option, reject the tender.
Copies of a Notice of Guaranteed Delivery which may be used by Eligible
Institutions for the purposes described in this paragraph are being delivered
with this Prospectus and the related Letter of Transmittal.
A tender will be deemed to have been received as of the date when the
tendering holder's properly completed and duly signed Letter of Transmittal
accompanied by the Original Securities (or a timely Book-Entry Confirmation) is
received by the Exchange Agent. Issuances of Exchange Securities in exchange for
Original Securities tendered pursuant to a Notice of Guaranteed Delivery or
letter or facsimile transmission to similar effect (as provided above) by an
Eligible Institution will be made only against deposit of the Letter of
Transmittal (and any other required documents) and the tendered Original
Securities (or a timely Book-Entry Confirmation).
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance for exchange of any tender of Original Securities will
be determined by the Operating Partnership, whose determination will be final
and binding. The Operating Partnership reserves the absolute right to reject any
or all tenders not in proper form or the acceptances for exchange of which may,
in the opinion of counsel to the Operating Partnership, be unlawful. The
Operating Partnership also reserves the absolute right to waive any of the
conditions of the Exchange Offer or any defect or irregularities in tenders of
any particular holder whether or not similar defects or irregularities are
waived in the case of other holders. None of the Operating Partnership, the
Exchange Agent or any other person will be under any duty to give notification
of any defects or irregularities in tenders or shall incur any liability for
failure to give any such notification. The Operating Partnership's
interpretation of the terms and conditions of the Exchange Offer (including the
Letter of Transmittal and the instructions thereto) will be final and binding.
TERMS AND CONDITIONS OF THE LETTER OF TRANSMITTAL
The Letter of Transmittal contains, among other things, the following terms
and conditions, which are part of the Exchange Offer.
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The party tendering Original Securities for exchange (the "Transferor")
exchanges, assigns and transfers the Original Securities to the Operating
Partnership and irrevocably constitutes and appoints the Exchange Agent as the
Transferor's agent and attorney-in-fact to cause the Original Securities to be
assigned, transferred and exchanged. The Transferor represents and warrants that
it has full power and authority to tender, exchange, assign and transfer the
Original Securities, and that, when the same are accepted for exchange, the
Operating Partnership will acquire good and unencumbered title to the tendered
Original Securities, free and clear of all liens, restrictions, charges and
encumbrances and not subject to any adverse claim. The Transferor also warrants
that it will, upon request, execute and deliver any additional documents deemed
by the Operating Partnership to be necessary or desirable to complete the
exchange, assignment and transfer of tendered Original Securities. All authority
conferred by the Transferor will survive the death or incapacity of the
Transferor and every obligation of the Transferor shall be binding upon the
heirs, legal representatives, successors, assigns, executors and administrators
of such Transferor.
Each holder of Original Securities (other than certain specified holders)
who wishes to exchange Original Securities for Exchange Securities in the
Exchange Offer will be required to represent in the Letter of Transmittal that
(i) it is not an affiliate of the Operating Partnership, (ii) the Exchange
Securities to be received by it were acquired in the ordinary course of its
business and (iii) at the time of the Exchange Offer, it has no arrangement with
any person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Securities.
WITHDRAWAL RIGHTS
Original Securities tendered pursuant to the Exchange Offer may be
withdrawn at any time prior to the Expiration Date.
For a withdrawal to be effective, a written or facsimile transmission
notice of withdrawal must be timely received by the Exchange Agent at its
address set forth on the back cover of this Prospectus. Any such notice of
withdrawal must specify the person named in the Letter of Transmittal as having
tendered Original Securities to be withdrawn, the certificate numbers of
Original Securities to be withdrawn, the principal amount of Original Securities
to be withdrawn (which must be an authorized denomination), that such holder is
withdrawing his election to have such Original Securities exchanged, and the
name of the registered holder of such Original Securities. Additionally, the
signature on the notice of withdrawal must be guaranteed by an Eligible
Institution (except in the case of Original Securities tendered for the account
of an Eligible Institution). The Exchange Agent will return the properly
withdrawn Original Securities promptly following receipt of notice of
withdrawal. All questions as to the validity of notices of withdrawals,
including time of receipt, will be determined by the Operating Partnership, and
such determination will be final and binding on all parties.
ACCEPTANCE OF ORIGINAL SECURITIES FOR EXCHANGE; DELIVERY OF EXCHANGE SECURITIES
Upon the terms and subject to the conditions of the Exchange Offer, the
acceptance for exchange of Original Securities validly tendered and not
withdrawn will be made on the Exchange Date. The Exchange Securities will be
issued as promptly as practicable after the Expiration Date. For the purposes of
the Exchange Offer, the Operating Partnership shall be deemed to have accepted
for exchange validly tendered Original Securities when, as and if the Operating
Partnership has given oral or written notice thereof to the Exchange Agent, with
written confirmation of any oral notice to be given promptly thereafter.
The Exchange Agent will act as agent for the tendering holders of Original
Securities for the purposes of receiving Exchange Securities from the Operating
Partnership and causing the Original Securities to be assigned, transferred and
exchanged. Upon the terms and subject to the conditions of the Exchange Offer,
delivery of Exchange Securities to be issued in exchange for accepted Original
Securities will be made by the Exchange Agent promptly after acceptance of the
tendered Original Securities. Original Securities not accepted for exchange by
the Operating Partnership will be returned without expense to the tendering
holders (or in the case of Original Securities tendered by book-entry transfer
into the Exchange Agent's account at DTC pursuant to the procedures described
above, such non-exchanged Original Securities will be credited to
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an account maintained with DTC promptly following the Expiration Date or, if the
Operating Partnership terminates the Exchange Offer prior to the Expiration
Date, promptly after the Exchange Offer is so terminated.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provision of the Exchange Offer, or any extension
of the Exchange Offer, the Operating Partnership will not be required to issue
Exchange Securities in respect of any properly tendered Original Securities not
previously accepted and may terminate the Exchange Offer (by oral or written
notice to the Exchange Agent and by timely public announcement communicated,
unless otherwise required by applicable law or regulation, by making a release
to the Dow Jones News Service) or, at its option, modify or otherwise amend the
Exchange Offer, if (a) there shall be threatened, instituted or pending any
action or proceeding before, or any injunction, order or decree shall have been
issued by, any court or governmental agency or other governmental regulatory or
administrative agency or commission, (i) seeking to restrain or prohibit the
making or consummation of the Exchange Offer or any other transaction
contemplated by the Exchange Offer, (ii) assessing or seeking any damages as a
result thereof, or (iii) resulting in a material delay in the ability of the
Operating Partnership to accept for exchange or exchange some or all of the
Original Securities pursuant to the Exchange Offer; (b) any statute, rule,
regulation, order or injunction shall be sought, proposed, introduced, enacted,
promulgated or deemed applicable to the Exchange Offer or any of the
transactions contemplated by the Exchange Offer by any government or
governmental authority, domestic or foreign, or any action shall have been
taken, proposed or threatened, by any government, governmental authority, agency
or court, domestic or foreign, that in the sole judgment of the Operating
Partnership might directly or indirectly result in any of the consequences
referred to in clauses (a)(i) or (ii) above or, in the sole judgment of the
Operating Partnership, might result in the holders of Exchange Securities having
obligations with respect to resales and transfers of Exchange Securities which
are greater than those described in the interpretations of the Commission
referred to on the cover page of this Prospectus, or would otherwise make it
inadvisable to proceed with the Exchange Offer; or (c) a material adverse change
shall have occurred in the business, condition (financial or otherwise),
operations, or prospects of the Operating Partnership.
The foregoing conditions are for the sole benefit of the Operating
Partnership and may be asserted by it with respect to all or any portion of the
Exchange Offer regardless of the circumstances (including any action or inaction
by the Operating Partnership) giving rise to such condition or may be waived by
the Operating Partnership in whole or in part at any time or from time to time
in their sole discretion. The failure by the Operating Partnership at any time
to exercise any of the foregoing rights will not be deemed a waiver of any such
right, and each right will be deemed an ongoing right which may be asserted at
any time or from time to time. In addition, the Operating Partnership has
reserved the right, notwithstanding the satisfaction of each of the foregoing
conditions, to terminate or amend the Exchange Offer.
Any determination by the Operating Partnership concerning the fulfillment
or non-fulfillment of any conditions will be final and binding upon all parties.
In addition, the Operating Partnership will not accept for exchange any
Original Securities tendered and no Exchange Securities will be issued in
exchange for any such Original Securities, if at such time any stop order shall
be threatened or in effect with respect to (i) the Registration Statement of
which this Prospectus constitutes a part or (ii) qualification under the Trust
Indenture Act of 1939 (the "TIA") of the Indenture pursuant to which such
Original Securities were issued.
EXCHANGE AGENT
The Chase Manhattan Bank has been appointed as the Exchange Agent for the
Exchange Offer. Letters of Transmittal must be addressed to the Exchange Agent
at its address set forth on the back cover page of this Prospectus.
Delivery to an address other than as set forth herein, or transmissions of
instructions via a facsimile number other than the ones set forth herein, will
not constitute a valid delivery.
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SOLICITATION OF TENDERS; EXPENSES
The Operating Partnership has not retained any dealer-manager or similar
agent in connection with the Exchange Offer and will not make any payments to
brokers, dealers or others for soliciting acceptances of the Exchange Offer. The
Operating Partnership will, however, pay the Exchange Agent reasonable and
customary fees for its services and will reimburse it for reasonable
out-of-pocket expenses in connection therewith.
No person has been authorized to give any information or to make any
representations in connection with the Exchange Offer other than those contained
in this Prospectus. If given or made, such information or representations should
not be relied upon as having been authorized by the Operating Partnership.
Neither the delivery of this Prospectus nor any exchange made hereunder shall,
under any circumstances, create any implication that there has been no change in
the affairs of the Operating Partnership since the respective dates as of which
information is given herein. The Exchange Offer is not being made to (nor will
tenders be accepted from or on behalf of) holders of Original Securities in any
jurisdiction in which the making of the Exchange Offer or the acceptance thereof
would not be in compliance with the laws of such jurisdiction. However, the
Operating Partnership may, at its discretion, take such action as it may deem
necessary to make the Exchange Offer in any such jurisdiction and extend the
Exchange Offer to holders of Original Securities in such jurisdiction. In any
jurisdiction the securities laws or blue sky laws of which require the Exchange
Offer to be made by a licensed broker or dealer, the Exchange Offer is being
made on behalf of the Operating Partnership by one or more registered brokers or
dealers which are licensed under the laws of such jurisdiction.
APPRAISAL RIGHTS
HOLDERS OF ORIGINAL SECURITIES WILL NOT HAVE DISSENTERS' RIGHTS OR
APPRAISAL RIGHTS IN CONNECTION WITH THE EXCHANGE OFFER.
FEDERAL INCOME TAX CONSEQUENCES
The exchange of Original Securities for Exchange Securities by holders will
not be a taxable exchange for Federal income tax purposes, and holders should
not recognize any taxable gain or loss or any interest income as a result of
such exchange.
OTHER
Participation in the Exchange Offer is voluntary and holders should
carefully consider whether to accept. Holders of the Original Securities are
urged to consult their financial and tax advisors in making their own decisions
on what action to take.
As a result of the making of, and upon acceptance for exchange of all
validly tendered Original Securities pursuant to the terms of this Exchange
Offer, the Operating Partnership will have fulfilled a covenant contained in the
terms of the Original Securities and the Registration Rights Agreement. Holders
of the Original Securities who do not tender their certificates in the Exchange
Offer will continue to hold such certificates and will be entitled to all the
rights, and limitations applicable thereto, under the Indenture pursuant to
which such Original Securities were issued, except for any such rights under the
respective Registration Rights Agreement, which by their terms terminate or
cease to have further effect as a result of the making of this Exchange Offer.
See "Description of the Securities." All untendered Original Securities will
continue to be subject to the restriction on transfer set forth in the Indenture
pursuant to which such Original Securities were issued.
The Operating Partnership may in the future seek to acquire untendered
Original Securities in open market or privately negotiated transactions, through
subsequent exchange offers or otherwise. The Operating Partnership has no
present plan to acquire any Original Securities which are not tendered in the
Exchange Offer.
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DESCRIPTION OF SECURITIES
The Exchange Securities, like the Original Securities, will be issued under
an Indenture dated as of November 26, 1996, between the Operating Partnership
and The Chase Manhattan Bank, as Trustee (the "Trustee"), as supplemented by an
Indenture Supplement dated as of June 22, 1998 (together, the "Indenture"). The
terms of the Securities include those provisions contained in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (the "TIA"). The following summaries of certain provisions of
the Indenture do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all provisions of the Indenture,
including the definition therein of certain terms, and the TIA. A copy of the
Indenture is filed as an exhibit to the Registration Statement of which this
Prospectus forms a part.
GENERAL
The 2003 Notes, 2005 Notes, 2018 Notes and the MOPPRS will be limited in
aggregate principal amount to $375,000,000, $300,000,000, $200,000,000 and
$200,000,000, respectively. The Exchange Securities will be issuable in fully
registered form, without coupons, in minimum denominations of $1,000 and
integral multiples of $1,000 in excess thereof. The Securities will be unsecured
and unsubordinated and will rank pari passu with all other unsecured and
unsubordinated obligations of the Operating Partnership from time to time
outstanding (other than obligations preferred by mandatory provisions of law).
The Securities will be effectively subordinated to (i) the prior claims of each
secured mortgage lender to any specific SDG Portfolio Property that secures such
lender's mortgage and (ii) any claims of creditors of subsidiaries of the
Operating Partnership to the extent of the assets of such subsidiaries. Subject
to certain limitations set forth in the Indenture, and as described under
"-- Certain Covenants -- Limitations on Incurrence of Debt" below, the Indenture
will permit the Operating Partnership and its subsidiaries to incur additional
secured and unsecured indebtedness. No partner (whether limited or general,
including SDG) of the Operating Partnership has any obligation for payment of
principal of (and premium, if any) and interest, if any, on, or any other amount
with respect to, the Securities.
Unless redeemed prior to maturity as described under "-- Optional
Redemption of Notes," the entire principal amount of each of the 2003 Notes, the
2005 Notes and the 2018 Notes will mature and become due and payable, together
with accrued and unpaid interest thereon, if any, on June 15, 2003, June 15,
2005, and June 15, 2018, respectively. Unless redeemed prior to maturity as
described under "-- Optional Redemption" and "-- Redemption of MOPPRS," the
MOPPRS will mature on June 15, 2028 (the "Stated Maturity Date"). The MOPPRS are
subject to mandatory tender on June 16, 2008. See "-- Tender of MOPPRS;
Remarketing." The Securities are not subject to any sinking fund provisions.
Except as described under "-- Certain Covenants -- Limitations on
Incurrence of Debt" and under "-- Merger, Consolidation or Sale," the Indenture
does not contain any provisions that would limit the ability of the Operating
Partnership to incur indebtedness or that would afford holders of the Notes
protection in the event of (i) a highly leveraged or similar transaction
involving the Operating Partnership, SDG, or any affiliate thereof, (ii) a
change of control, or (iii) a reorganization, restructuring, merger or similar
transaction involving the Operating Partnership that may adversely affect the
holders of the Notes. In addition, subject to the limitations set forth under
"-- Merger, Consolidation or Sale," the Operating Partnership may, in the
future, enter into certain transactions such as the sale of all or substantially
all of its assets or the merger or consolidation of the Operating Partnership
that would increase the amount of the Operating Partnership's indebtedness or
substantially reduce or eliminate the Operating Partnership's assets, which may
have an adverse effect on the Operating Partnership's ability to service its
indebtedness, including the Notes.
PRINCIPAL AND INTEREST
The 2003 Notes will bear interest at 6 5/8% per annum, the 2005 Notes will
bear interest at 6 3/4% per annum and the 2018 Notes will bear interest at
7 3/8% per annum, in each case from June 22, 1998, or from the immediately
preceding Interest Payment Date to which interest has been paid, payable
semi-annually in arrears on each June 15 and December 15, commencing December
15, 1998, and on the maturity date. The
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MOPPRS will bear interest from June 22, 1998 at the annual interest rate of 7%
to the Remarketing Date. Such interest shall be payable in arrears on each June
15 and December 15, commencing December 15, 1998; provided that on the Interest
Payment Date occurring in June 2008, interest shall be payable on June 16, 2008.
If the Remarketing Dealer elects to remarket the MOPPRS, except in the limited
circumstances described herein, (i) the MOPPRS will be subject to mandatory
tender to the Remarketing Dealer at 100% of the principal amount thereof for
remarketing on the Remarketing Date, on the terms and subject to the conditions
described herein, and (ii) on and after the Remarketing Date, the MOPPRS will
bear interest at the rate determined by the Remarketing Dealer in accordance
with the procedures set forth below (the "Interest Rate to Maturity"). See
"-- Tender of MOPPRS; Remarketing."
Interest on the Securities will be payable to the persons in whose names
the applicable Securities are registered in the security register applicable to
the Securities maintained by the Operating Partnership at the corporate trust
office of the Trustee (the "Security Register") at the close of business 15
calendar days prior to such Interest Payment Date regardless of whether such day
is a Business Day, as defined below. Interest on the Securities will be computed
on the basis of a year of twelve 30-day months.
The principal of each Security payable at maturity or redemption will be
paid against presentation and surrender of such Security at the corporate trust
office of the Trustee, located at New York, New York, in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts.
If any Interest Payment Date or the maturity date falls on a day that is
not a Business Day, the required payment shall be made on the next Business Day
with the same force and effect as though it were made on the date such payment
was due and no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date or the maturity date, as the case may
be. "Business Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions in The City of
New York are authorized or required by law, regulation or executive order to
close.
OPTIONAL REDEMPTION
The Notes of any series may be redeemed at any time after the Closing Date,
and the MOPPRS may be redeemed at any time at the option of the Operating
Partnership, (x) prior to the Remarketing Date with the consent of the
Remarketing Dealer and (y) if the Remarketing Dealer has remarketed the MOPPRS,
after the Remarketing Date, in all cases, in whole or from time to time in part,
at a redemption price equal to the sum of (i) the principal amount of the
Securities being redeemed plus accrued interest thereon to the redemption date
and (ii) the Make-Whole Amount (as defined below), if any, with respect to such
Securities (the "Redemption Price").
If notice of redemption has been given as provided in the Indenture and
funds for the redemption of any Securities of any series called for redemption
shall have been made available on the redemption date referred to in such
notice, such Securities will cease to bear interest on the date fixed for such
redemption specified in such notice and the only right of the holders of the
Securities from and after the redemption date will be to receive payment of the
Redemption Price upon surrender of such Securities in accordance with such
notice.
Notice of any optional redemption of any Securities of any series will be
given to holders at their addresses, as shown in the Security Register for the
Securities, not more than 60 nor less than 30 days prior to the date fixed for
redemption. The notice of redemption will specify, among other items, the
Redemption Price and the principal amount of the Securities of such series held
by such holder to be redeemed.
If less than all the Securities of any series are to be redeemed at the
option of the Operating Partnership, the Operating Partnership will notify the
Trustee at least 45 days prior to giving notice of redemption (or such shorter
period as may be satisfactory to the Trustee) of the aggregate principal amount
of Securities of such series to be redeemed and their redemption date. The
Trustee shall select, in such manner as it shall deem fair and appropriate,
Securities of such series to be redeemed in whole or in part.
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As used herein:
"Make-Whole Amount" means, in connection with any optional redemption or
accelerated payment of any Securities, the excess, if any, of (i) the aggregate
present value as of the date of such redemption or accelerated payment of each
dollar of principal being redeemed or paid and the amount of interest (exclusive
of interest accrued to the date of redemption or accelerated payment) that would
have been payable in respect of each such dollar if such redemption or
accelerated payment had not been made (through the Remarketing Date in the case
of a Make-Whole Amount with respect to a redemption of MOPPRS prior to the
Remarketing Date), determined by discounting, on a semi-annual basis, such
principal and interest at the Reinvestment Rate (determined on the third
Business Day preceding the date notice of such redemption is given or
declaration of acceleration is made) from the respective dates on which such
principal and interest would have been payable if such redemption or accelerated
payment had not been made, to the date of redemption or accelerated payment,
over (ii) the aggregate principal amount of the Securities being redeemed or
accelerated.
"Reinvestment Rate" means the yield on treasury securities at a constant
maturity corresponding to the remaining life (as of the date of redemption, and
rounded to the nearest month) to stated maturity of the principal being redeemed
(the "Treasury Yield"), plus .25%. For purposes hereof, the Treasury Yield shall
be equal to the arithmetic mean of the yields published in the Statistical
Release under the heading "Week Ending" for "U.S. Government
Securities -- Treasury Constant Maturities" with a maturity equal to such
remaining life; provided, that if no published maturity exactly corresponds to
such remaining life, then the Treasury Yield shall be interpolated or
extrapolated on a straight-line basis from the arithmetic means of the yields
for the next shortest and next longest published maturities, rounding each of
such relevant periods to the nearest month. For purposes of calculating the
Reinvestment Rate, the most recent Statistical Release published prior to the
date of determination of the Make-Whole amount shall be used. If the format or
content of the Statistical Release changes in a manner that precludes
determination of the Treasury Yield in the above manner, then the Treasury Yield
shall be determined in the manner that most closely approximates the above
manner, as reasonably determined by the Operating Partnership.
"Statistical Release" means the statistical release designated "H.15(519)"
or any successor publication which is published weekly by the Federal Reserve
System and which reports yields on actively traded United States government
securities adjusted to constant maturities, or, if such statistical release is
not published at the time of any determination under the Indenture, then such
other reasonably comparable index which shall be designated by the Operating
Partnership.
TENDER OF MOPPRS; REMARKETING
The following description sets forth the terms and conditions of the
remarketing of the MOPPRS, in the event that the Remarketing Dealer elects to
purchase the MOPPRS and remarkets the MOPPRS on the Remarketing Date.
Mandatory Tender. Provided that the Remarketing Dealer gives notice to the
Operating Partnership and the Trustee on a Business Day not later than five
Business Days prior to the Remarketing Date of its intention to purchase the
MOPPRS for remarketing (the "Notification Date"), each MOPPRS will be
automatically tendered, or deemed tendered, to the Remarketing Dealer for
purchase on the Remarketing Date, except in the circumstances described under
"-- Repurchase of MOPPRS" or "-- Redemption of MOPPRS." The purchase price for
the tendered MOPPRS to be paid by the Remarketing Dealer will equal 100% of the
principal amount thereof. See "-- Notification of Results; Settlement." When the
MOPPRS are tendered for remarketing, the Remarketing Dealer may remarket the
MOPPRS for its own account at varying prices to be determined by the Remarketing
Dealer at the time of each sale. From and after the Remarketing Date, the MOPPRS
will bear interest at the Interest Rate to Maturity. If the Remarketing Dealer
elects to remarket the MOPPRS, the obligation of the Remarketing Dealer to
purchase the MOPPRS on the Remarketing Date is subject to, among other things,
the conditions that, since the Notification Date, no material adverse change in
the condition of the Operating Partnership and its subsidiaries, considered as
one enterprise, shall have occurred and that no Event of Default (as defined in
the Indenture), or any event which,
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with the giving of notice or passage of time, or both, would constitute an Event
of Default, with respect to the MOPPRS shall have occurred and be continuing. If
for any reason the Remarketing Dealer does not purchase all tendered MOPPRS on
the Remarketing Date, the Operating Partnership will be required to repurchase
the MOPPRS from the holders thereof at a price equal to the principal amount
thereof plus all accrued and unpaid interest, if any, on the MOPPRS to the
Remarketing Date. See "-- Repurchase of MOPPRS."
The Interest Rate to Maturity shall be determined by the Remarketing Dealer
by 3:30 p.m., New York City time, on the third Business Day immediately
preceding the Remarketing Date (the "Determination Date") to the nearest one
hundred-thousandth (0.00001) of one percent per annum and will be equal to
5.649% (the "Base Rate") plus the Applicable Spread (as defined below) which
will be based on the Dollar Price (as defined below) of the MOPPRS.
The "Applicable Spread" will be the lowest bid indication, expressed as a
spread (in the form of a percentage or in basis points) above the Base Rate,
obtained by the Remarketing Dealer on the Determination Date from the bids
quoted by five Reference Corporate Dealers (as defined below) for the full
aggregate principal amount of the MOPPRS at a purchase price equal to the Dollar
Price, but assuming (i) an issue date equal to the Remarketing Date, with
settlement on such date without accrued interest, (ii) a maturity date equal to
the Stated Maturity Date of the MOPPRS, and (iii) a stated annual interest rate,
payable semiannually on each Interest Payment Date, equal to the Base Rate plus
the spread bid by the applicable Reference Corporate Dealer. If fewer than five
Reference Corporate Dealers bid as described above, then the Applicable Spread
shall be the lowest of such bid indications obtained as described above. The
Interest Rate to Maturity announced by the Remarketing Dealer, absent manifest
error, shall be binding and conclusive upon the Beneficial Owners and Holders of
the MOPPRS, the Operating Partnership and the Trustee.
"Dollar Price" means, with respect to the MOPPRS, the present value as
determined by the Remarketing Dealer, as of the Remarketing Date, of the
Remaining Scheduled Payments (as defined below) discounted to the Remarketing
Date, on a semiannual basis (assuming a 360-day year consisting of twelve 30-day
months), at the Treasury Rate (as defined below).
"Reference Corporate Dealers" means leading dealers of publicly traded debt
securities of the Operating Partnership in The City of New York (which may
include the Remarketing Dealer or one of its affiliates, but not both) selected
by the Remarketing Dealer and reasonably acceptable to the Operating
Partnership.
"Treasury Rate" means, with respect to the Determination Date, the rate per
annum equal to the semiannual equivalent yield to maturity or interpolated (on a
day count basis) yield to maturity of the Comparable Treasury Issues (as defined
below), assuming a price for the Comparable Treasury Issues (expressed as a
percentage of its principal amount), equal to the Comparable Treasury Price (as
defined below) for such Determination Date.
"Comparable Treasury Issues" means the United States Treasury security or
securities selected by the Remarketing Dealer as having an actual or
interpolated remaining maturity or maturities of thirty years.
"Comparable Treasury Price" means, with respect to the Determination Date,
(a) the offer prices for the Comparable Treasury Issues (expressed in each case
as a percentage of its principal amount) on the Determination Date, as set forth
on "Telerate Page 500" (or such other page as may replace Telerate Page 500) or
(b) if such page (or any successor page) is not displayed or does not contain
such offer prices on such Business Day, (i) the average of the Reference
Treasury Dealer Quotations for such Determination Date, after excluding the
highest and lowest of such Reference Treasury Dealer Quotations, or (ii) if the
Remarketing Dealer obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such Reference Treasury Dealer Quotations.
"Telerate Page 500" means the display designated as "Telerate Page 500" on Dow
Jones Markets Limited (or such other page as may replace Telerate Page 500 on
such service) or such other service displaying the offer prices specified in (a)
above as may replace Dow Jones Markets Limited. "Reference Treasury Dealer
Quotations" means, with respect to each Reference Treasury Dealer and the
Remarketing Date, the offer prices for the Comparable Treasury Issues (expressed
in each case as a percentage of its principal amount) quoted to the Remarketing
Dealer by such Reference Treasury Dealer by 3:30 p.m., New York City time, on
the Determination Date.
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"Reference Treasury Dealer" means each of Credit Suisse First Boston
Corporation, Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Morgan Stanley & Co. Incorporated and Salomon Brothers Inc (or
their respective affiliates which are primary U.S. Government securities
dealers) and their respective successors; provided, however, that if any of the
foregoing or their affiliates shall cease to be a primary U.S. Government
securities dealer in The City of New York (a "Primary Treasury Dealer").
"Remaining Scheduled Payments" means, with respect to the MOPPRS, the
remaining scheduled payments of the principal thereof and interest thereon,
calculated at the Base Rate only, that would be due after the Remarketing Date
to and including the Stated Maturity Date, as determined by the Remarketing
Dealer.
Notification of Results; Settlement. Provided the Remarketing Dealer has
previously notified the Operating Partnership and the Trustee on the
Notification Date of its intention to purchase all tendered MOPPRS on the
Remarketing Date, the Remarketing Dealer will notify the Operating Partnership,
the Trustee and DTC by telephone, confirmed in writing (which may include
facsimile or other electronic transmission), by 4:00 p.m., New York City time,
on the Determination Date, of the Interest Rate to Maturity. All of the tendered
MOPPRS will be automatically delivered to the account of the Trustee, by
book-entry through DTC pending payment of the purchase price therefor, on the
Remarketing Date.
In the event that the Remarketing Dealer purchases the tendered MOPPRS on
the Remarketing Date, the Remarketing Dealer will make or cause the Trustee to
make payment of 100% of the principal amount of the tendered MOPPRS that have
been purchased for remarketing by the Remarketing Dealer. If the Remarketing
Dealer does not purchase all of the MOPPRS on the Remarketing Date, it will be
the obligation of the Operating Partnership to make or cause to be made such
payment for the MOPPRS, as described below under "-- Repurchase of MOPPRS." In
any case, the Operating Partnership will make or cause the Trustee to make
payment of interest due on the Remarketing Date by book-entry through DTC by the
close of business on the Remarketing Date.
The transactions described above will be executed on the Remarketing Date
through DTC in accordance with the procedures of DTC, and the accounts of the
respective DTC Participants will be debited and credited and the MOPPRS
delivered by book-entry as necessary to effect the purchases and sales thereof.
Transactions involving the sale and purchase of MOPPRS remarketed by the
Remarketing Dealer on and after the Remarketing Date will settle in immediately
available funds through DTC's Same-Day Funds Settlement System.
The tender and settlement procedures described above, including provisions
for payment by purchasers of MOPPRS in the remarketing or for payment to holders
of tendered MOPPRS, may be modified to the extent required by DTC or to the
extent required to facilitate the tender and remarketing of MOPPRS in
certificated form, if the book-entry system is no longer available for the
MOPPRS at the time of the remarketing. In addition, the Remarketing Dealer may,
in accordance with the terms of the Indenture, modify the tender and settlement
procedures set forth above in order to facilitate the tender and settlement
process.
The Remarketing Dealer. The Operating Partnership and the Remarketing
Dealer are entering into a Remarketing Agreement, the general terms and
provisions of which are summarized below.
The Remarketing Dealer will not receive any fees or reimbursement of
expenses from the Operating Partnership in connection with the remarketing.
The Operating Partnership will agree to indemnify the Remarketing Dealer
against certain liabilities, including liabilities under the Securities Act of
1933 (the "Securities Act"), arising out of or in connection with its duties
under the Remarketing Agreement.
In the event that the Remarketing Dealer elects to remarket the MOPPRS as
described herein, the obligation of the Remarketing Dealer to purchase MOPPRS
from tendering holders of MOPPRS will be subject to several conditions precedent
set forth in the Remarketing Agreement, including the conditions that, since the
Notification Date, no material adverse change in the condition of the Operating
Partnership and its subsidiaries, considered as one enterprise, shall have
occurred and that no Event of Default (as defined in the
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Indenture), or any event which, with the giving of notice or passage of time, or
both, would constitute an Event of Default, with respect to the MOPPRS shall
have occurred and be continuing. In addition, the Remarketing Agreement will
provide for the termination thereof, or redetermination of the Interest Rate to
Maturity, by the Remarketing Dealer on or before the Remarketing Date, upon the
occurrence of certain events as set forth in the Remarketing Agreement.
No holder of any MOPPRS shall have any rights or claims under the
Remarketing Agreement or against the Remarketing Dealer as a result of the
Remarketing Dealer not purchasing such MOPPRS.
The Remarketing Agreement will also provide that the Remarketing Dealer may
resign at any time as Remarketing Dealer, such resignation to be effective 10
days after the delivery to the Operating Partnership and the Trustee of notice
of such resignation. In such case, it shall be the sole obligation of the
Operating Partnership to appoint a successor Remarketing Dealer, if it desires
to do so.
The Remarketing Dealer, in its individual or any other capacity, may buy,
sell, hold and deal in any of the MOPPRS. The Remarketing Dealer may exercise
any vote or join in any action which any Beneficial Owner of MOPPRS may be
entitled to exercise or take with like effect as if it did not act in any
capacity under the Remarketing Agreement. The Remarketing Dealer, in its
individual capacity, either as principal or agent, may also engage in or have an
interest in any financial or other transaction with the Operating Partnership as
freely as if did not act in any capacity under the Remarketing Agreement.
REPURCHASE OF MOPPRS
In the event that (i) the Remarketing Dealer for any reason does not notify
the Operating Partnership of the Interest Rate to Maturity by 4:00 p.m., New
York City time, on the Determination Date, or (ii) prior to the Remarketing
Date, the Remarketing Dealer has resigned and no successor has been appointed on
or before the Determination Date, or (iii) since the Notification Date, the
Remarketing Dealer has terminated the Remarketing Agreement due to the
occurrence of a material adverse change in the condition of the Operating
Partnership and its subsidiaries, considered as one enterprise, an Event of
Default, or any event which, with the giving of notice or passage of time, or
both, would constitute an Event of Default, with respect to the MOPPRS, or any
other event constituting a termination event under the Remarketing Agreement, or
(iv) the Remarketing Dealer elects not to remarket the MOPPRS, or (v) the
Remarketing Dealer for any reason does not purchase all tendered MOPPRS on the
Remarketing Date, the Operating Partnership will repurchase the MOPPRS as a
whole on the Remarketing Date at a price equal to 100% of the principal amount
of the MOPPRS plus all accrued and unpaid interest, if any, on the MOPPRS to the
Remarketing Date. In any such case, payment will be made by the Operating
Partnership to the DTC Participant of each tendering holder of MOPPRS, by
book-entry through DTC by the close of business on the Remarketing Date against
delivery through DTC of such Beneficial Owner's tendered MOPPRS.
REDEMPTION OF MOPPRS
If the Remarketing Dealer elects to remarket the MOPPRS on the Remarketing
Date, the MOPPRS will be subject to mandatory tender to the Remarketing Dealer
for remarketing on such date, in each case subject to the conditions described
above under "-- Tender of MOPPRS; Remarketing" and "-- Repurchase of MOPPRS" and
to the Operating Partnership's right to redeem the MOPPRS from the Remarketing
Dealer as described in the next sentence. The Operating Partnership will notify
the Remarketing Dealer and the Trustee, not later than the Business Day
immediately preceding the Determination Date, if the Operating Partnership
irrevocably elects to exercise its right to redeem the MOPPRS, in whole but not
in part, from the Remarketing Dealer on the Remarketing Date at the MOPPRS
Optional Redemption Price.
The "MOPPRS Optional Redemption Price" shall be the greater of (i) 100% of
the principal amount of the MOPPRS and (ii) the sum of the present values of the
Remaining Scheduled Payments thereon, as determined by the Remarketing Dealer,
discounted to the Remarketing Date on a semiannual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate, plus in either
case accrued and unpaid interest from the Remarketing Date on the principal
amount being redeemed to the date of redemption. If the Operating Partnership
elects to redeem the MOPPRS, it shall pay the redemption price
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therefor in same-day funds by wire transfer to an account designated by the
Remarketing Dealer on the Remarketing Date.
CERTAIN COVENANTS
Limitations on Incurrence of Debt. The Operating Partnership will not, and
will not permit any Subsidiary (as defined below) to, incur any Debt (as defined
below), other than intercompany debt (representing Debt to which the only
parties are SDG, the Operating Partnership and any of their Subsidiaries (but
only so long as such Debt is held solely by any of SDG, the Operating
Partnership and any Subsidiary) that is subordinate in right of payment to the
Securities), if, immediately after giving effect to the incurrence of such
additional Debt, the aggregate principal amount of all outstanding Debt would be
greater than 60% of the sum of (i) the Operating Partnership's Adjusted Total
Assets (as defined below) as of the end of the fiscal quarter prior to the
incurrence of such additional Debt and (ii) any increase in Adjusted Total
Assets from the end of such quarter including, without limitation, any pro forma
increase from the application of the proceeds of such additional Debt.
In addition to the foregoing limitation on the incurrence of Debt, the
Operating Partnership will not, and will not permit any Subsidiary to, incur any
Debt secured by any mortgage, lien, pledge, encumbrance or security interest of
any kind upon any of the property of the Operating Partnership or any Subsidiary
("Secured Debt"), whether owned at the date of the Indenture or thereafter
acquired, if, immediately after giving effect to the incurrence of such
additional Secured Debt, the aggregate principal amount of all outstanding
Secured Debt is greater than 55% of the sum of (i) the Operating Partnership's
Adjusted Total Assets as of the end of the fiscal quarter prior to the
incurrence of such additional Secured Debt and (ii) any increase in Adjusted
Total Assets from the end of such quarter including, without limitation, any pro
forma increase from the application of the proceeds of such additional Secured
Debt.
In addition to the foregoing limitations on the incurrence of Debt, the
Operating Partnership will not, and will not permit any Subsidiary to, incur any
Debt if the ratio of Annualized EBITDA After Minority Interest to Interest
Expense (in each case as defined below) for the period consisting of the four
consecutive fiscal quarters most recently ended prior to the date on which such
additional Debt is to be incurred shall have been less than 1.75 to 1 on a pro
forma basis after giving effect to the incurrence of such Debt and to the
application of the proceeds therefrom, and calculated on the assumption that (i)
such Debt and any other Debt incurred since the first day of such four-quarter
period had been incurred, and the proceeds therefrom had been applied (to
whatever purposes such proceeds had been applied as of the date of calculation
of such ratio), at the beginning of such period, (ii) any other Debt that has
been repaid or retired since the first day of such four-quarter period had been
repaid or retired at the beginning of such period (except that, in making such
computation, the amount of Debt under any revolving credit facility shall be
computed based upon the average daily balance of such Debt during such period),
(iii) any income earned as a result of any assets having been placed in service
since the end of such four-quarter period had been earned, on an annualized
basis, during such period, and (iv) in the case of any acquisition or
disposition by the Operating Partnership, any Subsidiary or any unconsolidated
joint venture in which the Operating Partnership or any Subsidiary owns an
interest, of any assets since the first day of such four-quarter period,
including, without limitation, by merger, stock purchase or sale, or asset
purchase or sale, such acquisition or disposition and any related repayment of
Debt had occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition or disposition being included in
such pro forma calculation.
For purposes of the foregoing provisions regarding the limitation on the
incurrence of Debt, Debt shall be deemed to be "incurred" by the Operating
Partnership, its Subsidiaries and by any unconsolidated joint venture, whenever
the Operating Partnership, any Subsidiary, or any unconsolidated joint venture,
as the case may be, shall create, assume, guarantee or otherwise become liable
in respect thereof.
Maintenance of Unencumbered Assets. The Operating Partnership is required
to maintain Unencumbered Assets (as defined below) of not less than 150% of the
aggregate outstanding principal amount of the Unsecured Debt (as defined below)
of the Operating Partnership.
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As used herein:
"Adjusted Total Assets" as of any date means the sum of (i) the defined
amount determined by multiplying the sum of the shares of common stock of SDG
issued in the initial public offering of SDG ("IPO") and the units of the
Operating Partnership not held by SDG outstanding on the date of the IPO, by
$22.25 (the "IPO Price"), (ii) the principal amount of the outstanding
consolidated debt of SDG on the date of the IPO, less any portion applicable to
minority interests, (iii) the Operating Partnership's allocable portion, based
on its ownership interest, of outstanding indebtedness of unconsolidated joint
ventures on the date of the IPO, (iv) the purchase price or cost of any real
estate assets acquired (including the value, at the time of such acquisition, of
any units of the Operating Partnership or shares of Common Stock of SDG issued
in connection therewith) or developed after the IPO by the Operating Partnership
or any Subsidiary, less any portion attributable to minority interests, plus the
Operating Partnership's allocable portion, based on its ownership interest, of
the purchase price or cost of any real estate assets acquired or developed after
the IPO by any unconsolidated joint venture, (v) the value of the DeBartolo
Merger compiled as the sum of (a) the purchase price including all related
closing costs and (b) the value of all outstanding indebtedness less any portion
attributable to minority interests, including the Operating Partnership's
allocable share, based on its ownership interest, of outstanding indebtedness of
unconsolidated joint ventures at the DeBartolo Merger date, and (vi) working
capital of the Operating Partnership; subject, however, to reduction by the
amount of the proceeds of any real estate assets disposed of after the IPO by
the Operating Partnership or any Subsidiary, less any portion applicable to
minority interests, and by the Operating Partnership's allocable portion, based
on its ownership interest, of the proceeds of any real estate assets disposed of
after the IPO by unconsolidated joint ventures.
"Annualized EBITDA" means earnings before interest, taxes, depreciation and
amortization for all properties with other adjustments as are necessary to
exclude the effect of items classified as extraordinary items in accordance with
generally accepted accounting principles, adjusted to reflect the assumption
that (i) any income earned as a result of any assets having been placed in
service since the end of such period had been earned, on an annualized basis,
during such period, and (ii) in the case of any acquisition or disposition by
the Operating Partnership, any Subsidiary or any unconsolidated joint venture in
which the Operating Partnership or any Subsidiary owns an interest, of any
assets since the first day of such period, such acquisition or disposition and
any related repayment of Debt had occurred as of the first day of such period
with the appropriate adjustments with respect to such acquisition or
disposition.
"Annualized EBITDA After Minority Interest" means Annualized EBITDA after
distributions to third party joint venture partners.
"DeBartolo Merger" means the merger of SDG and DeBartolo Realty Corporation
and related transactions consummated on August 9, 1996, pursuant to the
Agreement and Plan of Merger between Simon Property Group, Inc. and DeBartolo
Realty Corporation.
"Debt" means any indebtedness of the Operating Partnership and its
Subsidiaries on a consolidated basis, less any portion attributable to minority
interests, plus the Operating Partnership's allocable portion, based on its
ownership interest, of indebtedness of unconsolidated joint ventures, in respect
of (i) borrowed money evidenced by bonds, notes, debentures or similar
instruments, as determined in accordance with generally accepted accounting
principles, (ii) indebtedness secured by any mortgage, pledge, lien, charge,
encumbrance or any security interest existing on property owned by the Operating
Partnership or any Subsidiary directly, or indirectly through unconsolidated
joint ventures, as determined in accordance with generally accepted accounting
principles, (iii) reimbursement obligations, contingent or otherwise, in
connection with any letters of credit actually issued or amounts representing
the balance deferred and unpaid of the purchase price of any property, except
any such balance that constitutes an accrued expense or trade payable, and (iv)
any lease of property by the Operating Partnership or any Subsidiary as lessee
which is reflected in the Operating Partnership's consolidated balance sheet as
a capitalized lease or any lease of property by an unconsolidated joint venture
as lessee which is reflected in such joint venture's balance sheet as a
capitalized lease, in each case, in accordance with generally accepted
accounting principles; provided, that Debt also includes, to the extent not
otherwise included, any obligation by the Operating Partnership or any
Subsidiary to be liable for,
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or to pay, as obligor, guarantor or otherwise, items of indebtedness of another
person (other than the Operating Partnership or any Subsidiary) described in
clauses (i) through (iv) above (or, in the case of any such obligation made
jointly with another person, the Operating Partnership's or Subsidiary's
allocable portion of such obligation based on its ownership interest in the
related real estate assets).
"Interest Expense" includes the Operating Partnership's pro rata share of
joint venture interest expense and is reduced by amortization of debt issuance
costs.
"Subsidiary" means a corporation, partnership, joint venture, limited
liability company or other entity, a majority of the outstanding voting stock,
partnership interests or membership interests, as the case may be, of which is
owned or controlled, directly or indirectly, by the Operating Partnership or by
one or more other Subsidiaries of the Operating Partnership. For the purposes of
this definition, "voting stock" means stock having voting power for the election
of directors, or trustees, as the case may be, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Unencumbered Annualized EBITDA After Minority Interest" means Annualized
EBITDA After Minority Interest less any portion thereof attributable to assets
serving as collateral for Secured Debt.
"Unencumbered Assets" as of any date shall be equal to Adjusted Total
Assets as of such date multiplied by a fraction, the numerator of which is
Unencumbered Annualized EBITDA After Minority Interest and the denominator of
which is Annualized EBITDA After Minority Interest.
"Unsecured Debt" means Debt which is not secured by any mortgage, lien,
pledge, encumbrance or security interest of any kind.
Compliance with the covenants described herein generally may not be waived
by the Board of Directors of SDG or the General Partners, as general partners of
the Operating Partnership, or by the Trustee unless the holders of at least a
majority in principal amount of all Outstanding Securities consent to such
waiver.
Merger, Consolidation or Sale. The Operating Partnership may consolidate
with, or sell, lease or convey all or substantially all of its assets to, or
merge with or into, any other entity, provided that (a) the Operating
Partnership shall be the continuing entity, or the successor entity (if other
than the Operating Partnership) formed by or resulting from an such
consolidation or merger or which shall have received the transfer of such assets
shall expressly assume payment of the principal of (and premium, if any) and
interest on the securities issued under the Indenture ("Debt Securities") and
the due and punctual performance and observance of all of the covenants and
conditions contained in the Indenture; (b) immediately after giving effect to
such transaction and treating any indebtedness which becomes an obligation of
the Operating Partnership or any Subsidiary as a result thereof as having been
incurred by the Operating Partnership or such Subsidiary at the time of such
transaction, no Event of Default under the Indenture, and no event which, after
notice or the lapse of time, or both, would become such an Event of Default,
shall have occurred and be continuing; and (c) an officer's certificate and
legal opinion covering such conditions shall be delivered to the Trustee.
Existence. Except as permitted under "-- Merger, Consolidation or Sale"
above, the Operating Partnership is required to do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (statutory and charter) and franchises; provided, however, that the
Operating Partnership shall not be required to preserve any such right or
franchise if it determines that the loss thereof is not disadvantageous in any
material respect to the holders of the Securities.
Maintenance of Properties. The Operating Partnership is required to cause
all of its material properties used or useful in the conduct of its business or
the business of any Subsidiary to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and to cause
to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Operating Partnership may be
necessary so that the business carried on in connection therewith may be
properly conducted at all times; provided, however, that the Operating
Partnership and its subsidiaries shall not be prevented from selling or
otherwise disposing for value their respective properties in the ordinary course
of business.
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Insurance. The Operating Partnership is required to, and is required to
cause each of its Subsidiaries to, keep all of its insurable properties insured
against loss or damage at least equal to their then full insurable value
(subject to reasonable deductibles determined from time to time by the Operating
Partnership) with financially sound and reputable insurance companies.
Payment of Taxes and Other Claims. The Operating Partnership is required
to pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (i) all taxes, assessments and governmental charges levied or
imposed upon it or any Subsidiary or upon its income, profits or property or
that of any Subsidiary, and (ii) all lawful claims for labor, materials and
suppliers which, if unpaid, might by law become a lien upon the property of the
Operating Partnership or any Subsidiary; provided, however, that the Operating
Partnership shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
Provision of Financial Information. The holders of Securities will be
provided with copies of the annual reports and quarterly reports of the
Operating Partnership. Whether or not the Operating Partnership is subject to
Section 13 or 15(d) of the Exchange Act and for so long as any Securities are
outstanding, the Operating Partnership will, to the extent permitted under the
Exchange Act, be required to file with the Commission the annual reports,
quarterly reports and other documents which the Operating Partnership would have
been required to file with the Commission pursuant to such Section 13 or 15(d)
(the "Financial Statements") if the Operating Partnership were so subject, such
documents to be filed with the Commission on or prior to the respective dates
(the "Required Filing Dates") by which the Operating Partnership would have been
required so to file such documents if the Operating Partnership were so subject.
The Operating Partnership will also in any event (x) within 15 days of each
Required Filing Date (i) transmit by mail to all holders of Securities, as their
names and addresses appear in the Security Register, without cost to such
holders, copies of the annual reports and quarterly reports which the Operating
Partnership would have been required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act if the Operating Partnership were
subject to such Sections and (ii) file with the Trustee copies of the annual
reports, quarterly reports and other documents which the Operating Partnership
would have been required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act if the Operating Partnership were subject to such
Sections and (y) if filing such documents by the Operating Partnership with the
Commission is not permitted under the Exchange Act, promptly upon written
request and payment of the reasonable cost of duplication and delivery, supply
copies of such documents to any prospective holder.
MODIFICATION OF THE INDENTURE
Modifications and amendments of the Indenture will be permitted to be made
only with the consent of the holders of not less than a majority in principal
amount of all Outstanding Debt Securities which are affected by such
modification or amendment (voting as one class); provided, however, that no such
modification or amendment may, without the consent of the holder of each such
Debt Security affected thereby: (a) change the stated maturity of the principal
of, or premium (if any) or any installment of interest on, any such Debt
Security; (b) reduce the principal amount of, or the rate or amount of interest
on, or any premium payable on redemption of, any such Debt Security, or reduce
the amount of principal of an Original Issue Discount Security (as defined in
the Indenture as supplemented) that would be due and payable upon acceleration
of the maturity thereof or that would be provable in bankruptcy, or adversely
affect any right of repayment at the option of the holder of any such Debt
Security; (c) change the Place of Payment, or the coin or currency, for payment
of principal of, premium, if any, or interest on any such Debt Security; (d)
impair the right to institute suit for the enforcement of any payment on or with
respect to any such Debt Security; (e) reduce the above-stated percentage in
principal amount of Outstanding Debt Securities necessary to modify or amend the
Indenture, reduce the percentage of Outstanding Debt Securities necessary to
waive compliance with certain provisions thereof or certain defaults and
consequences thereunder, or to reduce the quorum or voting requirements set
forth in the Indenture; or (f) modify any of the foregoing provisions or any of
the provisions relating to the waiver of certain past defaults or certain
covenants, except to increase the
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percentage required to effect such action or to provide that certain other
provisions may not be modified or waived without the consent of the holder of
each Outstanding Debt Security affected thereby.
The Indenture provides that the holders of not less than a majority in
principal amount of a series of Outstanding Securities have the right to waive
compliance by the Operating Partnership with certain covenants relating to such
Securities in the Indenture.
Modifications and amendments of the Indenture will be permitted to be made
by the Operating Partnership and the Trustee without the consent of any holder
of Debt Securities for any of the following purposes: (i) to evidence the
succession of another Person to the Operating Partnership as obligor under the
Indenture; (ii) to add to the covenants of the Operating Partnership for the
benefit of the holders of all Debt Securities or to surrender any right or power
conferred upon the Operating Partnership in the Indenture; (iii) to add Events
of Default for the benefit of the holders of all Debt Securities; (iv) to add or
change any provisions of the Indenture to facilitate the issuance of, or to
liberalize certain terms of, Debt Securities in bearer form, to change or
eliminate any restrictions on payment of the principal of or premium or interest
on Debt Securities, to modify the provisions relating to global Debt Securities,
or to permit or facilitate the issuance of Debt Securities in uncertificated
form, provided that such action shall not adversely affect the interests of the
holders of the Debt Securities in any material respect; (v) to change or
eliminate any provisions of the Indenture, provided that any such change or
elimination shall become effective only when there are no Debt Securities
Outstanding of any series created prior thereto which are entitled to the
benefit of such provision or such amendment shall not apply to any then
Outstanding Debt Security; (vi) to secure the Debt Securities; (vii) to
establish the form or terms of Debt Securities of any series; (viii) to provide
for the acceptance of appointment by a successor Trustee or facilitate the
administration of the trusts under the Indenture by more than one Trustee; (ix)
to cure any ambiguity, defect or inconsistency in the Indenture, provided that
such action shall not adversely affect the interests of holders of Debt
Securities of any series in any material respect; or (x) to supplement any of
the provisions of the Indenture to the extent necessary to permit or facilitate
defeasance and discharge of Debt Securities, provided that such action shall not
adversely affect the interests of the holders of the Debt Securities of any
series in any material respect.
The Indenture provides that in determining whether the holders of the
requisite principal amount of the outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver thereunder
or whether a quorum is present at a meeting of holders of Debt Securities, owned
by the Operating Partnership or any other obligor upon the Securities or any
affiliate of the Operating Partnership or of such other obligor shall be
disregarded.
EVENTS OF DEFAULT
The Indenture provides that the following events are "Events of Default":
(a) default for 30 days in the payment of an installment of interest on any
Security of such series; (b) default in the payment of the principal of (or
premium, if any, on) any Security at its maturity; (c) default in making an
sinking fund payment as required for any Security; (d) default in the
performance of any other covenant of the Operating Partnership contained in the
Indenture (other than a covenant added to the Indenture solely for the benefit
of a series of Securities issued thereunder other than), such default having
continued for 60 days after written notice as provided in the Indenture; (e)
default in the payment of an aggregate principal amount exceeding $30,000,000 of
any recourse indebtedness of the Operating Partnership, however evidenced, such
default having occurred after the expiration of any applicable grace period and
having resulted in the acceleration of the maturity of such indebtedness, but
only if such indebtedness is not discharged or such acceleration is not
rescinded or annulled within 10 days after written notice as provided in the
Indenture; and (f) certain events of bankruptcy, insolvency or reorganization,
or court appointment of a receiver, liquidator or trustee of the Operating
Partnership or any Significant Subsidiary or any of their respective property.
If an Event of Default under the Indenture with respect to Securities at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the holders of not less than 25% in principal amount of the
Outstanding Securities may declare the principal amount to be due and payable
immediately by written notice thereof to the Operating Partnership (and to the
Trustee if given by the holders); provided, that in the
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case of an Event of Default described under paragraph (f) of the preceding
paragraph, acceleration is automatic. However, at any time after such
acceleration with respect to Securities as been made, but before a judgment or
decree for payment of the money due has been obtained by the Trustee, the
holders of not less than a majority in principal amount of Outstanding
Securities may rescind and annul such acceleration and its consequences if (a)
the Operating Partnership shall have deposited with the Trustee all amounts due
otherwise than on account of such declaration, plus certain fees, expenses,
disbursements and advances of the Trustee and (b) all Events of Default, other
than the nonpayment of accelerated principal of the Securities have been cured
or waived as provided in the Indenture. The Indenture also provides that the
holders of not less than a majority in principal amount of the Outstanding
Securities may waive any past default and its consequences, except a default (x)
in the payment of the principal of (or premium, if any) or interest on any
Security of such series or (y) in respect of a covenant or provision contained
in the Indenture that cannot be modified or amended without the consent of the
holder of each Outstanding Security affected thereby.
The Trustee will be prepared to give notice to the holders of Debt
Securities within 90 days of a default under the Indenture unless such default
has been cured or waived; provided, however, that the Trustee may withhold
notice to the holders of Securities of any default with respect to such
Securities (except a default in the payment of the principal of (or premium, if
any) or interest on any Security or in the payment of any sinking fund
installment in respect of any Security) if a trust committee of Responsible
Officers of the Trustee consider such withholding to be in the interest of such
holders.
The Indenture provides that no holders of Securities may institute any
proceedings, judicial or otherwise, with respect to the Indenture or for any
remedy thereunder, except in the case of failure of the Trustee, for 60 days, to
act after it has received a written request to institute proceedings in respect
of an Event of Default from the holders of not less than 25% in principal amount
of the Outstanding Securities, as well as an offer of indemnity reasonably
satisfactory to it. This provision will not prevent, however, any holder of
Securities from instituting suit for the enforcement of payment of the principal
of (and premium, if any) and interest on such Securities at the respective due
dates thereof.
Subject to provisions in the Indenture relating to its duties in case of
default, the Trustee is under no obligation to exercise any of its rights or
powers under the Indenture at the request of any holders of Securities then
Outstanding under the Indenture, unless such holders shall have offered to the
Trustee thereunder reasonable security or indemnity. The holders of not less
than a majority in principal amount of the Outstanding Securities shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or of exercising any trust or power conferred
upon the Trustee with respect to the Securities. However, the Trustee may refuse
to follow any direction which is in conflict with any law or the Indenture,
which may involve the Trustee in personal liability or which may be unduly
prejudicial to the holders of Securities of such series not joining therein.
Within 120 days after the close of each fiscal year, the Operating
Partnership must deliver to the Trustee a certificate, signed by one of several
specified officers of the Operating Partnership stating whether or not such
officer has knowledge of any default under the Indenture and, if so, specifying
each such default and the nature and status thereof.
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides that the Operating Partnership may elect either (a)
to defease and be discharged from any and all obligations with respect to the
Securities (in the case of the MOPPRS, only after to the Remarketing Date)
(except for the obligations to register the transfer or exchange of the
Securities, to replace temporary or mutilated, destroyed, lost or stolen
Securities, to maintain an office or agency in respect of such Securities and to
hold moneys for payment in trust) ("defeasance") or (b) to be released from its
obligations with respect to the Securities (including the restrictions described
under "-- Certain Covenants" above) and its obligations with respect to any
other covenant, and any omission to comply with such obligations shall not
constitute a default or an Event of Default with respect to the Securities
("covenant defeasance"), in either case upon the irrevocable deposit by the
Operating Partnership with the Trustee, in trust, of an amount, in such currency
or currencies, currency unit or units or composite currency or currencies in
which the Securities
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are payable at maturity, or Government Obligations (as defined below), or both,
that through the scheduled payment of principal and interest in accordance with
their terms will provide money in an amount sufficient to pay the principal of,
premium, if any, and interest on the Securities on the scheduled due dates
therefor.
Such a trust will only be permitted to be established if, among other
things, the Operating Partnership has delivered to the Trustee an Opinion of
Counsel (as specified in the Indenture) to the effect that the holders of such
Debt Securities will not recognize income, gain or loss for U.S. federal income
tax purposes as a result of such defeasance or covenant defeasance and will be
subject to U.S. federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance or covenant
defeasance had not occurred, and such Opinion of Counsel, in the case of
defeasance, must refer to and be based upon a ruling of the Internal Revenue
Service or a change in applicable United States federal income tax law occurring
after the date of the Indenture.
"Government Obligations" means securities which are direct obligations of
the United States of America or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America that are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such Government Obligations or a specific payment of interest on or
principal of any such Government Obligations held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
BOOK ENTRY; DELIVERY AND FORM
The Global Securities.
Each series of the Exchange Securities issued in the Exchange Offer will
initially be represented by a single, permanent global Security in definitive,
fully registered form (the "Global Securities"). Upon the issuance of the Global
Securities, DTC or its custodian will credit, on its internal system, the
respective principal amount of the individual beneficial interests represented
by such Global Security to the accounts of persons who have accounts with such
depositary. Ownership of beneficial interests in a Global Security will be
limited to persons who have accounts with DTC ("participants") or persons who
hold interests through participants. Ownership of beneficial interests in a
Global Security will be shown on, and the transfer of that ownership will be
effected only through, records maintained by DTC or its nominee (with respect to
interests of participants) and the records of participants (with respect to
interests of persons other than participants).
So long as DTC or its nominee is the registered holder of a Global
Security, DTC or such nominee, as the case may be, will be considered the sole
owner or holder of the Securities represented by such Global Security for all
purposes under the applicable Indenture and under the Securities represented
thereby. No beneficial owner of an interest in a Global Security will be able to
transfer that interest except in accordance with the procedures provided for
under the applicable procedures of DTC.
Payments of the principle of, and interest on, the Securities represented
by the Global Securities will be made to DTC or its nominee, as the case may be,
as the registered owner thereof. None of the Operating Partnership, the Trustee
or any paying agent will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests in the Global Securities or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
The Operating Partnership expects that DTC or its nominee, upon receipt of
any payment of principal or interest in respect of Securities represented by a
Global Security will credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of such Global Security as shown on the records of DTC or its nominee. The
Operating Partnership also expects that payment by participants to owners of
beneficial interests in such Global Security held through such
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participants will be governed by standing instructions and customary practices,
as is now the case with securities held for the accounts of customers registered
in the name of nominees for such customers. Such payments will be the
responsibility of such participants. Transfers between participants in DTC will
be effected in the ordinary way in accordance with DTC rules and will be settled
in same-day funds. Transfers between participants in Euroclear and CEDEL will be
effected in the ordinary way in accordance with their respective rules and
operating procedures.
Because of time zone differences, the securities account of a Euroclear or
CEDEL participant purchasing an interest in a Global Security from a Participant
in DTC will be credited, and any such crediting will be reported to the relevant
Euroclear or CEDEL participant during the securities settlement processing day
(which must be a business day for Euroclear or CEDEL) immediately following the
settlement date of DTC. Cash received in Euroclear or CEDEL as a result of sales
of interests in a Global Security by or through a Euroclear or CEDEL participant
to a Participant in DTC will be received with value on the settlement date of
DTC but will be available in the relevant Euroclear or CEDEL cash account only
as of the business day for Euroclear or CEDEL following DTC's settlement date.
DTC has advised the Operating Partnership that it will take any action
permitted to be taken by a holder of Securities (including the presentation of
Securities for exchange as described below) only at the direction of one or more
participants to whose account an interest in the Global Securities is credited
and only in respect of such series and such portion of the aggregate principal
amount of Securities as to which such participant or participants has or have
given such direction.
DTC has advised the Operating Partnership as follows: DTC is a limited
purpose trust company organized under the laws of the State of New York, a
"banking organization" within the meaning of New York Banking Law, a member of
the Federal Reserve System, a "clearing corporation" within the meaning of the
Uniform Commercial Code and a "Clearing Agency" registered pursuant to the
provisions of Section 17A of the Exchange Act. DTC was created to hold
securities for its participants and facilitate the clearance and settlement of
securities transactions between participants through electronic book-entry
changes in accounts of its participants, thereby eliminating the need for
physical movement of certificates. Participants include securities brokers and
dealers, banks, trust companies and clearing corporations and certain other
organizations. Indirect access to the DTC system is available to others such as
banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a participant either directly or indirectly
("indirect participants").
Although DTC has agreed to the foregoing procedures in order to facilitate
transfers of interests in the Global Securities among participants of DTC it is
under no obligation to perform or continue to perform such procedures, and such
procedures may be discontinued at any the. Neither the Operating Partnership nor
the Trustee will have any responsibility for the performance by DTC or its
respective participants or indirect participants of its respective obligations
under the rules and procedures governing its operations.
Certificated Securities
Global Securities may not be transferred as or exchanged for physical
certificates in registered form without coupons (the "Certificated Securities")
except (i) if DTC notifies the Operating Partnership that it is unwilling or
unable to continue to act as depositary with respect to the Global Securities or
ceases to be a clearing agency registered under the Exchange Act and, in either
case, a successor depositary registered as a clearing agency under the Exchange
Act is not appointed by the Operating Partnership within 120 days, (ii) at any
time if the Operating Partnership in its sole discretion determines that the
Global Securities (in whole but not in part) should be exchanged for
Certificated Securities or (iii) if the owner of an interest in the Global
Securities requests such Certificated Securities, following an Event of Default
under the Indenture, in a writing delivered through the depositary to the
Trustee.
The information in this section concerning DTC, Euroclear and CEDEL and
their book-entry systems has been obtained from sources that the Operating
Partnership believes to be reliable, but the Operating Partnership takes no
responsibility for the accuracy thereof.
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REGISTRATION RIGHTS
The Operating Partnership has entered into a registration rights agreement
with the Initial Purchasers (the "Registration Rights Agreement") for the
benefit of the holders of the Securities wherein the Operating Partnership
agreed, for the benefit of the holders of the Securities, to use its reasonable
best efforts (i) to file with the Commission within 90 calendar days after the
Closing Date a registration statement (the "Exchange Offer Registration
Statement") with respect to the Exchange Securities and (ii) to cause the
Exchange Offer Registration Statement to be declared effective under the
Securities Act within 135 calendar days after the Closing Date. Promptly after
the Exchange Offer Registration Statement has been declared effective, the
Operating Partnership will offer to holders the opportunity to exchange all
their Securities of a series for Exchange Securities of the same series (the
"Exchange Offer"). The Operating Partnership will keep the Exchange Offer open
for not less than 30 calendar days (or longer if required by applicable law)
after the date notice of the Exchange Offer is mailed to the holders of the
Securities but will, in any event, use its reasonable best efforts to cause the
Exchange Offer to be consummated within 180 days of the Closing Date. For each
Security validly tendered to the Operating Partnership pursuant to the Exchange
Offer, the holder of such Security will receive an Exchange Security of the same
series having a principal amount equal to the principal amount of the tendered
Security.
If, (i) because of any change in law or in currently prevailing
interpretations of the Staff, the Operating Partnership is not permitted to
effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 180
days of the Closing Date, or (iii) in the case of any holder that participates
in the Exchange Offer, such holder does not receive Exchange Securities on the
date of the exchange that may be sold without restriction under state and
federal securities laws (other than due solely to the status of such holder as
an affiliate of the Operating Partnership within the meaning of the Securities
Act or as a broker-dealer), then in each case, the Operating Partnership will
(x) promptly deliver to the holders written notice thereof and (y) at the
Operating Partnership's sole expense (a) as promptly as practicable (but in no
event more than 60 days after so required or requested pursuant to the
Registration Rights Agreement), file a shelf registration statement covering
resales of the Securities (the "Shelf Registration Statement"), (b) use its
reasonable best efforts to cause the Shelf Registration Statement to be declared
effective under the Securities Act and (c) use its reasonable best efforts to
keep effective the Shelf Registration Statement until the earlier of two years
(or, if Rule 144(k) is amended to provide a shorter restrictive period, the end
of such shorter period) after the Closing Date or such time as all of the
applicable Securities have been sold thereunder. The Operating Partnership will,
if a Shelf Registration Statement is filed, provide to each holder copies of the
prospectus that is a part of the Shelf Registration Statement, notify each such
holder when the Shelf Registration Statement for the Securities has become
effective and take certain other actions as are required to permit unrestricted
resales of the Securities. A holder that sells Securities pursuant to the Shelf
Registration Statement will be required to be named as a selling security holder
in the related prospectus, to provide information related thereto and to deliver
such prospectus to purchasers, will be subject to certain of the civil liability
provisions under the Securities Act in connection with such sales and will be
bound by the provisions of the Registration Rights Agreement that are applicable
to such a holder (including certain indemnification rights and obligations).
If the Operating Partnership fails to comply with certain provisions of the
Registration Rights Agreement, in each case as described below, then a special
interest premium (the "Special Interest Premium") shall become payable in
respect of the Securities as follows:
If (i) the Exchange Offer Registration Statement is not filed with the
Commission on or prior to the 90th day following the Closing Date, (ii) the
Exchange Offer Registration Statement is not declared effective on or prior to
the 135th day following the Closing Date or (iii) the Exchange Offer is not
consummated or the Shelf Registration Statement is not declared effective on or
prior to the 180th day following the Closing Date, the Special Interest Premium
shall accrue from and including the next day following each of (a) such 90-day
period in the case of clause (i) above, (b) such 135-day period in the case of
clause (ii) above and (c) such 180-day period in the case of clause (iii) above,
in each case at a rate equal to 0.50% per annum. The aggregate amount of the
Special Interest Premium payable pursuant to the above provisions will in no
event exceed 0.50% per annum. If the Exchange Offer Registration Statement is
not declared effective on or prior to the 135th day following the Closing Date
and the Operating Partnership shall request holders of Securities to
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provide the information called for by the Registration Rights Agreement referred
to herein for inclusion in the Shelf Registration Statement, the Securities
owned by holders who do not deliver such information to the Operating
Partnership when required pursuant to the Registration Rights Agreement will not
be entitled to any such increase in the interest rate for any day after the
180th day following the Closing Date. Upon (1) the filing of the Exchange Offer
Registration Statement after the 90-day period described in clause (i), (2) the
effectiveness of the Exchange Offer Registration Statement after the 135-day
period described in clause (ii) above or (3) the consummation of the Exchange
Offer or the effectiveness of a Shelf Registration Statement, as the case may
be, after the 180-day period described in clause (iii) above, the interest rate
on each series of Securities from the date of such effectiveness or
consummation, as the case may be, will be reduced to the original interest rate
for such series of Securities.
If a Shelf Registration Statement is declared effective pursuant to the
foregoing paragraphs, and if the Operating Partnership fails to keep such Shelf
Registration Statement continuously (x) effective or (y) useable for resales for
the period required by the Registration Rights Agreement due to certain
circumstances relating to pending corporate developments, public filings with
the Commission and similar events, or because the prospectus contains an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, and such failure continues for more than 60 days (whether or not
consecutive) in any 12-month period (the 61st day being referred to as the
"Default Day"), then from the Default Day until the earlier of (i) the date that
the Shelf Registration Statement is again deemed effective or is useable, (ii)
the date that is the second anniversary of the Closing Date (or, if Rule 144(k)
is amended to provide a shorter restrictive period, the end of such shorter
period) or (iii) the date as of which all of the Securities are sold pursuant to
the Shelf Registration Statement, the Special Interest Premium shall accrue at a
rate equal to 0.50% per annum.
If the Operating Partnership fails to keep the Shelf Registration Statement
continuously effective or useable for resales pursuant to the preceding
paragraph, it shall give the holders notice to suspend the sale of the
Securities and shall extend the relevant period referred to above during which
the Operating Partnership is required to keep effective the Shelf Registration
Statement (or the period during which Participating Broker-Dealers are entitled
to use the prospectus included in the Exchange Offer Registration Statement in
connection with the resale of Exchange Securities, as the case may be) by the
number of days during the period from and including the date of the giving of
such notice to and including the date when holders shall have received copies of
the supplemented or amended prospectus necessary to permit resales of the
Securities or to and including the date on which the Operating Partnership has
given notice that the sale of Securities may be resumed, as the case may be.
The Registration Rights Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York. The summary herein of
certain provisions of the Registration Rights Agreement does not purport to be
complete and is subject to, and is qualified in its entirety by reference to,
all the provisions of the Registration Rights Agreement, a form of which has
been filed as an exhibit to the Registration Statement of which this Prospectus
forms a part.
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CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following discussion is a summary of certain United States federal
income tax consequences of the purchase, ownership and disposition of the
Securities by holders acquiring the Securities at the "issue price" (i.e., the
first price at which a substantial amount of the Securities are sold to the
public). This summary is based upon current provisions of the Code, applicable
Treasury regulations, judicial authority and administrative rulings and
practice, all of which are subject to change, including changes in application,
interpretation and effective date possibly with retroactive effect. There can be
no assurance that the Internal Revenue Service (the "IRS") will not take a
contrary view, and no ruling from the IRS has been or will be sought.
The tax treatment of a holder of Securities may vary depending upon such
holder's particular situation. Certain holders (including, but not limited to,
certain financial institutions, insurance companies, broker-dealers, foreign
corporations, nonresident alien individuals and persons holding the Securities
as part of a "straddle," "hedge" or "conversion transaction") may be subject to
special rules not discussed below. This discussion is limited to holders who
will hold the Securities as "capital assets" (generally, property held for
investment) within the meaning of Section 1221 of the Code. PROSPECTIVE
INVESTORS SHOULD CONSULT THEIR TAX ADVISORS AS TO THE PARTICULAR TAX
CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE SECURITIES,
INCLUDING THE APPLICABILITY AND EFFECT OF ANY STATE, LOCAL, FOREIGN OR OTHER TAX
LAWS.
As used herein, the term "U.S. Holder" means a beneficial owner of
Securities that is for United States federal income tax purposes (i) a citizen
or resident of the United States, (ii) a corporation, partnership or other
entity created or organized in or under the laws of the United States or of any
political subdivision thereof (other than a partnership that is not treated as a
United States person under applicable Treasury regulations), (iii) an estate
whose income is subject to United States federal income tax regardless of its
source, (iv) a trust, if both (A) a court within the United States is able to
exercise primary supervision over the administration of the trust and (B) one or
more United States persons have the authority to control all substantial
decisions of the trust, or (v) any other person whose income or gain in respect
of the Securities is effectively connected with the conduct of a United States
trade or business. Notwithstanding the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as United States persons prior to such date, that elect to
continue to be treated as United States persons also will be a U.S. Holder. As
used herein, the term "non-U.S. Holder" means a beneficial owner of Securities
that is not a U.S. Holder.
EXCHANGE OFFER
Pursuant to the Exchange Offer, the Securities may be exchanged for
Exchange Securities, which do not differ materially either in kind or extent
from the Securities. Accordingly, no gain or loss will be realized for United
States federal income tax purposes upon an exchange of the Securities for the
Exchange Securities pursuant to the Exchange Offer. A U.S. Holder will have the
same basis and holding period in the Exchange Securities that it had in the
Securities immediately prior to the exchange.
SPECIAL INTEREST PREMIUM
Under the Registration Rights Agreement, the Operating Partnership will be
required to pay a Special Interest Premium to some or all of the holders of the
Securities under certain circumstances. Under the Treasury Regulations regarding
contingent payment debt instruments (the "Contingent Payment Regulations"), any
payment subject to a remote or incidental contingency (i.e., where there is a
remote likelihood that the payment will be required or the potential amount of
the payment is insignificant relative to the remaining payments on the debt
instrument) is not considered a contingent payment and is ignored for purposes
of computing original issue discount accruals. The Operating Partnership
believes that the Special Interest Premium payments with respect to the
Securities are subject to either a remote or incidental contingency.
Accordingly, a U.S. Holder of a Security should be required to report any
Special Interest Premium payment (as interest income) for United States federal
income tax purposes only at the time such payment is made or properly accrued
under the U.S. Holder's regular method of accounting. The Operating
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Partnership's position that the Special Interest Premium payments are subject to
a remote or incidental contingency is binding on all holders unless the holder
discloses its differing position in a statement attached to its federal income
tax return for the taxable year during which the Security was acquired.
ORIGINAL ISSUE DISCOUNT
The Securities are being issued at a discount from their "stated redemption
price at maturity," but the Securities will not have original issue discount
("OID"), because such discount will not exceed the statutory de minimis amount
(an amount equal to 1/4 of 1% of the Securities' stated redemption price
multiplied by the number of complete years from issue to maturity, or, in the
case of the MOPPRS, the number of complete years from issue to the Remarketing
Date).
SALE, RETIREMENT OR OTHER TAXABLE DISPOSITION
In general, a U.S. Holder of a Security will recognize gain or loss upon
the sale, retirement or other taxable disposition of such Security in an amount
equal to the difference between (i) the amount of cash and the fair market value
of property received in exchange therefor (except to the extent attributable to
the payment of accrued interest, which generally will be taxable to a holder as
ordinary income) and (ii) the U.S. Holder's adjusted tax basis in such Security.
A U.S. Holder's tax basis in a Security generally will be equal to the price
paid for such Security. Net capital gain (i.e., generally, capital gain in
excess of capital loss) recognized by certain non-corporate taxpayers from the
sale of a capital asset that has been held for more than 12 months will be
subject to tax at a rate not to exceed 20%, and net capital gain recognized from
the sale of a capital asset that has been held for 12 months or less will be
subject to tax at ordinary income tax rates. In addition, capital gain
recognized by a corporate taxpayer will be subject to tax at the ordinary income
tax rates applicable to corporations.
FEDERAL INCOME TAX CONSIDERATIONS RELATING TO THE MOPPRS
The United States federal income tax treatment of debt obligations such as
the MOPPRS is not entirely certain. Because the MOPPRS are subject to mandatory
tender or repurchase on the Remarketing Date, the Operating Partnership intends
to treat the MOPPRS as maturing on the Remarketing Date for United States
federal income tax purposes. By purchasing the MOPPRS, the U.S. Holder agrees to
follow such treatment for United States federal income tax purposes. As a result
of such treatment, interest on the MOPPRS will constitute "qualified stated
interest" and generally will be taxable to a U.S. Holder as ordinary interest
income at the time accrued or received (in accordance with the U.S. Holder's
regular method of tax accounting).
Under the foregoing treatment, upon the sale, exchange or retirement of a
MOPPRS, a U.S. Holder generally will recognize taxable gain or loss equal to the
difference between the amount realized on the sale, exchange or retirement
(other than amounts representing accrued and unpaid interest) and such U.S.
Holder's adjusted tax basis in the MOPPRS. A U.S. Holder's adjusted tax basis in
a MOPPRS generally will equal such U.S. Holder's initial investment in the
MOPPRS increased by any original issue discount included in income (and accrued
market discount, if any, if the U.S. Holder has included such market discount in
income) and decreased by the amount of any payments, other than qualified stated
interest payments, received and amortizable bond premium taken with respect to
such MOPPRS.
There can be no assurance that the IRS will agree with the Operating
Partnership's treatment of the MOPPRS and it is possible that the IRS could
assert another treatment. For instance, it is possible that the IRS could seek
to treat the MOPPRS as maturing on the Stated Maturity Date. In that event,
because the Interest Rate to Maturity would not be determined until the
Determination Date, the MOPPRS would be treated as having contingent interest
under the Contingent Payment Regulations. In that event, the Operating
Partnership would be required to construct a projected payment schedule for the
MOPPRS, based upon the Operating Partnership's current borrowing costs for
comparable noncontingent debt instruments of the Operating Partnership, from
which an estimated yield on the MOPPRS would be calculated. A U.S. Holder would
be required to include in income original issue discount in an amount equal to
the product of the adjusted issue price of the MOPPRS at the beginning of each
interest accrual period and the estimated yield
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of the MOPPRS. In general, for these purposes, a MOPPRS' adjusted issue price
would equal the MOPPRS's issue price increased by the interest previously
accrued on the MOPPRS, and reduced by all payments made on the MOPPRS. As a
result of the application of the Contingent Payment Regulations, it is possible
that a U.S. Holder would be required to include interest in income in excess of
actual cash payments received for certain taxable years.
In addition, the character of any gain or loss, upon the sale or exchange
of a MOPPRS (including a sale pursuant to the mandatory tender on the
Remarketing Date) by a U.S. Holder, would likely differ if the MOPPRS were
treated as contingent payment obligations. Any such taxable gain generally would
be treated as ordinary income. Any such taxable loss generally would be ordinary
to the extent of previously accrued original issue discount, and any excess
would generally be treated as capital loss. The Operating Partnership does not
intend to treat the MOPPRS as having contingent interest and will not construct
a projected payment schedule.
NON-U.S. HOLDERS
A non-U.S. Holder will not be subject to federal income taxes on payments
of principal, premium (if any) or interest (including original issue discount,
if any) on a Security, unless such non-U.S. Holder is a direct or indirect 10%
or greater partner of the Operating Partnership, a controlled foreign
corporation related to the Operating Partnership or a bank receiving interest
described in section 881(c)(3)(A) of the Code. To qualify for the exemption from
taxation, the last United States payor in the chain of payment prior to payment
to a non-U.S. Holder (the "Withholding Agent") must have received in the year in
which a payment of interest or principal occurs, or in either of the two
preceding calendar years, a statement that (i) is signed by the beneficial owner
of the Security under penalties of perjury, (ii) certifies that such owner is
not a U.S. Holder and (iii) provides the name and address of the beneficial
owner. The statement may be made on an IRS Form W-8 or a substantially similar
form, and the beneficial owner must inform the Withholding Agent of any change
in the information on the statement within 30 days of such change. If a Security
is held through a securities clearing organization or certain other financial
institutions, the organization or institution may provide a signed statement to
the Withholding Agent. However, in such case, the signed statement must be
accompanied by a copy of the IRS Form W-8 or the substitute form provided by the
beneficial owner to the organization or institution. The Treasury Department is
considering implementation of further certification requirements aimed at
determining whether the issuer of a debt obligation is related to holders
thereof.
In addition, a non-U.S. Holder will not be subject to federal income taxes
on any amount which constitutes gain upon retirement or disposition of a
Security, provided the gain is not effectively connected with the conduct of a
trade or business in the United States by the non-U.S. Holder. Certain other
exceptions may be applicable, and a non-U.S. Holder should consult its tax
advisor in this regard. The Security will not be includible in the estate of a
non-U.S. Holder unless the individual is a direct or indirect 10% or greater
partner of the Operating Partnership or, at the time of such individual's death,
payments in respect of the Security would have been effectively connected with
the conduct by such individual of a trade or business in the United States.
BACKUP WITHHOLDING
Backup withholding of United States federal income tax at a rate of 31% may
apply to payments made in respect of a Security to registered owners who are not
"exempt recipients" and who fail to provide certain identifying information
(such as the registered owner's taxpayer identification number) in the required
manner. Generally, individuals are not exempt recipients, whereas corporations
and certain other entities generally are exempt recipients. Payments made in
respect of a Security to a U.S. Holder must be reported to the IRS, unless the
U.S. Holder is an exempt recipient or establishes an exemption. Compliance with
the identification procedures described in the preceding section would establish
an exemption from backup withholding for those non-U.S. Holders who are not
exempt recipients.
In addition, upon the sale of a Security to (or through) a broker, the
broker must withhold 31% of the entire purchase price, unless either (i) the
broker determines that the seller is a corporation or other exempt
37
40
recipient or (ii) the seller provides, in the required manner, certain
identifying information and, in the case of a non-U.S. Holder, certifies that
such seller is a non-U.S. Holder (and certain other conditions are met). Such a
sale must also be reported by the broker to the IRS, unless either (i) the
broker determines that the seller is an exempt recipient or (ii) the seller
certifies its non-U.S. status (and certain conditions are met). Certification of
the registered owner's non-U.S. status would be made normally on an IRS Form W-8
under penalties of perjury, although in certain cases it may be possible to
submit other documentary evidence.
Any amounts withheld under the backup withholding rules from a payment to a
beneficial owner would be allowed as a refund or a credit against such
beneficial owner's federal income tax liability provided the required
information is furnished to the IRS.
NEW WITHHOLDING REGULATIONS
On October 6, 1997, the Treasury Department issued new regulations (the
"New Regulations") which make certain modifications to the withholding, backup
withholding and information reporting rules described above. The New Regulations
attempt to unify certification requirements and modify reliance standards. The
New Regulations will generally be effective for payments made after December 31,
1999, subject to certain transition rules. Prospective investors are urged to
consult their own tax advisors regarding the New Regulations.
STATE AND LOCAL TAX CONSIDERATIONS
In addition to the Federal income tax consequences described in "Certain
Federal Income Tax Considerations," potential investors should consider the
state and local income tax consequences of the acquisition, ownership and
disposition of the Securities. State and local income tax law may differ
substantially from the corresponding federal law, and this discussion does not
purport to describe any aspect of the income tax laws of any state or locality.
Therefore, potential investors should consult their own tax advisors with
respect to the various state and local tax consequences of an investment in the
Securities.
ERISA CONSIDERATIONS RELATING TO THE MOPPRS
The Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
and the Code impose certain restrictions on (a) employee benefit plans (as
defined in Section 3(3) of ERISA), (b) plans described in section 4975(e)(1) of
the Code, including individual retirement accounts or Keogh plans, (c) any
entities whose underlying assets include plan assets by reason of a plan's
investment in such entities (each, including (a) and (b), a "Plan") and (d)
persons who have certain specified relationships to such Plans ("Parties-in-
Interest" under ERISA and "Disqualified Persons" under Section 4975 of the
Code). Moreover, based on the reasoning of the United States Supreme Court in
John Hancock Life Insurance v. Harris Trust and Savings Bank, 114 S.C. 517
(1993), an insurance company's general account may be deemed to include assets
of the Plans investing in the general account (e.g., through the purchase of an
annuity contract). ERISA also imposes certain duties on persons who are
fiduciaries of Plans subject to ERISA and prohibits certain transactions between
a Plan and Parties-in-Interest or Disqualified Persons with respect to such
Plans.
The Operating Partnership and the Remarketing Dealer, because of their
activities or the activities of their respective affiliates, may be considered
to be Parties-in-Interest or Disqualified Persons with respect to certain Plans.
If the MOPPRS are acquired by a Plan with respect to which the Operating
Partnership or the Remarketing Dealer is, or subsequently becomes, a
Party-in-Interest or Disqualified Person, the purchase, holding, or sale of
MOPPRS to the Remarketing Dealer could be deemed to be a direct or indirect
violation of the prohibited transaction rules of ERISA and the Code unless such
transaction were subject to one or more statutory or administrative exemptions,
such as Prohibited Transaction Class Exemption ("PTCE") 75-1, which exempts
certain transactions involving employee benefit plans and certain
broker-dealers, reporting dealers and banks; PTCE 90-1, which exempts certain
transactions between insurance company pooled separate accounts and
Parties-in-Interest or Disqualified Persons; PTCE 91-38, which exempts certain
transactions between bank collective investment funds and Parties-in-Interest or
Disqualified Persons;
38
41
PTCE 84-14, which exempts certain transactions effected on behalf of a Plan by a
"qualified professional asset manager;" PTCE 95-60, which exempts certain
transactions between insurance company general accounts and Parties-in-Interest
or Disqualified Persons; or PTCE 96-23, which exempts certain transactions
effected on behalf of a Plan by an "in-house asset manager." Even if the
conditions specified in one or more of these exemptions are met, the scope of
relief provided by these exemptions may not necessarily cover all acts that
might be construed as prohibited transactions.
Accordingly, prior to making an investment in the MOPPRS, a Plan should
determine whether the Operating Partnership or the Remarketing Dealer is a
Party-in-Interest or Disqualified Person with respect to such Plan and, if so,
whether such transaction is subject to one or more statutory or administrative
exemptions, including those described above.
Prior to making an investment in the MOPPRS, Plans should consult with
their legal advisers concerning the impact of ERISA and Section 4975 of the Code
and the potential consequences of such investment with respect to their specific
circumstances. Moreover, each Plan fiduciary should take into account, among
other considerations, whether the fiduciary has the authority to make the
investment on behalf of the Plan; whether the investment constitutes a direct or
indirect transaction with a Party-in-Interest or a Disqualified Person; and
whether under the general fiduciary standards of investment procedure and
diversification an investment in the MOPPRS is appropriate for the Plan, taking
into account, among other things, the overall investment policy of the Plan and
the composition of the Plan's investment portfolio.
PLAN OF DISTRIBUTION
Each holder of the Original Securities (other than certain specified
holders) who wishes to exchange the Original Securities for Exchange Securities
in the Exchange Offer will be required to represent that (i) it is not an
affiliate of the Operating Partnership, (ii) the Exchange Securities to be
received by it were acquired in the ordinary course of its business and (iii) at
the time of the Exchange Offer, it has no arrangement with any person to
participate in the distribution (within the meaning of the Securities Act) of
the Exchange Securities. In addition, in connection with any resales of Exchange
Securities, any broker-dealer who acquired the Security for its own account as a
result of market-making or other trading activities (a "Participating
Broker-Dealer") must deliver a prospectus meeting the requirements of the
Securities Act. The Commission has taken the position that Participating
Broker-Dealers may fulfill their prospectus delivery requirements with respect
to the Exchange Securities (other than a resale of an unsold allotment from the
original sale of the Original Securities) with this Prospectus, as it may be
amended or supplemented. Under the Registration Rights Agreement, the Operating
Partnership is required to allow Participating Broker-Dealers and other persons,
if any, subject to similar prospectus delivery requirements to use this
Prospectus in connection with the resale of the Exchange Securities for a period
of 180 days from the issuance of the Exchange Securities.
Based upon interpretations by the staff of the Commission, the Operating
Partnership believes that Exchange Securities issued pursuant to the Exchange
Offer may be offered for resale, resold and otherwise transferred by a Holder
thereof (other than a Participating Broker-Dealer) without compliance with the
registration and prospectus delivery requirements of the Securities Act.
The Operating Partnership will not receive any proceeds from any sale of
Exchange Securities by broker-dealers. Exchange Securities received by
Participating Broker-Dealers for their own account pursuant to the Exchange
Offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on the Exchange Securities or a combination of such methods of resale,
at market prices prevailing at the time of resale, at prices related to such
prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer for the purchasers of any such Exchange Securities. Any
Participating Broker-Dealer that resells Exchange Securities that were received
by it for its own account pursuant to the Exchange Offer and any broker or
dealer that participates in a distribution of such Exchange Securities may be
deemed to be an "underwriter" within the meaning of the Securities Act and any
profit on any such resale of Exchange Securities and any commission or
concessions received by any such persons may be deemed to be underwriting
compensation
39
42
under the Securities Act. The Letter of Transmittal states that, by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
The Operating Partnership has agreed to pay all expenses incident to the
Exchange Offer other than commissions or concessions of any brokers or dealers
and will indemnify the Holders of the Securities (including any broker-dealers)
against certain liabilities, including liabilities under the Securities Act, as
set forth in the Registration Rights Agreement.
VALIDITY OF THE EXCHANGE SECURITIES
The validity of the Exchange Securities will be passed upon for the
Operating Partnership by Willkie Farr & Gallagher, New York, New York.
EXPERTS
The audited financial statements and schedules of SDG and the Operating
Partnership and the examined pro forma combined condensed financial statements
of Simon Property Group, Inc. as of and for the year ended December 31, 1997
incorporated by reference herein have been audited or examined by Arthur
Andersen LLP, independent public accountants, as indicated in their reports with
respect thereto and are incorporated by reference herein in reliance upon the
authority of said firm as experts in giving said reports.
The audited financial statements and schedules of Corporate Property
Investors, Inc. and Corporate Realty Consultants, Inc. incorporated by reference
herein have been audited by Ernst & Young LLP, independent auditors, as
indicated in their reports with respect thereto and are incorporated by
reference herein in reliance upon the authority of said firm as experts in
giving said reports.
40
43
[SIMON DEBARTOLO GROUP LOGO]
SIMON DEBARTOLO GROUP, L.P.
All tendered Original Securities, executed Letters of Transmittal, and
other related documents should be directed to the Exchange Agent. Requests for
assistance and for additional copies of the Prospectus, the Letter of
Transmittal and other related documents should be directed to the Exchange
Agent.
The Exchange Agent
for the Exchange Offer is
THE CHASE MANHATTAN BANK
By Mail, Hand or Overnight Courier:
55 Water Street
Room 234, North Building
New York, NY 10041
Attention: Carlos Esteves
Facsimile Transmission Number:
(212) 638-7375
or (212) 344-9367
(For Eligible Institutions Only)
Confirm by Telephone:
(212) 638-0828
Contact: Carlos Esteves
44
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Partnership Agreement of the Operating Partnership contains provisions
indemnifying its general partners' officers and directors against certain
liabilities. Such Partnership Agreement provides for indemnification of such
general partners and their officers and directors to the same extent
indemnification is provided to officers and directors of SDG in its Charter, and
limits the liability of such general partners and their officers and directors
to the Operating Partnership and its partners to the same extent liability of
officers and directors of SDG to the SDG and its stockholders is limited under
the SDG's Charter. In addition, SDG's officers and directors are indemnified
under Maryland law and SDG's Charter. SDG's Charter requires SDG to indemnify
its directors and officers to the fullest extent permitted from time to time by
the laws of Maryland. SDG's By-Laws contain provisions which implement the
indemnification provisions of SDG's Charter.
The Maryland General Corporation Law (the "MGCL") permits a corporation to
indemnify its directors and officers, among others, against judgments,
penalties, fines, settlements and reasonable expenses actually incurred by them
in connection with any proceeding to which they may be made a party by reason of
their service in those or other capacities unless it is established that the act
or omission of the director or officer was material to the matter giving rise to
the proceeding and was committed in bad faith or was the result of active and
deliberate dishonesty, or the director or officer actually received an improper
personal benefit in money, property or services, or in the case of any criminal
proceeding, the director or officer had reasonable cause to believe that the act
or omission was unlawful. No amendment of SDG's Charter shall limit or eliminate
the right to indemnification provided with respect to acts or omissions
occurring prior to such amendment or repeal.. Maryland law permits SDG to
provide indemnification to an officer to the same extent as a director, although
additional indemnification may be provided if such officer is not also a
director.
The MGCL permits the charter of a Maryland corporation to include a
provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages, subject to specified
restrictions. The MGCL does not, however, permit the liability of directors and
officers to the corporation or its stockholders to be limited to the extent that
(1) it is proved that the person actually received an improper benefit or profit
in money, property or services (to the extent such benefit or profit was
received) or (2) a judgment or other final adjudication adverse to such person
is entered in a proceeding based on a finding that the person's action, or
failure to act, was the result of active and deliberate dishonesty and was
material to the cause of action adjudicated in the proceeding. SDG's Charter
contains a provision consistent with the MGCL. No amendment of SDG's Charter
shall limit or eliminate the limitation of liability with respect to acts or
omissions occurring prior to such amendment or repeal.
SDG has entered into indemnification agreements with each of SDG's
directors and officers. The indemnification agreements require, among other
things, that SDG indemnify its directors and officers to the fullest extent
permitted by law, and advance to the directors and officers all related
expenses, subject to reimbursement if it is subsequently determined that
indemnification is not permitted. SDG also must indemnify and advance all
expenses incurred by directors and officers seeking to enforce their rights
under the indemnification agreements, and cover each director and officer if SDG
obtains directors' and officers' liability insurance.
II-1
45
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits:
1 -- Purchase Agreement, dated as of June 16, 1998, by and among
the Operating Partnership and the Initial Purchasers.
4.1 -- Indenture, dated as of November 26, 1996, by and among the
Operating Partnership and The Chase Manhattan Bank, as
trustee (incorporated by reference to the form of this
document filed as Exhibit 4.1 to the Registration Statement
on Form S-3 (Reg. No. 333-11491)).
4.2 -- Supplemental Indenture, dated as of June 22, 1998, by and
among the Operating Partnership and The Chase Manhattan
Bank, as trustee, relating to the Securities.
4.3 -- Registration Rights Agreement, dated as of June 22, 1998, by
and among the Operating Partnership and the Initial
Purchasers.
4.4 -- Remarketing Agreement, dated as of June 22, 1998, by and
among the Operating Partnership and Merrill Lynch, Pierce,
Fenner & Smith Incorporated, as the remarketing dealer.
5* -- Opinion of Willkie Farr & Gallagher.
12.1 -- Statement Regarding Computation of Ratio of Earnings to
Fixed Charges.
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of Ernst & Young LLP.
23.3* -- Consent of Willkie Farr & Gallagher (included in their
opinion filed as Exhibit 5).
24 -- Powers of Attorney (included on signature pages).
25 -- Statements on Form T-1 of Eligibility of Trustee.
99.1* -- Form of Letter of Transmittal.
99.2* -- Form of Notice of Guaranteed Delivery.
99.3* -- Form of Letter to Clients.
99.4* -- Form of Letter to Nominees.
- ---------------
* To be filed by amendment.
(b) Financial Statement Schedules:
All schedules have been omitted because they are not applicable or not
required or the required information is included in the financial statements or
notes thereto.
ITEM 22. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of Registrants
pursuant to the provisions, described under Item 20 above, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the option of their counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11 or 13 of this Form, within one business day of receipt of such
request, and to send the incorporated documents by first class mail or other
equally prompt
II-2
46
means. This includes information contained in documents filed subsequent to the
effective date of this Registration Statement through the date of responding to
the request.
The undersigned Registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in this Registration Statement when it became effective.
II-3
47
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Indianapolis, State of
Indiana, on September 18, 1998.
SIMON DeBARTOLO GROUP, L.P.
By: SIMON DeBARTOLO GROUP, INC.,
General Partner
By: /s/ Richard S. Sokolov
------------------------------------
Name: Richard S. Sokolov
Title: President
POWER OF ATTORNEY
We, the undersigned directors and officers of Simon DeBartolo Group, Inc.
and Simon DeBartolo Group, L.P., respectively, do hereby severally constitute
and appoint David Simon and James M. Barkley, and each of them, our true and
lawful attorneys and agents, to do any and all acts and things in our name and
behalf in our capacities as directors and officers and to execute any and all
instruments for us and in our names in the capacities indicated below, which
said attorneys and agents, or any of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933, as amended,
and any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with this Registration Statement on Form S-4,
including specifically, but without limitation, power and authority to sign for
us or any of us, in our names in the capacities indicated below, any and all
amendments (including post-effective amendments) hereto; and we do each hereby
ratify and confirm all that said attorneys and agents, or any one of them, shall
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
SIGNATURE TITLE DATE
--------- ----- ----
/s/ HERBERT SIMON Co-Chairman of the Board of September 18, 1998
- ------------------------------------------------ Directors
Herbert Simon
/s/ RICHARD S. SOKOLOV President, Chief Operating September 18, 1998
- ------------------------------------------------ Officer and Director
Richard S. Sokolov
/s/ BIRCH BAYH Director September 18, 1998
- ------------------------------------------------
Birch Bayh
/s/ M. DENISE DEBARTOLO YORK Director September 18, 1998
- ------------------------------------------------
M. Denise DeBartolo York
/s/ G. WILLIAM MILLER Director September 18, 1998
- ------------------------------------------------
G. William Miller
II-4
48
SIGNATURE TITLE DATE
--------- ----- ----
/s/ FREDRICK W. PETRI Director September 18, 1998
- ------------------------------------------------
Fredrick W. Petri
/s/ TERRY S. PRINDIVILLE Director September 18, 1998
- ------------------------------------------------
Terry S. Prindiville
/s/ J. ALBERT SMITH, JR. Director September 18, 1998
- ------------------------------------------------
J. Albert Smith, Jr.
/s/ PHILIP J. WARD Director September 18, 1998
- ------------------------------------------------
Philip J. Ward
II-5
49
EXHIBIT INDEX
EXHIBIT DESCRIPTION PAGE
- ------- ----------- ----
1 -- Purchase Agreement, dated as of June 16, 1998, by and among
the Operating Partnership and the Initial Purchasers.
4.1 -- Indenture, dated as of November 26, 1996, by and among the
Operating Partnership and The Chase Manhattan Bank, as
trustee (incorporated by reference to the form of this
document filed as Exhibit 4.1 to the Registration Statement
on Form S-3 (Reg. No. 333-11491)).
4.2 -- Supplemental Indenture, dated as of June 22, 1998, by and
among the Operating Partnership and The Chase Manhattan
Bank, as trustee, relating to the Securities.
4.3 -- Registration Rights Agreement, dated as of June 22, 1998, by
and among the Operating Partnership and the Initial
Purchasers.
4.4 -- Remarketing Agreement, dated as of June 22, 1998, by and
among the Operating Partnership and Merrill Lynch, Pierce,
Fenner & Smith Incorporated, as the remarketing dealer.
5* -- Opinion of Willkie Farr & Gallagher.
12.1 -- Statement Regarding Computation of Ratio of Earnings to
Fixed Charges.
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of Ernst & Young LLP.
23.3* -- Consent of Willkie Farr & Gallagher (included in their
opinion filed as Exhibit 5).
24 -- Powers of Attorney (included on signature pages).
25 -- Statements on Form T-1 of Eligibility of Trustee.
99.1* -- Form of Letter of Transmittal.
99.2* -- Form of Notice of Guaranteed Delivery.
99.3* -- Form of Letter to Clients.
99.4* -- Form of Letter to Nominees.
- ---------------
* To be filed by amendment.
1
EXHIBIT 1
PURCHASE AGREEMENT
Dated as of June 16, 1998
among
SIMON DEBARTOLO GROUP, L.P.
and
Merrill Lynch & Co.,
Morgan Stanley & Co. Incorporated,
Chase Securities Inc.,
Lehman Brothers Inc.,
J.P. Morgan Securities Inc.,
NationsBanc Montgomery Securities LLC
and
UBS Securities
2
TABLE OF CONTENTS
Page
PURCHASE AGREEMENT.......................................................... 1
SECTION 1. REPRESENTATIONS AND WARRANTIES................................ 3
(a) REPRESENTATIONS AND WARRANTIES BY THE OPERATING PARTNERSHIP... 3
(1) SIMILAR OFFERINGS........................................ 3
(2) OFFERING MEMORANDUM...................................... 3
(3) INCORPORATED DOCUMENTS................................... 3
(4) INDEPENDENT ACCOUNTANTS.................................. 4
(5) FINANCIAL STATEMENTS..................................... 4
(6) NO MATERIAL ADVERSE CHANGE IN BUSINESS................... 4
(7) GOOD STANDING OF THE COMPANY............................. 5
(8) GOOD STANDING OF THE OPERATING PARTNERSHIP............... 5
(9) GOOD STANDING OF SIMON DEBARTOLO ENTITIES................ 6
(10) GOOD STANDING OF PROPERTY PARTNERSHIPS................... 6
(11) CAPITALIZATION........................................... 6
(12) AUTHORIZATION OF PURCHASE AGREEMENT...................... 7
(13) AUTHORIZATION OF THE REGISTRATION RIGHTS AGREEMENT....... 7
(14) AUTHORIZATION OF THE INDENTURE........................... 7
(15) AUTHORIZATION OF SECURITIES.............................. 8
(16) DESCRIPTIONS OF THE SECURITIES AND THE INDENTURE......... 8
(17) ABSENCE OF DEFAULTS AND CONFLICTS........................ 8
(18) ABSENCE OF LABOR DISPUTE................................. 9
(19) ABSENCE OF PROCEEDINGS................................... 9
(20) REIT QUALIFICATION....................................... 9
(21) INVESTMENT COMPANY ACT................................... 10
(22) INTELLECTUAL PROPERTY.................................... 10
(23) ABSENCE OF FURTHER REQUIREMENTS.......................... 10
(24) POSSESSION OF LICENSES AND PERMITS....................... 10
(25) TITLE TO PROPERTY........................................ 10
(26) ENVIRONMENTAL LAWS....................................... 11
(27) TAX RETURNS.............................................. 12
(28) ENVIRONMENTAL CONSULTANTS................................ 12
(29) PROPERTY INFORMATION..................................... 12
(30) RULE 144A ELIGIBILITY.................................... 12
(31) NO GENERAL SOLICITATION.................................. 12
(32) NO REGISTRATION REQUIRED................................. 13
(33) REPORTING COMPANY........................................ 13
(34) NO DIRECTED SELLING EFFORTS.............................. 13
(b) OFFICERS' CERTIFICATES........................................ 13
3
Page
SECTION 2. Sale and Delivery to the Initial Purchasers; Closing.......... 13
(a) Securities................................................ 13
(b) Payment................................................... 13
(c) Qualified Institutional Buyer............................. 14
(d) Denominations; Registration............................... 14
SECTION 3. Covenants of the Operating Partnership........................ 14
(a) Offering Memorandum....................................... 14
(b) Notice and Effect of Material Events...................... 14
(c) Amendment to Offering Memorandum and Supplements.......... 15
(d) Blue Sky Qualifications................................... 15
(e) Reporting Requirements.................................... 15
(f) REIT Qualification........................................ 15
(g) Use of Proceeds........................................... 15
(h) Exchange Act Filings...................................... 16
(i) Supplemental Indentures................................... 16
(j) Ratings................................................... 16
(k) DTC....................................................... 16
(l) Registration Rights Agreement............................. 16
SECTION 4. Payment of Expenses........................................... 16
(a) Expenses.................................................. 16
(b) Termination of Agreement.................................. 17
SECTION 5. Conditions of Initial Purchaser's Obligations................. 17
(a) Execution of Registration Rights Agreement................ 17
(b) Opinion of Counsel for Operating Partnership.............. 17
(c) Opinion of Counsel for Initial Purchasers................. 17
(d) Officers' Certificate..................................... 18
(e) Accountant's Comfort Letter............................... 18
(f) Bring-down Comfort Letter................................. 18
(g) Maintenance of Rating..................................... 18
(h) Additional Documents...................................... 19
(i) Termination of this Agreement............................. 19
SECTION 6. Subsequent Offers and Resales of the Securities............... 19
(a) Offer and Sale Procedures................................. 19
(b) Covenants of the Operating Partnership.................... 20
(c) Resale Pursuant to Rule 903 of Regulation S or Rule 144A.. 21
(d) Representations and Warranties of Initial Purchasers...... 22
SECTION 7. Indemnification............................................... 22
(a) Indemnification of Initial Purchasers..................... 22
(b) Indemnification of Operating Partnership, General
Partners' Directors and Officers........................ 23
(c) Actions Against Parties; Notification..................... 23
4
Page
(d) Settlement Without Consent If Failure to Reimburse........ 23
SECTION 8. Contribution.................................................. 24
SECTION 9. Representations, Warranties and Agreements to Survive
Delivery.................................................... 25
SECTION 10. Termination................................................... 25
(a) Termination; General...................................... 25
(b) Liabilities............................................... 26
SECTION 11. Default by One or More of the Initial Purchasers.............. 26
SECTION 12. Notices....................................................... 27
SECTION 13. Parties....................................................... 27
SECTION 14. GOVERNING LAW AND TIME........................................ 27
SECTION 15. Effect of Headings............................................ 27
5
SIMON DEBARTOLO GROUP, L.P.
(a Delaware limited partnership)
$375,000,000 6 5/8% Notes due 2003
$300,000,000 6 3/4% Notes due 2005
$200,000,000 7 3/8% Notes due 2018
$200,000,000 7.0% MandatOry Par Put Remarketed
Securities(SM) ("MOPPRS(SM)") due 2028
PURCHASE AGREEMENT
June 16, 1998
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
as Representatives of the several Initial Purchasers
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Simon DeBartolo Group, L.P., a Delaware limited partnership (the
"Operating Partnership"), confirms its agreement with each of the Initial
Purchasers named in Schedule 1 hereto (collectively, the "Initial Purchasers",
which term shall also include any initial purchaser substituted as hereinafter
provided in Section 11 hereof), for whom Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), and Morgan Stanley & Co.
Incorporated ("Morgan Stanley") are acting as representatives (in such capacity,
the "Representatives"), with respect to the issue and sale by the Operating
Partnership and the purchase by the Initial Purchasers, acting severally and not
jointly, of the respective principal amounts set forth in said Schedule 1 of
$375,000,000 aggregate principal amount of its 6 5/8% senior unsecured notes due
June 15, 2003 (the "2003 Notes"), $300,000,000 aggregate principal amount of its
6 3/4% senior unsecured notes due 2005 (the ----- "2005 Notes"), $200,000,000
aggregate principal amount of its 7 3/8% senior unsecured notes due 2018 (the
- ------ "2018 Notes" and, together with the 2003 Notes and the 2005 Notes, the
"Notes") and $200,000,000 aggregate
6
principal amount of its 7.0% MandatOry Par Put Remarketed Securities(SM) due
2028 (the "MOPPRS(SM)" and, together with the Notes, the "Securities").
- -----------
"MandatOry Par Put Remarketed Securities(SM)" and "MOPPRS(SM)" are service marks
owned by Merrill Lynch & Co. Incorporated.
7
The Securities will be issued under an indenture, dated as of November 26, 1996
(the "Original Indenture"), between the Operating Partnership, Simon Property
Group, L.P., a Delaware limited partnership (which, effective December 31, 1997,
was merged into the Operating Partnership) and The Chase Manhattan Bank, as
trustee (the "Trustee"). The title, aggregate principal amount, rank, interest
rate, timing of interest payments, stated maturity date, redemption and/or
repayment provisions and any other variable terms of the Securities shall be
established by or pursuant to a sixth supplemental indenture to the Original
Indenture (as so supplemented, and as the same may be amended or further
supplemented from time to time, the "Indenture") to be entered into between the
Operating Partnership and the Trustee on or prior to the Closing Time (as
defined in Section 2(b)). Securities issued in book-entry form will be issued to
Cede & Co. as nominee of The Depository Trust Company ("DTC") pursuant to a
letter agreement, to be dated as of the Closing Time (the "DTC Agreement"),
among the Operating Partnership, the Trustee and DTC.
The Operating Partnership understands that the Initial Purchasers
propose to make an offering of the Securities on the terms and in the manner set
forth herein and agrees that the Initial Purchasers may resell, subject to the
conditions set forth herein, all or a portion of the Securities to purchasers
("Subsequent Purchasers") at any time after the date of this Agreement. The
Securities are to be offered and sold through the Initial Purchasers without
being registered under the Securities Act of 1933, as amended (the "1933 Act"),
in reliance upon exemptions therefrom. Pursuant to the terms of the Securities
and the Indenture, investors that acquire Securities may only resell or
otherwise transfer such Securities if such Securities are hereafter registered
under the 1933 Act or if an exemption from the registration requirements of the
1933 Act is available (including the exemption afforded by Rule 144A ("Rule
144A") or Regulation S ("Regulation S") of the rules and regulations promulgated
under the 1933 Act by the Securities and Exchange Commission (the
"Commission")).
The Operating Partnership has prepared and delivered to each Initial
Purchaser copies of a preliminary offering memorandum dated June 5, 1998 (the
"Preliminary Offering Memorandum") and has prepared and will deliver to each
Initial Purchaser on the date hereof copies of a final offering memorandum dated
June 16, 1998 (the "Final Offering Memorandum"), each for use by such Initial
Purchaser in connection with its solicitation of purchases of, or offering of,
the Securities. "Offering Memorandum" means, with respect to any date or time
referred to in this Agreement, the most recent offering memorandum (whether the
Preliminary Offering Memorandum or the Final Offering Memorandum, or any
amendment or supplement to either such document), including exhibits thereto and
any documents incorporated therein by reference, which has been prepared and
delivered by the Operating Partnership to the Initial Purchasers in connection
with their solicitation of purchases of, or offering of, the Securities.
Capitalized terms used but not otherwise defined shall have the meanings given
to those terms in the Offering Memorandum.
The Initial Purchasers and their direct and indirect transferees will
be entitled to the benefits of a Registration Rights Agreement, to be dated as
of the Closing Time and to be substantially in the form attached hereto as
Exhibit A (the "Registration Rights Agreement").
8
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Offering Memorandum (or other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information
which are incorporated by reference in the Offering Memorandum; and all
references in this Agreement to amendments or supplements to the Offering
Memorandum shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934 (the "1934 Act") which is incorporated by
reference in the Offering Memorandum.
The term "subsidiary" means a corporation or a partnership, a majority
of the outstanding voting stock or partnership interests, as the case may be, of
which is owned or controlled, directly or indirectly, by the Operating
Partnership and/or Simon DeBartolo Group, Inc., a Maryland corporation and a
general partner of the Operating Partnership (the "Company") or by one or more
other subsidiaries of the Operating Partnership and/or the Company.
PARAGRAPH NUMBERING DEFINITION SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE OPERATING PARTNERSHIP. Each
of the Company, the Operating Partnership, SD Property Group, Inc. (formerly
known as DeBartolo Realty Corporation ("DeBartolo")), an Ohio corporation and
the managing general partner of the Operating Partnership ("SD Property"),
represents and warrants to each Initial Purchaser, as of the date hereof and as
of the Closing Time (as defined below) (in each case, a "Representation Date"),
and agrees with each Initial Purchaser, as follows:
(1) SIMILAR OFFERINGS. None of the Company, the Operating
Partnership, SD Property nor any of their affiliates, as such term is
defined in Rule 501(b) under the 1933 Act (each, an "Affiliate"), has,
directly or indirectly, solicited any offer to buy, sold or offered to
sell or otherwise negotiated in respect of, or will solicit any offer
to buy or offer to sell or otherwise negotiate in respect of, in the
United States or to any United States citizen or resident, any security
which is or would be integrated with the sale of the Securities in a
manner that would require the Securities to be registered under the
1933 Act.
(2) OFFERING MEMORANDUM. The Offering Memorandum does not, and at
the Closing Time 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; provided that this representation, warranty
and agreement shall not apply to statements in or omissions from the
Offering Memorandum made in reliance upon and in conformity with
information furnished to the Operating Partnership in writing by any
Initial Purchaser through the Representatives expressly for use in the
Offering Memorandum.
9
(3) Incorporated Documents. The documents incorporated by reference
in the Offering Memorandum which were or hereafter are filed with the
Commission 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 Offering Memorandum, at the
date of the Offering Memorandum, and at the Closing Time, do 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.
(4) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included, or incorporated
by reference, in the Offering Memorandum are independent public
accountants with respect to the Operating Partnership and its
subsidiaries within the meaning of Regulation S-X under the 1933 Act.
(5) Financial Statements. The financial statements included, or
incorporated by reference, in the Offering Memorandum, 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 Offering Memorandum present fairly,
in accordance with GAAP, the information stated therein. The selected
financial data, the summary financial information and other financial
information and data included, or incorporated by reference, in the
Offering Memorandum 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
Offering Memorandum. In addition, any pro forma financial information
and the related notes thereto, if any, included, or incorporated by
reference, in the Offering Memorandum present fairly the information
shown therein, have been prepared in accordance with the Commission
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.
(6) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Offering Memorandum,
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,
10
the Operating Partnership, M.S. Management Associates, Inc., a Delaware
corporation ("SPG Management Company"), M.S. Management Associates
(Indiana), Inc., an Indiana corporation ("Management (Indiana)"), Simon
MOA, Inc., an Indiana corporation ("MOA"), DeBartolo Properties
Management, Inc., an Ohio corporation ("DRC Management," and together
with SPG Management Company, Management (Indiana) and MOA, the
"Management Companies"), The Retail Property Trust ("RPT"), SM
Portfolio Limited Partnership, SDG EQ Developers Limited Partnership,
SD Property, Simon Property Group (Delaware), Inc., Jefferson Simon
Property, Inc., SDG Forum Developers, Inc., DeBartolo Properties, Inc.,
DeBartolo Properties II, Inc., DeBartolo Properties III, Inc. and SDG
EQ Associates, Inc. (collectively, the "Qualified 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 Operating Partnership, the Management
Companies, and the Qualified Reit Subs and such subsidiaries being
sometimes hereinafter collectively referred to as the "Simon DeBartolo
Entities" and individually as a "Simon DeBartolo Entity"), or of any
entity which owns any SDG Property (as such term is defined in the
Offering Memorandum) or any direct interest in any SDG Property (the
"Property Partnerships") whether or not arising in the ordinary course
of business, which would be material to the Company and the Operating
Partnership, taken as a whole (anything which would be material to the
Company and the Operating Partnership, 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 SDG Properties
has occurred which would be Material, (C) there have been no
transactions or acquisitions entered into by the Simon DeBartolo
Entities or the Property Partnerships, other than those in the ordinary
course of business, which would be Material, (D) except for
distributions in amounts per unit that are consistent with past
practices, there has been no distribution of any kind declared, paid or
made by the Operating Partnership on any of its general, limited and/or
preferred partnership interests, and (E) there has been no change in
the capital stock of the corporate Simon DeBartolo Entities or in the
partnership interests of the Operating Partnership or any Property
Partnership, or any increase in the indebtedness of the Simon DeBartolo
Entities, the Property Partnerships or the SDG Properties which would
be Material.
(7) 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 the
business in which it is engaged and proposes to engage as described in
the Offering Memorandum 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.
11
(8) 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 Offering Memorandum 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 Company's Registration Statement on Form S-3 (No.
333-11431), except for subsequent amendments relating to the admission
of new partners to the Operating Partnership.
(9) Good Standing of Simon DeBartolo Entities. Each of the Simon
DeBartolo Entities other than the Company and the Operating Partnership
has been duly organized and is validly existing as a corporation,
limited partnership, limited liability company or other entity, as the
case may be, in good standing under the laws of the state of its
jurisdiction of incorporation or organization, as the case may be, with
the requisite power and authority to own, lease and operate its
properties, and to conduct the business in which it is engaged or
proposes to engage as described in the Offering Memorandum. 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 Offering Memorandum, 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,
directly or indirectly, by the Company, the Management Companies or the
Operating Partnership, in each case free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity
(collectively, "Liens"). No shares of capital stock or other equity
interests of such entities are reserved for any purpose, and there are
no outstanding securities convertible into or exchangeable for any
capital stock or other equity interests of such entities and no
outstanding options, rights (preemptive or otherwise) or warrants to
purchase or to subscribe for shares of such capital stock or any other
securities of such entities, except as disclosed in the Offering
Memorandum. No such shares of capital stock or other
12
equity interests of such entities were issued in violation of
preemptive or other similar rights arising by operation of law, under
the charter or bylaws of such entity or under any agreement to which
any Simon DeBartolo Entity is a party.
(10) Good Standing of Property Partnerships. Each of the Property
Partnerships is duly organized and validly existing as a limited or
general partnership, as the case may be, in good standing under the
laws of its respective jurisdiction of formation. Each of the Property
Partnerships has the requisite power and authority to own, lease and
operate its properties, and to conduct the business in which it is
engaged. Each of the partnership agreements of the Property
Partnerships is in full force and effect. Each of the Property
Partnerships is duly qualified or registered as a foreign partnership
to transact business and is in good standing in each jurisdiction in
which such qualification or registration is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or register would not have a
Material Adverse Effect.
(11) Capitalization. The issued and outstanding units of general,
limited and/or preferred partner interests of the Operating Partnership
is as set forth on Schedule 3 hereto (except for subsequent issuances
thereof, if any, contemplated under this Agreement or referred to in
the Offering Memorandum). Such units of partners' equity have been duly
authorized and validly issued by the Operating Partnership and are
fully paid and non-assessable and have been offered and sold or
exchanged in compliance with all applicable laws (including, without
limitation, federal and state securities laws), and none of such units
of partners' equity were issued in violation of preemptive or other
similar rights arising by operation of law, under the certificate of
limited partnership and the OP Partnership Agreement of the Operating
Partnership or under any agreement to which the Operating Partnership
or any of the other Simon DeBartolo Entities is a party or otherwise.
There are no units of partners' equity of the Operating Partnership
reserved for any purpose and there are no outstanding securities
convertible into or exchangeable for any units of partners' equity of
the Operating Partnership and, other than this Agreement, there are no
outstanding options, rights (preemptive or otherwise) or warrants to
purchase from the Operating Partnership or to subscribe for with the
Operating Partnership such units of partners' equity or any other
securities of the Operating Partnership.
(12) Authorization of Purchase Agreement. This Agreement has been
duly authorized, executed and delivered by the Operating Partnership.
(13) Authorization of Remarketing Agreement. The Remarketing
Agreement, dated as of June 16, 1998, between Merrill Lynch, as
Remarketing Dealer, and the Operating Partnership (the "Remarketing
Agreement") has been duly authorized, executed and delivered by the
Operating Partnership and is a valid and legally binding agreement of
the Operating Partnership, enforceable against the Operating
Partnership in accordance with
13
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.
(14) Authorization of the Registration Rights Agreement. The
Registration Rights Agreement has been duly authorized, executed and
delivered by the Operating Partnership and, assuming the due
authorization, execution and delivery thereof by or on behalf of the
Initial Purchasers, will constitute a valid and legally binding
agreement of the Operating Partnership, enforceable against the
Operating Partnership in accordance with its terms except (1) to the
extent that enforceability thereof may be limited by (A) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (B) general principles of equity (regardless of whether
considered at law or in equity); (2) that rights to indemnity and
contribution contained in the Registration Rights Agreement may be
limited by state or federal Securities laws or public policy and (3)
that rights to receive the Special Interest Premium (as such term is
defined therein) contained therein, to the extent it may be construed
as liquidated damages, may be unenforceable, in whole or in part.
(15) Authorization of the Indenture. For the Securities being sold
pursuant to this Agreement, the Indenture has been, or prior to the
issuance of the Securities thereunder will have been, duly authorized,
executed and delivered by the Operating Partnership and, upon such
authorization, execution and delivery, will constitute a valid and
legally binding agreement of the Operating Partnership, enforceable
against the Operating Partnership 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. The Original Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act") and conforms,
in all material respects, to the descriptions thereof contained in the
Offering Memorandum.
(16) Authorization of Securities. The Securities have been duly
authorized by the Operating Partnership for issuance and sale pursuant
to this Agreement. Such Securities, when issued and authenticated in
the manner provided for in the Indenture and delivered by the Operating
Partnership pursuant to this Agreement against payment of the
consideration therefor, will constitute valid and legally binding,
unsecured obligations of the Operating Partnership, enforceable against
the Operating Partnership in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles. Such Securities will be in the form contemplated by, and
each registered holder thereof is entitled to the benefits of, the
Indenture. Such Securities rank and will rank on a parity with all
unsecured indebtedness (other than subordinated indebtedness) of the
Operating Partnership that is outstanding on a
14
Representation Date and senior to all subordinated indebtedness that is
outstanding on a Representation Date or that may be incurred
thereafter, except that such Securities will be effectively subordinate
to the prior claims of each secured mortgage lender to any specific SDG
Property which secures such lender's mortgage and to any claims of
creditors of Subsidiaries.
(17) Descriptions of the Securities and the Indenture. The
Securities being sold pursuant to this Agreement and the Indenture will
conform in all material respects to the statements relating thereto
contained in the Offering Memorandum and will be in substantially the
respective forms previously delivered to the Initial Purchasers.
(18) Absence of Defaults and Conflicts. None of the Simon DeBartolo
Entities or any Property Partnership is in violation of its charter,
by-laws, certificate of limited partnership or partnership agreement or
other organizational document, as the case may be, or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which any such 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 SDG
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 Remarketing Agreement, the
Securities, the Indenture, the Registration Rights Agreement and any
other agreement or instrument entered into or issued or to be entered
into or issued by the Operating Partnership in connection with the
transactions contemplated hereby or thereby or in the Offering
Memorandum and the consummation of the transactions contemplated herein
and in the Offering Memorandum (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 the
Operating Partnership with its obligations hereunder and thereunder
have been duly authorized by all necessary partnership action, and do
not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any Lien upon any assets, properties or
operations of the Operating Partnership or any other Simon DeBartolo
Entity or any Property Partnership pursuant to, any Agreements and
Instruments, except for such conflicts, breaches, defaults, Repayment
Events or liens, charges or encumbrances that would not result in a
Material Adverse Effect, nor will such action result in any violation
of the provisions of the partnership agreement and certificate of
limited partnership of the Operating Partnership or the organizational
documents of any other Simon DeBartolo Entity or any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Operating Partnership, any other Simon
DeBartolo Entity or any Property Partnership or any of their assets,
properties or operations, except for such violations that would not
have a Material
15
Adverse Effect. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or
a material portion of such indebtedness by the Operating Partnership,
any other Simon DeBartolo Entity or any Property Partnership.
(19) Absence of Labor Dispute. Except as otherwise described in the
Offering Memorandum, no labor dispute with the employees of the
Operating Partnership or any other Simon DeBartolo Entity or any
Property Partnership exists or, to the knowledge of the Operating
Partnership, is imminent, and the Operating Partnership is not aware of
any existing or imminent labor disturbance by the employees of any of
its or any subsidiary's principal suppliers, manufacturers, customers
or contractors, which dispute or disturbance, in either case, may
reasonably be expected to result in a Material Adverse Effect.
(20) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or by any court or governmental agency
or body, domestic or foreign, now pending, or to the knowledge of the
Operating Partnership threatened against or affecting the Operating
Partnership, any other Simon DeBartolo Entity, or any Property
Partnership or any officer or director of the Operating Partnership
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, the Remarketing Agreement, the
Indenture or the Registration Rights Agreement or the transactions
contemplated herein or therein. The aggregate of all pending legal or
governmental proceedings to which the Operating Partnership or any
other Simon DeBartolo Entity, or any Property Partnership is a party or
of which any of their respective assets, properties or operations is
the subject which are not described in the Offering Memorandum
including ordinary routine litigation incidental to the business, could
not reasonably be expected to result in a Material Adverse Effect.
(21) REIT Qualification. Each of the Company, SD Property and RPT
has been, and upon the sale of the Securities will continue to be,
organized and operated in conformity with the requirements for
qualification as a real estate investment trust under the Internal
Revenue Code of 1986, as amended (the "Code"), and its proposed method
of operation will enable it to continue to meet the requirements for
taxation as a real estate investment trust under the Code.
(22) Investment Company Act. Each of the Operating Partnership, the
other Simon DeBartolo Entities and the Property Partnerships is not,
and upon the issuance and sale of the Securities as herein contemplated
and the application of the net proceeds therefrom as described in the
Offering Memorandum will not be, an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the "1940
Act").
16
(23) Intellectual Property. To the knowledge of the Operating
Partnership, none of the Simon DeBartolo Entities or the Property
Partnerships is required to own, possess or obtain the consent of any
holder of any trademarks, service marks, trade names or copyrights not
now lawfully owned, possessed or licensed in order to conduct the
business now operated by such entity.
(24) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency or any other entity or person is necessary or required for the
performance by the Operating Partnership of its obligations under this
Agreement, the Remarketing Agreement, the Indenture or the Registration
Rights Agreement or in connection with the transactions contemplated
under this Agreement, the Remarketing Agreement, the Indenture or the
Registration Rights Agreement, except such as have been already
obtained or as may be required under state securities laws or under the
by-laws and rules of the National Association of Securities Dealers,
Inc. (the "NASD").
(25) Possession of Licenses and Permits. The Operating Partnership
and the other Simon DeBartolo Entities and each Property Partnership
possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them except
for such Governmental Licenses the failure to obtain would not, singly
or in the aggregate, result in a Material Adverse Effect. The Operating
Partnership and the other Simon DeBartolo Entities and each Property
Partnership are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, result in a Material Adverse Effect. All of
the Governmental Licenses are valid and in full force and effect,
except where the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect
would not result in a Material Adverse Effect. None of the Operating
Partnership, the other Simon DeBartolo Entities or 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.
(26) Title to Property. The Operating Partnership, the other Simon
DeBartolo Entities and the Property Partnerships have good and
marketable title to the SDG Properties free and clear of Liens, except
(A) as otherwise stated in the Offering Memorandum, or referred to in
any title policy for such Property, or (B) those which do not, singly
or in the aggregate, Materially (i) affect the value of such property
or (ii) interfere with the use made and proposed to be made of such
property by the Operating Partnership, any other Simon DeBartolo Entity
or any Property Partnership. All leases and subleases under which the
Operating Partnership, any other Simon DeBartolo Entity or any Property
Partnerships hold
17
properties are in full force and effect, except for such which would
not have a Material Adverse Effect. None of the Operating Partnership,
the other Simon DeBartolo Entities or the Property Partnerships has
received any notice of any Material claim of any sort that has been
asserted by anyone adverse to the rights of the Operating Partnership,
any other Simon DeBartolo Entity or the Property Partnerships under any
material leases or subleases, or affecting or questioning the rights of
the Operating Partnership, such other Simon DeBartolo Entity or the
Property Partnerships of the continued possession of the leased or
subleased premises under any such lease or sublease, other than claims
that would not have a Material Adverse Effect. All liens, charges,
encumbrances, claims or restrictions on or affecting any of the SDG
Properties and the assets of any Simon DeBartolo Entity or any Property
Partnership which are required to be disclosed in the Offering
Memorandum are disclosed therein. None of the Simon DeBartolo Entities,
the Property Partnerships or any tenant of any of the SDG 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 SDG Properties, and the Operating
Partnership does not know 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 Operating Partnership or any
Property Partnership, as lessor, leases its 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 SDG 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 SDG
Properties), except for such failures to comply that would not in the
aggregate have a Material Adverse Effect. The Operating Partnership
does not have 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 SDG Properties, except such proceedings, changes or
actions that would not have a Material Adverse Effect.
(27) Environmental Laws. Except as otherwise stated in the Offering
Memorandum and except such violations as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the
Operating Partnership, any of the other Simon DeBartolo Entities nor
any Property Partnership is in violation of any federal, state, local
or foreign statute, law, rule, regulation, ordinance, code, policy or
rule of common law and any judicial or administrative interpretation
thereof including any judicial or administrative order, consent, decree
of judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) including, without
limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively,
18
"Hazardous Materials") or to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (B) the Operating
Partnership, the other Simon DeBartolo Entities and the Property
Partnerships have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance with
their requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against
the Operating Partnership, any of the other Simon DeBartolo Entities or
the Property Partnerships and (D) there are no events or circumstances
that might reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Operating Partnership, any of the other Simon DeBartolo Entities or any
Property Partnership relating to any Hazardous Materials or the
violation of any Environmental Laws.
(28) Tax Returns. Each of the Simon DeBartolo Entities and the
Property Partnerships has filed all federal, state, local and foreign
income tax returns which have been required to be filed (except in any
case in which an extension has been granted or the failure to so file
would not have a Material Adverse Effect) and has paid all taxes
required to be paid and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable,
except, in all cases, for any such tax, assessment, fine or penalty
that is being contested in good faith.
(29) Environmental Consultants. None of the environmental
consultants which prepared environmental and asbestos inspection
reports with respect to certain of the SDG Properties was employed for
such purpose on a contingent basis or has any substantial interest in
any Simon DeBartolo Entity or any Property Partnership and none of them
nor any of their directors, officers or employees is connected with any
Simon DeBartolo Entity or any Property Partnership as a promoter,
selling agent, voting trustee, director, officer or employee.
(30) Property Information. Information in respect of the SDG
Properties presented in the Offering Memorandum is true and accurate in
all Material respects as of the date of Offering Memorandum.
(31) Rule 144A Eligibility. The Securities are eligible for resale
pursuant to Rule 144A and will not be, at the Closing Time, of the same
class as securities listed on a national securities exchange registered
under Section 6 of the 1934 Act, or quoted in a U.S. automated
interdealer quotation system.
(32) No General Solicitation. None of the Operating Partnership,
its Affiliates or any person acting on any of their behalf (other than
the Initial Purchasers, as to whom the
19
Operating Partnership makes no representation) has engaged or will
engage, in connection with the offering of the Securities, in any form
of general solicitation or general advertising within the meaning of
Rule 502(c) under the 1933 Act.
(33) No Registration Required. Subject to compliance by the Initial
Purchasers with the representations and warranties set forth in Section
2 and the procedures set forth in Section 6 hereof, it is not necessary
in connection with the offer, sale and delivery of the Securities to
the Initial Purchasers and to each Subsequent Purchaser in the manner
contemplated by this Agreement and the Offering Memorandum to register
the Securities under the 1933 Act or to qualify the Indenture under the
1939 Act.
(34) Reporting Company. The Operating Partnership is subject to the
reporting requirements of Section 13 or Section 15(d) of the 1934 Act.
(35) No Directed Selling Efforts. With respect to those Securities
sold in reliance on Regulation S, (A) none of the Operating
Partnership, its Affiliates or any person acting on any of their behalf
(other than the Initial Purchasers, as to whom the Operating
Partnership makes no representation) has engaged or will engage in any
directed selling efforts within the meaning of Regulation S and (B)
each of the Operating Partnership and its Affiliates and any person
acting on any of their behalf (other than the Initial Purchasers, as to
whom the Operating Partnership makes no representation) has complied
and will comply with the offering restrictions requirement of
Regulation S.
(b) Officers' Certificates. Any certificate signed by any officer of
the Operating Partnership or any authorized representative of the Company and SD
Property and delivered to the Representatives or to counsel for the Initial
Purchasers in connection with the offering of the Securities shall be deemed a
representation and warranty by such entity or person, as the case may be, to
each Initial Purchaser as to the matters covered thereby on the date of such
certificate.
2. Sale and Delivery to the Initial Purchasers; Closing.
(a) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Operating Partnership agrees to sell to each Initial Purchaser, severally and
not jointly, and each Initial Purchaser, severally and not jointly, agrees to
purchase from the Operating Partnership, at the price set forth in Schedule 2,
the aggregate principal amount of Securities set forth in Schedule 1 opposite
the name of such Initial Purchaser, plus any additional principal amount of
Securities which such Initial Purchaser may become obligated to purchase
pursuant to the provisions of Section 11 hereof.
(b) Payment. Payment of the purchase price for, and delivery of, the
Securities shall be made at the office of Rogers & Wells LLP, 200 Park Avenue,
New York, New York 10166-0153, or at such other place as shall be agreed upon by
the Representatives and the Operating Partnership,
20
at 10:00 A.M. (Eastern time) on the fourth business day after the date hereof
(unless postponed in accordance with the provisions of Section 11), or such
other time not later than ten business days after such date as shall be agreed
upon by the Representatives and the Operating Partnership (such time and date of
payment and delivery being herein called the "Closing Time").
Payment shall be made to the Operating Partnership by wire transfer of
immediately available funds to a bank account designated by the Operating
Partnership, against delivery to the Representatives or their designee for the
respective accounts of the Initial Purchasers of the Securities to be purchased
by them. It is understood that each Initial Purchaser has authorized the
Representatives, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Securities which it has agreed to
purchase. Merrill Lynch, individually and not as representative of the Initial
Purchasers, may (but shall not be obligated to) make payment of the purchase
price for the Securities to be purchased by any Initial Purchaser whose funds
have not been received by the Closing Time, but such payment shall not relieve
such Initial Purchaser from its obligations hereunder.
(c) Qualified Institutional Buyer. Each Initial Purchaser severally and
not jointly represents and warrants to, and agrees with, the Operating
Partnership that it is a "qualified institutional buyer" within the meaning of
Rule 144A under the 1933 Act (a "Qualified Institutional Buyer") and an
"accredited investor" within the meaning of Rule 501(a) under the 1933 Act (an
"Accredited Investor").
(d) Denominations; Registration. The Securities shall be in such
denominations and registered in such names as the Representatives may request in
writing at least one full business day prior to the Closing Time. The Securities
will be made available for examination and packaging by the Initial Purchasers
in The City of New York not later than 10:00 A.M. (Eastern time) on the business
day prior to the Closing Time.
3. Covenants of the Operating Partnership.
The Operating Partnership covenants with each Initial Purchaser as
follows:
(a) Offering Memorandum. The Operating Partnership, as promptly as
possible, will furnish to each Initial Purchaser, without charge, such number of
copies of the Preliminary Offering Memorandum, the Final Offering Memorandum and
any amendments and supplements thereto and documents incorporated by reference
therein as such Initial Purchaser may reasonably request.
(b) Notice and Effect of Material Events. The Operating Partnership
will immediately notify each Initial Purchaser, and confirm such notice in
writing, of (x) any filing made by the Operating Partnership of information
relating to the offering of the Securities with any securities exchange or any
other regulatory body in the United States or any other jurisdiction, and (y)
prior to
21
the completion of the placement of the Securities by the Initial Purchasers as
evidenced by a notice in writing from the Initial Purchasers to the Operating
Partnership, any material changes in or affecting the condition, financial or
otherwise, or the earnings, business affairs or business prospects of any Simon
DeBartolo Entity or Property Partnership which (i) make any statement in the
Offering Memorandum false or misleading or (ii) are not disclosed in the
Offering Memorandum. In such event or if during such time any event shall occur
as a result of which it is necessary, in the reasonable opinion of any of the
Operating Partnership, its counsel, the Initial Purchasers or counsel for the
Initial Purchasers, to amend or supplement the Final Offering Memorandum in
order that the Final Offering Memorandum not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances then
existing, the Operating Partnership will forthwith amend or supplement the Final
Offering Memorandum by preparing and furnishing to each Initial Purchaser an
amendment or amendments of, or a supplement or supplements to, the Final
Offering Memorandum (in form and substance satisfactory in the reasonable
opinion of counsel for the Initial Purchasers) so that, as so amended or
supplemented, the Final Offering Memorandum 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 existing at the time
it is delivered to a Subsequent Purchaser, not misleading.
(c) Amendment to Offering Memorandum and Supplements. The Operating
Partnership will advise each Initial Purchaser promptly of any proposal to amend
or supplement the Offering Memorandum and will not effect such amendment or
supplement without the consent of the Initial Purchasers. Neither the consent of
the Initial Purchasers, nor the Initial Purchasers' delivery of any such
amendment or supplement, shall constitute a waiver of any of the conditions set
forth in Section 5 hereof.
(d) Blue Sky Qualifications. The Operating Partnership will use its
best efforts, in cooperation with the Initial Purchasers, to qualify the
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions (domestic or foreign) as the Representatives may
designate and to maintain such qualifications in effect for a period of not less
than one year from the date of this Agreement; provided, however, that the
Operating Partnership shall not be obligated to file any general consent to
service of process or to qualify or register as a foreign partnership or as a
dealer in securities in any jurisdiction in which it is not so qualified or
registered, or provide any undertaking or make any change in its charter or
by-laws that the Board of Directors of SD Property reasonably determines to be
contrary to the best interests of the Operating Partnership and its unitholders
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each jurisdiction in
which the Securities have been so qualified or registered, the Operating
Partnership will file such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect for a period of
not less than one year from the date of this Agreement.
22
(e) Reporting Requirements. The Operating Partnership, during the
period when the Securities are outstanding and are "restricted securities"
within the meaning of Rule 144(a)(3) under the 1933 Act, will file all documents
required to be filed with the Commission pursuant to the 1934 Act within the
time periods required by the 1934 Act and the 1934 Act Regulations.
(f) REIT Qualification. The Company will use its best efforts to
continue to meet the requirement to qualify as a "real estate investment trust"
under the Code for the taxable year in which sales of the Securities are to
occur and for its future taxable years.
(g) Use of Proceeds. The Operating Partnership will use the net
proceeds received by it from the sale of the Securities in the manner specified
in the Offering Memorandum under "Use of Proceeds."
(h) Exchange Act Filings. During a period of three years from the
Closing Time, the Operating Partnership will deliver to the Initial Purchasers,
(i) promptly upon their becoming available, copies of all current, regular and
periodic reports of the Operating Partnership mailed to its unitholders or filed
with any securities exchange or with the Commission or any governmental
authority succeeding to any of the Commission's functions, and (ii) such other
information concerning the Operating Partnership as the Initial Purchasers may
reasonably request.
(i) Supplemental Indentures. In respect of the offering of the
Securities, the Operating Partnership will execute one or more supplemental
indentures designating one or more series of debt securities to be offered and
their related terms and provisions in accordance with the provisions of the
Indenture.
(j) Ratings. The Operating Partnership will take all reasonable action
necessary to enable Standard & Poor's Ratings Services, a division of McGraw
Hill, Inc. ("S&P"), Moody's Investors Service, Inc. ("Moody's") or any other
"nationally recognized statistical rating organization", as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, to provide
their respective credit ratings of the Securities.
(k) DTC. The Operating Partnership will cooperate with the
Representative(s) and use commercially reasonable efforts to permit the
Securities to be eligible for clearance and settlement through the facilities of
DTC.
(l) Registration Rights Agreement. The Operating Partnership will
comply with all of the terms and conditions of the Registration Rights
Agreement.
4. Payment of Expenses.
23
(a) Expenses. The Operating Partnership will pay all expenses incident
to the performance of its obligations under this Agreement and the Registration
Rights Agreement, including (i) the preparation, printing and delivery to the
Initial Purchasers of this Agreement, the Registration Rights Agreement, any
Agreement among Initial Purchasers, any Indenture and such other documents as
may be required in connection with the offering, purchase, sale and delivery of
the Securities, (ii) the preparation, issuance and delivery of the Securities,
or any certificates for the Securities to the Initial Purchasers, including any
charges of DTC in connection herewith, (iii) the fees and disbursements of the
Operating Partnership's counsel, accountants and other advisors or agents
(including transfer agents and registrars), as well as the reasonable fees and
disbursements of any Trustee, and their respective counsel, (iv) the
qualification of the Securities under state securities and real estate
syndication laws in accordance with the provisions of Section 3(d) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Initial Purchasers in connection therewith and in connection with the
preparation, printing and delivery of the Blue Sky Survey, (v) the printing and
delivery to the Initial Purchasers of copies of the Offering Memorandum and any
amendments or supplements thereto, and (vi) the fees charged by nationally
recognized statistical rating organizations for the rating of the Securities, if
applicable.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
10(a)(i), the Operating Partnership shall reimburse the Initial Purchasers for
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Initial Purchasers.
5. Conditions of Initial Purchaser's Obligations.
The obligations of the Initial Purchasers are subject to the accuracy
of the representations and warranties of the Operating Partnership contained in
Section 1 hereof or in certificates of any officer or authorized representative
of the Operating Partnership or any other Simon DeBartolo Entity delivered
pursuant to the provisions hereof, to the performance by the Operating
Partnership of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Execution of Registration Rights Agreement. At Closing Time, the
Operating Partnership shall have executed and delivered the Registration Rights
Agreement, substantially in the form attached hereto as Exhibit A.
(b) Opinion of Counsel for Operating Partnership. At Closing Time, the
Representatives shall have received the favorable opinions, dated as of Closing
Time, of (i) Piper & Marbury L.L.P., special Maryland counsel for the Company,
to the effect set forth in Exhibit B-1, (ii) James M. Barkley, the General
Counsel of the Operating Partnership, to the effect set forth in Exhibit B-2,
(iii) Willkie Farr & Gallagher, counsel for the Operating Partnership, to the
effect set forth in Exhibit B-3, (iv) Vorys, Sater, Seymour and Pease LLP,
special Ohio counsel to SD Property, to the effect set forth in Exhibit B-4, and
(v) Baker & Daniels, special counsel for the Operating Partnership, to the
effect set forth in Exhibit B-5 or such other counsel as is designated
24
by the Operating Partnership, in form and substance reasonably satisfactory to
counsel for the Initial Purchasers, together with signed or reproduced copies of
such opinion for each of the other Initial Purchasers.
(c) Opinion of Counsel for Initial Purchasers. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Rogers & Wells LLP, counsel for the Initial Purchasers, or such other
counsel as may be designated by the Initial Purchasers, together with signed or
reproduced copies of such letter for each of the other Initial Purchasers, with
respect to the matters set forth in (1) of Exhibit B-1 hereto, (2) (with respect
to the first clause only), (3) (with respect to SD Property only and with
respect to the first clause only) and (7) of Exhibit B-2 hereto, (4), (5) and
the last two paragraphs of Exhibit B-3 hereto. In giving such opinion, such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York, the federal law of the United States and
the General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to the Representatives. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers or authorized
representatives of the Operating Partnership and the other Simon DeBartolo
Entities and certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not have been,
since the date of this Agreement or since the respective dates as of which
information is given in the Offering Memorandum, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Operating Partnership and the other Simon DeBartolo
Entities considered as one enterprise, whether or not arising in the ordinary
course of business, and the Representatives 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, as a general
partner of the Operating Partnership, and (y) the Chief Executive Officer,
President or a Vice President of and the chief financial officer or accounting
officer of SD Property, as managing general partner of the Operating
Partnership, dated as of Closing Time, to the effect that (i) there has been no
such material adverse change, (ii) the representations and warranties in Section
1 are true and correct, in all material respects, with the same force and effect
as though expressly made at and as of the Closing Time, (iii) the Operating
Partnership has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the Closing Time, (iv) no order
suspending the sale of the Securities in any jurisdiction has been issued and no
proceedings for that purpose have been initiated or threatened by the state
securities authority of any jurisdiction, (v) the Offering Memorandum did 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 and (vi) none of the
events listed in Section 10(a) shall have occurred.
(e) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from Arthur Andersen LLP a
letter, dated such date, in form
25
and substance satisfactory to the Representatives and counsel to the Initial
Purchasers, containing statements and information of the type ordinarily
included in accountants' "comfort letters" as set forth in the AICPA's Statement
on Auditing Standards 72 to Initial Purchasers with respect to the financial
statements and certain financial information contained or incorporated by
reference in the Offering Memorandum.
(f) Bring-down Comfort Letter. At Closing Time, the Representatives
shall have received from Arthur Andersen LLP a letter, dated as of Closing Time,
to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (e) of this Section 5, except that the specified date
referred to shall be a date not more than three business days prior to the
Closing Time.
(g) Maintenance of Rating. At the Closing Time, the Securities shall be
rated at least BAA1 by Moody's and BBB+ by S&P, and the Operating Partnership
shall have delivered to the Representatives a letter dated the Closing Time,
from each such rating agency, or other evidence satisfactory to the
Representatives, confirming that the Securities have such ratings; and since the
date of this Agreement, there shall not have occurred a downgrading in the
rating assigned to the Securities or any of the Operating Partnership's other
securities by any "nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes for Rule 436(g)(2) under the
1933 Act, and no such securities rating agency shall have publicly announced
that it has under surveillance or review, with possible negative implications,
its rating of the Securities or any of the Operating Partnership's other
securities.
(h) Additional Documents. At Closing Time, counsel for the Initial
Purchasers shall have been furnished with such documents and opinions as they
may require for the purpose of enabling them to pass upon the issuance and sale
of the Securities as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Operating
Partnership in connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the Representatives
and counsel for the Initial Purchasers.
(i) Termination of this Agreement. 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 Representatives by notice to the
Operating Partnership at any time at or prior to the Closing Time, and such
termination shall be without liability of any party to any other party except as
provided in Section 4, and except that Sections 1, 7 and 8 shall survive any
such termination and remain in full force and effect.
6. Subsequent Offers and Resales of the Securities.
26
(a) Offer and Sale Procedures. Each of the Initial Purchasers and the
Operating Partnership hereby establish and agree to observe the following
procedures in connection with the offer and sale of the Securities:
(i) Offers, Sales and Deliveries. Offers, sales and deliveries of
the Securities shall only be made (A) to persons whom the offeror or
seller reasonably believes to be qualified institutional buyers (as
defined in Rule 144A under the 1933 Act), (B) to a limited number of
other institutional accredited investors (as such term is defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D) that the offeror or
seller reasonably believes to be and, with respect to sales and
deliveries, that are Accredited Investors ("Institutional Accredited
Investors") or (C) non-U.S. persons outside the United States, as
defined in Regulation S under the 1933 Act, to whom the offeror or
seller reasonably believes offers and sales of the Securities may be
made in reliance upon Regulation S under the 1933 Act. Each Initial
Purchaser agrees that it will not offer, sell or deliver any of the
Securities in any jurisdiction outside the United States except under
circumstances that will result in compliance with the applicable laws
thereof, and that it will take at its own expense whatever action is
required to permit its purchase and resale of the Securities in such
jurisdictions.
(ii) No General Solicitation. No general solicitation or general
advertising (within the meaning of Rule 502(c) under the 1993 Act) will
be used in the United States in connection with the offering or sale of
the Securities.
(iii) Purchases by Non-Bank Fiduciaries. In the case of a non-bank
Subsequent Purchaser of a Security acting as a fiduciary for one or
more third parties, each such third party shall, in the judgment of the
applicable Initial Purchaser, be an Institutional Accredited Investor
or a Qualified Institutional Buyer or a non-U.S. person outside the
United States.
(iv) Subsequent Purchaser Notification. Each Initial Purchaser will
take reasonable steps to inform, and cause each of its U.S. Affiliates
to take reasonable steps to inform, persons acquiring Securities from
such Initial Purchaser or affiliate, as the case may be, in the United
States that the Securities (A) have not been and will not be registered
under the 1933 Act, (B) are being sold to them without registration
under the 1933 Act in reliance on Rule 144A or in accordance with
another exemption from registration under the 1933 Act, as the case may
be, and (C) may not be offered, sold or otherwise transferred except
(1) to the Operating Partnership, (2) outside the United States in
accordance with Regulation S, or (3) inside the United States in
accordance with (x) Rule 144A to a person whom the seller reasonably
believes is a Qualified Institutional Buyer that is purchasing such
Securities for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or
transfer is being made in reliance on Rule 144A or (y) pursuant to
another available exemption from registration under the 1933 Act.
27
(v) Minimum Principal Amount. No sale of the Securities to any one
Subsequent Purchaser will be for less than U.S. $100,000 principal
amount and no Security will be issued in a smaller principal amount. If
the Subsequent Purchaser is a non-bank fiduciary acting on behalf of
others, each person for whom it is acting must purchase at least U.S.
$100,000 principal amount of the Securities.
(vi) Restrictions on Transfer. The transfer restrictions and the
other provisions set forth in the Offering Memorandum under the heading
"Notice to Investors", including the legend required thereby, shall
apply to the Securities except as otherwise agreed by the Operating
Partnership and the Initial Purchasers.
(vii) Delivery of Offering Memorandum. Each Initial Purchaser will
deliver to each Subsequent Purchaser of the Securities, in connection
with its original distribution of the Securities, a copy of the
Offering Memorandum, as amended and supplemented at the date of such
delivery, if required by applicable law.
(b) Covenants of the Operating Partnership. The Operating Partnership
covenants with each Initial Purchaser as follows:
(i) Integration. The Operating Partnership agrees that it will not
and will cause its Affiliates not to solicit any offer to buy or make
any offer or sale of, or otherwise negotiate in respect of, securities
of the Operating Partnership of any class if, as a result of the
doctrine of "integration" referred to in Rule 502 under the 1933 Act,
such offer or sale would render invalid (for the purpose of (i) the
sale of the Securities by the Operating Partnership to the Initial
Purchasers, (ii) the resale of the Securities by the Initial Purchasers
to Subsequent Purchasers or (iii) the resale of the Securities by such
Subsequent Purchasers to others) the exemption from the registration
requirements of the 1933 Act provided by Section 4(2) thereof or by
Rule 144A or by Regulation S thereunder or otherwise.
(ii) Rule 144A Information. The Operating Partnership agrees that,
in order to render the Securities eligible for resale pursuant to Rule
144A under the 1933 Act, while any of the Securities remain
outstanding, it will make available, upon request, to any holder of
Securities or prospective purchasers of Securities the information
specified in Rule 144A(d)(4), unless the Operating Partnership
furnishes information to the Commission pursuant to Section 13 or 15(d)
of the 1934 Act (such information, whether made available to holders or
prospective purchasers or furnished to the Commission, is herein
referred to as "Additional Information").
(iii) Restriction on Repurchases. Until the expiration of two years
after the original issuance of the Securities, the Operating
Partnership will not, and will cause its Affiliates not to, purchase or
agree to purchase or otherwise acquire any Securities which are
"restricted securities" (as such term is defined under Rule 144(a)(3)
under the 1933
28
Act), whether as beneficial owner or otherwise (except as agent acting
as a securities broker on behalf of and for the account of customers in
the ordinary course of business in unsolicited broker's transactions),
unless such repurchased Securities are promptly retired.
(c) Resale Pursuant to Rule 903 of Regulation S or Rule 144A. Each
Initial Purchaser understands that the Securities have not been and will not be
registered under the 1933 Act and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons except in
accordance with Regulation S under the 1933 Act or pursuant to an exemption from
the registration requirements of the 1933 Act. Each Initial Purchaser severally
represents and agrees, that, except as permitted by Section 6(a) above, it has
offered and sold Securities and will offer and sell Securities (i) as part of
their distribution at any time and (ii) otherwise until forty days after the
later of the date upon which the offering of the Securities commences and the
Closing Time, only in accordance with Rule 903 of Regulation S, or another
applicable exemption from the registration provisions of the 1933 Act or Rule
144A under the 1993 Act. Accordingly, neither the Initial Purchasers, their
affiliates nor any persons acting on their behalf have engaged or will engage in
any directed selling efforts with respect to Securities, and the Initial
Purchasers, their affiliates and any person acting on their behalf have complied
and will comply with the offering restriction requirements of Regulation S. Each
Initial Purchaser agrees that, at or prior to confirmation of a sale of
Securities (other than a sale of Securities pursuant to Rule 144A) it will have
sent to each distributor, dealer or person receiving a selling concession, fee
or other remuneration that purchases Securities from it or through it during the
restricted period a confirmation or notice to substantially the following
effect:
"The Securities covered hereby have not been registered under
the 1933 Act and may not be offered or sold within the United
States or to or for the Account or benefit of U.S. persons (i)
as part of their distribution at any time and (ii) otherwise
until forty days after the later of the date upon which the
offering of the Securities commenced and the date of closing,
except in either case in accordance with Regulation S, Rule
144A under the 1933 Act or another exemption from the
registration requirements of the 1933 Act. Terms used above
have the meaning given to them by Regulation S."
Terms used in the above paragraph have the meanings given to them by Regulation
S.
(d) Representations and Warranties of Initial Purchasers. Each Initial
Purchaser severally represents and agrees that it has not entered and will not
enter into any contractual arrangements with respect to the distribution of the
Securities, except with its affiliates or with the prior written consent of the
Operating Partnership.
7. Indemnification.
29
(a) Indemnification of Initial Purchasers. The Operating Partnership
agrees to indemnify and hold harmless each Initial Purchaser and each person, if
any, who controls any Initial Purchaser within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Offering
Memorandum or in any amendment or supplement thereto, 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;
(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 (d) below) any such settlement is effected with the written
consent of the Operating Partnership; and
(3) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Merrill Lynch),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Operating
Partnership by any Initial Purchaser through the Representatives expressly for
use in the Offering Memorandum (or any amendment or supplement thereto).
(b) Indemnification of Operating Partnership, General Partners'
Directors and Officers. Each Initial Purchaser severally agrees to indemnify and
hold harmless the Operating Partnership, each general partner of the Operating
Partnership (the "General Partners"), each of the General Partners' directors,
and each person, if any, who controls the Operating Partnership or the General
Partners within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Offering Memorandum (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the
30
Operating Partnership by such Initial Purchaser through the Representatives
expressly for use in the Offering Memorandum (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 7(a) above,
counsel to the indemnified parties shall be selected by Merrill Lynch, and, in
the case of parties indemnified pursuant to Section 7(b) above, counsel to the
indemnified parties shall be selected by the Operating Partnership. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 7 or Section
8 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 7(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. Notwithstanding the immediately preceding sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 7(a)(2)
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent it considers
such request to be
31
reasonable and (ii) provides written notice to the indemnified party
substantiating the unpaid balance as unreasonable, in each case prior to the
date of such settlement.
8. Contribution.
If the indemnification provided for in Section 7 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Operating Partnership, on the one
hand, and the Initial Purchasers, on the other hand, from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Operating Partnership, on the one hand,
and of the Initial Purchasers, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Operating Partnership, on the one
hand, and the Initial Purchasers, on the other hand, in connection with the
offering of the Securities pursuant to this Agreement 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 received by the Initial Purchasers, bear to
the aggregate initial offering price of the Securities.
The relative fault of the Operating Partnership, on the one hand, and
the Initial Purchasers, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Operating Partnership or by the Initial Purchasers
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Operating Partnership and the Initial Purchasers agree that it
would not be just and equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Initial Purchasers 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 8. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
8 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.
32
Notwithstanding the provisions of this Section 8, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities purchased by it and sold to a Subsequent
Purchaser were sold to such Subsequent Purchaser exceeds the amount of any
damages which such Initial Purchaser has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an
Initial Purchaser 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 Initial
Purchaser, and each director of the General Partners, and each person, if any,
who controls the Operating Partnership or the General Partners within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Operating Partnership. The Initial
Purchasers' respective obligations to contribute pursuant to this Section 8 are
several in proportion to the principal amount of Securities set forth opposite
their respective names in Schedule 1 hereto and not joint.
9. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Operating Partnership or
authorized representatives of the Operating Partnership or the General Partners
submitted pursuant hereto or thereto shall remain operative and in full force
and effect, regardless or any investigation made by or on behalf of any Initial
Purchaser or any controlling person, or by or on behalf of the Operating
Partnership, and shall survive delivery of and payment for the Securities.
10. Termination.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Operating Partnership, at any time at or prior to
the Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Offering Memorandum, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Operating Partnership and the other Simon DeBartolo Entities considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Representatives, impracticable
33
or inadvisable to market the Securities or to enforce contracts for the sale of
the Securities, or (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the American Stock Exchange or the New York
Stock Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, (iv) if a banking moratorium has been
declared by either Federal, New York, Delaware or Maryland authorities, or (v)
if the rating assigned by any nationally recognized statistical rating
organization to any debt securities of the Operating Partnership as of the date
hereof shall have been downgraded since such date or if any such rating
organization shall have publicly announced that it has placed any series of debt
securities of the Operating Partnership under surveillance or review, with
possible negative implications, as to the rating of such debt securities or any
of the Operating Partnership's other securities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section 10, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 7, 8 and 9 hereof shall survive such termination and remain in full
force and effect.
11. Default by One or More of the Initial Purchasers. If one or more of
the Initial Purchasers shall fail at the Closing Time to purchase the Securities
which it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting Initial
Purchasers, or any other Initial Purchasers, to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and upon
the terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the aggregate principal amount of the Securities to be purchased
hereunder, each of the non-defaulting Initial Purchasers shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Initial Purchasers, or
(b) if the number of Defaulted Securities exceeds 10% of the
aggregate principal amount of the Securities to be purchased hereunder,
this Agreement shall terminate without liability on the part of any
non-defaulting Initial Purchaser.
No action taken pursuant to this Section shall relieve any defaulting
Initial Purchaser from liability in respect of its default.
34
In the event of any such default which does not result in a termination
of this Agreement, either the Representatives or the Operating Partnership shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Offering Memorandum or in
any other documents or arrangements. As used herein, the term "Initial
Purchaser" includes any person substituted for an Initial Purchaser under this
Section 11.
12. Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Representatives shall be directed to
Merrill Lynch at World Financial Center, North Tower, New York, New York
10281-1201, attention of Martin J. Cicco, Managing Director; and notices to the
Simon DeBartolo Entities shall be directed to any of them at National City
Center, 115 West Washington Street, Suite 15 East, Indianapolis, Indiana 46204,
attention of Mr. David Simon, with a copy to Willkie Farr & Gallagher, 787
Seventh Avenue, New York, New York, 10019, attention of Nora Ann Wallace, Esq.
13. 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 Initial Purchasers, the Operating Partnership, SD
Property, the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 7 and 8 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 thereto and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any Initial
Purchaser shall be deemed to be a successor by reason merely of such purchase.
14. GOVERNING LAW AND TIME.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED IN SAID STATE. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
15. Effect of Headings.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
35
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Operating Partnership a counterpart
hereof, whereupon this Agreement, along with all counterparts, will become a
binding agreement between the Initial Purchasers, and the Operating Partnership
in accordance with its terms.
Very truly yours,
SIMON DEBARTOLO GROUP, L.P.
By: SD Property Group, Inc.,
its Managing General Partner
By:
-------------------------
Name:
Title:
SIMON DEBARTOLO GROUP, INC.
By:
------------------------------
Name:
Title:
SD PROPERTY GROUP, INC.
By:
------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By:
------------------------------
Name:
Title: Authorized Signatory
36
For themselves and as Representatives of the other Initial Purchasers named in
Schedule 1 hereto.
37
SCHEDULE 1
PRINCIPAL PRINCIPAL PRINCIPAL PRINCIPAL
AMOUNT OF AMOUNT OF AMOUNT OF AMOUNT OF
INITIAL PURCHASER 2003 NOTES 2005 NOTES 2018 NOTES MOPPRS
----------------- ------------ ------------ ------------ ------------
Merrill Lynch, Pierce, $ 93,750,000 $ 75,000,000 $ 40,000,000 $ 40,000,000
Fenner & Smith
Incorporated
Morgan Stanley & Co. $ 93,750,000 $ 75,000,000 $ 40,000,000 $ 40,000,000
Incorporated
Chase Securities Inc. -- -- $ 40,000,000 $ 40,000,000
Lehman Brothers Inc. $ 93,750,000 $ 75,000,000 -- --
J.P. Morgan Securities Inc. -- -- $ 40,000,000 $ 40,000,000
NationsBanc Montgomery $ 93,750,000 $ 75,000,000 $ 40,000,000 --
Securities LLC
UBS Securities LLC -- -- -- $ 40,000,000
------------ ------------ ------------ ------------
TOTAL ................... $375,000,000 $300,000,000 $200,000,000 $200,000,000
38
SCHEDULE 2
SIMON DEBARTOLO GROUP, L.P.
$375,000,000 6 5/8% Notes due ------- 2003
$300,000,000 6 3/4% Notes due ------- 2005
$200,000,000 7 3/8% Notes due ------- 2018
$200,000,000 7.0% MandatOry Par Put Remarketed
Securities(SM) ("MOPPORS(SM)") due ------- 2028
1. The initial public offering price of the Securities shall be
99.768%, 99.405% and 99.311% of the principal amount of the 2003 Notes, the 2005
Notes, and the 2018 Notes respectively, plus, in each case, accrued interest, if
any, from the date of issuance. The MOPPRS will be sold to investors a varying
prices relating to prevailing market prices at the time of each to be determined
by the Initial Purchasers at the time of each sale.
2. The purchase price to be paid by the Initial Purchasers for the
Securities shall be 99.168%, 98.780%, 98.436% and 98.751% of the principal
amount of the 2003 Notes, the 2005 Notes, the 2018 Notes and the MOPPRS,
respectively.
3. The interest rate on the 2003 Notes shall be 6 5/8% per annum; the
interest rate on the 2005 Notes shall be 6 3/4% per annum; the interest rate on
the 2018 Notes shall be 7 3/8% per annum; and the interest rate on the MOPPRS to
June 15, 2008 shall be 7.0% per annum.
39
SCHEDULE 3
40
Exhibit A
FORM OF REGISTRATION RIGHTS AGREEMENT
41
Exhibit B-1
FORM OF OPINION OF COMPANY'S SPECIAL MARYLAND COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland.
(2) The Company has the corporate power and authority to own, lease and
operate its properties, to conduct the business in which it is engaged or
proposes to engage as described below, and to enter into and perform its
obligations under, or as contemplated under, this Agreement. For the purposes of
this opinion, such counsel may assume that the business in which the Company is
engaged or proposes to engage consists of the business of (i) a
self-administered and self-managed real estate investment trust under the
Internal Revenue Code of 1986, as amended, (ii) owning partnership interests and
other equity interests in subsidiary entities, (iii) acting as a general partner
and/or limited partner in subsidiary partnerships, and (iv) providing
management, leasing, accounting, design, and construction expertise through its
own personnel or through outside professionals.
(3) This Agreement has been duly and validly authorized by the Company.
Any one of the Co-Chairmen of the Board, Chief Executive Officer, President, any
Vice President, the Treasurer, any Assistant Treasurer, the Secretary, or any
Assistant Secretary of the Company (hereinafter, collectively, the "Authorized
Officers") has been duly authorized to execute and deliver this Agreement, and,
assuming it has been executed and delivered by any one of the Authorized
Officers, this Agreement is duly and validly executed and delivered by the
Company.
(4) The execution, delivery and performance of this Agreement, the
consummation of the transactions contemplated in this Agreement, and compliance
by the Company with its obligations under this Agreement does not and will not,
whether with or without the giving of notice or the 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 Maryland order
or Maryland administrative or court decree, binding upon the Company or to which
the Company is subject, except in each case for conflicts, breaches, violations
or defaults that in the aggregate would not have a Material Adverse Effect.
42
Exhibit B-2
FORM OF OPINION OF THE OPERATING PARTNERSHIP'S GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(5) 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.
(6) 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 Offering Memorandum and to enter into and perform its
obligations under this Agreement, the Remarketing Agreement, the Registration
Rights 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.
(7) Each Simon DeBartolo Entity other than the Company and the
Operating Partnership has been duly incorporated or organized and is validly
existing as a corporation, limited partnership or other legal entity, as the
case may be, in good standing under the laws of the jurisdiction of its
incorporation or organization, as the case may be, and has the requisite power
and authority to own, lease and operate its properties and to conduct the
business in which it is engaged or proposes to engage as described in the
Offering Memorandum 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 Offering Memorandum, all of
the issued
43
and outstanding capital stock or other equity interests of each Simon DeBartolo
Entity other than the Company and the Operating Partnership has been duly
authorized and is validly issued, fully paid and non-assessable and has been
offered and sold in compliance with all applicable laws of the United States and
the organizational laws of the jurisdiction of organization of such entity, and
is owned by the Company, the Management Companies or the Operating Partnership,
directly or through subsidiaries, in each case, free and clear of any Liens.
There are no outstanding securities convertible into or exchangeable for any
capital stock or other equity interests of such entities and no outstanding
options, rights (preemptive or otherwise) or warrants to purchase or to
subscribe for shares of such capital stock or any other securities of such
entities. None of the outstanding shares of capital stock or other equity
interests of such entity was issued in violation of preemptive or other similar
rights of any securityholder of such entity.
(8) 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 Offering Memorandum. 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.
(9) The Securities have been duly authorized by SD Property as the
managing general partner of the Operating Partnership for issuance and sale to
the Initial Purchasers pursuant to this Agreement and the Indenture. The
Securities, when issued and authenticated in the manner provided for in the
Indenture and delivered by the Operating Partnership pursuant to this Agreement
against payment of the consideration therefor, 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, 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 Securities
denominated other than in U.S. dollars (or a foreign or composite currency
judgment in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or (B)
governmental authority to limit, delay or prohibit the making of payments
outside the United
44
States. The Securities are in the form contemplated by, and are entitled to the
benefits of, the Indenture.
(10) The Indenture has been duly qualified under the 1939 Act and has
been duly authorized, executed and delivered by the Operating Partnership and
(assuming due authorization, execution and delivery thereof by the Trustee)
constitutes a valid and legally binding agreement of the Operating Partnership,
enforceable against the Operating Partnership in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles and except
further as enforcement thereof may be limited by (A) requirements that a claim
with respect to any 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.
(11) The Securities being sold pursuant to this Agreement and the
Indenture conform, in all material respects to the statements relating thereto
contained in the Offering Memorandum and are in substantially the form
contemplated by the Indenture.
(12) Neither the Operating Partnership nor any of the other Simon
DeBartolo Entities nor any Property Partnership is in violation of its charter,
by-laws, partnership agreement, or other organizational document, as the case
may be, and no default by the Operating Partnership or any other Simon DeBartolo
Entity or any Property Partnership exists in the due performance or observance
of any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Offering Memorandum or filed
or incorporated by reference therein, except in each case for violations or
defaults which in the aggregate are not reasonably expected to result in a
Material Adverse Effect.
(13) The execution, delivery and performance of this Agreement, the
Remarketing Agreement, the Indenture and the Registration Rights Agreement and
the consummation of the transactions contemplated thereby did not and do not,
conflict with or constitute a breach or violation of, or default or Repayment
Event under, or result in the creation or imposition of any Lien upon any
Property, pursuant to, any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or any other agreement or instrument, to which the
Operating Partnership or any Property Partnership is a party or by which it of
any of them may be bound, or to which any of the assets, properties or
operations of the Operating Partnership or any Property Partnership is subject,
nor will such action result in any violation of the provisions of the charter,
by-laws, partnership agreement or other organizational document of the Operating
Partnership, any other Simon DeBartolo Entity or any Property Partnership or any
applicable laws, statutes, rules or regulations of the United States or any
jurisdiction of incorporation or formation of any of the
45
Operating Partnership or any Property Partnership or any judgment, order, writ
or decree binding upon the Operating Partnership, any other Simon DeBartolo
Entity or any Property Partnership, which judgment, order, writ or decree, is
known to such counsel, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Operating Partnership, any
other Simon DeBartolo Entity or any Property Partnership or any of their assets,
properties or operations, except for such conflicts, breaches, violations,
defaults, events or Liens that would not result in a Material Adverse Effect.
(14) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency (other than such as may be required under the applicable
securities laws of the various jurisdictions in which the Securities will be
offered or sold, as to which we need express no opinion) is required in
connection with the due authorization, execution and delivery of this Agreement,
the Remarketing Agreement, the Indenture or the Registration Rights Agreement by
the Operating Partnership or for the offering, issuance, sale or delivery of the
Securities to the Initial Purchasers and to each Subsequent Purchaser in the
manner contemplated by this Agreement.
(15) There is no action, suit, proceeding, inquiry or investigation
before or by any court or governmental agency or body, domestic or foreign, now
pending or threatened, against or affecting the Operating Partnership or any
other Simon DeBartolo Entity or any Property Partnership thereof which is
required to be disclosed in the Offering Memorandum (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 consummation of the transactions
contemplated in this Agreement, the Remarketing Agreement, the Indenture or the
Registration Rights Agreement, the performance by the Operating Partnership of
its obligations thereunder or the transactions contemplated by the Offering
Memorandum.
(16) All descriptions in the Offering Memorandum of contacts and other
documents to which the Operating Partnership or any other Simon DeBartolo Entity
is a party are accurate in all material respects.
46
Exhibit B-3
FORM OF OPINION OF THE OPERATING PARTNERSHIP'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(17) The documents filed pursuant to the 1934 Act and incorporated by
reference in the Offering Memorandum (other than the financial statements and
supporting schedules therein and other financial data, as to which no opinion
need be rendered), when they were filed with the Commission, complied as to form
in all material respects with the requirements of the 1933 Act or the 1934 Act,
as applicable, and the rules and regulations of the Commission thereunder. In
passing upon compliance as to the form of such documents, such counsel may have
assumed that the statements made or incorporated by reference therein are
complete and correct.
(18) The information in the Offering Memorandum under "Pending CPI
Merger," "Description of Securities," "Certain Federal Income Tax
Considerations," and "State and Local Tax Considerations" and the description of
the Securities included therein, to the extent that it purports to summarize
matters of law, descriptions of statutes, rules or regulations, summaries of
legal matters governed by law, the Operating Partnership's organizational
documents or legal proceedings, or legal conclusions governed by law, has been
reviewed by such counsel, is correct and presents fairly the information
required to be disclosed therein in all material respects.
(19) None of the Simon DeBartolo Entities or any Property Partnership
is required to be registered as an investment company under the 1940 Act.
(20) The Securities being sold pursuant to this Agreement have been
duly authorized for issuance and sale to the Initial Purchasers pursuant to this
Agreement and the Indenture and, when issued and authenticated in the manner
provided for in the Indenture and delivered by the Operating Partnership
pursuant to this Agreement against payment of the consideration therefor, (i)
the Securities 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 (ii) each holder of the
Securities will be entitled to the benefits of the Indenture. The Securities are
in the form contemplated by the Indenture.
(21) This Agreement has been duly and validly authorized, executed and
delivered by the Operating Partnership.
47
(22) The Indenture has been duly and validly authorized, executed and
delivered by the Operating Partnership and (assuming due authorization,
execution and delivery thereof by the Trustee) constitutes a valid and legally
binding agreement of the Operating Partnership, enforceable against the
Operating Partnership in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally or by
general equitable principles and except further as enforcement thereof may be
limited by (A) requirements that a claim with respect to any 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.
(23) Assuming the correctness of the representations and warranties and
the compliance with the agreements of the Company and the Initial Purchasers,
the offer and sale of the Securities to the Initial Purchasers solely in the
manner and under the circumstances contemplated by this Agreement are exempt
from the registration requirements of the 1933 Act, and no facts have come to
our attention that have led us to believe that the offer, sale and delivery of
the Securities to each Subsequent Purchaser in the manner and under the
circumstances contemplated by this Agreement are not exempt from the
registration requirements of the 1933 Act.
(24) The Registration Rights 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 (3) that rights to indemnity and contribution contained
in the Registration Rights Agreement may be limited by state or federal
Securities laws or public policy.
(25) The Remarketing Agreement has been duly and validly authorized,
executed and delivered by the Operating Partnership and is a valid and binding
agreement of the Operating Partnership, enforceable against the Operating
Partnership in accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or by general
equitable principles.
In connection with the preparation of the Offering Memorandum, such
counsel has participated in conferences with officers and other representatives
of the Operating Partnership and the independent public accountants for the
Operating Partnership and the Company at which the contents of the Offering
Memorandum 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
48
in the Offering Memorandum 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 Offering Memorandum or any amendment or supplement thereto
(except for financial statements, the schedules and other financial data
included therein, as to which such counsel need make no statement), at the time
the Offering Memorandum was issued, at the time any such amended or supplemented
Offering Memorandum was issued or at the Closing Time, contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of Maryland and Ohio, upon the opinion of
Piper & Marbury L.L.P. and Vorys, Sater, Seymour and Pease LLP, respectively,
special Maryland and Ohio counsel, respectively, to SD Property and the Company
(which opinion shall be dated and furnished to the Initial Purchasers at the
Closing Time, shall be satisfactory in form and substance to counsel for the
Initial Purchasers and shall expressly state that the counsel for the Initial
Purchasers may rely on such opinion as if it were addressed to them), and (B),
as to matters of fact (but not as to legal conclusions), to the extent they deem
proper, on certificates of responsible officers of the Operating Partnership and
public officials. Such opinion shall not state that it is to be governed or
qualified by, or that it is otherwise subject to, any treatise, written policy
or other document relating to legal opinions, including, without limitation, the
Legal Opinion Accord of the ABA Section of Business Law (1991).
49
Exhibit B-4
FORM OF OPINION OF SD PROPERTY'S
SPECIAL OHIO COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(26) The Securities have been duly authorized for issuance and sale
pursuant to this Agreement and the Indenture.
(27) Each of this Agreement, the Remarketing Agreement, the
Registration Rights Agreement and the Indenture has been duly and validly
authorized by SD Property in its capacity as the managing general partner of the
Operating Partnership, the proper officers of SD Property have been duly
authorized on behalf of the Operating Partnership, in its capacity as the
managing general partner thereof, to execute and deliver each of this Agreement,
the Remarketing Agreement, the Registration Rights Agreement and the Indenture,
and assuming they have been executed and delivered by any of such officers, each
of this Agreement, the Remarketing Agreement, the Registration Rights Agreement
and the Indenture are duly and validly executed and delivered by SD Property in
its capacity as the managing general partner of the Operating Partnership.
50
Exhibit B-5
FORM OF OPINION OF THE OPERATING PARTNERSHIP'S SPECIAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(28) Each of the Company, SD Property and RPT has been organized and
operated in conformity with the requirements for qualification and taxation as a
"real estate investment trust" under the Code and each of the Company's, SD
Property's and RPT's proposed method of operation will enable it to continue to
qualify for taxation as a "real estate investment trust" under the Code for its
subsequent taxable years.
1
EXHIBIT 4.2
SIMON DEBARTOLO GROUP, L.P.
ISSUER
TO
THE CHASE MANHATTAN BANK
TRUSTEE
--------------------
SIXTH SUPPLEMENTAL INDENTURE
DATED AS OF JUNE 22, 1998
--------------------
$375,000,000 6_% NOTES DUE 2003
$300,000,000 6-3/4% NOTES DUE 2005
$200,000,000 7_% NOTES DUE 2018
$200,000,000 7% MANDATORY PAR PUT REMARKETED SECURITIES_ ("MOPPRS_") DUE 2028
SUPPLEMENT TO INDENTURE,
DATED AS OF NOVEMBER 26, 1996,
BETWEEN
SIMON DEBARTOLO GROUP, L.P.
AND
THE CHASE MANHATTAN BANK,
AS TRUSTEE
- ------------------
"MandatOry Par Put Remarketed Securities_" and "MOPPRS_" are service marks owned
by Merrill Lynch & Co., Inc.
2
SIXTH SUPPLEMENTAL INDENTURE, dated as of June 22, 1998 (the
"Sixth Supplemental Indenture"), between SIMON DEBARTOLO GROUP, L.P., a Delaware
limited partnership (the "Issuer" or the "Operating Partnership"), having its
principal offices at National City Center, 115 West Washington Street, Suite 15
East, Indianapolis, Indiana 46204, and THE CHASE MANHATTAN BANK, a New York
banking corporation, as trustee (the "Trustee"), having its Corporate Trust
Office at 450 West 33rd Street, 15th Floor, New York, New York 10001.
RECITALS
WHEREAS, the Issuer and Simon Property Group, L.P., a Delaware
limited partnership acting as a guarantor (the "Guarantor"), executed and
delivered an Indenture (the "Original Indenture"), dated as of November 26,
1996, to the Trustee providing for the issuance from time to time of debt
securities evidencing unsecured and unsubordinated indebtedness of the Issuer;
and
WHEREAS, on December 31, 1997 the Guarantor was merged into
the Issuer as contemplated under the Indenture; and
WHEREAS, the Original Indenture provides that by means of a
supplemental indenture, the Issuer may create one or more series of its debt
securities and establish the form and terms and conditions thereof; and
WHEREAS, the Issuer intends by this Sixth Supplemental
Indenture to create and provide for the following series of debt securities (the
"Initial Notes"):
(i) Simon DeBartolo Group, L.P. 6_% Notes due
2003 (the "Initial 2003 Notes") in an
aggregate principal amount of $375,000,000;
(ii) Simon DeBartolo Group, L.P. 6-3/4% Notes due
2005 (the "Initial 2005 Notes") in an
aggregate principal amount of $300,000,000;
(iii) Simon DeBartolo Group, L.P. 7_% Notes due
2018 (the "Initial 2018 Notes") in an
aggregate principal amount of $200,000,000;
and
(iv) Simon DeBartolo Group, L.P. 7% MandatOry Par
Put Remarketed Securities_ ("MOPPRS_") due
2028 (the "Initial MOPPRS_") in an aggregate
principal amount of $200,000,000; and
- ------------------
"MandatOry Par Put Remarketed Securities_" & "MOPPRS_" are service marks owned
by Merrill Lynch & Co., Inc.
3
WHEREAS, the Issuer further intends by this Sixth Supplemental
Indenture to create and provide for, if and when issued in exchange for the
Initial Notes pursuant to this Sixth Supplemental Indenture and the Registration
Rights Agreement (defined below), the following additional series of debt
securities (the "Exchange Notes"):
(i) Simon DeBartolo Group, L.P. 6_% Notes due
2003 (the "Exchange 2003 Notes," and
together with the Initial 2003 Notes, the
"2003 Notes"), in an aggregate principal
amount of up to $375,000,000;
(ii) Simon DeBartolo Group, L.P. 6-3/4% Notes due
2005 (the "Exchange 2005 Notes", and
together with the Initial 2005 Notes, the
"2005 Notes"), in an aggregate principal
amount of up to $300,000,000;
(iii) Simon DeBartolo Group, L.P. 7_% Notes due
2018 (the "Exchange 2018 Notes," and
together with the Initial 2018 Notes, the
"2018 Notes"), in an aggregate amount of up
to $200,000,000; and
(iv) Simon DeBartolo Group, L.P. 7% MandatOry Par
Put Remarketed Securities_ ("MOPPRS_") due
2028 (the "Exchange MOPPRS_, and together
with the Initial MOPPRS_, the "MOPPRS_") in
an aggregate amount of up to $200,000,000;
and
WHEREAS, the Board of Directors of SD Property Group, Inc.,
the managing general partner of the Issuer, has approved the creation of the
Notes (defined below) and the forms, terms and conditions thereof pursuant to
Sections 301 and 1701 of the Original Indenture; and
WHEREAS, all actions required to be taken under the Original
Indenture with respect to this Sixth Supplemental Indenture have been taken.
NOW, THEREFORE, IT IS AGREED:
4
ARTICLE ONE
DEFINITIONS, CREATION, FORMS AND TERMS AND
CONDITIONS OF THE SECURITIES
II.11 DEFINITIONS. Capitalized terms used in this Sixth
Supplemental Indenture and not otherwise defined shall have the meanings
ascribed to them in the Original Indenture. Certain terms, used principally in
Article Two of this Sixth Supplemental Indenture, are defined in that Article.
In addition, the following terms shall have the following meanings to be equally
applicable to both the singular and the plural forms of the terms defined:
"CEDEL" means Cedel Bank, societe anonyme, its successors and
assigns.
"CLOSING DATE" means June 22, 1998.
"DTC" means The Depository Trust Company, its nominees and
their successors and assigns.
"EUROCLEAR" means the Euroclear System, its successors and
assigns.
"EXCHANGE CERTIFICATED NOTE" means a note in definitive, fully
registered form, without coupons, substantially in the forms set forth on
Exhibits E-1, E-2 or E-3 hereto.
"EXCHANGE OFFER" means the offer by the Operating Partnership
to exchange all of the Initial Notes of a series for Exchange Notes of the same
series.
"GLOBAL NOTE" means the Initial Global Notes and the Exchange
Global Notes.
"INDENTURE" means the Original Indenture as supplemented by
this Sixth Supplemental Indenture.
"INITIAL PURCHASERS" means Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co., Incorporated, Chase
Securities Inc., J. P. Morgan Securities Inc., Lehman Brothers Inc., NationsBanc
Montgomery Securities LLC and UBS Securities LLC.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institutional
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"MAKE-WHOLE AMOUNT" means, in connection with any optional
redemption or accelerated payment of any Notes, the excess, if any, of (i) the
aggregate present value, as of the date of such redemption or accelerated
payment of each dollar of principal being redeemed or paid and the amount of
interest (exclusive of interest accrued to the date of redemption or accelerated
5
payment) that would have been payable in respect of each such dollar if such
redemption or accelerated payment had not been made (through the Remarketing
Date in the case of a Make-Whole Amount with respect to a redemption of MOPPRS_
prior to the Remarketing Date) determined by discounting, on a semi-annual
basis, such principal and interest at the Reinvestment Rate (determined on the
third Business Day preceding the date notice of such redemption is given or
declaration of acceleration is made) from the respective dates on which such
principal and interest would have been payable if such redemption or accelerated
payment had not been made, to the date of redemption or accelerated payment,
over (ii) the aggregate principal amount of the Notes being redeemed or
accelerated.
"NON-U.S. PERSON" means a Person that is not a U.S. Person as
defined in Regulation S, and includes dealers or other professional fiduciaries
in the United States acting on a discretionary basis for foreign beneficial
owners (other than an estate or trust) in offshore transactions meeting the
requirements of Rule 904 of Regulation S.
"NOTES" means the Initial Notes and the Exchange Notes.
"PURCHASE AGREEMENT" means the Purchase Agreement dated June
16, 1998 between the Operating Partnership and the Initial Purchasers.
"QIB" means a qualified institutional buyer, as defined in
Rule 144A under the Securities Act.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated June 22, 1998, between the Operating Partnership and the
Initial Purchasers.
"REGULATION S" means Regulation S under the Securities Act.
"REINVESTMENT RATE" means the yield on treasury securities at
a constant maturity corresponding to the remaining life (as of the date of
redemption, and rounded to the nearest month) to Stated Maturity of the
principal being redeemed (the "Treasury Yield"), plus .25%. For purposes hereof,
the Treasury Yield shall be equal to the arithmetic mean of the yields published
in the Statistical Release under the heading "Week Ending" for "U.S. Government
Securities -- Treasury Constant Maturities" with a maturity equal to such
remaining life; provided, that if no published maturity exactly corresponds to
such remaining life, then the Treasury Yield shall be interpolated or
extrapolated on a straight-line basis from the arithmetic means of the yields
for the next shortest and next longest published maturities, rounding each of
such relevant periods to the nearest month. For purposes of calculating the
Reinvestment Rate, the most recent Statistical Release published prior to the
date of determination of the Make-Whole Amount shall be used. If the format or
content of the Statistical Release changes in a manner that precludes
determination of the Treasury Yield in the above manner, then the Treasury Yield
shall be determined in the manner that most closely approximates the above
manner, as reasonably determined by the Issuer.
6
"REMARKETING AGREEMENT" means the Remarketing Agreement dated
June 22, 1998 between the Operating Partnership and the Remarketing Dealer.
"REMARKETING DEALER" means Merrill Lynch, Pierce, Fenner &
Smith Incorporated in its capacity as the remarketing dealer.
"RULE 144A" means Rule 144 under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time.
"STATISTICAL RELEASE" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which reports yields on actively traded United States
government securities adjusted to constant maturities, or, if such statistical
release is not published at the time of any determination under the Indenture,
then such other reasonably comparable index which shall be designated by the
Issuer.
II.12 CREATION OF THE NOTES.
(a) INITIAL NOTES. In accordance with Section 301 of the
Original Indenture, the Issuer hereby creates each of the Initial 2003 Notes,
the Initial 2005 Notes, the Initial 2018 Notes and the Initial MOPPRS_ as a
separate series of its securities issued pursuant to the Indenture. The Initial
2003 Notes shall be issued in an aggregate principal amount of $375,000,000; the
Initial 2005 Notes shall be issued in an aggregate principal amount of
$300,000,000; the Initial 2018 Notes shall be issued in an aggregate principal
amount of $200,000,000; and the Initial MOPPRS_ shall be issued in an aggregate
principal amount of $200,000,000.
(b) EXCHANGE NOTES. In accordance with Section 301 of the
Original Indenture, the Issuer hereby creates each of the Exchange 2003 Notes,
the Exchange 2005 Notes, the Exchange 2018 Notes and the Exchange MOPPRS_ as a
separate series of its securities issued pursuant to the Indenture. Each series
of Exchange Notes is to be issued in exchange for the corresponding series of
the Initial Notes as provided in this Sixth Supplemental Indenture and the
Registration Rights Agreement. The Exchange 2003 Notes may be issued in an
aggregate principal amount of up to $375,000,000 (but in no event in excess of
the principal amount of the Initial 2003 Notes tendered in exchange therefor in
an Exchange Offer); the Exchange 2005 Notes may be issued in an aggregate
principal amount of up to $300,000,000 (but in no event in excess of the
principal amount of the Initial 2005 Notes tendered in exchange therefor in an
Exchange Offer); the Exchange 2018 Notes may be issued in an aggregate principal
amount of up to $200,000,000 (but in no event in excess of the principal amount
of the Initial 2018 Notes tendered in exchange therefor in an Exchange Offer);
and the Exchange MOPPRS_ may be issued in an aggregate principal amount of up to
$200,000,000 (but in no event in excess of the principal amount of the Initial
MOPPRS_ tendered in exchange therefor in an Exchange Offer).
7
II.13 FORM OF THE NOTES.
(a) The Initial 2003 Notes shall be in the form of Exhibit
A-1, B-1 or C-1 hereto, as applicable, and the Exchange 2003 Notes shall be in
the form of Exhibit D-1 or E-1 hereto, as applicable. The Initial 2005 Notes
shall be in the form of Exhibit A-2, B-2 or C-2 hereto, as applicable, and the
Exchange 2005 Notes shall be in the form of Exhibit D-2 or E-2 hereto, as
applicable. The Initial 2018 Notes shall be in the form of Exhibit A-3, B-3 or
C-3 hereto, as applicable, and the Exchange 2018 Notes shall be in the form of
Exhibit D-3 or E-3 hereto, as applicable. The Initial MOPPRS_ shall be in the
form of Exhibit F hereto and the Exchange MOPPRS_ shall be in the form of
Exhibit G hereto.
(b) Initial Notes of a series offered and sold to QIBs in
reliance on Rule 144A as provided in the Purchase Agreement shall be issued in
book-entry form and will be represented by a single, permanent global note in
fully registered form, without coupons, substantially in the form set forth in
Exhibit A-1, A-2, A-3 or F hereto, as applicable, and shall bear the legends set
forth in Section 5.01(a) and (b) (each such Note, an "Initial Restricted Global
Note"). Upon issuance, each Initial Restricted Global Note shall be registered
in the name of "Cede & Co.", as nominee of DTC, duly executed by the Operating
Partnership and authenticated by the Trustee and deposited with or on behalf of
DTC. Initial 2003 Notes, Initial 2005 Notes and Initial 2018 Notes sold to
Non-U.S. Persons in reliance on Regulation S as provided in the Purchase
Agreement shall be issued in book-entry form and will be represented by a
single, permanent global note in definitive, fully registered certificated form,
without coupons, substantially in the form set forth in Exhibit B-1, B-2 or B-3
hereto, as applicable, and shall bear the legends set forth in Section 5.01(a)
and (b) (each such Note, a "Initial Regulation S Global Note," and together with
the Initial Restricted Global Notes", the "Initial Global Notes"). Upon
issuance, the Initial Regulation S Global Note shall be registered in the name
of "Cede & Co.," as nominee for DTC, duly executed by the Operating Partnership
and authenticated by the Trustee and deposited with or on behalf of DTC for the
accounts of Euroclear or CEDEL. Interests in the Initial Regulation S Global
Note may only be held through Euroclear or CEDEL. Initial 2003 Notes, Initial
2005 Notes and Initial 2018 Notes offered and sold to Institutional Accredited
Investors as provided in the Purchase Agreement shall be issued in definitive,
fully registered certificated form, without coupons, substantially in the forms
set forth in Exhibit C-1, C-2 or C-3 hereto, as applicable, and shall bear the
legends set forth in Section 5.01(a) hereof (the "Initial Certificated Notes").
Upon issuance, any such Initial Certificated Note shall be duly executed by the
Operating Partnership and authenticated by the Trustee. Upon the registration of
transfer of any Initial Certificated Note to a QIB or Non-U.S. Person, such
Initial Certificated Note shall be exchanged for a beneficial interest in the
applicable Initial Global Note. Except as provided in Section 4.01(b), interests
in an Initial Global Note may not be exchanged for Initial Certificated Notes
and the Operating Partnership waives any discretionary right it may otherwise
have under Section 305 of the Original Indenture to cause the Notes to be issued
in certificated form. Until such time as the Initial MOPPRS_ have been exchanged
for Exchange MOPPRS_ or registered under the Securities Act, the Initial MOPPRS_
may be offered and sold only to QIBs.
8
(c) In the event all or a portion of the Initial Notes of any
series are tendered in an Exchange Offer, such Notes or the portions thereof
being exchanged shall be exchanged for a single, permanent global note in
definitive, fully registered form, without coupons, substantially in the form
set forth, in the case of the 2003 Notes, Exhibit D-1 hereto, in the case of the
2005 Notes, Exhibit D-2 hereto, in the case of the 2018 Notes, Exhibit D-3
hereto and, in the case of the MOPPRS_, Exhibit G hereto (the "Exchange Global
Notes") and shall bear the legends set forth in Section 5.01(c) hereof. Upon
issuance, each Exchange Global Note shall be registered in the name of "Cede &
Co.," as nominee of DTC, duly executed by the Operating Partnership and
authenticated by the Trustee and deposited with or on behalf of DTC. Except as
provided in Section 4.01(b), Exchange Certificated Notes shall not be issued and
the Operating Partnership waives any discretionary right it may otherwise have
under Section 305 of the Original Indenture to cause the Notes to be issued in
certificated form.
II.14 TERMS AND CONDITIONS OF THE 2003 NOTES. The 2003 Notes
shall be governed by all the terms and conditions of the Original Indenture, as
supplemented by this Sixth Supplemental Indenture, and in particular, the
following provisions shall be terms of the 2003 Notes:
(a) TITLE AND AGGREGATE PRINCIPAL AMOUNT. The title of the
Initial 2003 Notes and the Exchange 2003 Notes shall be as specified in
the Recitals; and the aggregate principal amount of the Initial 2003
Notes and the Exchange 2003 Notes shall be as specified in Section 1.02
of this Sixth Supplemental Indenture, except as permitted by Sections
304, 305 or 306 of the Original Indenture.
(b) STATED MATURITY. The 2003 Notes shall mature, and the
unpaid principal thereon shall be payable, on June 15, 2003, subject to
the provisions of the Original Indenture.
(c) INTEREST. The rate per annum at which interest shall be
payable on the 2003 Notes shall be 6_%. Interest on the 2003 Notes
shall be payable semi-annually in arrears on each June 15 and December
15, commencing December 15, 1998 (each a "2003 Interest Payment Date"),
and on the Stated Maturity as specified in Section 1.04(b) of this
Sixth Supplemental Indenture, to the Persons (the "2003 Holders") in
whose names the applicable 2003 Notes are registered in the Security
Register applicable to the 2003 Notes at the close of business 15
calendar days prior to such payment date regardless of whether such day
is a Business Day (each, a "2003 Regular Record Date"). Interest on the
2003 Notes will be computed on the basis of a 360-day year of twelve
30-day months. Interest on the 2003 Notes shall accrue from June 22,
1998.
If an Initial 2003 Note is exchanged in an Exchange Offer
prior to the 2003 Regular Record Date for the first 2003 Interest
Payment Date following such exchange, accrued and unpaid interest, if
any, on such Note, up to but not including the date of issuance of the
9
Exchange 2003 Note(s) issued in exchange for such Initial 2003 Note,
shall be paid on the first 2003 Interest Payment Date for such Exchange
2003 Note(s) to the Holder or Holders of such Exchange 2003 Note(s) on
the first 2003 Regular Record Date with respect to such Exchange 2003
Note(s). If such Initial 2003 Note is exchanged in an Exchange Offer
subsequent to the 2003 Regular Record Date for the first 2003 Interest
Payment Date following such exchange but on or prior to such 2003
Interest Payment Date, then any such accrued and unpaid interest with
respect to such Initial 2003 Note and any accrued and unpaid interest
on the Exchange 2003 Note(s) issued in exchange for such Initial 2003
Note, through the day before such 2003 Interest Payment Date, shall be
paid on such 2003 Interest Payment Date to the Holder of such Initial
2003 Note on such 2003 Regular Record Date.
(d) REGISTRATION RIGHTS. The Holders of the Initial 2003 Notes
shall be entitled to the benefits of the Registration Rights Agreement,
as described in Article Three hereof.
(e) SPECIAL INTEREST PREMIUM. If the Operating Partnership
fails to comply with certain provisions of the Registration Rights
Agreement, then a special interest premium (the "Special Interest
Premium") shall become payable in respect of the Notes as provided in
Article Three hereof.
(f) SINKING FUND, REDEMPTION OR REPAYMENT. No sinking fund
shall be provided for the 2003 Notes and the 2003 Notes shall not be
repayable at the option of the Holders thereof prior to Stated
Maturity. The 2003 Notes may be redeemed at any time at the option of
the Issuer, in whole or from time to time in part, at a Redemption
Price equal to the sum of (i) the principal amount of the 2003 Notes
being redeemed plus accrued interest thereon to the Redemption Date and
(ii) the Make-Whole Amount, if any, with respect to such 2003 Notes
(the "2003 Redemption Price"), all in accordance with the provisions of
Article Eleven of the Original Indenture.
If notice of redemption has been given as provided in the
Original Indenture and funds for the redemption of any 2003 Notes
called for redemption shall have been made available on the Redemption
Date referred to in such notice, such 2003 Notes will cease to bear
interest on the Redemption Date and the only right of the Holders of
the 2003 Notes from and after the Redemption Date will be to receive
payment of the 2003 Redemption Price upon surrender of such 2003 Notes
in accordance with such notice.
(g) REGISTRATION AND FORM. The 2003 Notes shall be issuable as
Registered Securities as provided in Section 1.03 of this Sixth
Supplemental Indenture. Initial 2003 Notes shall be issued in minimum
denominations of $100,000 and integral multiples of $1,000 in excess
thereof. Exchange 2003 Notes shall be issued in minimum denominations
of $1,000 and integral multiples of $1,000 in excess thereof. All
payments of principal and interest in respect of the 2003 Notes will be
made by the Issuer in immediately available funds.
10
(h) DEFEASANCE AND COVENANT DEFEASANCE. The provisions for
defeasance in Section 1402 of the Original Indenture, and the
provisions for covenant defeasance (which provisions shall apply,
without limitation, to the covenants set forth in Article Two of this
Sixth Supplemental Indenture) in Section 1403 of the Original
Indenture, shall be applicable to the 2003 Notes.
(i) MAKE-WHOLE AMOUNT PAYABLE UPON ACCELERATION. Upon any
acceleration of the Stated Maturity of the 2003 Notes in accordance
with Section 502 of the Original Indenture, the Make-Whole Amount on
the 2003 Notes shall become immediately due and payable, subject to the
terms and conditions of the Indenture.
(j) OTHER TERMS AND CONDITIONS. The 2003 Notes shall have such
other terms and conditions as provided in the forms thereof attached as
Exhibits A-1, B-1, C-1, D-1 and E-1 hereto.
II.15 TERMS AND CONDITIONS OF THE 2005 NOTES. The 2005 Notes
shall be governed by all the terms and conditions of the Original Indenture, as
supplemented by this Sixth Supplemental Indenture, and in particular, the
following provisions shall be terms of the 2005 Notes:
(a) TITLE AND AGGREGATE PRINCIPAL AMOUNT. The title of the
Initial 2005 Notes and the Exchange 2005 Notes shall be as specified in
the Recitals; and the aggregate principal amount of the Initial 2005
Notes and the Exchange 2005 Notes shall be as specified in Section 1.02
of this Sixth Supplemental Indenture, except as permitted by Sections
304, 305 or 306 of the Original Indenture.
(b) STATED MATURITY. The 2005 Notes shall mature, and the
unpaid principal thereon shall be payable, on June 15, 2005, subject to
the provisions of the Original Indenture.
(c) INTEREST. The rate per annum at which interest shall be
payable on the 2005 Notes shall be 6-3/4%. Interest on the 2005 Notes
shall be payable semi-annually in arrears on each June 15 and December
15, commencing December 15, 1998 (each a "2005 Interest Payment Date"),
and on the Stated Maturity as specified in Section 1.05(b) of this
Sixth Supplemental Indenture, to the Persons (the "2005 Holders") in
whose names the applicable 2005 Notes are registered in the Security
Register applicable to the 2005 Notes at the close of business 15
calendar days prior to such payment date regardless of whether such day
is a Business Day (each, a "2005 Regular Record Date"). Interest on the
2005 Notes will be computed on the basis of a 360-day year of twelve
30-day months. Interest on the 2005 Notes shall accrue from June 22,
1998.
11
If an Initial 2005 Note is exchanged in an Exchange Offer
prior to the 2005 Regular Record Date for the first 2005 Interest
Payment Date following such exchange, accrued and unpaid interest, if
any, on such Note, up to but not including the date of issuance of the
Exchange 2005 Note(s) issued in exchange for such Initial 2005 Note,
shall be paid on the first 2005 Interest Payment Date for such Exchange
2005 Note(s) to the Holder or Holders of such Exchange 2005 Note(s) on
the first 2005 Regular Record Date with respect to such Exchange 2005
Note(s). If such Initial 2005 Note is exchanged in an Exchange Offer
subsequent to the 2005 Regular Record Date for the first 2005 Interest
Payment Date following such exchange but on or prior to such 2005
Interest Payment Date, then any such accrued and unpaid interest with
respect to such Initial 2005 Note and any accrued and unpaid interest
on the Exchange 2005 Note(s) issued in exchange for such Initial 2005
Note, through the day before such 2005 Interest Payment Date, shall be
paid on such 2005 Interest Payment Date to the Holder of such Initial
2005 Note on such 2005 Regular Record Date.
(d) REGISTRATION RIGHTS. The Holders of the Initial 2005 Notes
shall be entitled to the benefits of the Registration Rights Agreement,
as described in Article Three hereof.
(e) SPECIAL INTEREST PREMIUM. If the Operating Partnership
fails to comply with certain provisions of the Registration Rights
Agreement, then a Special Interest Premium shall become payable in
respect of the Notes as provided in Article Three hereof.
(f) SINKING FUND, REDEMPTION OR REPAYMENT. No sinking fund
shall be provided for the 2005 Notes and the 2005 Notes shall not be
repayable at the option of the Holders thereof prior to Stated
Maturity. The 2005 Notes may be redeemed at any time at the option of
the Issuer, in whole or from time to time in part, at a Redemption
Price equal to the sum of (i) the principal amount of the 2005 Notes
being redeemed plus accrued interest thereon to the Redemption Date and
(ii) the Make-Whole Amount, if any, with respect to such 2005 Notes
(the "2005 Redemption Price"), all in accordance with the provisions of
Article Eleven of the Original Indenture.
If notice of redemption has been given as provided in the
Original Indenture and funds for the redemption of any 2005 Notes
called for redemption shall have been made available on the Redemption
Date referred to in such notice, such 2005 Notes will cease to bear
interest on the Redemption Date and the only right of the Holders of
the 2005 Notes from and after the Redemption Date will be to receive
payment of the 2005 Redemption Price upon surrender of such 2005 Notes
in accordance with such notice.
(g) REGISTRATION AND FORM. The 2005 Notes shall be issuable as
Registered Securities as provided in Section 1.03 of this Sixth
Supplemental Indenture. Initial 2005 Notes shall be issued in minimum
denominations of $100,000 and integral multiples of $1,000 in excess
thereof. Exchange 2005 Notes shall be issued in minimum denominations
of $1,000 and integral multiples of $1,000 in excess thereof. All
payments of principal and
12
interest in respect of the 2005 Notes will be made by the Issuer in
immediately available funds.
(h) DEFEASANCE AND COVENANT DEFEASANCE. The provisions for
defeasance in Section 1402 of the Original Indenture, and the
provisions for covenant defeasance (which provisions shall apply,
without limitation, to the covenants set forth in Article Two of this
Sixth Supplemental Indenture) in Section 1403 of the Original
Indenture, shall be applicable to the 2005 Notes.
(i) MAKE-WHOLE AMOUNT PAYABLE UPON ACCELERATION. Upon any
acceleration of the Stated Maturity of the 2005 Notes in accordance
with Section 502 of the Original Indenture, the Make-Whole Amount on
the 2005 Notes shall become immediately due and payable, subject to the
terms and conditions of the Indenture.
(j) OTHER TERMS AND CONDITIONS. The 2005 Notes shall have such
other terms and conditions as provided in the forms thereof attached as
Exhibits A-2, B-2, C-2, D-2 and E-2 hereto.
II.16 TERMS AND CONDITIONS OF THE 2018 NOTES. The 2018 Notes
shall be governed by all the terms and conditions of the Original Indenture, as
supplemented by this Sixth Supplemental Indenture, and in particular, the
following provisions shall be terms of the 2018 Notes:
(a) TITLE AND AGGREGATE PRINCIPAL AMOUNT. The title of the
Initial 2018 Notes and the Exchange 2018 Notes shall be as specified in
the Recitals; and the aggregate principal amount of the Initial 2018
Notes and the Exchange 2018 Notes shall be as specified in Section 1.02
of this Sixth Supplemental Indenture, except as permitted by Sections
304, 305 or 306 of the Original Indenture.
(b) STATED MATURITY. The 2018 Notes shall mature, and the
unpaid principal thereon shall be payable, on June 15, 2018, subject to
the provisions of the Original Indenture.
(c) INTEREST. The rate per annum at which interest shall be
payable on the 2018 Notes shall be 7_%. Interest on the 2018 Notes
shall be payable semi-annually in arrears on each June 15 and December
15, commencing December 15, 1998 (each a "2018 Interest Payment Date"),
and on the Stated Maturity as specified in Section 1.05(b) of this
Sixth Supplemental Indenture, to the Persons (the "2018 Holders") in
whose names the applicable 2018 Notes are registered in the Security
Register applicable to the 2018 Notes at the close of business 15
calendar days prior to such payment date regardless of whether such day
is a Business Day (each, a "2018 Regular Record Date"). Interest on the
2018 Notes will be computed on the basis of a 360-day year of twelve
30-day months. Interest on the 2018 Notes shall accrue from June 22,
1998.
13
If an Initial 2018 Note is exchanged in an Exchange Offer
prior to the 2018 Regular Record Date for the first 2018 Interest
Payment Date following such exchange, accrued and unpaid interest, if
any, on such Note, up to but not including the date of issuance of the
Exchange 2018 Note(s) issued in exchange for such Initial 2018 Note,
shall be paid on the first 2018 Interest Payment Date for such Exchange
2018 Note(s) to the Holder or Holders of such Exchange 2018 Note(s) on
the first 2018 Regular Record Date with respect to such Exchange 2018
Note(s). If such Initial 2018 Note is exchanged in an Exchange Offer
subsequent to the 2018 Regular Record Date for the first 2018 Interest
Payment Date following such exchange but on or prior to such 2018
Interest Payment Date, then any such accrued and unpaid interest with
respect to such Initial 2018 Note and any accrued and unpaid interest
on the Exchange 2018 Note(s) issued in exchange for such Initial 2018
Note, through the day before such 2018 Interest Payment Date, shall be
paid on such 2018 Interest Payment Date to the Holder of such Initial
2018 Note on such 2018 Regular Record Date.
(d) REGISTRATION RIGHTS. The Holders of the Initial 2018 Notes
shall be entitled to the benefits of the Registration Rights Agreement,
as described in Article Three hereof.
(e) SPECIAL INTEREST PREMIUM. If the Operating Partnership
fails to comply with certain provisions of the Registration Rights
Agreement, then a Special Interest Premium shall become payable in
respect of the Notes as provided in Article Three hereof.
(f) SINKING FUND, REDEMPTION OR REPAYMENT. No sinking fund
shall be provided for the 2018 Notes and the 2018 Notes shall not be
repayable at the option of the Holders thereof prior to Stated
Maturity. The 2018 Notes may be redeemed at any time at the option of
the Issuer, in whole or from time to time in part, at a Redemption
Price equal to the sum of (i) the principal amount of the 2018 Notes
being redeemed plus accrued interest thereon to the Redemption Date and
(ii) the Make-Whole Amount, if any, with respect to such 2018 Notes
(the "2018 Redemption Price"), all in accordance with the provisions of
Article Eleven of the Original Indenture.
If notice of redemption has been given as provided in the
Original Indenture and funds for the redemption of any 2018 Notes
called for redemption shall have been made available on the Redemption
Date referred to in such notice, such 2018 Notes will cease to bear
interest on the Redemption Date and the only right of the Holders of
the 2018 Notes from and after the Redemption Date will be to receive
payment of the 2018 Redemption Price upon surrender of such 2018 Notes
in accordance with such notice.
(g) REGISTRATION AND FORM. The 2018 Notes shall be issuable as
Registered Securities as provided in Section 1.03 of this Sixth
Supplemental Indenture. Initial 2018 Notes shall be issued in minimum
denominations of $100,000 and integral multiples of $1,000 in excess
thereof. Exchange 2018 Notes shall be issued in minimum denominations
14
of $1,000 and integral multiples of $1,000 in excess thereof. All
payments of principal and interest in respect of the 2018 Notes will be
made by the Issuer in immediately available funds.
(h) DEFEASANCE AND COVENANT DEFEASANCE. The provisions for
defeasance in Section 1402 of the Original Indenture, and the
provisions for covenant defeasance (which provisions shall apply,
without limitation, to the covenants set forth in Article Two of this
Sixth Supplemental Indenture) in Section 1403 of the Original
Indenture, shall be applicable of the 2018 Notes.
(i) MAKE-WHOLE AMOUNT PAYABLE UPON ACCELERATION. Upon any
acceleration of the Stated Maturity of the 2018 Notes in accordance
with Section 502 of the Original Indenture, the Make-Whole Amount on
the 2018 Notes shall become immediately due and payable, subject to the
terms and conditions of the Indenture.
(j) OTHER TERMS AND CONDITIONS. The 2018 Notes shall have such
other terms and conditions as provided in the forms thereof attached as
Exhibits A-3, B-3, C-3, D-3 and E-3 hereto.
II.17 TERMS AND CONDITIONS OF THE MOPPRS_. The MOPPRS_ shall
be governed by all the terms and conditions of the Original Indenture, as
supplemented by this Sixth Supplemental Indenture, and in particular, the
following provisions shall be terms of the MOPPRS_:
(a) TITLE AND AGGREGATE PRINCIPAL AMOUNT. The title of the
Initial MOPPRS_ and the Exchange MOPPRS_ shall be as specified in the
Recitals; and the aggregate principal amount of the Initial MOPPRS_ and
the Exchange MOPPRS_ shall be as specified in Section 1.02 of this
Sixth Supplemental Indenture, except as permitted by Sections 304, 305
and 306 of the Original Indenture.
(b) STATED MATURITY. The MOPPRS_ shall mature, and the unpaid
principal thereon shall be payable, on June 15, 2028. The MOPPRS_ are
subject to mandatory tender on June 16, 2008 (the "Remarketing Date").
If the Remarketing Dealer has elected to remarket the MOPPRS_ as
provided in the Remarketing Agreement, the MOPPRS_ will be subject to
mandatory tender to the Remarketing Dealer at 100% of the principal
amount thereof for remarketing on the Remarketing Date, except in the
circumstances provided in the Remarketing Agreement. If the Remarketing
Dealer for any reason does not purchase all tendered MOPPRS_ on the
Remarketing Date or elects not to market the MOPPRS_, or in certain
other limited circumstances described in the Remarketing Agreement, the
Issuer shall be required to redeem the MOPPRS_ on the Remarketing Date
from the Holders thereof at 100% of the principal amount thereof plus
accrued interest.
15
(c) INTEREST. The MOPPRS_ will bear interest at rate per annum
equal to 7% until June 16, 2008. If the Remarketing Dealer elects to
remarket the MOPPRS_, except in the limited circumstances described in
the Remarketing Agreement, on and after the Remarketing Date, the
MOPPRS_ will bear interest at the rate determined by the Remarketing
Dealer in accordance with the procedures set forth in the Remarketing
Agreement and described in the form of the MOPPRS_ attached as Exhibits
F and G hereto. Interest on the MOPPRS_ shall be payable semi-annually
in arrears on each June 15 and December 15, commencing December 15,
1998 (each a "MOPPRS_ Interest Payment Date"), and on the Stated
Maturity as specified in Section 1.05(b) of this Sixth Supplemental
Indenture, to the Persons (the "MOPPRS_ Holders") in whose names the
applicable MOPPRS_ are registered in the Security Register applicable
to the MOPPRS_ at the close of business 15 calendar days prior to such
payment date regardless of whether such day is a Business Day (each, a
"MOPPRS_ Regular Record Date"); provided, however, that with respect to
the payment of interest on the MOPPRS_ due in June 2008, the MOPPRS_
Interest Payment Date shall be June 16, 2008. Interest on the MOPPRS_
will be computed on the basis of a 360-day year of twelve 30-day
months. Interest on the MOPPRS_ will accrue from June 22, 1998.
If an Initial MOPPRS_ exchanged in an Exchange Offer prior to
the MOPPRS_ Regular Record Date for the first MOPPRS_ Interest Payment
Date following such exchange, accrued and unpaid interest, if any, on
such MOPPRS_, up to but not including the date of issuance of the
Exchange MOPPRS_ issued in exchange for such Initial MOPPRS_, shall be
paid on the first MOPPRS_ Payment Date for such Exchange MOPPRS_ to the
Holder or Holders of such Exchange MOPPRS_ or Exchange first MOPPRS_
Regular Record Date with respect to such Exchange MOPPRS_. If such
Initial MOPPRS_ is exchanged in an Exchange Offer subsequent to the
MOPPRS_ Regular Record Date for the first MOPPRS_ Interest Payment Date
following such exchange but on or prior to such MOPPRS_ Interest
Payment Date, then any such accrued and unpaid interest with respect to
such Initial MOPPRS_ and any accrued and unpaid interest on the
Exchange MOPPRS_ issued in exchange for such Initial MOPPRS_, through
the day before such MOPPRS_ Interest Payment Date, shall be paid on
such MOPPRS_ Interest Payment Date to the Holder of such Initial
MOPPRS_ on such MOPPRS_ Regular Record Date.
(d) REGISTRATION RIGHTS. The Holders of the Initial MOPPRS_
shall be entitled to the benefits of the Registration Rights Agreement,
as described in Article Three hereof.
(e) SPECIAL INTEREST PREMIUM. If the Operating Partnership
fails to comply with certain provisions of the Registration Rights
Agreement, then a Special Interest Premium shall become payable in
respect of the MOPPRS_ as provided in Article Three hereof.
(f) SINKING FUND, REDEMPTION OR REPAYMENT. No sinking fund
shall be provided for the MOPPRS_s and the MOPPRS_ shall not be
repayable at the option of the Holders thereof prior to Stated
Maturity. The MOPPRS_ are subject to redemption as set
16
forth in (b) above and as further described in the form of MOPPRS_
attached as Exhibits F and G hereto.
If notice of redemption has been given as provided in the
Original Indenture and funds for the redemption of any MOPPRS_ called
for redemption shall have been made available on the Redemption Date
referred to in such notice, such MOPPRS_ will cease to bear interest on
the Redemption Date and the only right of the Holders of the MOPPRS_
from and after the Redemption Date will be to receive payment of the
MOPPRS_ Redemption Price upon surrender of such MOPPRS_ in accordance
with such notice.
(g) REGISTRATION AND FORM. The MOPPRS_ shall be issuable as
Registered Securities as provided in Section 1.03 of the Sixth
Supplemental Indenture. The Initial MOPPRS_ shall be issued in minimum
denominations of $100,000 and integral multiples of $1,000 in excess
thereof. The Exchange MOPPRS_ shall be issued in minimum denominations
of $1,000 and integral multiples of $1,000 in excess thereof.
(h) DEFEASANCE AND COVENANT DEFEASANCE. The provisions for
defeasance in Section 1402 of the Original Indenture, shall not be
applicable to the MOPPRS_ prior to the Remarketing Date, except to the
extent provided in the Remarketing Agreement and in the form of MOPPRS_
attached as Exhibits F and G hereto. The provisions for covenant
defeasance (which provisions shall apply, without limitation, to the
covenants set forth in Article Two of this Sixth Supplemental
Indenture) in Section 1403 of the Original Indenture shall be
applicable to the MOPPRS_.
(i) MAKE-WHOLE AMOUNT PAYABLE UPON ACCELERATION. Upon any
acceleration of the Stated Maturity of the MOPPRS_ in accordance with
Section 502 of the Original Indenture, the Make-Whole Amount on the
MOPPRS_ shall become immediately due and payable, subject to the terms
and conditions of the Indenture.
(j) OTHER TERMS AND CONDITIONS. The MOPPRS_ shall have such
other terms and conditions as provided in the forms thereof attached as
Exhibits F and G hereto.
ARTICLE TWO
COVENANTS FOR BENEFIT OF HOLDERS OF NOTES
II.18 COVENANTS FOR BENEFIT OF HOLDERS OF NOTES. The Operating
Partnership covenants and agrees, for the benefit of the Holders of the Notes,
as follows:
(a) LIMITATIONS ON INCURRENCE OF DEBT. The Operating Partnership will
not, and will not permit any Subsidiary to, incur any Debt (as defined below),
other than intercompany debt (representing Debt to which the only parties are
the Company (as defined below), the Operating
17
Partnership and any of their Subsidiaries (but only so long as such Debt is held
solely by any of the Company, the Operating Partnership and any Subsidiary) that
is subordinate in right of payment to the Notes), if, immediately after giving
effect to the incurrence of such additional Debt, the aggregate principal amount
of all outstanding Debt would be greater than 60% of the sum of (i) the
Operating Partnership's Adjusted Total Assets (as defined below) as of the end
of the fiscal quarter prior to the incurrence of such additional Debt and (ii)
any increase in Adjusted Total Assets from the end of such quarter including,
without limitation, any pro forma increase from the application of the proceeds
of such additional Debt.
(b) LIMITATION ON INCURRENCE OF SECURED DEBT: The Operating
Partnership will not, and will not permit any Subsidiary to, incur any Debt
secured by any mortgage, lien, pledge, encumbrance or security interest of any
kind upon any of the property of the Operating Partnership or any Subsidiary
("Secured Debt"), whether owned at the date of the Indenture or thereafter
acquired, if, immediately after giving effect to the incurrence of such
additional Secured Debt, the aggregate principal amount of all outstanding
Secured Debt is greater than 55% of the sum of (i) the Operating Partnership's
Adjusted Total Assets as of the end of the fiscal quarter prior to the
incurrence of such additional Secured Debt and (ii) any increase in Adjusted
Total Assets from the end of such quarter including, without limitation, any pro
forma increase from the application of the proceeds of such additional Secured
Debt.
(c) RATIOS OF ANNUALIZED EBITDA AFTER MINORITY EXPENSE TO INTEREST
EXPENSE. The Operating Partnership will not, and will not permit any Subsidiary
to, incur any Debt if the ratio of Annualized EBITDA After Minority Interest to
Interest Expense (in each case as defined below) for the period consisting of
the four consecutive fiscal quarters most recently ended prior to the date on
which such additional Debt is to be incurred shall have been less than 1.75 to 1
on a pro forma basis after giving effect to the incurrence of such Debt and to
the application of the proceeds therefrom, and calculated on the assumption that
(i) such Debt and any other Debt incurred since the first day of such
four-quarter period had been incurred, and the proceeds therefrom had been
applied (to whatever purposes such proceeds had been applied as of the date of
calculation of such ratio), at the beginning of such period, (ii) any other Debt
that has been repaid or retired since the first day of such four-quarter period
had been repaid or retired at the beginning of such period (except that, in
making such computation, the amount of Debt under any revolving credit facility
shall be computed based upon the average daily balance of such Debt during such
period), (iii) any income earned as a result of any assets having been placed in
service since the end of such four-quarter period had been earned, on an
annualized basis, during such period, and (iv) in the case of any acquisition or
disposition by the Operating Partnership, any Subsidiary or any unconsolidated
joint venture in which the Operating Partnership or any Subsidiary owns an
interest, of any assets since the first day of such four-quarter period,
including, without limitation, by merger, stock purchase or sale, or asset
purchase or sale, such acquisition or disposition and any related repayment of
Debt had occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition or disposition being included in
such pro forma calculation.
18
(d) Maintenance of Unencumbered Assets. The Operating Partnership is
required to maintain Unencumbered Assets (as defined below) of not less than
150% of the aggregate outstanding principal amount of the Unsecured Debt (as
defined below) of the Operating Partnership.
II.19 DEFINITIONS. As used herein:
"Adjusted Total Assets" as of any date means the sum of (i)
the amount determined by multiplying the sum of the shares of common stock of
the Company (as defined below) issued in the initial public offering of the
Company (the "IPO") and the units of the Operating Partnership not held by SDG
outstanding on the date of the IPO, by $22.25 (the "IPO Price"), (ii) the
principal amount of the outstanding consolidated debt of the Company on the date
of the IPO, less any portion applicable to minority interests, (iii) the
Operating Partnership's allocable share, based on its ownership interest, of
outstanding indebtedness of unconsolidated joint ventures on the date of the
IPO, (iv) the purchase price or cost of any real estate assets acquired
(including the value, at the time of such acquisition, of any units of the
Operating Partnership or shares of common stock of the Company issued in
connection therewith) or developed after the IPO by the Operating Partnership or
any Subsidiary, less any portion attributable to minority interests, plus the
Operating Partnership's allocable portion, based on its ownership interest, of
the purchase price or cost of any real estate assets acquired or developed after
the IPO by any unconsolidated joint venture, (v) the value of the Merger
compiled as the sum of (a) the purchase price including all related closing
costs and (b) the value of all outstanding indebtedness less any portion
attributable to minority interests, including the Operating Partnership's
allocable portion, based on its ownership interest, of outstanding indebtedness
of unconsolidated joint ventures at the Merger date, and (vi) working capital of
the Operating Partnership; subject, however, to reduction by the amount of the
proceeds of any real estate assets disposed of after the IPO by the Operating
Partnership or any Subsidiary, less any portion applicable to minority
interests, and by the Operating Partnership's allocable portion, based on its
ownership interest, of the proceeds of any real estate assets disposed of after
the IPO by unconsolidated joint ventures.
"Annualized EBITDA" means earnings before interest, taxes,
depreciation and amortization for all properties with other adjustments as are
necessary to exclude the effect of items classified as extraordinary items in
accordance with generally accepted accounting principles, adjusted to reflect
the assumption that (i) any income earned as a result of any assets having been
placed in service since the end of such period had been earned, on an annualized
basis, during such period, and (ii) in the case of any acquisition or
disposition by the Operating Partnership, any Subsidiary or any unconsolidated
joint venture in which the Operating Partnership or any Subsidiary owns an
interest, of any assets since the first day of such period, such acquisition or
disposition and any related repayment of Debt had occurred as of the first day
of such period with the appropriate adjustments with respect to such acquisition
or disposition.
"Annualized EBITDA After Minority Interest" means Annualized
EBITDA after distributions to third party joint venture partners.
"Company" means Simon DeBartolo Group, Inc., a Maryland
corporation and a general partner of the Operating Partnership.
"Debt" means any indebtedness of the Operating Partnership and
its Subsidiaries on a consolidated basis, less any portion attributable to
minority interests, plus the Operating Partnership's allocable portion, based on
its ownership interest, of indebtedness of unconsolidated joint ventures, in
respect of (i) borrowed money evidenced by bonds, notes, debentures or similar
instruments, as determined in accordance with generally accepted accounting
principles ("GAAP"), (ii) indebtedness secured by any mortgage, pledge, lien,
charge, encumbrance or any security interest existing on property owned by the
Operating Partnership or any Subsidiary directly, or indirectly through
unconsolidated joint ventures, as determined in accordance with generally
accepted accounting principles, (iii) reimbursement obligations, contingent or
otherwise, in connection with any letters of credit actually issued or amounts
representing the balance deferred and unpaid of the purchase price of any
property, except any such balance that constitutes an accrued expense or trade
payable and (iv) any lease of property by the Operating Partnership or any
Subsidiary as lessee which is reflected in the Operating Partnership's
consolidated balance sheet as a capitalized lease or any lease of property by an
unconsolidated joint venture as lessee which is reflected in such joint
venture's balance sheet as a capitalized lease, in each case, in accordance with
generally accepted accounting principles; provided, that Debt also includes, to
the extent not otherwise included, any obligation by the Operating Partnership
or any Subsidiary to be liable for, or to pay, as obligor, guarantor or
otherwise, items of indebtedness of another Person (other than the Operating
Partnership or any Subsidiary) described in clauses (i) through (iv) above (or,
in the case of any such obligation made jointly with another Person, the
Operating Partnership's or Subsidiary's allocable portion of such obligation
based on its ownership interest in the related real estate assets).
For purposes of the provisions of Section 2.01 regarding the
limitation on the incurrence of Debt, Debt shall be deemed to be "incurred" by
the Operating Partnership, its Subsidiaries and by any unconsolidated joint
venture, whenever the Operating Partnership, any Subsidiary, or any
unconsolidated joint venture, as the case may be, shall create, assume,
guarantee or otherwise become liable in respect thereof.
"Fixed Charges and Preferred Unit Distributions" consist of
interest costs, whether expensed or capitalized, the interest component of
rental expense and amortization of debt issuance costs, including the Operating
Partnership's pro rata share based on its ownership interest of joint venture
interest costs, whether expensed or capitalized, and the interest components of
rental expense and amortization of debt issuance costs, plus any distributions
on outstanding preferred units.
"Interest Expense" includes the Operating Partnership's pro
rata share of joint venture interest expense and is reduced by amortization of
debt issuance costs.
"Unencumbered Annualized EBITDA After Minority Interest" means
Annualized EBITDA After Minority Interest less any portion thereof attributable
to assets serving as collateral for Secured Debt (as defined above).
"Unencumbered Assets" as of any date shall be equal to
Adjusted Total Assets as of such date multiplied by a fraction, the numerator of
which is Unencumbered Annualized EBITDA After Minority Interest and the
denominator of which is Annualized EBITDA After Minority Interest.
"Unsecured Debt" means Debt which is not secured by any
mortgage, lien, pledge, encumbrance or security interest of any kind.
ARTICLE THREE
REGISTRATION RIGHTS
II.110 REGISTRATION RIGHTS AGREEMENT.
(a) The Operating Partnership will enter into the Registration
Rights Agreement with the Initial Purchasers for the benefit of the Holders of
the Notes wherein the Operating Partnership will agree, for the benefit of the
Holders of the Notes, to use its reasonable best efforts (i) to file with the
Commission within 90 calendar days after the date on which the Operating
Partnership delivers the Notes to the Initial Purchasers (the "Closing Date") a
registration statement (the "Exchange Offer Registration Statement") with
respect to the Exchange Notes and (ii) to cause the Exchange Offer Registration
Statement to be declared effective under the Securities Act within 135 calendar
days after the Closing Date. Promptly after the Exchange Offer Registration
Statement has been declared effective, the Operating Partnership will offer to
Holders the opportunity to exchange all their Notes of a series for Exchange
Notes of the same series pursuant to the Exchange Offer. The Operating
Partnership will keep the Exchange Offer open for not less than 30 calendar days
(or longer if required by applicable law) after the date notice of the Exchange
Offer is mailed to the Holders of the Notes but will, in any event, use its
reasonable best efforts to cause the Exchange Offer to be consummated within 180
days of the Closing Date. For each Note validly tendered to the Operating
Partnership pursuant to the Exchange Offer, the Holder of such Note will receive
an Exchange Note of the same series having a principal amount equal to the
principal amount of the tendered Note.
19
(b) Each Holder of the Notes (other than certain specified
Holders) wishing to exchange the Notes for Exchange Notes in the Exchange Offer
will be required to represent that (i) it is not an Affiliate of the Operating
Partnership, (ii) the Exchange Notes to be received by it were acquired in the
ordinary course of its business and (iii) at the time of the Exchange Offer, it
has no arrangement with any Person to participate in the distribution (within
the meaning of the Securities Act) of the Exchange Notes.
(c) The Registration Rights Agreement also will provide that
if, (i) because of any change in law or in currently prevailing interpretations
of the Staff, the Operating Partnership is not permitted to effect the Exchange
Offer, (ii) the Exchange Offer is not consummated within 180 days of the Closing
Date, or (iii) in the case of any Holder that participates in the Exchange
Offer, such Holder does not receive Exchange Notes on the date of the exchange
that may be sold without restriction under state and federal securities laws
(other than due solely to the status of such Holder as an affiliate of the
Operating Partnership within the meaning of the Securities Act or as a
broker-dealer), then in each case, the Operating Partnership will (x) promptly
deliver to the Holders written notice thereof and (y) at the Operating
Partnership's sole expense (a) as promptly as practicable (but in no event more
than 60 days after so required or requested pursuant to the Registration Rights
Agreement), file a shelf registration statement covering resales of the Notes
(the "Shelf Registration Statement"), (b) use its reasonable best efforts to
cause the Shelf Registration Statement to be declared effective under the
Securities Act and (c) use its reasonable best efforts to keep effective the
Shelf Registration Statement until the earlier of two years (or, if Rule 144(k)
is amended to provide a shorter restrictive period, the end of such shorter
period) after the Closing Date or such time as all of the applicable Notes have
been sold thereunder. The Operating Partnership will, if a Shelf Registration
Statement is filed, provide to each Holder of the Notes copies of the prospectus
that is a part of the Shelf Registration Statement, notify each such Holder when
the Shelf Registration Statement for the Notes has become effective and take
certain other actions as are required to permit unrestricted resales of the
Notes. A Holder that sells Notes pursuant to the Shelf Registration Statement
will be required to be named as a selling security Holder in the related
prospectus, to provide information related thereto and to deliver such
prospectus to purchasers, will be subject to certain of the civil liability
provisions under the Securities Act in connection with such sales and will be
bound by the provisions of the Registration Rights Agreement that are applicable
to such a Holder (including certain indemnification rights and obligations).
II.111 SPECIAL INTEREST PREMIUM. If the Operating Partnership
fails to comply with certain provisions of the Registration Rights Agreement, in
each case as described below, then a Special Interest Premium shall become
payable in respect of the Notes as follows:
(a) If (i) the Exchange Offer Registration Statement is not
filed with the Commission on or prior to the 90th day following the
Closing Date, (ii) the Exchange Offer Registration Statement is not
declared effective on or prior to the 135th day following the Closing
Date or (iii) the Exchange Offer is not consummated or the Shelf
Registration Statement is not declared effective on or prior to the
180th day following the Closing Date, the Special Interest Premium
shall accrue from and including the next day following each of (A) such
90-day period in the case of clause (i) above, (B) such 135-day period
in the case of clause (ii) above and (C) such 180-day period in the
case of clause (iii) above, in each case at a rate equal to 0.50% per
annum. The aggregate amount of the Special Interest Premium payable
20
pursuant to the above provisions will in no event exceed 0.50% per
annum. If the Exchange Offer Registration Statement is not declared
effective on or prior to the 135th day following the Closing Date and
the Operating Partnership shall request Holders of Notes to provide the
information called for by the Registration Rights Agreement for
inclusion in the Shelf Registration Statement, the Notes owned by
Holders who do not deliver such information to the Operating
Partnership when required pursuant to the Registration Rights Agreement
will not be entitled to any such increase in the interest rate for any
day after the 180th day following the Closing Date. Upon (1) the filing
of the Exchange Offer Registration Statement after the 90-day period
described in clause (i), (2) the effectiveness of the Exchange Offer
Registration Statement after the 135-day period described in clause
(ii) above or (3) the consummation of the Exchange Offer or the
effectiveness of a Shelf Registration Statement, as the case may be,
after the 180-day period described in clause (iii) above, the interest
rate on each series of Notes from the date of such effectiveness or
consummation, as the case may be, will be reduced to the original
interest rate provided for herein for such series of Notes.
(b) If a Shelf Registration Statement is declared effective,
and if the Operating Partnership fails to keep such Shelf Registration
Statement continuously (x) effective or (y) useable for resales for the
period required by the Registration Rights Agreement due to certain
circumstances relating to pending corporate developments, public
filings with the Commission and similar events, or because the
prospectus contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, and such failure
continues for more than 60 days (whether or not consecutive) in any
12-month period (the 61st day being referred to as the "Default Day"),
then from the Default Day until the earlier of (i) the date that the
Shelf Registration Statement is again deemed effective or is useable,
(ii) the date that is the second anniversary of the Closing Date (or,
if Rule 144(k) is amended to provide a shorter restrictive period, the
end of such shorter period) or (iii) the date as of which all of the
Notes are sold pursuant to the Shelf Registration Statement, the
Special Interest Premium shall accrue at a rate equal to 0.50% per
annum.
II.112 LEGEND. Each Note will contain a legend to the effect
that the Holder thereof, by its acceptance thereof, will be deemed to have
agreed to be bound by the provisions of the Registration Rights Agreement. Such
legend shall be in the form set forth in Article 5.01(a) hereof.
21
ARTICLE FOUR
TRANSFER AND EXCHANGE
II.113 TRANSFER AND EXCHANGE.
(a) By its acceptance of any Initial Note represented by a
certificate bearing the legend set forth in Section 5.01(a) hereof (the "Private
Placement Legend"), each Holder of, and beneficial bearer of an interest in,
such Initial Note acknowledges the restrictions on transfer of such Initial Note
and agrees that it will transfer such Initial Note only in accordance with such
restrictions. Each purchaser (other than the Initial Purchasers) of the Notes
and each Person to whom the Notes are transferred shall, prior to the Resale
Restriction Termination Date (as defined in the Private Placement Legend), be
deemed to have acknowledged, represented and agreed to the matters and
restrictions on transfer described under the heading "Notice to Investors" in
the Offering Memorandum of the Operating Partnership, dated June 16, 1998,
relating to the Initial Notes, a copy of which is attached as Exhibit H hereto.
Upon the registration of transfer, exchange or replacement of an Initial Note
not bearing the Private Placement Legend, the Trustee shall deliver an Initial
Note or Initial Notes that do not bear the Private Placement Legend. Upon the
registration of transfer, exchange or replacement of an Initial Note bearing the
Private Placement Legend, the Trustee shall deliver an Initial Note or Initial
Notes bearing the Private Placement Legend, unless such legend may be removed
from such Note as provided in this Section 4.01(a). If the Private Placement
Legend has been removed from an Initial Note, as provided herein, no other
Initial Note issued in exchange for all or any part of such Initial Note shall
bear such legend, unless the Operating Partnership has reasonable cause to
believe that such other Initial Note represents a "restricted security" within
the meaning of Rule 144 under the Securities Act and instructs the Trustee in
writing to cause a legend to appear thereon. Each Initial Note shall bear the
Private Placement Legend unless and until:
(i) a transfer of such Initial Note is made pursuant to an
effective Shelf Registration Statement, in which case the Private
Placement Legend shall be removed from such Initial Note so transferred
at the request of the Holder; or
(ii) there is delivered to the Company such satisfactory
evidence, which may include an opinion of independent counsel licensed
to practice law in the State of New York, as may reasonably be
requested by the Operating Partnership confirming that neither such
legend nor the restrictions on transfer set forth therein are required
to ensure that transfers of such Initial Note will not violate the
registration and prospectus delivery requirements of the Securities
Act; provided that the Trustee shall not be required to determine (but
may rely on a determination made by the Operating Partnership with
respect to) the sufficiency of any such evidence; and upon written
direction of the Operating Partnership, the Trustee shall authenticate
and deliver in exchange for such Initial Note, an Initial Note or
Initial Notes representing the same aggregate principal amount of the
Initial Note being exchanged) without such legend.
22
(b) The Initial Global Notes or Exchange Global Note, as the case may
be, shall be exchanged by the Company for one or more Initial Certificated Notes
or Exchange Certificated Notes, as applicable, if (a) DTC (i) has notified the
Operating Partnership that it is unwilling or unable to continue as, or ceases
to be, a clearing agency registered under Section 17A of the Exchange Act and
(ii) a successor to DTC registered as a clearing agency under Section 17A of the
Exchange Act is not able to be appointed by the Operating Partnership within 90
calendar days or (b) DTC is at any time unwilling or unable to continue as
depositary and a successor to DTC is not able to be appointed by the Operating
Partnership within 90 calendar days. If an Event of Default occurs and is
continuing, the Company shall, at the request of the Trustee or the Holder
thereof, exchange all or part of the Initial Global Note or Exchange Global
Note, as the case may be, for one or more Initial Certificated Notes or Exchange
Certificated Notes, as applicable. Whenever a Global Note is exchanged for one
or more Initial Certificated Notes or Exchange Certificated Notes, as the case
may be, it shall be surrendered by the Holder thereof to the Trustee and
cancelled by the Trustee. All Initial Certificated Notes or Exchange
Certificated Notes issued in exchange for a Global Note or a portion thereof
shall be registered in such names, and delivered, as DTC shall instruct the
Trustee. Any Initial Certificated Notes issued pursuant to this Section 4.1(b)
shall include the Private Placement Legend, except as set forth in Section
4.1(a) hereof.
(c) Any Initial Notes that are presented to the Trustee for exchange
pursuant to an Exchange Offer shall be exchanged for Exchange Notes of equal
principal amount upon surrender to the Trustee in accordance with the terms of
the Exchange Offer. Whenever any Initial Notes are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver to the
surrendering Holder thereof, Exchange Notes in the same aggregate principal
amount as the Initial Notes so surrendered.
(d) Any Holder of a Global Note shall, by acceptance of such Global
Note, agree that transfers of beneficial interests in such Global Note may be
effected only through a book-entry maintained by such Holder (or its agent), and
that ownership of a beneficial interest in the Notes represented thereby shall
be required to be reflected in book-entry form. Transfers of a Global Note shall
be limited to transfers in whole and not in part, to DTC, its successors and
their respective nominees. Interests of beneficial owners in a Global Note shall
be transferred in accordance with the rules and procedures of DTC (or its
successors).
ARTICLE FIVE
LEGENDS
II.114 LEGENDS. The following legends shall appear on each
Initial Note and each Exchange Note.
23
(a) Except as provided in Section 4.01(a) hereof, each Initial
Note shall bear the following legends on the face thereof:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. THIS
NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN MINIMUM
DENOMINATIONS OF $100,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS
THEREOF.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF
THE ORIGINAL ISSUE DATE OF THIS NOTE AND THE LAST DATE ON WHICH THE
OPERATING PARTNERSHIP OR ANY AFFILIATE OF THE OPERATING PARTNERSHIP WAS
THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE), ONLY (A) TO
THE OPERATING PARTNERSHIP OR ONE OF THE INITIAL PURCHASERS OR BY,
THROUGH OR IN A TRANSACTION APPROVED BY, AN INITIAL PURCHASER, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) INSIDE THE UNITED
STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE
501(A)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT) ACQUIRING THE
SECURITIES FOR ITS OWN ACCOUNT OR AS A FIDUCIARY OR AGENT FOR OTHERS
(WHICH OTHERS MUST ALSO BE INSTITUTIONAL ACCREDITED INVESTORS UNLESS
SUCH TRANSFEREE IS A BANK ACTING IN ITS FIDUCIARY CAPACITY) FOR
INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, (E) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES TO AN
24
INSTITUTION THAT IS NOT A U.S. PERSON (AND WAS NOT PURCHASING FOR THE
ACCOUNT OR BENEFIT OF A U.S. PERSON) WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT IN EACH OF THE FOREGOING CASES, TO A CERTIFICATE OF TRANSFER IN
THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE BEING COMPLETED AND
DELIVERED BY THE TRANSFEROR AND, IF APPLICABLE, THE TRANSFEREE TO THE
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY
THE PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL
NOTES OF THE SERIES.
(b) In addition to the legends set forth in Section 4.01(a),
each Initial Global Note shall also bear the following legends on the
face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE,
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF
TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A
SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR.
(c) Each Exchange Global Note shall bear the following legends
on the face thereof:
25
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE,
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF
TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A
SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR.
ARTICLE SIX
TRUSTEE
II.115 CORPORATE TRUST OFFICE. The Trustee is appointed as the
principal paying agent, transfer agent and registrar for the Notes and for the
purposes of Section 1002 of the Indenture. The Notes may be presented for
payment at the Corporate Trust Office of the Trustee or at any other agency as
may be appointed from time to time by the Operating Partnership in The City of
New York.
II.116 RECITALS. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this Sixth
Supplemental Indenture or the due execution thereof by the Issuer. The recitals
of fact contained herein shall be taken as the statements solely of the Issuer
and the Trustee assumes no responsibility for the correctness thereof.
ARTICLE SEVEN
MISCELLANEOUS PROVISIONS
26
II.117 RATIFICATION OF ORIGINAL INDENTURE. This Sixth
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture, and as supplemented and modified hereby,
the Original Indenture is in all respects ratified and confirmed, and the
Original Indenture and this Sixth Supplemental Indenture shall be read, taken
and construed as one and the same instrument.
II.118 EFFECT OF HEADINGS. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
II.119 SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Sixth Supplemental Indenture by the Issuer shall bind its successors and
assigns, whether so expressed or not.
II.120 SEPARABILITY CLAUSE. In case any one or more of the
provisions contained in this Sixth Supplemental Indenture shall for any reason
be held to be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
II.121 GOVERNING LAW. This Sixth Supplemental Indenture shall
be governed by and construed in accordance with the laws of the State of New
York. This Sixth Supplemental Indenture is subject to the provisions of the
Trust Indenture Act that are required to be part of this Sixth Supplemental
Indenture and shall, to the extent applicable, be governed by such provisions.
II.122 COUNTERPARTS. This Sixth Supplemental Indenture may be
executed in any number of counterparts, and each of such counterparts shall for
all purposes be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
27
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this Sixth
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the date first above written.
SIMON DEBARTOLO GROUP, L.P.
By: SD Property Group, Inc.,
its managing general partner
By:____________________________
Name:
Title:
Attest:
__________________________
Name:
Title:
THE CHASE MANHATTAN BANK
as Trustee
By:____________________________
Name:
Title:
Attest:
__________________________
Name:
Title:
28
EXHIBIT A-1
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. THIS NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY
IN MINIMUM DENOMINATIONS OF $100,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS
THEREOF.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OTHERWISE
TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION
DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS
NOTE AND THE LAST DATE ON WHICH THE OPERATING PARTNERSHIP OR ANY AFFILIATE OF
THE OPERATING PARTNERSHIP WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH
NOTE), ONLY (A) TO THE OPERATING PARTNERSHIP OR ONE OF THE INITIAL PURCHASERS OR
BY, THROUGH OR IN A TRANSACTION APPROVED BY, AN INITIAL PURCHASER, (B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) INSIDE
THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE
501(A)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT) ACQUIRING THE SECURITIES
FOR ITS OWN ACCOUNT OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS MUST
ALSO BE INSTITUTIONAL ACCREDITED INVESTORS UNLESS SUCH TRANSFEREE IS A BANK
ACTING IN ITS FIDUCIARY CAPACITY) FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (E) PURSUANT TO OFFERS AND
SALES THAT OCCUR OUTSIDE THE UNITED STATES TO AN INSTITUTION THAT IS NOT A U.S.
PERSON (AND WAS NOT PURCHASING FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON), OR
(F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES, TO A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE BEING COMPLETED
AND DELIVERED BY THE TRANSFEROR AND, IF APPLICABLE, THE TRANSFEREE TO
29
THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER
THE RESALE RESTRICTION TERMINATION DATE.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL NOTES OF THE
SERIES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
REGISTERED REGISTERED
NO. [ ] PRINCIPAL AMOUNT
CUSIP NO. $_________
GLOBAL SECURITY
SIMON DEBARTOLO GROUP, L.P.
6-5/8% Note due 2003
Simon DeBartolo Group, L.P., a Delaware limited partnership
(the "Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or its
registered assigns, the principal sum of $____________ Dollars on June 15, 2003
(the "Maturity Date"), and to pay interest thereon from June 22, 1998,
semi-annually in arrears on June 15 and December 15 of each year (each, an
"Interest Payment
30
Date"), commencing on December 15, 1998, and on the Maturity Date, at the rate
of 6-5/8% per annum, until payment of said principal sum has been made or duly
provided for.
The interest so payable and punctually paid or duly provided
for on any Interest Payment Date and on the Maturity Date will be paid to the
Holder in whose name this Note (or one or more predecessor Notes) is registered
in the Security Register applicable to this Note at the close of business on the
"Record Date" for such payment, which will be 15 calendar days prior to such
payment date or the Maturity Date, as the case may be, regardless of whether
such day is a Business Day (as defined below). Any interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date, and may be paid to the Holder in whose name this Note
(or one or more predecessor Notes) is registered at the close of business on a
subsequent record date for the payment of such defaulted interest (which shall
be not less than 10 calendar days prior to the date of the payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders of the Notes not less than 10 calendar days preceding such
subsequent record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture (as defined below). Interest on this
Note will be computed on the basis of a 360-day year of twelve 30-day months.
Interest payable on this Note on any Interest Payment Date and
on the Maturity Date, as the case may be, will be the amount of interest accrued
from and including the immediately preceding Interest Payment Date (or from and
including June 22, 1998, in the case of the initial Interest Payment Date) to
but excluding the applicable Interest Payment Date or the Maturity Date, as the
case may be. If any date for the payment of principal, premium, if any, interest
on, or any other amount with respect to, this Note (each a "Payment Date") falls
on a day that is not a Business Day, the principal, premium, if any, or interest
payable with respect to such Payment Date will be made on the next succeeding
Business Day with the same force and effect as if made on such Payment Date, and
no interest shall accrue on the amount so payable for the period from and after
such Payment Date to such next succeeding Business Day. "Business Day" means any
day, other than a Saturday or a Sunday, that is neither a legal holiday nor a
day on which banking institutions in The City of New York are authorized or
required by law, regulation or executive order to close.
If this Note is exchanged in an Exchange Offer prior to the
Record Date for the first Interest Payment Date following such exchange, accrued
and unpaid interest, if any, on this Note, up to but not including the date of
issuance of the Note(s) issued in exchange (the "Exchange Note") for this Note,
shall be paid on the first Interest Payment Date for such Exchange Note(s) to
the Holder or Holders of such Exchange Note(s) on the first Record Date with
respect to such Exchange Note(s). If this Note is exchanged in an Exchange Offer
subsequent to the Record Date for the first Interest Payment Date following such
exchange but on or prior to the Interest Payment Date, then any such accrued and
unpaid interest with respect to this Note and any accrued and unpaid interest on
the Exchange Note(s) issued in exchange for this Note, through the day before
31
such Interest Payment Date, shall be paid on such Interest Payment Date to the
Holder of this Note on the Record Date.
The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement dated June 22, 1998 (the "Registration Rights
Agreement") among the Issuer and Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch"), Morgan Stanley & Co. Incorporated
("Morgan Stanley"), Chase Securities Inc., Lehman Brothers Inc., J.P. Morgan
Securities Inc., NationsBanc Montgomery Securities LLC and UBS Securities LLC
(collectively, the "Initial Purchasers").
If the Operating Partnership fails to comply with certain
provisions of the Registration Rights Agreement, in each case as described
below, then a special interest premium (the "Special Interest Premium") shall
become payable in respect of the Notes as follows:
If (i) a registration statement with respect to the Exchange
Notes (the "Exchange Offer Registration Statement") is not filed with the
Commission on or prior to the 90th day following the Closing Date, (ii) the
Exchange Offer Registration Statement is not declared effective on or prior to
the 135th day following the Closing Date or (iii) the Exchange Offer is not
consummated or the shelf registration statement covering resales of the Notes
(the "Shelf Registration Statement") is not declared effective on or prior to
the 180th day following the Closing Date, the Special Interest Premium shall
accrue from and including the next day following each of (a) such 90-day period
in the case of clause (i) above, (b) such 135-day period in the case of clause
(ii) above and (c) such 180-day period in the cause of clause (iii) above, in
each case at a rate equal to 0.50% per annum. The aggregate amount of the
Special Interest Premium payable pursuant to the above provisions will in no
event exceed 0.5% per annum. If the Exchange Offer Registration Statement is not
declared effective on or prior to the 135th day following the Closing Date and
the Operating Partnership shall request the Holder of this Note to provide the
information called for by the Registration Rights Agreement for inclusion in the
Shelf Registration Statement and the Holder of this Note does not deliver such
information to the Operating Partnership when required pursuant to the
Registration Rights Agreement, then the Holder of this Note will not be entitled
to any such increase in the interest rate for any day after the 180th day
following the Closing Date. Upon (1) the filing of the Exchange Offer
Registration statement after the 90-day period described in clause (i), (2) the
effectiveness of the Exchange Offer Registration Statement after the 135-day
period described in clause (ii) above or (3) the consummation of the Exchange
Offer or the effectiveness of a Shelf Registration Statement, as the case may
be, after the 180-day period described in clause (iii) above, the interest rate
on this Note from the date of such effectiveness or consummation, as the case
may be, will be reduced to the original interest rate provided for herein.
If a Shelf Registration Statement is declared effective, and
if the Operating Partnership fails to keep such Shelf Registration Statement
continuously (x) effective or (y) useable for resales for the period required by
the Registration Rights Agreement due to certain circumstances relating to
pending corporate developments, public filings with the Commission and similar
events, or because the prospectus contains an untrue statement of a material
fact or omits to
32
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, and such failure continues for more
than 60 days (whether or not consecutive) in any 12-month period (the 61st day
being referred to as the "Default Day"), then from the Default Day until the
earlier of (i) the date that is the second anniversary of the Closing Date (or,
if Rule 144(k) of the Securities Act is amended to provide a shorter restrictive
period, the end of such shorter period) or (ii) the date as of which this Note
is sold pursuant to the Shelf Registration Statement, the Special Interest
Premium shall accrue at a rate equal to 0.50% per annum.
The principal of this Note payable on the Maturity Date will
be paid against presentation and surrender of this Note at the office or agency
of the Issuer maintained for that purpose in The Borough of Manhattan, The City
of New York. The Issuer hereby initially designates the Corporate Trust Office
of the Trustee in The City of New York as the office to be maintained by it
where Notes may be presented for payment, registration of transfer or exchange,
and where notices to or demands upon the Issuer in respect of the Notes or the
Indenture referred to on the reverse hereof may be served.
Payments of principal and interest in respect of this Note
will be made by wire transfer of immediately available funds in such coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Reference is made to the further provisions of this Note set
forth on the reverse hereof after the Trustee's Certificate of Authentication.
Such further provisions shall for all purposes have the same effect as though
fully set forth at this place.
This Note shall not be entitled to the benefits of the
Indenture or be valid or obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by the Trustee under such
Indenture.
Capitalized terms used herein which are not otherwise defined
shall have the respective meanings assigned to them in the Indenture and the
Sixth Supplemental Indenture hereinafter referred to.
33
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed manually or by facsimile by its authorized officers.
Dated:
SIMON DEBARTOLO GROUP, L.P.
as Issuer
By: SD PROPERTY GROUP, INC.
as Managing General Partner
By: ______________________________
Name:
test: Title:
______________________________
Name:
Title:
34
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By: ______________________________
Authorized Officer
35
[REVERSE OF NOTE]
SIMON DEBARTOLO GROUP, L.P.
6-5/8% NOTE DUE 2003
This Note is one of a duly authorized issue of debt securities
of the Issuer (hereinafter called the "Securities"), all issued or to be issued
under and pursuant to an Indenture dated as of November 26, 1996 (herein called
the "Indenture"), duly executed and delivered by the Issuer and Simon Property
Group, L.P. (which was, effective December 31, 1997, merged with the Issuer), as
Guarantor, to The Chase Manhattan Bank, as Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture with respect to
the series of Securities of which this Note is a part), to which Indenture and
all indentures supplemental thereto relating to this Note (including, without
limitation, the Sixth Supplemental Indenture, dated as of June 22, 1998 (the
"Sixth Supplemental Indenture"), between the Issuer and the Trustee) reference
is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Issuer and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. The Securities may be issued in one or
more series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any) at different
rates, may be subject to different redemption provisions (if any), and may
otherwise vary as provided in the Indenture or any indenture supplemental
thereto. This Note is one of a series designated as the Simon DeBartolo Group,
L.P. 6-5/8% Notes due 2003, limited in aggregate principal amount to
$375,000,000 (the "Notes").
In case an Event of Default with respect to the Notes shall
have occurred and be continuing, the principal amount of the Notes and the
Make-Whole Amount may be declared accelerated and thereupon become due and
payable, in the manner, with the effect, and subject to the conditions provided
in the Indenture.
The Notes may be redeemed at any time at the option of the
Issuer, in whole or from time to time in part, at a redemption price equal to
the sum of (i) the principal amount of the Notes being redeemed plus accrued
interest thereon to the Redemption Date and (ii) the Make-Whole Amount, if any,
with respect to such Notes. Notice of any optional redemption will be given to
Holders at their addresses, as shown in the Security Register for the Notes, not
more than 60 nor less than 30 days prior to the date fixed for redemption. The
notice of redemption will specify, among other items, the redemption price and
the principal amount of the Notes to be redeemed.
The Indenture contains provisions permitting the Issuer and
the Trustee, with the consent of the Holders of not less than a majority of the
aggregate principal amount of the Securities at the time Outstanding of all
series to be affected (voting as one class), evidenced as
36
provided in the Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the Holders of the Securities of each series; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security so affected, (i) change the Stated Maturity of the
principal of, or premium, (if any) or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate or
amount of interest thereon or any premium payable upon the redemption or
acceleration thereof, or adversely affect any right of repayment at the option
of the Holder of any Security, or change any Place of Payment where, or the
currency or currencies, currency unit or units or composite currency or
currencies in which, the principal of any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof, or (ii) reduce the
aforesaid percentage of Securities the Holders of which are required to consent
to any such supplemental indenture, or (iii) reduce the percentage of Securities
the Holders of which are required to consent to any waiver of compliance with
certain provisions of the Indenture or any waiver of certain defaults and
consequences thereunder or to reduce the quorum or voting requirements set forth
in the Indenture, or (iv) effect certain other changes to the Indenture or any
supplemental indenture or in the rights of Holders of the Securities. The
Indenture also permits the Holders of a majority in principal amount of the
Outstanding Securities of any series (or, in the case of certain defaults or
Events of Default, all series of Securities), on behalf of the Holders of all
the Securities of such series (or all of the Securities, as the case may be), to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults or Events of Default under the Indenture and their
consequences, prior to any declaration accelerating the maturity of such
Securities, or subject to certain conditions, rescind a declaration of
acceleration and its consequences with respect to such Securities. Any such
consent or waiver by the Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note that may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of, premium, if any,
and interest on this Note in the manner, at the respective times, at the rate
and in the coin or currency herein prescribed.
Notwithstanding any other provision of the Indenture to the
contrary, no recourse shall be had, whether by levy or execution or otherwise,
for the payment of any sums due under the Securities, including, without
limitation, the principal of, premium, if any, or interest payable under the
Securities, or for the payment or performance of any obligation under, or for
any claim based on, the Indenture or otherwise in respect thereof, against any
partner of the Issuer, whether limited or general, including SD Property Group,
Inc., or such partner's assets or against any principal, shareholder, officer,
director, trustee or employee of such partner. It is expressly understood that
the sole remedies under the Securities and the Indenture or under any other
37
document with respect to the Securities, against such parties with respect to
such amounts, obligations or claims shall be against the Issuer.
This Note is issuable only in registered form without Coupons
in denominations of $100,000 and integral multiples of $1,000 in excess thereof.
This Note may be exchanged for a like aggregate principal amount of Notes of
other authorized denominations at the office or agency of the Issuer in The
Borough of Manhattan, The City of New York, in the manner and subject to the
limitations provided in the Indenture, but without the payment of any service
charge, except for any tax or other governmental charge imposed in connection
therewith.
Upon due presentment for registration of transfer of this Note
at the office or agency of the Issuer in The Borough of Manhattan, The City of
New York, one or more new Notes of authorized denominations in an equal
aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without charge,
except for any tax or other governmental charge imposed in connection therewith.
The Issuer, the Trustee and any authorized agent of the Issuer
or the Trustee may deem and treat the Person in whose name this Note is
registered as the absolute owner of this Note (whether or not this Note shall be
overdue and notwithstanding any notation of ownership or other writing hereon),
for the purpose of receiving payment of, or on account of, the principal and any
premium hereof or hereon, and subject to the provisions on the face hereof,
interest hereon, and for all other purposes, and neither the Issuer nor the
Trustee nor any authorized agent of the Issuer or the Trustee shall be affected
by any notice to the contrary.
This Note, including the validity hereof, and the Indenture
shall be governed by and construed in accordance with the laws of the State of
New York, and for all purposes shall be construed in accordance with the laws of
such state, except as may otherwise by required by mandatory provisions of law.
38
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ____________ Custodian ________________
(Cust) (minor)
under Uniform Gifts to Minors Act
_____________(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
___________________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________
________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
________________________________ this Note and all
rights thereunder hereby irrevocably constituting and appointing
________________________________ Attorney to transfer this Note
on the books of the Trustee, with full power of substitution in the premises.
Dated:_______________________________ _______________________
___________________________
Notice: The signature(s) on
this Assignment must
correspond with the name(s)
as written upon the face of
this Note in every
particular, without
alteration or enlargement
or any change whatsoever.
39
EXHIBIT A-2
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. THIS NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY
IN MINIMUM DENOMINATIONS OF $100,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS
THEREOF.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OTHERWISE
TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION
DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS
NOTE AND THE LAST DATE ON WHICH THE OPERATING PARTNERSHIP OR ANY AFFILIATE OF
THE OPERATING PARTNERSHIP WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH
NOTE), ONLY (A) TO THE OPERATING PARTNERSHIP OR ONE OF THE INITIAL PURCHASERS OR
BY, THROUGH OR IN A TRANSACTION APPROVED BY, AN INITIAL PURCHASER, (B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) INSIDE
THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE
501(A)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT) ACQUIRING THE SECURITIES
FOR ITS OWN ACCOUNT OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS MUST
ALSO BE INSTITUTIONAL ACCREDITED INVESTORS UNLESS SUCH TRANSFEREE IS A BANK
ACTING IN ITS FIDUCIARY CAPACITY) FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (E) PURSUANT TO OFFERS AND
SALES THAT OCCUR OUTSIDE THE UNITED STATES TO AN INSTITUTION THAT IS NOT A U.S.
PERSON (AND WAS NOT PURCHASING FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON), OR
(F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES, TO A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE BEING COMPLETED
AND DELIVERED BY THE TRANSFEROR AND, IF APPLICABLE, THE TRANSFEREE TO
40
THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER
THE RESALE RESTRICTION TERMINATION DATE.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL NOTES OF THE
SERIES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
REGISTERED REGISTERED
NO. [ ] PRINCIPAL AMOUNT
CUSIP NO. $___________
GLOBAL SECURITY
SIMON DEBARTOLO GROUP, L.P.
6-3/4% Note due 2005
Simon DeBartolo Group, L.P., a Delaware limited partnership
(the "Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or its
registered assigns, the principal sum of $___________ Dollars on June 15, 2005
(the "Maturity Date"), and to pay interest thereon from June 22, 1998,
semi-annually in arrears on June 15 and December 15 of each year (each, an
"Interest Payment
41
Date"), commencing on December 15, 1998, and on the Maturity Date, at the rate
of 6-3/4% per annum, until payment of said principal sum has been made or duly
provided for.
The interest so payable and punctually paid or duly provided
for on any Interest Payment Date and on the Maturity Date will be paid to the
Holder in whose name this Note (or one or more predecessor Notes) is registered
in the Security Register applicable to this Note at the close of business on the
"Record Date" for such payment, which will be 15 calendar days prior to such
payment date or the Maturity Date, as the case may be, regardless of whether
such day is a Business Day (as defined below). Any interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date, and may be paid to the Holder in whose name this Note
(or one or more predecessor Notes) is registered at the close of business on a
subsequent record date for the payment of such defaulted interest (which shall
be not less than 10 calendar days prior to the date of the payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders of the Notes not less than 10 calendar days preceding such
subsequent record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture (as defined below). Interest on this
Note will be computed on the basis of a 360-day year of twelve 30-day months.
Interest payable on this Note on any Interest Payment Date and
on the Maturity Date, as the case may be, will be the amount of interest accrued
from and including the immediately preceding Interest Payment Date (or from and
including June 22, 1998, in the case of the initial Interest Payment Date) to
but excluding the applicable Interest Payment Date or the Maturity Date, as the
case may be. If any date for the payment of principal, premium, if any, interest
on, or any other amount with respect to, this Note (each a "Payment Date") falls
on a day that is not a Business Day, the principal, premium, if any, or interest
payable with respect to such Payment Date will be made on the next succeeding
Business Day with the same force and effect as if made on such Payment Date, and
no interest shall accrue on the amount so payable for the period from and after
such Payment Date to such next succeeding Business Day. "Business Day" means any
day, other than a Saturday or a Sunday, that is neither a legal holiday nor a
day on which banking institutions in The City of New York are authorized or
required by law, regulation or executive order to close.
If this Note is exchanged in an Exchange Offer prior to the
Record Date for the first Interest Payment Date following such exchange, accrued
and unpaid interest, if any, on this Note, up to but not including the date of
issuance of the Note(s) issued in exchange (the "Exchange Note") for this Note,
shall be paid on the first Interest Payment Date for such Exchange Note(s) to
the Holder or Holders of such Exchange Note(s) on the first Record Date with
respect to such Exchange Note(s). If this Note is exchanged in an Exchange Offer
subsequent to the Record Date for the first Interest Payment Date following such
exchange but on or prior to the Interest Payment Date, then any such accrued and
unpaid interest with respect to this Note and any accrued and unpaid interest on
the Exchange Note(s) issued in exchange for this Note, through the day before
42
such Interest Payment Date, shall be paid on such Interest Payment Date to the
Holder of this Note on the Record Date.
The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement dated June 22, 1998 (the "Registration Rights
Agreement") among the Issuer and Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch"), Morgan Stanley & Co. Incorporated
("Morgan Stanley"), Chase Securities Inc., Lehman Brothers Inc., J.P. Morgan
Securities Inc., NationsBanc Montgomery Securities LLC and UBS Securities LLC
(collectively, the "Initial Purchasers").
If the Operating Partnership fails to comply with certain
provisions of the Registration Rights Agreement, in each case as described
below, then a special interest premium (the "Special Interest Premium") shall
become payable in respect of the Notes as follows:
If (i) a registration statement with respect to the Exchange
Notes (the "Exchange Offer Registration Statement") is not filed with the
Commission on or prior to the 90th day following the Closing Date, (ii) the
Exchange Offer Registration Statement is not declared effective on or prior to
the 135th day following the Closing Date or (iii) the Exchange Offer is not
consummated or the shelf registration statement covering resales of the Notes
(the "Shelf Registration Statement") is not declared effective on or prior to
the 180th day following the Closing Date, the Special Interest Premium shall
accrue from and including the next day following each of (a) such 90-day period
in the case of clause (i) above, (b) such 135-day period in the case of clause
(ii) above and (c) such 180-day period in the cause of clause (iii) above, in
each case at a rate equal to 0.50% per annum. The aggregate amount of the
Special Interest Premium payable pursuant to the above provisions will in no
event exceed 0.5% per annum. If the Exchange Offer Registration Statement is not
declared effective on or prior to the 135th day following the Closing Date and
the Operating Partnership shall request the Holder of this Note to provide the
information called for by the Registration Rights Agreement for inclusion in the
Shelf Registration Statement and the Holder of this Note does not deliver such
information to the Operating Partnership when required pursuant to the
Registration Rights Agreement, then the Holder of this Note will not be entitled
to any such increase in the interest rate for any day after the 180th day
following the Closing Date. Upon (1) the filing of the Exchange Offer
Registration statement after the 90-day period described in clause (i), (2) the
effectiveness of the Exchange Offer Registration Statement after the 135-day
period described in clause (ii) above or (3) the consummation of the Exchange
Offer or the effectiveness of a Shelf Registration Statement, as the case may
be, after the 180-day period described in clause (iii) above, the interest rate
on this Note from the date of such effectiveness or consummation, as the case
may be, will be reduced to the original interest rate provided for herein.
If a Shelf Registration Statement is declared effective, and
if the Operating Partnership fails to keep such Shelf Registration Statement
continuously (x) effective or (y) useable for resales for the period required by
the Registration Rights Agreement due to certain circumstances relating to
pending corporate developments, public filings with the Commission and similar
events, or because the prospectus contains an untrue statement of a material
fact or omits to
43
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, and such failure continues for more
than 60 days (whether or not consecutive) in any 12-month period (the 61st day
being referred to as the "Default Day"), then from the Default Day until the
earlier of (i) the date that is the second anniversary of the Closing Date (or,
if Rule 144(k) of the Securities Act is amended to provide a shorter restrictive
period, the end of such shorter period) or (ii) the date as of which this Note
is sold pursuant to the Shelf Registration Statement, the Special Interest
Premium shall accrue at a rate equal to 0.50% per annum.
The principal of this Note payable on the Maturity Date will
be paid against presentation and surrender of this Note at the office or agency
of the Issuer maintained for that purpose in The Borough of Manhattan, The City
of New York. The Issuer hereby initially designates the Corporate Trust Office
of the Trustee in The City of New York as the office to be maintained by it
where Notes may be presented for payment, registration of transfer or exchange,
and where notices to or demands upon the Issuer in respect of the Notes or the
Indenture referred to on the reverse hereof may be served.
Payments of principal and interest in respect of this Note
will be made by wire transfer of immediately available funds in such coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Reference is made to the further provisions of this Note set
forth on the reverse hereof after the Trustee's Certificate of Authentication.
Such further provisions shall for all purposes have the same effect as though
fully set forth at this place.
This Note shall not be entitled to the benefits of the
Indenture or be valid or obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by the Trustee under such
Indenture.
Capitalized terms used herein which are not otherwise defined
shall have the respective meanings assigned to them in the Indenture and the
Sixth Supplemental Indenture hereinafter referred to.
44
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed manually or by facsimile by its authorized officers.
Dated:
SIMON DEBARTOLO GROUP, L.P.
as Issuer
By: SD PROPERTY GROUP, INC.
as Managing General Partner
By: ______________________________
Name:
Attest: Title:
______________________________
Name:
Title:
45
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By: ______________________________
Authorized Officer
46
[REVERSE OF NOTE]
SIMON DEBARTOLO GROUP, L.P.
6-3/4% NOTE DUE 2005
This Note is one of a duly authorized issue of debt securities
of the Issuer (hereinafter called the "Securities"), all issued or to be issued
under and pursuant to an Indenture dated as of November 26, 1996 (herein called
the "Indenture"), duly executed and delivered by the Issuer and Simon Property
Group, L.P. (which was, effective December 31, 1997, merged with the Issuer), as
Guarantor, to The Chase Manhattan Bank, as Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture with respect to
the series of Securities of which this Note is a part), to which Indenture and
all indentures supplemental thereto relating to this Note (including, without
limitation, the Sixth Supplemental Indenture, dated as of June 22, 1998 (the
"Sixth Supplemental Indenture"), between the Issuer and the Trustee) reference
is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Issuer and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. The Securities may be issued in one or
more series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any) at different
rates, may be subject to different redemption provisions (if any), and may
otherwise vary as provided in the Indenture or any indenture supplemental
thereto. This Note is one of a series designated as the Simon DeBartolo Group,
L.P. 6-3/4% Notes due 2005, limited in aggregate principal amount to
$300,000,000 (the "Notes").
In case an Event of Default with respect to the Notes shall
have occurred and be continuing, the principal amount of the Notes and the
Make-Whole Amount may be declared accelerated and thereupon become due and
payable, in the manner, with the effect, and subject to the conditions provided
in the Indenture.
The Notes may be redeemed at any time at the option of the
Issuer, in whole or from time to time in part, at a redemption price equal to
the sum of (i) the principal amount of the Notes being redeemed plus accrued
interest thereon to the Redemption Date and (ii) the Make-Whole Amount, if any,
with respect to such Notes. Notice of any optional redemption will be given to
Holders at their addresses, as shown in the Security Register for the Notes, not
more than 60 nor less than 30 days prior to the date fixed for redemption. The
notice of redemption will specify, among other items, the redemption price and
the principal amount of the Notes to be redeemed.
The Indenture contains provisions permitting the Issuer and
the Trustee, with the consent of the Holders of not less than a majority of the
aggregate principal amount of the Securities at the time Outstanding of all
series to be affected (voting as one class), evidenced as
47
provided in the Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the Holders of the Securities of each series; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security so affected, (i) change the Stated Maturity of the
principal of, or premium, (if any) or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate or
amount of interest thereon or any premium payable upon the redemption or
acceleration thereof, or adversely affect any right of repayment at the option
of the Holder of any Security, or change any Place of Payment where, or the
currency or currencies, currency unit or units or composite currency or
currencies in which, the principal of any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof, or (ii) reduce the
aforesaid percentage of Securities the Holders of which are required to consent
to any such supplemental indenture, or (iii) reduce the percentage of Securities
the Holders of which are required to consent to any waiver of compliance with
certain provisions of the Indenture or any waiver of certain defaults and
consequences thereunder or to reduce the quorum or voting requirements set forth
in the Indenture, or (iv) effect certain other changes to the Indenture or any
supplemental indenture or in the rights of Holders of the Securities. The
Indenture also permits the Holders of a majority in principal amount of the
Outstanding Securities of any series (or, in the case of certain defaults or
Events of Default, all series of Securities), on behalf of the Holders of all
the Securities of such series (or all of the Securities, as the case may be), to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults or Events of Default under the Indenture and their
consequences, prior to any declaration accelerating the maturity of such
Securities, or subject to certain conditions, rescind a declaration of
acceleration and its consequences with respect to such Securities. Any such
consent or waiver by the Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note that may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of, premium, if any,
and interest on this Note in the manner, at the respective times, at the rate
and in the coin or currency herein prescribed.
Notwithstanding any other provision of the Indenture to the
contrary, no recourse shall be had, whether by levy or execution or otherwise,
for the payment of any sums due under the Securities, including, without
limitation, the principal of, premium, if any, or interest payable under the
Securities, or for the payment or performance of any obligation under, or for
any claim based on, the Indenture or otherwise in respect thereof, against any
partner of the Issuer, whether limited or general, including SD Property Group,
Inc., or such partner's assets or against any principal, shareholder, officer,
director, trustee or employee of such partner. It is expressly understood that
the sole remedies under the Securities and the Indenture or under any other
48
document with respect to the Securities, against such parties with respect to
such amounts, obligations or claims shall be against the Issuer.
This Note is issuable only in registered form without Coupons
in denominations of $100,000 and integral multiples of $1,000 in excess thereof.
This Note may be exchanged for a like aggregate principal amount of Notes of
other authorized denominations at the office or agency of the Issuer in The
Borough of Manhattan, The City of New York, in the manner and subject to the
limitations provided in the Indenture, but without the payment of any service
charge, except for any tax or other governmental charge imposed in connection
therewith.
Upon due presentment for registration of transfer of this Note
at the office or agency of the Issuer in The Borough of Manhattan, The City of
New York, one or more new Notes of authorized denominations in an equal
aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without charge,
except for any tax or other governmental charge imposed in connection therewith.
The Issuer, the Trustee and any authorized agent of the Issuer
or the Trustee may deem and treat the Person in whose name this Note is
registered as the absolute owner of this Note (whether or not this Note shall be
overdue and notwithstanding any notation of ownership or other writing hereon),
for the purpose of receiving payment of, or on account of, the principal and any
premium hereof or hereon, and subject to the provisions on the face hereof,
interest hereon, and for all other purposes, and neither the Issuer nor the
Trustee nor any authorized agent of the Issuer or the Trustee shall be affected
by any notice to the contrary.
This Note, including the validity hereof, and the Indenture
shall be governed by and construed in accordance with the laws of the State of
New York, and for all purposes shall be construed in accordance with the laws of
such state, except as may otherwise by required by mandatory provisions of law.
49
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ____________ Custodian _______________
(Cust) (minor)
under Uniform Gifts to Minors Act
____________ (State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
________________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________
________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
_____________________________________ this Note and all
rights thereunder hereby irrevocably constituting and appointing
______________________________________ Attorney to transfer this Note
on the books of the Trustee, with full power of substitution in the premises.
Dated:______________________ _______________________
___________________________
Notice: The signature(s) on
this Assignment must
correspond with the name(s)
as written upon the face of
this Note in every
particular, without
alteration or enlargement
or any change whatsoever.
50
EXHIBIT A-3
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. THIS NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY
IN MINIMUM DENOMINATIONS OF $100,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS
THEREOF.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OTHERWISE
TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION
DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS
NOTE AND THE LAST DATE ON WHICH THE OPERATING PARTNERSHIP OR ANY AFFILIATE OF
THE OPERATING PARTNERSHIP WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH
NOTE), ONLY (A) TO THE OPERATING PARTNERSHIP OR ONE OF THE INITIAL PURCHASERS OR
BY, THROUGH OR IN A TRANSACTION APPROVED BY, AN INITIAL PURCHASER, (B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) INSIDE
THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE
501(A)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT) ACQUIRING THE SECURITIES
FOR ITS OWN ACCOUNT OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS MUST
ALSO BE INSTITUTIONAL ACCREDITED INVESTORS UNLESS SUCH TRANSFEREE IS A BANK
ACTING IN ITS FIDUCIARY CAPACITY) FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (E) PURSUANT TO OFFERS AND
SALES THAT OCCUR OUTSIDE THE UNITED STATES TO AN INSTITUTION THAT IS NOT A U.S.
PERSON (AND WAS NOT PURCHASING FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON), OR
(F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES, TO A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE BEING COMPLETED
AND DELIVERED BY THE TRANSFEROR AND, IF APPLICABLE, THE TRANSFEREE TO
51
THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER
THE RESALE RESTRICTION TERMINATION DATE.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL NOTES OF THE
SERIES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
REGISTERED REGISTERED
NO. [ ] PRINCIPAL AMOUNT
CUSIP NO. $______________
GLOBAL SECURITY
SIMON DEBARTOLO GROUP, L.P.
7-3/8% Note due 2018
Simon DeBartolo Group, L.P., a Delaware limited partnership
(the "Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or its
registered assigns, the principal sum of $___________ Dollars on June 15, 2018
(the "Maturity Date"), and to pay interest thereon from June 22, 1998,
semi-annually in arrears on June 15 and December 15 of each year (each, an
"Interest Payment
52
Date"), commencing on December 15, 1998, and on the Maturity Date, at the rate
of 7-3/8% per annum, until payment of said principal sum has been made or duly
provided for.
The interest so payable and punctually paid or duly provided
for on any Interest Payment Date and on the Maturity Date will be paid to the
Holder in whose name this Note (or one or more predecessor Notes) is registered
in the Security Register applicable to this Note at the close of business on the
"Record Date" for such payment, which will be 15 calendar days prior to such
payment date or the Maturity Date, as the case may be, regardless of whether
such day is a Business Day (as defined below). Any interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date, and may be paid to the Holder in whose name this Note
(or one or more predecessor Notes) is registered at the close of business on a
subsequent record date for the payment of such defaulted interest (which shall
be not less than 10 calendar days prior to the date of the payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders of the Notes not less than 10 calendar days preceding such
subsequent record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture (as defined below). Interest on this
Note will be computed on the basis of a 360-day year of twelve 30-day months.
Interest payable on this Note on any Interest Payment Date and
on the Maturity Date, as the case may be, will be the amount of interest accrued
from and including the immediately preceding Interest Payment Date (or from and
including June 22, 1998, in the case of the initial Interest Payment Date) to
but excluding the applicable Interest Payment Date or the Maturity Date, as the
case may be. If any date for the payment of principal, premium, if any, interest
on, or any other amount with respect to, this Note (each a "Payment Date") falls
on a day that is not a Business Day, the principal, premium, if any, or interest
payable with respect to such Payment Date will be made on the next succeeding
Business Day with the same force and effect as if made on such Payment Date, and
no interest shall accrue on the amount so payable for the period from and after
such Payment Date to such next succeeding Business Day. "Business Day" means any
day, other than a Saturday or a Sunday, that is neither a legal holiday nor a
day on which banking institutions in The City of New York are authorized or
required by law, regulation or executive order to close.
If this Note is exchanged in an Exchange Offer prior to the
Record Date for the first Interest Payment Date following such exchange, accrued
and unpaid interest, if any, on this Note, up to but not including the date of
issuance of the Note(s) issued in exchange (the "Exchange Note") for this Note,
shall be paid on the first Interest Payment Date for such Exchange Note(s) to
the Holder or Holders of such Exchange Note(s) on the first Record Date with
respect to such Exchange Note(s). If this Note is exchanged in an Exchange Offer
subsequent to the Record Date for the first Interest Payment Date following such
exchange but on or prior to the Interest Payment Date, then any such accrued and
unpaid interest with respect to this Note and any accrued and unpaid interest on
the Exchange Note(s) issued in exchange for this Note, through the day before
53
such Interest Payment Date, shall be paid on such Interest Payment Date to the
Holder of this Note on the Record Date.
The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement dated June 22, 1998 (the "Registration Rights
Agreement") among the Issuer and Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch"), Morgan Stanley & Co. Incorporated
("Morgan Stanley"), Chase Securities Inc., Lehman Brothers Inc., J.P. Morgan
Securities Inc., NationsBanc Montgomery Securities LLC and UBS Securities LLC
(collectively, the "Initial Purchasers").
If the Operating Partnership fails to comply with certain
provisions of the Registration Rights Agreement, in each case as described
below, then a special interest premium (the "Special Interest Premium") shall
become payable in respect of the Notes as follows:
If (i) a registration statement with respect to the Exchange
Notes (the "Exchange Offer Registration Statement") is not filed with the
Commission on or prior to the 90th day following the Closing Date, (ii) the
Exchange Offer Registration Statement is not declared effective on or prior to
the 135th day following the Closing Date or (iii) the Exchange Offer is not
consummated or the shelf registration statement covering resales of the Notes
(the "Shelf Registration Statement") is not declared effective on or prior to
the 180th day following the Closing Date, the Special Interest Premium shall
accrue from and including the next day following each of (a) such 90-day period
in the case of clause (i) above, (b) such 135-day period in the case of clause
(ii) above and (c) such 180-day period in the cause of clause (iii) above, in
each case at a rate equal to 0.50% per annum. The aggregate amount of the
Special Interest Premium payable pursuant to the above provisions will in no
event exceed 0.5% per annum. If the Exchange Offer Registration Statement is not
declared effective on or prior to the 135th day following the Closing Date and
the Operating Partnership shall request the Holder of this Note to provide the
information called for by the Registration Rights Agreement for inclusion in the
Shelf Registration Statement and the Holder of this Note does not deliver such
information to the Operating Partnership when required pursuant to the
Registration Rights Agreement, then the Holder of this Note will not be entitled
to any such increase in the interest rate for any day after the 180th day
following the Closing Date. Upon (1) the filing of the Exchange Offer
Registration statement after the 90-day period described in clause (i), (2) the
effectiveness of the Exchange Offer Registration Statement after the 135-day
period described in clause (ii) above or (3) the consummation of the Exchange
Offer or the effectiveness of a Shelf Registration Statement, as the case may
be, after the 180-day period described in clause (iii) above, the interest rate
on this Note from the date of such effectiveness or consummation, as the case
may be, will be reduced to the original interest rate provided for herein.
If a Shelf Registration Statement is declared effective, and
if the Operating Partnership fails to keep such Shelf Registration Statement
continuously (x) effective or (y) useable for resales for the period required by
the Registration Rights Agreement due to certain circumstances relating to
pending corporate developments, public filings with the Commission and similar
events, or because the prospectus contains an untrue statement of a material
fact or omits to
54
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, and such failure continues for more
than 60 days (whether or not consecutive) in any 12-month period (the 61st day
being referred to as the "Default Day"), then from the Default Day until the
earlier of (i) the date that is the second anniversary of the Closing Date (or,
if Rule 144(k) of the Securities Act is amended to provide a shorter restrictive
period, the end of such shorter period) or (ii) the date as of which this Note
is sold pursuant to the Shelf Registration Statement, the Special Interest
Premium shall accrue at a rate equal to 0.50% per annum.
The principal of this Note payable on the Maturity Date will
be paid against presentation and surrender of this Note at the office or agency
of the Issuer maintained for that purpose in The Borough of Manhattan, The City
of New York. The Issuer hereby initially designates the Corporate Trust Office
of the Trustee in The City of New York as the office to be maintained by it
where Notes may be presented for payment, registration of transfer or exchange,
and where notices to or demands upon the Issuer in respect of the Notes or the
Indenture referred to on the reverse hereof may be served.
Payments of principal and interest in respect of this Note
will be made by wire transfer of immediately available funds in such coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Reference is made to the further provisions of this Note set
forth on the reverse hereof after the Trustee's Certificate of Authentication.
Such further provisions shall for all purposes have the same effect as though
fully set forth at this place.
This Note shall not be entitled to the benefits of the
Indenture or be valid or obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by the Trustee under such
Indenture.
Capitalized terms used herein which are not otherwise defined
shall have the respective meanings assigned to them in the Indenture and the
Sixth Supplemental Indenture hereinafter referred to.
55
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed manually or by facsimile by its authorized officers.
Dated:
SIMON DEBARTOLO GROUP, L.P.
as Issuer
By: SD PROPERTY GROUP, INC.
as Managing General Partner
By: ______________________________
Name:
Attest: Title:
______________________________
Name:
Title:
56
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By: ______________________________
Authorized Officer
57
[REVERSE OF NOTE]
SIMON DEBARTOLO GROUP, L.P.
7-3/8% NOTE DUE 2018
This Note is one of a duly authorized issue of debt securities
of the Issuer (hereinafter called the "Securities"), all issued or to be issued
under and pursuant to an Indenture dated as of November 26, 1996 (herein called
the "Indenture"), duly executed and delivered by the Issuer and Simon Property
Group, L.P. (which was, effective December 31, 1997, merged with the Issuer), as
Guarantor, to The Chase Manhattan Bank, as Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture with respect to
the series of Securities of which this Note is a part), to which Indenture and
all indentures supplemental thereto relating to this Note (including, without
limitation, the Sixth Supplemental Indenture, dated as of June 22, 1998 (the
"Sixth Supplemental Indenture"), between the Issuer and the Trustee) reference
is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Issuer and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. The Securities may be issued in one or
more series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any) at different
rates, may be subject to different redemption provisions (if any), and may
otherwise vary as provided in the Indenture or any indenture supplemental
thereto. This Note is one of a series designated as the Simon DeBartolo Group,
L.P. 7-3/8% Notes due 2018, limited in aggregate principal amount to
$200,000,000 (the "Notes").
In case an Event of Default with respect to the Notes shall
have occurred and be continuing, the principal amount of the Notes and the
Make-Whole Amount may be declared accelerated and thereupon become due and
payable, in the manner, with the effect, and subject to the conditions provided
in the Indenture.
The Notes may be redeemed at any time at the option of the
Issuer, in whole or from time to time in part, at a redemption price equal to
the sum of (i) the principal amount of the Notes being redeemed plus accrued
interest thereon to the Redemption Date and (ii) the Make-Whole Amount, if any,
with respect to such Notes. Notice of any optional redemption will be given to
Holders at their addresses, as shown in the Security Register for the Notes, not
more than 60 nor less than 30 days prior to the date fixed for redemption. The
notice of redemption will specify, among other items, the redemption price and
the principal amount of the Notes to be redeemed.
The Indenture contains provisions permitting the Issuer and
the Trustee, with the consent of the Holders of not less than a majority of the
aggregate principal amount of the Securities at the time Outstanding of all
series to be affected (voting as one class), evidenced as
58
provided in the Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the Holders of the Securities of each series; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security so affected, (i) change the Stated Maturity of the
principal of, or premium, (if any) or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate or
amount of interest thereon or any premium payable upon the redemption or
acceleration thereof, or adversely affect any right of repayment at the option
of the Holder of any Security, or change any Place of Payment where, or the
currency or currencies, currency unit or units or composite currency or
currencies in which, the principal of any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof, or (ii) reduce the
aforesaid percentage of Securities the Holders of which are required to consent
to any such supplemental indenture, or (iii) reduce the percentage of Securities
the Holders of which are required to consent to any waiver of compliance with
certain provisions of the Indenture or any waiver of certain defaults and
consequences thereunder or to reduce the quorum or voting requirements set forth
in the Indenture, or (iv) effect certain other changes to the Indenture or any
supplemental indenture or in the rights of Holders of the Securities. The
Indenture also permits the Holders of a majority in principal amount of the
Outstanding Securities of any series (or, in the case of certain defaults or
Events of Default, all series of Securities), on behalf of the Holders of all
the Securities of such series (or all of the Securities, as the case may be), to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults or Events of Default under the Indenture and their
consequences, prior to any declaration accelerating the maturity of such
Securities, or subject to certain conditions, rescind a declaration of
acceleration and its consequences with respect to such Securities. Any such
consent or waiver by the Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note that may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of, premium, if any,
and interest on this Note in the manner, at the respective times, at the rate
and in the coin or currency herein prescribed.
Notwithstanding any other provision of the Indenture to the
contrary, no recourse shall be had, whether by levy or execution or otherwise,
for the payment of any sums due under the Securities, including, without
limitation, the principal of, premium, if any, or interest payable under the
Securities, or for the payment or performance of any obligation under, or for
any claim based on, the Indenture or otherwise in respect thereof, against any
partner of the Issuer, whether limited or general, including SD Property Group,
Inc., or such partner's assets or against any principal, shareholder, officer,
director, trustee or employee of such partner. It is expressly understood that
the sole remedies under the Securities and the Indenture or under any other
59
document with respect to the Securities, against such parties with respect to
such amounts, obligations or claims shall be against the Issuer.
This Note is issuable only in registered form without Coupons
in denominations of $100,000 and integral multiples of $1,000 in excess thereof.
This Note may be exchanged for a like aggregate principal amount of Notes of
other authorized denominations at the office or agency of the Issuer in The
Borough of Manhattan, The City of New York, in the manner and subject to the
limitations provided in the Indenture, but without the payment of any service
charge, except for any tax or other governmental charge imposed in connection
therewith.
Upon due presentment for registration of transfer of this Note
at the office or agency of the Issuer in The Borough of Manhattan, The City of
New York, one or more new Notes of authorized denominations in an equal
aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without charge,
except for any tax or other governmental charge imposed in connection therewith.
The Issuer, the Trustee and any authorized agent of the Issuer
or the Trustee may deem and treat the Person in whose name this Note is
registered as the absolute owner of this Note (whether or not this Note shall be
overdue and notwithstanding any notation of ownership or other writing hereon),
for the purpose of receiving payment of, or on account of, the principal and any
premium hereof or hereon, and subject to the provisions on the face hereof,
interest hereon, and for all other purposes, and neither the Issuer nor the
Trustee nor any authorized agent of the Issuer or the Trustee shall be affected
by any notice to the contrary.
This Note, including the validity hereof, and the Indenture
shall be governed by and construed in accordance with the laws of the State of
New York, and for all purposes shall be construed in accordance with the laws of
such state, except as may otherwise by required by mandatory provisions of law.
60
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - _____________Custodian______________
(Cust) (minor)
under Uniform Gifts to Minors Act
_______________ (State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
____________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
_______________________________________________________________this Note and all
rights thereunder hereby irrevocably constituting and appointing
__________________________________________________Attorney to transfer this Note
on the books of the Trustee, with full power of substitution in the premises.
Dated:______________ _______________________
___________________________
Notice: The signature(s) on
this Assignment must
correspond with the name(s)
as written upon the face of
this Note in every
particular, without
alteration or enlargement
or any change whatsoever.
61
EXHIBIT B-1
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. THIS NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY
IN MINIMUM DENOMINATIONS OF $100,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS
THEREOF.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OTHERWISE
TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION
DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS
NOTE AND THE LAST DATE ON WHICH THE OPERATING PARTNERSHIP OR ANY AFFILIATE OF
THE OPERATING PARTNERSHIP WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH
NOTE), ONLY (A) TO THE OPERATING PARTNERSHIP OR ONE OF THE INITIAL PURCHASERS OR
BY, THROUGH OR IN A TRANSACTION APPROVED BY, AN INITIAL PURCHASER, (B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) INSIDE
THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE
501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT) ACQUIRING THE SECURITIES
FOR ITS OWN ACCOUNT OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS MUST
ALSO BE INSTITUTIONAL ACCREDITED INVESTORS UNLESS SUCH TRANSFEREE IS A BANK
ACTING IN ITS FIDUCIARY CAPACITY) FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (E) PURSUANT TO OFFERS AND
SALES THAT OCCUR OUTSIDE THE UNITED STATES TO AN INSTITUTION THAT IS NOT A U.S.
PERSON (AND WAS NOT PURCHASING FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON), OR
(F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES, TO A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE BEING COMPLETED
AND DELIVERED BY THE TRANSFEROR AND, IF APPLICABLE, THE TRANSFEREE TO
62
THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER
THE RESALE RESTRICTION TERMINATION DATE.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL NOTES OF THE
SERIES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
REGISTERED REGISTERED
NO. [ ] PRINCIPAL AMOUNT
CUSIP NO. $___________
GLOBAL SECURITY
SIMON DEBARTOLO GROUP, L.P.
6-5/8% Note due 2003
Simon DeBartolo Group, L.P., a Delaware limited partnership
(the "Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or its
registered assigns, the principal sum of $___________ Dollars on June 15, 2003
(the "Maturity Date"), and to pay interest thereon from June 22, 1998,
semi-annually in arrears on June 15 and December 15 of each year (each, an
"Interest Payment
63
Date"), commencing on December 15, 1998, and on the Maturity Date, at the rate
of 6-5/8% per annum, until payment of said principal sum has been made or duly
provided for.
The interest so payable and punctually paid or duly provided
for on any Interest Payment Date and on the Maturity Date will be paid to the
Holder in whose name this Note (or one or more predecessor Notes) is registered
in the Security Register applicable to this Note at the close of business on the
"Record Date" for such payment, which will be 15 calendar days prior to such
payment date or the Maturity Date, as the case may be, regardless of whether
such day is a Business Day (as defined below). Any interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date, and may be paid to the Holder in whose name this Note
(or one or more predecessor Notes) is registered at the close of business on a
subsequent record date for the payment of such defaulted interest (which shall
be not less than 10 calendar days prior to the date of the payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders of the Notes not less than 10 calendar days preceding such
subsequent record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture (as defined below). Interest on this
Note will be computed on the basis of a 360-day year of twelve 30-day months.
Interest payable on this Note on any Interest Payment Date and
on the Maturity Date, as the case may be, will be the amount of interest accrued
from and including the immediately preceding Interest Payment Date (or from and
including June 22, 1998, in the case of the initial Interest Payment Date) to
but excluding the applicable Interest Payment Date or the Maturity Date, as the
case may be. If any date for the payment of principal, premium, if any, interest
on, or any other amount with respect to, this Note (each a "Payment Date") falls
on a day that is not a Business Day, the principal, premium, if any, or interest
payable with respect to such Payment Date will be made on the next succeeding
Business Day with the same force and effect as if made on such Payment Date, and
no interest shall accrue on the amount so payable for the period from and after
such Payment Date to such next succeeding Business Day. "Business Day" means any
day, other than a Saturday or a Sunday, that is neither a legal holiday nor a
day on which banking institutions in The City of New York are authorized or
required by law, regulation or executive order to close.
If this Note is exchanged in an Exchange Offer prior to the
Record Date for the first Interest Payment Date following such exchange, accrued
and unpaid interest, if any, on this Note, up to but not including the date of
issuance of the Note(s) issued in exchange (the "Exchange Note") for this Note,
shall be paid on the first Interest Payment Date for such Exchange Note(s) to
the Holder or Holders of such Exchange Note(s) on the first Record Date with
respect to such Exchange Note(s). If this Note is exchanged in an Exchange Offer
subsequent to the Record Date for the first Interest Payment Date following such
exchange but on or prior to the Interest Payment Date, then any such accrued and
unpaid interest with respect to this Note and any accrued and unpaid interest on
the Exchange Note(s) issued in exchange for this Note, through the day before
64
such Interest Payment Date, shall be paid on such Interest Payment Date to the
Holder of this Note on the Record Date.
The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement dated June 22, 1998 (the "Registration Rights
Agreement") among the Issuer and Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch"), Morgan Stanley & Co. Incorporated
("Morgan Stanley"), Chase Securities Inc., Lehman Brothers Inc., J.P. Morgan
Securities Inc., NationsBanc Montgomery Securities LLC and UBS Securities LLC
(collectively, the "Initial Purchasers").
If the Operating Partnership fails to comply with certain
provisions of the Registration Rights Agreement, in each case as described
below, then a special interest premium (the "Special Interest Premium") shall
become payable in respect of the Notes as follows:
If (i) a registration statement with respect to the Exchange
Notes (the "Exchange Offer Registration Statement") is not filed with the
Commission on or prior to the 90th day following the Closing Date, (ii) the
Exchange Offer Registration Statement is not declared effective on or prior to
the 135th day following the Closing Date or (iii) the Exchange Offer is not
consummated or the shelf registration statement covering resales of the Notes
(the "Shelf Registration Statement") is not declared effective on or prior to
the 180th day following the Closing Date, the Special Interest Premium shall
accrue from and including the next day following each of (a) such 90-day period
in the case of clause (i) above, (b) such 135-day period in the case of clause
(ii) above and (c) such 180-day period in the cause of clause (iii) above, in
each case at a rate equal to 0.50% per annum. The aggregate amount of the
Special Interest Premium payable pursuant to the above provisions will in no
event exceed 0.5% per annum. If the Exchange Offer Registration Statement is not
declared effective on or prior to the 135th day following the Closing Date and
the Operating Partnership shall request the Holder of this Note to provide the
information called for by the Registration Rights Agreement for inclusion in the
Shelf Registration Statement and the Holder of this Note does not deliver such
information to the Operating Partnership when required pursuant to the
Registration Rights Agreement, then the Holder of this Note will not be entitled
to any such increase in the interest rate for any day after the 180th day
following the Closing Date. Upon (1) the filing of the Exchange Offer
Registration statement after the 90-day period described in clause (i), (2) the
effectiveness of the Exchange Offer Registration Statement after the 135-day
period described in clause (ii) above or (3) the consummation of the Exchange
Offer or the effectiveness of a Shelf Registration Statement, as the case may
be, after the 180-day period described in clause (iii) above, the interest rate
on this Note from the date of such effectiveness or consummation, as the case
may be, will be reduced to the original interest rate provided for herein.
If a Shelf Registration Statement is declared effective, and
if the Operating Partnership fails to keep such Shelf Registration Statement
continuously (x) effective or (y) useable for resales for the period required by
the Registration Rights Agreement due to certain circumstances relating to
pending corporate developments, public filings with the Commission and similar
events, or because the prospectus contains an untrue statement of a material
fact or omits to
65
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, and such failure continues for more
than 60 days (whether or not consecutive) in any 12-month period (the 61st day
being referred to as the "Default Day"), then from the Default Day until the
earlier of (i) the date that is the second anniversary of the Closing Date (or,
if Rule 144(k) of the Securities Act is amended to provide a shorter restrictive
period, the end of such shorter period) or (ii) the date as of which this Note
is sold pursuant to the Shelf Registration Statement, the Special Interest
Premium shall accrue at a rate equal to 0.50% per annum.
The principal of this Note payable on the Maturity Date will
be paid against presentation and surrender of this Note at the office or agency
of the Issuer maintained for that purpose in The Borough of Manhattan, The City
of New York. The Issuer hereby initially designates the Corporate Trust Office
of the Trustee in The City of New York as the office to be maintained by it
where Notes may be presented for payment, registration of transfer or exchange,
and where notices to or demands upon the Issuer in respect of the Notes or the
Indenture referred to on the reverse hereof may be served.
Payments of principal and interest in respect of this Note
will be made by wire transfer of immediately available funds in such coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Reference is made to the further provisions of this Note set
forth on the reverse hereof after the Trustee's Certificate of Authentication.
Such further provisions shall for all purposes have the same effect as though
fully set forth at this place.
This Note shall not be entitled to the benefits of the
Indenture or be valid or obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by the Trustee under such
Indenture.
Capitalized terms used herein which are not otherwise defined
shall have the respective meanings assigned to them in the Indenture and the
Sixth Supplemental Indenture hereinafter referred to.
66
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed manually or by facsimile by its authorized officers.
Dated:
SIMON DEBARTOLO GROUP, L.P.
as Issuer
By: SD PROPERTY GROUP, INC.
as Managing General Partner
By: ______________________________
Name:
Attest: Title:
__________________________
Name:
Title:
67
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By: ______________________________
Authorized Officer
68
[REVERSE OF NOTE]
SIMON DEBARTOLO GROUP, L.P.
6-5/8% NOTE DUE 2003
This Note is one of a duly authorized issue of debt securities
of the Issuer (hereinafter called the "Securities"), all issued or to be issued
under and pursuant to an Indenture dated as of November 26, 1996 (herein called
the "Indenture"), duly executed and delivered by the Issuer and Simon Property
Group, L.P. (which was, effective December 31, 1997, merged with the Issuer), as
Guarantor, to The Chase Manhattan Bank, as Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture with respect to
the series of Securities of which this Note is a part), to which Indenture and
all indentures supplemental thereto relating to this Note (including, without
limitation, the Sixth Supplemental Indenture, dated as of June 22, 1998 (the
"Sixth Supplemental Indenture"), between the Issuer and the Trustee) reference
is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Issuer and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. The Securities may be issued in one or
more series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any) at different
rates, may be subject to different redemption provisions (if any), and may
otherwise vary as provided in the Indenture or any indenture supplemental
thereto. This Note is one of a series designated as the Simon DeBartolo Group,
L.P. 6-5/8% Notes due 2003, limited in aggregate principal amount to
$375,000,000 (the "Notes").
In case an Event of Default with respect to the Notes shall
have occurred and be continuing, the principal amount of the Notes and the
Make-Whole Amount may be declared accelerated and thereupon become due and
payable, in the manner, with the effect, and subject to the conditions provided
in the Indenture.
The Notes may be redeemed at any time at the option of the
Issuer, in whole or from time to time in part, at a redemption price equal to
the sum of (i) the principal amount of the Notes being redeemed plus accrued
interest thereon to the Redemption Date and (ii) the Make-Whole Amount, if any,
with respect to such Notes. Notice of any optional redemption will be given to
Holders at their addresses, as shown in the Security Register for the Notes, not
more than 60 nor less than 30 days prior to the date fixed for redemption. The
notice of redemption will specify, among other items, the redemption price and
the principal amount of the Notes to be redeemed.
The Indenture contains provisions permitting the Issuer and
the Trustee, with the consent of the Holders of not less than a majority of the
aggregate principal amount of the Securities at the time Outstanding of all
series to be affected (voting as one class), evidenced as
69
provided in the Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the Holders of the Securities of each series; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security so affected, (i) change the Stated Maturity of the
principal of, or premium, (if any) or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate or
amount of interest thereon or any premium payable upon the redemption or
acceleration thereof, or adversely affect any right of repayment at the option
of the Holder of any Security, or change any Place of Payment where, or the
currency or currencies, currency unit or units or composite currency or
currencies in which, the principal of any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof, or (ii) reduce the
aforesaid percentage of Securities the Holders of which are required to consent
to any such supplemental indenture, or (iii) reduce the percentage of Securities
the Holders of which are required to consent to any waiver of compliance with
certain provisions of the Indenture or any waiver of certain defaults and
consequences thereunder or to reduce the quorum or voting requirements set forth
in the Indenture, or (iv) effect certain other changes to the Indenture or any
supplemental indenture or in the rights of Holders of the Securities. The
Indenture also permits the Holders of a majority in principal amount of the
Outstanding Securities of any series (or, in the case of certain defaults or
Events of Default, all series of Securities), on behalf of the Holders of all
the Securities of such series (or all of the Securities, as the case may be), to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults or Events of Default under the Indenture and their
consequences, prior to any declaration accelerating the maturity of such
Securities, or subject to certain conditions, rescind a declaration of
acceleration and its consequences with respect to such Securities. Any such
consent or waiver by the Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note that may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of, premium, if any,
and interest on this Note in the manner, at the respective times, at the rate
and in the coin or currency herein prescribed.
Notwithstanding any other provision of the Indenture to the
contrary, no recourse shall be had, whether by levy or execution or otherwise,
for the payment of any sums due under the Securities, including, without
limitation, the principal of, premium, if any, or interest payable under the
Securities, or for the payment or performance of any obligation under, or for
any claim based on, the Indenture or otherwise in respect thereof, against any
partner of the Issuer, whether limited or general, including SD Property Group,
Inc., or such partner's assets or against any principal, shareholder, officer,
director, trustee or employee of such partner. It is expressly understood that
the sole remedies under the Securities and the Indenture or under any other
70
document with respect to the Securities, against such parties with respect to
such amounts, obligations or claims shall be against the Issuer.
This Note is issuable only in registered form without Coupons
in denominations of $100,000 and integral multiples of $1,000 in excess thereof.
This Note may be exchanged for a like aggregate principal amount of Notes of
other authorized denominations at the office or agency of the Issuer in The
Borough of Manhattan, The City of New York, in the manner and subject to the
limitations provided in the Indenture, but without the payment of any service
charge, except for any tax or other governmental charge imposed in connection
therewith.
Upon due presentment for registration of transfer of this Note
at the office or agency of the Issuer in The Borough of Manhattan, The City of
New York, one or more new Notes of authorized denominations in an equal
aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without charge,
except for any tax or other governmental charge imposed in connection therewith.
The Issuer, the Trustee and any authorized agent of the Issuer
or the Trustee may deem and treat the Person in whose name this Note is
registered as the absolute owner of this Note (whether or not this Note shall be
overdue and notwithstanding any notation of ownership or other writing hereon),
for the purpose of receiving payment of, or on account of, the principal and any
premium hereof or hereon, and subject to the provisions on the face hereof,
interest hereon, and for all other purposes, and neither the Issuer nor the
Trustee nor any authorized agent of the Issuer or the Trustee shall be affected
by any notice to the contrary.
This Note, including the validity hereof, and the Indenture
shall be governed by and construed in accordance with the laws of the State of
New York, and for all purposes shall be construed in accordance with the laws of
such state, except as may otherwise by required by mandatory provisions of law.
71
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ___________ Custodian__________
(Cust) (minor)
under Uniform Gifts to Minors Act
________________(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
______________________________________________________________ this Note and all
rights thereunder hereby irrevocably constituting and appointing
_________________________________________________ Attorney to transfer this Note
on the books of the Trustee, with full power of substitution in the premises.
Dated: ___________ ______________________
___________________________
Notice: The signature(s) on
this Assignment must
correspond with the name(s)
as written upon the face of
this Note in every
particular, without
alteration or enlargement
or any change whatsoever.
72
EXHIBIT B-2
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. THIS NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY
IN MINIMUM DENOMINATIONS OF $100,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS
THEREOF.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OTHERWISE
TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION
DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS
NOTE AND THE LAST DATE ON WHICH THE OPERATING PARTNERSHIP OR ANY AFFILIATE OF
THE OPERATING PARTNERSHIP WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH
NOTE), ONLY (A) TO THE OPERATING PARTNERSHIP OR ONE OF THE INITIAL PURCHASERS OR
BY, THROUGH OR IN A TRANSACTION APPROVED BY, AN INITIAL PURCHASER, (B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) INSIDE
THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE
501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT) ACQUIRING THE SECURITIES
FOR ITS OWN ACCOUNT OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS MUST
ALSO BE INSTITUTIONAL ACCREDITED INVESTORS UNLESS SUCH TRANSFEREE IS A BANK
ACTING IN ITS FIDUCIARY CAPACITY) FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (E) PURSUANT TO OFFERS AND
SALES THAT OCCUR OUTSIDE THE UNITED STATES TO AN INSTITUTION THAT IS NOT A U.S.
PERSON (AND WAS NOT PURCHASING FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON), OR
(F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES, TO A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE BEING COMPLETED
AND DELIVERED BY THE TRANSFEROR AND, IF APPLICABLE, THE TRANSFEREE TO
73
THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER
THE RESALE RESTRICTION TERMINATION DATE.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL NOTES OF THE
SERIES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
REGISTERED REGISTERED
NO. [ ] PRINCIPAL AMOUNT
CUSIP NO. $___________
GLOBAL SECURITY
SIMON DEBARTOLO GROUP, L.P.
6-3/4% Note due 2005
Simon DeBartolo Group, L.P., a Delaware limited partnership
(the "Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or its
registered assigns, the principal sum of $___________ Dollars on June 15, 2005
(the "Maturity Date"), and to pay interest thereon from June 22, 1998,
semi-annually in arrears on June 15 and December 15 of each year (each, an
"Interest Payment
74
Date"), commencing on December 15, 1998, and on the Maturity Date, at the rate
of 6-3/4% per annum, until payment of said principal sum has been made or duly
provided for.
The interest so payable and punctually paid or duly provided
for on any Interest Payment Date and on the Maturity Date will be paid to the
Holder in whose name this Note (or one or more predecessor Notes) is registered
in the Security Register applicable to this Note at the close of business on the
"Record Date" for such payment, which will be 15 calendar days prior to such
payment date or the Maturity Date, as the case may be, regardless of whether
such day is a Business Day (as defined below). Any interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date, and may be paid to the Holder in whose name this Note
(or one or more predecessor Notes) is registered at the close of business on a
subsequent record date for the payment of such defaulted interest (which shall
be not less than 10 calendar days prior to the date of the payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders of the Notes not less than 10 calendar days preceding such
subsequent record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture (as defined below). Interest on this
Note will be computed on the basis of a 360-day year of twelve 30-day months.
Interest payable on this Note on any Interest Payment Date and
on the Maturity Date, as the case may be, will be the amount of interest accrued
from and including the immediately preceding Interest Payment Date (or from and
including June 22, 1998, in the case of the initial Interest Payment Date) to
but excluding the applicable Interest Payment Date or the Maturity Date, as the
case may be. If any date for the payment of principal, premium, if any, interest
on, or any other amount with respect to, this Note (each a "Payment Date") falls
on a day that is not a Business Day, the principal, premium, if any, or interest
payable with respect to such Payment Date will be made on the next succeeding
Business Day with the same force and effect as if made on such Payment Date, and
no interest shall accrue on the amount so payable for the period from and after
such Payment Date to such next succeeding Business Day. "Business Day" means any
day, other than a Saturday or a Sunday, that is neither a legal holiday nor a
day on which banking institutions in The City of New York are authorized or
required by law, regulation or executive order to close.
If this Note is exchanged in an Exchange Offer prior to the
Record Date for the first Interest Payment Date following such exchange, accrued
and unpaid interest, if any, on this Note, up to but not including the date of
issuance of the Note(s) issued in exchange (the "Exchange Note") for this Note,
shall be paid on the first Interest Payment Date for such Exchange Note(s) to
the Holder or Holders of such Exchange Note(s) on the first Record Date with
respect to such Exchange Note(s). If this Note is exchanged in an Exchange Offer
subsequent to the Record Date for the first Interest Payment Date following such
exchange but on or prior to the Interest Payment Date, then any such accrued and
unpaid interest with respect to this Note and any accrued and unpaid interest on
the Exchange Note(s) issued in exchange for this Note, through the day before
75
such Interest Payment Date, shall be paid on such Interest Payment Date to the
Holder of this Note on the Record Date.
The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement dated June 22, 1998 (the "Registration Rights
Agreement") among the Issuer and Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch"), Morgan Stanley & Co. Incorporated
("Morgan Stanley"), Chase Securities Inc., Lehman Brothers Inc., J.P. Morgan
Securities Inc., NationsBanc Montgomery Securities LLC and UBS Securities LLC
(collectively, the "Initial Purchasers").
If the Operating Partnership fails to comply with certain
provisions of the Registration Rights Agreement, in each case as described
below, then a special interest premium (the "Special Interest Premium") shall
become payable in respect of the Notes as follows:
If (i) a registration statement with respect to the Exchange
Notes (the "Exchange Offer Registration Statement") is not filed with the
Commission on or prior to the 90th day following the Closing Date, (ii) the
Exchange Offer Registration Statement is not declared effective on or prior to
the 135th day following the Closing Date or (iii) the Exchange Offer is not
consummated or the shelf registration statement covering resales of the Notes
(the "Shelf Registration Statement") is not declared effective on or prior to
the 180th day following the Closing Date, the Special Interest Premium shall
accrue from and including the next day following each of (a) such 90-day period
in the case of clause (i) above, (b) such 135-day period in the case of clause
(ii) above and (c) such 180-day period in the cause of clause (iii) above, in
each case at a rate equal to 0.50% per annum. The aggregate amount of the
Special Interest Premium payable pursuant to the above provisions will in no
event exceed 0.5% per annum. If the Exchange Offer Registration Statement is not
declared effective on or prior to the 135th day following the Closing Date and
the Operating Partnership shall request the Holder of this Note to provide the
information called for by the Registration Rights Agreement for inclusion in the
Shelf Registration Statement and the Holder of this Note does not deliver such
information to the Operating Partnership when required pursuant to the
Registration Rights Agreement, then the Holder of this Note will not be entitled
to any such increase in the interest rate for any day after the 180th day
following the Closing Date. Upon (1) the filing of the Exchange Offer
Registration statement after the 90-day period described in clause (i), (2) the
effectiveness of the Exchange Offer Registration Statement after the 135-day
period described in clause (ii) above or (3) the consummation of the Exchange
Offer or the effectiveness of a Shelf Registration Statement, as the case may
be, after the 180-day period described in clause (iii) above, the interest rate
on this Note from the date of such effectiveness or consummation, as the case
may be, will be reduced to the original interest rate provided for herein.
If a Shelf Registration Statement is declared effective, and
if the Operating Partnership fails to keep such Shelf Registration Statement
continuously (x) effective or (y) useable for resales for the period required by
the Registration Rights Agreement due to certain circumstances relating to
pending corporate developments, public filings with the Commission and similar
events, or because the prospectus contains an untrue statement of a material
fact or omits to
76
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, and such failure continues for more
than 60 days (whether or not consecutive) in any 12-month period (the 61st day
being referred to as the "Default Day"), then from the Default Day until the
earlier of (i) the date that is the second anniversary of the Closing Date (or,
if Rule 144(k) of the Securities Act is amended to provide a shorter restrictive
period, the end of such shorter period) or (ii) the date as of which this Note
is sold pursuant to the Shelf Registration Statement, the Special Interest
Premium shall accrue at a rate equal to 0.50% per annum.
The principal of this Note payable on the Maturity Date will
be paid against presentation and surrender of this Note at the office or agency
of the Issuer maintained for that purpose in The Borough of Manhattan, The City
of New York. The Issuer hereby initially designates the Corporate Trust Office
of the Trustee in The City of New York as the office to be maintained by it
where Notes may be presented for payment, registration of transfer or exchange,
and where notices to or demands upon the Issuer in respect of the Notes or the
Indenture referred to on the reverse hereof may be served.
Payments of principal and interest in respect of this Note
will be made by wire transfer of immediately available funds in such coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Reference is made to the further provisions of this Note set
forth on the reverse hereof after the Trustee's Certificate of Authentication.
Such further provisions shall for all purposes have the same effect as though
fully set forth at this place.
This Note shall not be entitled to the benefits of the
Indenture or be valid or obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by the Trustee under such
Indenture.
Capitalized terms used herein which are not otherwise defined
shall have the respective meanings assigned to them in the Indenture and the
Sixth Supplemental Indenture hereinafter referred to.
77
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed manually or by facsimile by its authorized officers.
Dated:
SIMON DEBARTOLO GROUP, L.P.
as Issuer
By: SD PROPERTY GROUP, INC.
as Managing General Partner
By: ______________________________
Name:
Attest: Title:
_________________________
Name:
Title:
78
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By: ______________________________
Authorized Officer
79
[REVERSE OF NOTE]
SIMON DEBARTOLO GROUP, L.P.
6-3/4% NOTE DUE 2005
This Note is one of a duly authorized issue of debt securities of
the Issuer (hereinafter called the "Securities"), all issued or to be issued
under and pursuant to an Indenture dated as of November 26, 1996 (herein called
the "Indenture"), duly executed and delivered by the Issuer and Simon Property
Group, L.P. (which was, effective December 31, 1997, merged with the Issuer), as
Guarantor, to The Chase Manhattan Bank, as Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture with respect to
the series of Securities of which this Note is a part), to which Indenture and
all indentures supplemental thereto relating to this Note (including, without
limitation, the Sixth Supplemental Indenture, dated as of June 22, 1998 (the
"Sixth Supplemental Indenture"), between the Issuer and the Trustee) reference
is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Issuer and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. The Securities may be issued in one or
more series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any) at different
rates, may be subject to different redemption provisions (if any), and may
otherwise vary as provided in the Indenture or any indenture supplemental
thereto. This Note is one of a series designated as the Simon DeBartolo Group,
L.P. 6-3/4% Notes due 2005, limited in aggregate principal amount to
$300,000,000 (the "Notes").
In case an Event of Default with respect to the Notes shall have
occurred and be continuing, the principal amount of the Notes and the Make-Whole
Amount may be declared accelerated and thereupon become due and payable, in the
manner, with the effect, and subject to the conditions provided in the
Indenture.
The Notes may be redeemed at any time at the option of the Issuer,
in whole or from time to time in part, at a redemption price equal to the sum of
(i) the principal amount of the Notes being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Notes. Notice of any optional redemption will be given to
Holders at their addresses, as shown in the Security Register for the Notes, not
more than 60 nor less than 30 days prior to the date fixed for redemption. The
notice of redemption will specify, among other items, the redemption price and
the principal amount of the Notes to be redeemed.
The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of not less than a majority of the
aggregate principal amount of the Securities at the time Outstanding of all
series to be affected (voting as one class), evidenced as
80
provided in the Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the Holders of the Securities of each series; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security so affected, (i) change the Stated Maturity of the
principal of, or premium, (if any) or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate or
amount of interest thereon or any premium payable upon the redemption or
acceleration thereof, or adversely affect any right of repayment at the option
of the Holder of any Security, or change any Place of Payment where, or the
currency or currencies, currency unit or units or composite currency or
currencies in which, the principal of any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof, or (ii) reduce the
aforesaid percentage of Securities the Holders of which are required to consent
to any such supplemental indenture, or (iii) reduce the percentage of Securities
the Holders of which are required to consent to any waiver of compliance with
certain provisions of the Indenture or any waiver of certain defaults and
consequences thereunder or to reduce the quorum or voting requirements set forth
in the Indenture, or (iv) effect certain other changes to the Indenture or any
supplemental indenture or in the rights of Holders of the Securities. The
Indenture also permits the Holders of a majority in principal amount of the
Outstanding Securities of any series (or, in the case of certain defaults or
Events of Default, all series of Securities), on behalf of the Holders of all
the Securities of such series (or all of the Securities, as the case may be), to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults or Events of Default under the Indenture and their
consequences, prior to any declaration accelerating the maturity of such
Securities, or subject to certain conditions, rescind a declaration of
acceleration and its consequences with respect to such Securities. Any such
consent or waiver by the Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note that may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Note.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Note in the manner, at the respective times, at the rate and in
the coin or currency herein prescribed.
Notwithstanding any other provision of the Indenture to the
contrary, no recourse shall be had, whether by levy or execution or otherwise,
for the payment of any sums due under the Securities, including, without
limitation, the principal of, premium, if any, or interest payable under the
Securities, or for the payment or performance of any obligation under, or for
any claim based on, the Indenture or otherwise in respect thereof, against any
partner of the Issuer, whether limited or general, including SD Property Group,
Inc., or such partner's assets or against any principal, shareholder, officer,
director, trustee or employee of such partner. It is expressly understood that
the sole remedies under the Securities and the Indenture or under any other
81
document with respect to the Securities, against such parties with respect to
such amounts, obligations or claims shall be against the Issuer.
This Note is issuable only in registered form without Coupons in
denominations of $100,000 and integral multiples of $1,000 in excess thereof.
This Note may be exchanged for a like aggregate principal amount of Notes of
other authorized denominations at the office or agency of the Issuer in The
Borough of Manhattan, The City of New York, in the manner and subject to the
limitations provided in the Indenture, but without the payment of any service
charge, except for any tax or other governmental charge imposed in connection
therewith.
Upon due presentment for registration of transfer of this Note at
the office or agency of the Issuer in The Borough of Manhattan, The City of New
York, one or more new Notes of authorized denominations in an equal aggregate
principal amount will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture, without charge, except for any tax
or other governmental charge imposed in connection therewith.
The Issuer, the Trustee and any authorized agent of the Issuer or
the Trustee may deem and treat the Person in whose name this Note is registered
as the absolute owner of this Note (whether or not this Note shall be overdue
and notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal and any premium
hereof or hereon, and subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and neither the Issuer nor the Trustee nor
any authorized agent of the Issuer or the Trustee shall be affected by any
notice to the contrary.
This Note, including the validity hereof, and the Indenture shall be
governed by and construed in accordance with the laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of such
state, except as may otherwise by required by mandatory provisions of law.
82
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Note, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ___________ Custodian ____________
(Cust) (minor)
under Uniform Gifts to Minors Act
_______________________(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
______________________________________________________________ this Note and all
rights thereunder hereby irrevocably constituting and appointing
______________________________________________ Attorney to transfer this Note
on the books of the Trustee, with full power of substitution in the premises.
Dated:______________________ _______________________________________
____________________________________________
Notice: The signature(s) on this Assignment
must correspond with the name(s) as written
upon the face of this Note in every
particular, without alteration or
enlargement or any change whatsoever.
83
EXHIBIT B-3
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. THIS NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY
IN MINIMUM DENOMINATIONS OF $100,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS
THEREOF.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OTHERWISE
TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION
DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS
NOTE AND THE LAST DATE ON WHICH THE OPERATING PARTNERSHIP OR ANY AFFILIATE OF
THE OPERATING PARTNERSHIP WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH
NOTE), ONLY (A) TO THE OPERATING PARTNERSHIP OR ONE OF THE INITIAL PURCHASERS OR
BY, THROUGH OR IN A TRANSACTION APPROVED BY, AN INITIAL PURCHASER, (B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) INSIDE
THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE
501(A)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT) ACQUIRING THE SECURITIES
FOR ITS OWN ACCOUNT OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS MUST
ALSO BE INSTITUTIONAL ACCREDITED INVESTORS UNLESS SUCH TRANSFEREE IS A BANK
ACTING IN ITS FIDUCIARY CAPACITY) FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (E) PURSUANT TO OFFERS AND
SALES THAT OCCUR OUTSIDE THE UNITED STATES TO AN INSTITUTION THAT IS NOT A U.S.
PERSON (AND WAS NOT PURCHASING FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON), OR
(F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES, TO A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE BEING COMPLETED
AND DELIVERED BY THE TRANSFEROR AND, IF APPLICABLE, THE TRANSFEREE TO
84
THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL NOTES OF THE
SERIES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
REGISTERED REGISTERED
NO. [ ]
PRINCIPAL AMOUNT
CUSIP NO. $___________
GLOBAL SECURITY
SIMON DEBARTOLO GROUP, L.P.
7-3/8% Note due 2018
Simon DeBartolo Group, L.P., a Delaware limited partnership (the
"Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or its
registered assigns, the principal sum of $___________ Dollars on June 15, 2018
(the "Maturity Date"), and to pay interest thereon from June 22, 1998,
semi-annually in arrears on June 15 and December 15 of each year (each, an
"Interest Payment
85
Date"), commencing on December 15, 1998, and on the Maturity Date, at the rate
of 7-3/8% per annum, until payment of said principal sum has been made or duly
provided for.
The interest so payable and punctually paid or duly provided for on
any Interest Payment Date and on the Maturity Date will be paid to the Holder in
whose name this Note (or one or more predecessor Notes) is registered in the
Security Register applicable to this Note at the close of business on the
"Record Date" for such payment, which will be 15 calendar days prior to such
payment date or the Maturity Date, as the case may be, regardless of whether
such day is a Business Day (as defined below). Any interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date, and may be paid to the Holder in whose name this Note
(or one or more predecessor Notes) is registered at the close of business on a
subsequent record date for the payment of such defaulted interest (which shall
be not less than 10 calendar days prior to the date of the payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders of the Notes not less than 10 calendar days preceding such
subsequent record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture (as defined below). Interest on this
Note will be computed on the basis of a 360-day year of twelve 30-day months.
Interest payable on this Note on any Interest Payment Date and on
the Maturity Date, as the case may be, will be the amount of interest accrued
from and including the immediately preceding Interest Payment Date (or from and
including June 22, 1998, in the case of the initial Interest Payment Date) to
but excluding the applicable Interest Payment Date or the Maturity Date, as the
case may be. If any date for the payment of principal, premium, if any, interest
on, or any other amount with respect to, this Note (each a "Payment Date") falls
on a day that is not a Business Day, the principal, premium, if any, or interest
payable with respect to such Payment Date will be made on the next succeeding
Business Day with the same force and effect as if made on such Payment Date, and
no interest shall accrue on the amount so payable for the period from and after
such Payment Date to such next succeeding Business Day. "Business Day" means any
day, other than a Saturday or a Sunday, that is neither a legal holiday nor a
day on which banking institutions in The City of New York are authorized or
required by law, regulation or executive order to close.
If this Note is exchanged in an Exchange Offer prior to the Record
Date for the first Interest Payment Date following such exchange, accrued and
unpaid interest, if any, on this Note, up to but not including the date of
issuance of the Note(s) issued in exchange (the "Exchange Note") for this Note,
shall be paid on the first Interest Payment Date for such Exchange Note(s) to
the Holder or Holders of such Exchange Note(s) on the first Record Date with
respect to such Exchange Note(s). If this Note is exchanged in an Exchange Offer
subsequent to the Record Date for the first Interest Payment Date following such
exchange but on or prior to the Interest Payment Date, then any such accrued and
unpaid interest with respect to this Note and any accrued and unpaid interest on
the Exchange Note(s) issued in exchange for this Note, through the day before
86
such Interest Payment Date, shall be paid on such Interest Payment Date to the
Holder of this Note on the Record Date.
The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement dated June 22, 1998 (the "Registration Rights
Agreement") among the Issuer and Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch"), Morgan Stanley & Co. Incorporated
("Morgan Stanley"), Chase Securities Inc., Lehman Brothers Inc., J.P. Morgan
Securities Inc., NationsBanc Montgomery Securities LLC and UBS Securities LLC
(collectively, the "Initial Purchasers").
If the Operating Partnership fails to comply with certain provisions
of the Registration Rights Agreement, in each case as described below, then a
special interest premium (the "Special Interest Premium") shall become payable
in respect of the Notes as follows:
If (i) a registration statement with respect to the Exchange Notes
(the "Exchange Offer Registration Statement") is not filed with the Commission
on or prior to the 90th day following the Closing Date, (ii) the Exchange Offer
Registration Statement is not declared effective on or prior to the 135th day
following the Closing Date or (iii) the Exchange Offer is not consummated or the
shelf registration statement covering resales of the Notes (the "Shelf
Registration Statement") is not declared effective on or prior to the 180th day
following the Closing Date, the Special Interest Premium shall accrue from and
including the next day following each of (a) such 90-day period in the case of
clause (i) above, (b) such 135-day period in the case of clause (ii) above and
(c) such 180-day period in the cause of clause (iii) above, in each case at a
rate equal to 0.50% per annum. The aggregate amount of the Special Interest
Premium payable pursuant to the above provisions will in no event exceed 0.5%
per annum. If the Exchange Offer Registration Statement is not declared
effective on or prior to the 135th day following the Closing Date and the
Operating Partnership shall request the Holder of this Note to provide the
information called for by the Registration Rights Agreement for inclusion in the
Shelf Registration Statement and the Holder of this Note does not deliver such
information to the Operating Partnership when required pursuant to the
Registration Rights Agreement, then the Holder of this Note will not be entitled
to any such increase in the interest rate for any day after the 180th day
following the Closing Date. Upon (1) the filing of the Exchange Offer
Registration statement after the 90-day period described in clause (i), (2) the
effectiveness of the Exchange Offer Registration Statement after the 135-day
period described in clause (ii) above or (3) the consummation of the Exchange
Offer or the effectiveness of a Shelf Registration Statement, as the case may
be, after the 180-day period described in clause (iii) above, the interest rate
on this Note from the date of such effectiveness or consummation, as the case
may be, will be reduced to the original interest rate provided for herein.
If a Shelf Registration Statement is declared effective, and if the
Operating Partnership fails to keep such Shelf Registration Statement
continuously (x) effective or (y) useable for resales for the period required by
the Registration Rights Agreement due to certain circumstances relating to
pending corporate developments, public filings with the Commission and similar
events, or because the prospectus contains an untrue statement of a material
fact or omits to
87
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, and such failure continues for more
than 60 days (whether or not consecutive) in any 12-month period (the 61st day
being referred to as the "Default Day"), then from the Default Day until the
earlier of (i) the date that is the second anniversary of the Closing Date (or,
if Rule 144(k) of the Securities Act is amended to provide a shorter restrictive
period, the end of such shorter period) or (ii) the date as of which this Note
is sold pursuant to the Shelf Registration Statement, the Special Interest
Premium shall accrue at a rate equal to 0.50% per annum.
The principal of this Note payable on the Maturity Date will be paid
against presentation and surrender of this Note at the office or agency of the
Issuer maintained for that purpose in The Borough of Manhattan, The City of New
York. The Issuer hereby initially designates the Corporate Trust Office of the
Trustee in The City of New York as the office to be maintained by it where Notes
may be presented for payment, registration of transfer or exchange, and where
notices to or demands upon the Issuer in respect of the Notes or the Indenture
referred to on the reverse hereof may be served.
Payments of principal and interest in respect of this Note will be
made by wire transfer of immediately available funds in such coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Reference is made to the further provisions of this Note set forth
on the reverse hereof after the Trustee's Certificate of Authentication. Such
further provisions shall for all purposes have the same effect as though fully
set forth at this place.
This Note shall not be entitled to the benefits of the Indenture or
be valid or obligatory for any purpose until the Certificate of Authentication
hereon shall have been signed by the Trustee under such Indenture.
Capitalized terms used herein which are not otherwise defined shall
have the respective meanings assigned to them in the Indenture and the Sixth
Supplemental Indenture hereinafter referred to.
88
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed manually or by facsimile by its authorized officers.
Dated:
SIMON DEBARTOLO GROUP, L.P.
as Issuer
By: SD PROPERTY GROUP, INC.
as Managing General Partner
By: ______________________________
Name:
Attest: Title:
___________________________________
Name:
Title:
89
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By: ______________________________
Authorized Officer
90
[REVERSE OF NOTE]
SIMON DEBARTOLO GROUP, L.P.
7-3/8% NOTE DUE 2018
This Note is one of a duly authorized issue of debt securities of
the Issuer (hereinafter called the "Securities"), all issued or to be issued
under and pursuant to an Indenture dated as of November 26, 1996 (herein called
the "Indenture"), duly executed and delivered by the Issuer and Simon Property
Group, L.P. (which was, effective December 31, 1997, merged with the Issuer), as
Guarantor, to The Chase Manhattan Bank, as Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture with respect to
the series of Securities of which this Note is a part), to which Indenture and
all indentures supplemental thereto relating to this Note (including, without
limitation, the Sixth Supplemental Indenture, dated as of June 22, 1998 (the
"Sixth Supplemental Indenture"), between the Issuer and the Trustee) reference
is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Issuer and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. The Securities may be issued in one or
more series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any) at different
rates, may be subject to different redemption provisions (if any), and may
otherwise vary as provided in the Indenture or any indenture supplemental
thereto. This Note is one of a series designated as the Simon DeBartolo Group,
L.P. 7-3/8% Notes due 2018, limited in aggregate principal amount to
$200,000,000 (the "Notes").
In case an Event of Default with respect to the Notes shall have
occurred and be continuing, the principal amount of the Notes and the Make-Whole
Amount may be declared accelerated and thereupon become due and payable, in the
manner, with the effect, and subject to the conditions provided in the
Indenture.
The Notes may be redeemed at any time at the option of the Issuer,
in whole or from time to time in part, at a redemption price equal to the sum of
(i) the principal amount of the Notes being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Notes. Notice of any optional redemption will be given to
Holders at their addresses, as shown in the Security Register for the Notes, not
more than 60 nor less than 30 days prior to the date fixed for redemption. The
notice of redemption will specify, among other items, the redemption price and
the principal amount of the Notes to be redeemed.
The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of not less than a majority of the
aggregate principal amount of the Securities at the time Outstanding of all
series to be affected (voting as one class), evidenced as
91
provided in the Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the Holders of the Securities of each series; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security so affected, (i) change the Stated Maturity of the
principal of, or premium, (if any) or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate or
amount of interest thereon or any premium payable upon the redemption or
acceleration thereof, or adversely affect any right of repayment at the option
of the Holder of any Security, or change any Place of Payment where, or the
currency or currencies, currency unit or units or composite currency or
currencies in which, the principal of any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof, or (ii) reduce the
aforesaid percentage of Securities the Holders of which are required to consent
to any such supplemental indenture, or (iii) reduce the percentage of Securities
the Holders of which are required to consent to any waiver of compliance with
certain provisions of the Indenture or any waiver of certain defaults and
consequences thereunder or to reduce the quorum or voting requirements set forth
in the Indenture, or (iv) effect certain other changes to the Indenture or any
supplemental indenture or in the rights of Holders of the Securities. The
Indenture also permits the Holders of a majority in principal amount of the
Outstanding Securities of any series (or, in the case of certain defaults or
Events of Default, all series of Securities), on behalf of the Holders of all
the Securities of such series (or all of the Securities, as the case may be), to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults or Events of Default under the Indenture and their
consequences, prior to any declaration accelerating the maturity of such
Securities, or subject to certain conditions, rescind a declaration of
acceleration and its consequences with respect to such Securities. Any such
consent or waiver by the Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note that may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Note.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Note in the manner, at the respective times, at the rate and in
the coin or currency herein prescribed.
Notwithstanding any other provision of the Indenture to the
contrary, no recourse shall be had, whether by levy or execution or otherwise,
for the payment of any sums due under the Securities, including, without
limitation, the principal of, premium, if any, or interest payable under the
Securities, or for the payment or performance of any obligation under, or for
any claim based on, the Indenture or otherwise in respect thereof, against any
partner of the Issuer, whether limited or general, including SD Property Group,
Inc., or such partner's assets or against any principal, shareholder, officer,
director, trustee or employee of such partner. It is expressly understood that
the sole remedies under the Securities and the Indenture or under any other
92
document with respect to the Securities, against such parties with respect to
such amounts, obligations or claims shall be against the Issuer.
This Note is issuable only in registered form without Coupons in
denominations of $100,000 and integral multiples of $1,000 in excess thereof.
This Note may be exchanged for a like aggregate principal amount of Notes of
other authorized denominations at the office or agency of the Issuer in The
Borough of Manhattan, The City of New York, in the manner and subject to the
limitations provided in the Indenture, but without the payment of any service
charge, except for any tax or other governmental charge imposed in connection
therewith.
Upon due presentment for registration of transfer of this Note at
the office or agency of the Issuer in The Borough of Manhattan, The City of New
York, one or more new Notes of authorized denominations in an equal aggregate
principal amount will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture, without charge, except for any tax
or other governmental charge imposed in connection therewith.
The Issuer, the Trustee and any authorized agent of the Issuer or
the Trustee may deem and treat the Person in whose name this Note is registered
as the absolute owner of this Note (whether or not this Note shall be overdue
and notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal and any premium
hereof or hereon, and subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and neither the Issuer nor the Trustee nor
any authorized agent of the Issuer or the Trustee shall be affected by any
notice to the contrary.
This Note, including the validity hereof, and the Indenture shall be
governed by and construed in accordance with the laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of such
state, except as may otherwise by required by mandatory provisions of law.
93
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Note, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ____________ Custodian __________________
(Cust) (minor)
under Uniform Gifts to Minors Act
________________________(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
____________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
______________________________________________________________ this Note and all
rights thereunder hereby irrevocably constituting and appointing
______________________________________________ Attorney to transfer this Note
on the books of the Trustee, with full power of substitution in the premises.
Dated:___________________ ______________________________________
____________________________________________
Notice: The signature(s) on this Assignment
must correspond with the name(s) as written
upon the face of this Note in every
particular, without alteration or
enlargement or any change whatsoever.
94
EXHIBIT C-1
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. THIS NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY
IN MINIMUM DENOMINATIONS OF $100,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS
THEREOF.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OTHERWISE
TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION
DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS
NOTE AND THE LAST DATE ON WHICH THE OPERATING PARTNERSHIP OR ANY AFFILIATE OF
THE OPERATING PARTNERSHIP WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH
NOTE), ONLY (A) TO THE OPERATING PARTNERSHIP OR ONE OF THE INITIAL PURCHASERS OR
BY, THROUGH OR IN A TRANSACTION APPROVED BY, AN INITIAL PURCHASER, (B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) INSIDE
THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE
501(A)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT) ACQUIRING THE SECURITIES
FOR ITS OWN ACCOUNT OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS MUST
ALSO BE INSTITUTIONAL ACCREDITED INVESTORS UNLESS SUCH TRANSFEREE IS A BANK
ACTING IN ITS FIDUCIARY CAPACITY) FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (E) PURSUANT TO OFFERS AND
SALES THAT OCCUR OUTSIDE THE UNITED STATES TO AN INSTITUTION THAT IS NOT A U.S.
PERSON (AND WAS NOT PURCHASING FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON), OR
(F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES, TO A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE BEING COMPLETED
AND DELIVERED BY THE TRANSFEROR AND, IF APPLICABLE, THE TRANSFEREE TO
95
THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL NOTES OF THE
SERIES.
REGISTERED REGISTERED
NO. [ ]
PRINCIPAL AMOUNT
CUSIP NO. $___________
DEFINITIVE SECURITY
SIMON DEBARTOLO GROUP, L.P.
6-5/8% Note due 2003
Simon DeBartolo Group, L.P., a Delaware limited partnership (the
"Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to [ ] or its
registered assigns, the principal sum of $___________ Dollars on June 15, 2003
(the "Maturity Date"), and to pay interest thereon from June 22, 1998,
semi-annually in arrears on June 15 and December 15 of each year (each, an
"Interest Payment Date"), commencing on December 15, 1998, and on the Maturity
Date, at the rate of 6-5/8% per annum, until payment of said principal sum has
been made or duly provided for.
The interest so payable and punctually paid or duly provided for on
any Interest Payment Date and on the Maturity Date will be paid to the Holder in
whose name this Note (or one or more predecessor Notes) is registered in the
Security Register applicable to this Note at the close of business on the
"Record Date" for such payment, which will be 15 calendar days prior to such
payment date or the Maturity Date, as the case may be, regardless of whether
such day is a Business Day (as defined below). Any interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date, and may be paid to the Holder in whose name this Note
(or one or more predecessor Notes) is registered at the close of business on a
subsequent record date for the payment of such defaulted interest (which shall
be not less than 10 calendar days prior to the date of the payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders of the Notes not less than 10 calendar days preceding such
subsequent record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture (as defined below). Interest on this
Note will be computed on the basis of a 360-day year of twelve 30-day months.
96
Interest payable on this Note on any Interest Payment Date and on
the Maturity Date, as the case may be, will be the amount of interest accrued
from and including the immediately preceding Interest Payment Date (or from and
including June 22, 1998, in the case of the initial Interest Payment Date) to
but excluding the applicable Interest Payment Date or the Maturity Date, as the
case may be. If any date for the payment of principal, premium, if any, interest
on, or any other amount with respect to, this Note (each a "Payment Date") falls
on a day that is not a Business Day, the principal, premium, if any, or interest
payable with respect to such Payment Date will be made on the next succeeding
Business Day with the same force and effect as if made on such Payment Date, and
no interest shall accrue on the amount so payable for the period from and after
such Payment Date to such next succeeding Business Day. "Business Day" means any
day, other than a Saturday or a Sunday, that is neither a legal holiday nor a
day on which banking institutions in The City of New York are authorized or
required by law, regulation or executive order to close.
If this Note is exchanged in an Exchange Offer prior to the Record
Date for the first Interest Payment Date following such exchange, accrued and
unpaid interest, if any, on this Note, up to but not including the date of
issuance of the Note(s) issued in exchange (the "Exchange Note") for this Note,
shall be paid on the first Interest Payment Date for such Exchange Note(s) to
the Holder or Holders of such Exchange Note(s) on the first Record Date with
respect to such Exchange Note(s). If this Note is exchanged in an Exchange Offer
subsequent to the Record Date for the first Interest Payment Date following such
exchange but on or prior to the Interest Payment Date, then any such accrued and
unpaid interest with respect to this Note and any accrued and unpaid interest on
the Exchange Note(s) issued in exchange for this Note, through the day before
such Interest Payment Date, shall be paid on such Interest Payment Date to the
Holder of this Note on the Record Date.
The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement dated June 22, 1998 (the "Registration Rights
Agreement") among the Issuer and Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch"), Morgan Stanley & Co. Incorporated
("Morgan Stanley"), Chase Securities Inc., Lehman Brothers Inc., J.P. Morgan
Securities Inc., NationsBanc Montgomery Securities LLC and UBS Securities LLC
(collectively, the "Initial Purchasers").
If the Operating Partnership fails to comply with certain provisions
of the Registration Rights Agreement, in each case as described below, then a
special interest premium (the "Special Interest Premium") shall become payable
in respect of the Notes as follows:
If (i) a registration statement with respect to the Exchange Notes
(the "Exchange Offer Registration Statement") is not filed with the Commission
on or prior to the 90th day following the Closing Date, (ii) the Exchange Offer
Registration Statement is not declared effective on or prior to the 135th day
following the Closing Date or (iii) the Exchange Offer is not consummated or the
shelf registration statement covering resales of the Notes (the "Shelf
97
Registration Statement") is not declared effective on or prior to the 180th day
following the Closing Date, the Special Interest Premium shall accrue from and
including the next day following each of (a) such 90-day period in the case of
clause (i) above, (b) such 135-day period in the case of clause (ii) above and
(c) such 180-day period in the cause of clause (iii) above, in each case at a
rate equal to 0.50% per annum. The aggregate amount of the Special Interest
Premium payable pursuant to the above provisions will in no event exceed 0.5%
per annum. If the Exchange Offer Registration Statement is not declared
effective on or prior to the 135th day following the Closing Date and the
Operating Partnership shall request the Holder of this Note to provide the
information called for by the Registration Rights Agreement for inclusion in the
Shelf Registration Statement and the Holder of this Note does not deliver such
information to the Operating Partnership when required pursuant to the
Registration Rights Agreement, then the Holder of this Note will not be entitled
to any such increase in the interest rate for any day after the 180th day
following the Closing Date. Upon (1) the filing of the Exchange Offer
Registration statement after the 90-day period described in clause (i), (2) the
effectiveness of the Exchange Offer Registration Statement after the 135-day
period described in clause (ii) above or (3) the consummation of the Exchange
Offer or the effectiveness of a Shelf Registration Statement, as the case may
be, after the 180-day period described in clause (iii) above, the interest rate
on this Note from the date of such effectiveness or consummation, as the case
may be, will be reduced to the original interest rate provided for herein.
If a Shelf Registration Statement is declared effective, and if the
Operating Partnership fails to keep such Shelf Registration Statement
continuously (x) effective or (y) useable for resales for the period required by
the Registration Rights Agreement due to certain circumstances relating to
pending corporate developments, public filings with the Commission and similar
events, or because the prospectus contains an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, and such
failure continues for more than 60 days (whether or not consecutive) in any
12-month period (the 61st day being referred to as the "Default Day"), then from
the Default Day until the earlier of (i) the date that is the second anniversary
of the Closing Date (or, if Rule 144(k) of the Securities Act is amended to
provide a shorter restrictive period, the end of such shorter period) or (ii)
the date as of which this Note is sold pursuant to the Shelf Registration
Statement, the Special Interest Premium shall accrue at a rate equal to 0.50%
per annum.
The principal of this Note payable on the Maturity Date will be paid
against presentation and surrender of this Note at the office or agency of the
Issuer maintained for that purpose in The Borough of Manhattan, The City of New
York. The Issuer hereby initially designates the Corporate Trust Office of the
Trustee in The City of New York as the office to be maintained by it where Notes
may be presented for payment, registration of transfer or exchange, and where
notices to or demands upon the Issuer in respect of the Notes or the Indenture
referred to on the reverse hereof may be served.
98
Payments of principal and interest in respect of this Note will be
made by wire transfer of immediately available funds in such coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Reference is made to the further provisions of this Note set forth
on the reverse hereof after the Trustee's Certificate of Authentication. Such
further provisions shall for all purposes have the same effect as though fully
set forth at this place.
This Note shall not be entitled to the benefits of the Indenture or
be valid or obligatory for any purpose until the Certificate of Authentication
hereon shall have been signed by the Trustee under such Indenture.
Capitalized terms used herein which are not otherwise defined shall
have the respective meanings assigned to them in the Indenture and the Sixth
Supplemental Indenture hereinafter referred to.
99
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed manually or by facsimile by its authorized officers.
Dated:
SIMON DEBARTOLO GROUP, L.P.
as Issuer
By: SD PROPERTY GROUP, INC.
as Managing General Partner
By: ______________________________
Name:
Attest: Title:
__________________________________
Name:
Title:
100
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By: ______________________________
Authorized Officer
101
[REVERSE OF NOTE]
SIMON DEBARTOLO GROUP, L.P.
6-5/8% NOTE DUE 2003
This Note is one of a duly authorized issue of debt securities of
the Issuer (hereinafter called the "Securities"), all issued or to be issued
under and pursuant to an Indenture dated as of November 26, 1996 (herein called
the "Indenture"), duly executed and delivered by the Issuer and Simon Property
Group, L.P. (which was, effective December 31, 1997, merged with the Issuer), as
Guarantor, to The Chase Manhattan Bank, as Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture with respect to
the series of Securities of which this Note is a part), to which Indenture and
all indentures supplemental thereto relating to this Note (including, without
limitation, the Sixth Supplemental Indenture, dated as of June 22, 1998 (the
"Sixth Supplemental Indenture"), between the Issuer and the Trustee) reference
is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Issuer and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. The Securities may be issued in one or
more series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any) at different
rates, may be subject to different redemption provisions (if any), and may
otherwise vary as provided in the Indenture or any indenture supplemental
thereto. This Note is one of a series designated as the Simon DeBartolo Group,
L.P. 6-5/8% Notes due 2003, limited in aggregate principal amount to
$375,000,000 (the "Notes").
In case an Event of Default with respect to the Notes shall have
occurred and be continuing, the principal amount of the Notes and the Make-Whole
Amount may be declared accelerated and thereupon become due and payable, in the
manner, with the effect, and subject to the conditions provided in the
Indenture.
The Notes may be redeemed at any time at the option of the Issuer,
in whole or from time to time in part, at a redemption price equal to the sum of
(i) the principal amount of the Notes being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Notes. Notice of any optional redemption will be given to
Holders at their addresses, as shown in the Security Register for the Notes, not
more than 60 nor less than 30 days prior to the date fixed for redemption. The
notice of redemption will specify, among other items, the redemption price and
the principal amount of the Notes to be redeemed.
The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of not less than a majority of the
aggregate principal amount of the Securities at the time Outstanding of all
series to be affected (voting as one class), evidenced as
102
provided in the Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the Holders of the Securities of each series; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security so affected, (i) change the Stated Maturity of the
principal of, or premium, (if any) or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate or
amount of interest thereon or any premium payable upon the redemption or
acceleration thereof, or adversely affect any right of repayment at the option
of the Holder of any Security, or change any Place of Payment where, or the
currency or currencies, currency unit or units or composite currency or
currencies in which, the principal of any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof, or (ii) reduce the
aforesaid percentage of Securities the Holders of which are required to consent
to any such supplemental indenture, or (iii) reduce the percentage of Securities
the Holders of which are required to consent to any waiver of compliance with
certain provisions of the Indenture or any waiver of certain defaults and
consequences thereunder or to reduce the quorum or voting requirements set forth
in the Indenture, or (iv) effect certain other changes to the Indenture or any
supplemental indenture or in the rights of Holders of the Securities. The
Indenture also permits the Holders of a majority in principal amount of the
Outstanding Securities of any series (or, in the case of certain defaults or
Events of Default, all series of Securities), on behalf of the Holders of all
the Securities of such series (or all of the Securities, as the case may be), to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults or Events of Default under the Indenture and their
consequences, prior to any declaration accelerating the maturity of such
Securities, or subject to certain conditions, rescind a declaration of
acceleration and its consequences with respect to such Securities. Any such
consent or waiver by the Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note that may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Note.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Note in the manner, at the respective times, at the rate and in
the coin or currency herein prescribed.
Notwithstanding any other provision of the Indenture to the
contrary, no recourse shall be had, whether by levy or execution or otherwise,
for the payment of any sums due under the Securities, including, without
limitation, the principal of, premium, if any, or interest payable under the
Securities, or for the payment or performance of any obligation under, or for
any claim based on, the Indenture or otherwise in respect thereof, against any
partner of the Issuer, whether limited or general, including SD Property Group,
Inc., or such partner's assets or against any principal, shareholder, officer,
director, trustee or employee of such partner. It is expressly understood that
the sole remedies under the Securities and the Indenture or under any other
103
document with respect to the Securities, against such parties with respect to
such amounts, obligations or claims shall be against the Issuer.
This Note is issuable only in registered form without Coupons in
denominations of $100,000 and integral multiples of $1,000 in excess thereof.
This Note may be exchanged for a like aggregate principal amount of Notes of
other authorized denominations at the office or agency of the Issuer in The
Borough of Manhattan, The City of New York, in the manner and subject to the
limitations provided in the Indenture, but without the payment of any service
charge, except for any tax or other governmental charge imposed in connection
therewith.
Upon due presentment for registration of transfer of this Note at
the office or agency of the Issuer in The Borough of Manhattan, The City of New
York, one or more new Notes of authorized denominations in an equal aggregate
principal amount will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture, without charge, except for any tax
or other governmental charge imposed in connection therewith.
The Issuer, the Trustee and any authorized agent of the Issuer or
the Trustee may deem and treat the Person in whose name this Note is registered
as the absolute owner of this Note (whether or not this Note shall be overdue
and notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal and any premium
hereof or hereon, and subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and neither the Issuer nor the Trustee nor
any authorized agent of the Issuer or the Trustee shall be affected by any
notice to the contrary.
This Note, including the validity hereof, and the Indenture shall be
governed by and construed in accordance with the laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of such
state, except as may otherwise by required by mandatory provisions of law.
104
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Note, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ____________ Custodian _________________
(Cust) (minor)
under Uniform Gifts to Minors Act
________________________ (State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
_____________________________________________________________ this Note and all
rights thereunder hereby irrevocably constituting and appointing
______________________________________________ Attorney to transfer this Note
on the books of the Trustee, with full power of substitution in the premises.
Dated:________________________ ______________________________________
____________________________________________
Notice: The signature(s) on this Assignment
must correspond with the name(s) as written
upon the face of this Note in every
particular, without alteration or
enlargement or any change whatsoever.
105
ASSIGNMENT & TRANSFER CERTIFICATE
TO BE COMPLETED AND DELIVERED WITH THIS NOTE TO THE TRUSTEE IF THE UNDERSIGNED
REGISTERED HOLDER WISHES TO SELL, ASSIGN AND TRANSFER NOTE:
In connection with the resale or other transfer of this Note occurring
prior to the time the legend originally set forth on the face of this Note (or
one or more predecessor Notes) restricting resales and other transfers thereof
has been removed in accordance with the procedures set forth in the Indenture
(other than a resale or other transfer made to the Operating Partnership or to,
by, through, or in a transaction approved by an Initial Purchaser), the
undersigned registered holder certifies that without utilizing any general
solicitation or general advertising:
[CHECK ONE]
/ / (a) Such Note is being transferred by the undersigned registered
holder to a "qualified institutional buyer", as defined in
Rule 144A under the Securities Act of 1933, as amended,
pursuant to the exemption from registration under the
Securities Act of 1933, as amended, provided by Rule 144A
thereunder.
or
/ / (b) Such Note is being transferred by the undersigned registered
holder to an institutional investor which is an "accredited
investor", as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act of 1933, as amended, and that the
undersigned has been advised by the prospective transferee
that such transferee will hold such Note for its own
account, or as a fiduciary or agent for others (which others
are also institutional accredited investors, unless such
transferee is a bank acting in its fiduciary capacity), for
investment purposes and not for distribution, subject to any
requirement of law that the disposition of such transferee's
property shall at all times be and remain within its
control.
or
/ / (c) Such Note is being transferred by the undersigned registered
holder to an institutional investor which is a person that
is not a "U.S. person" (or acquiring such Note for the
account or benefit of a U.S. person) in an "offshore
transaction", as such terms are defined in Regulation S
under the Securities Act of 1933, as amended, pursuant to
the exemption from registration under the Securities Act of
1933, as amended, provided by Regulation S thereunder.
If none of the foregoing boxes are checked, then, so long as this Note
shall bear a legend on the face thereof restricting resales and other transfers
thereof (except in the case of a resale or other transfer made to the Operating
Partnership or to, by, through, or in a transaction approved by, an
106
Initial Purchaser), the Trustee shall not be obligated to register such Note in
the name of any Person other than the registered holder thereof and until the
conditions to any such registration of transfer set forth in this Note and in
the Indenture shall have been satisfied.
Dated:_____________________ __________________________________________________
[Type or print name of registered holder]
By:_______________________________________________
The signature of the registered holder must
correspond with the name as written upon the face
of this Note in every particular, without
alteration or enlargement or any change
whatsoever.
TO BE COMPLETED BY TRANSFEREE
IF (a) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that (i) it is a
"qualified institutional buyer", as defined in Rule 144A under the Securities
Act of 1933, as amended, and acknowledges that the undersigned either has
received such information regarding the Operating Partnership as the undersigned
transferee has requested pursuant to Rule 144A or has determined not to request
such information, (ii) this instrument has been executed on behalf of the
undersigned transferee by one of its executive officers and (iii) it is aware
that the registered holder of this Note is relying upon the undersigned
transferee's foregoing representations in order to claim the exemption from
registration provided by Rule 144A. The undersigned transferee acknowledges and
agrees that this Note has not been registered under the Securities Act of 1933,
as amended, and may not be transferred except in accordance with the resale and
other transfer restrictions set forth in the legend on the face thereof.
Dated:_____________________ __________________________________________________
[Type or print name of transferee]
By:_______________________________________________
Executive Officer
TO BE COMPLETED BY TRANSFEREE
IF (b) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that it is an
institutional investor and an "accredited investor", as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended, and
that this instrument has been executed on behalf of the undersigned transferee
by one of its executive officers. The undersigned transferee undertakes to hold
this Note acquired from the registered holder thereof for its own account, or as
a fiduciary or agent for others (which
107
others are also institutional accredited investors, unless such transferee is a
bank acting in its fiduciary capacity), for investment purposes and not for
distribution, subject to any requirement of law that the disposition of the
undersigned transferee's property shall at all times be and remain within its
control. The undersigned acknowledges and agrees that this Note has not been
registered under the Securities Act of 1933, as amended, and may not be
transferred except in accordance with the resale and other transfer restrictions
set forth in the legend on the face thereof.
Dated:_____________________ ____________________________________________
[Type or print name of transferee]
By:__________________________________________
Executive Officer
TO BE COMPLETED BY TRANSFEREE
IF (c) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that it is an
institutional investor and that it is not a U.S. person (as defined in
Regulation S under the Securities Act of 1933, as amended) and it is acquiring
this Note from the registered holder thereof in an "offshore transaction" (as
defined in Regulation S) pursuant to the exemption from registration under the
Securities Act of 1933, as amended, provided by Regulation S thereunder. The
undersigned transferee acknowledges and agrees that this Note has not been
registered under the Securities Act of 1933, as amended, and may not be
transferred except in accordance with the resale and other transfer restrictions
set forth in the legend on the face thereof.
Dated:_______________________ ____________________________________________
[Type or print name of transferee]
By:______________________________________
Executive Officer
108
EXHIBIT C-2
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. THIS NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY
IN MINIMUM DENOMINATIONS OF $100,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS
THEREOF.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OTHERWISE
TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION
DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS
NOTE AND THE LAST DATE ON WHICH THE OPERATING PARTNERSHIP OR ANY AFFILIATE OF
THE OPERATING PARTNERSHIP WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH
NOTE), ONLY (A) TO THE OPERATING PARTNERSHIP OR ONE OF THE INITIAL PURCHASERS OR
BY, THROUGH OR IN A TRANSACTION APPROVED BY, AN INITIAL PURCHASER, (B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) INSIDE
THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE
501(A)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT) ACQUIRING THE SECURITIES
FOR ITS OWN ACCOUNT OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS MUST
ALSO BE INSTITUTIONAL ACCREDITED INVESTORS UNLESS SUCH TRANSFEREE IS A BANK
ACTING IN ITS FIDUCIARY CAPACITY) FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (E) PURSUANT TO OFFERS AND
SALES THAT OCCUR OUTSIDE THE UNITED STATES TO AN INSTITUTION THAT IS NOT A U.S.
PERSON (AND WAS NOT PURCHASING FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON), OR
(F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES, TO A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE BEING COMPLETED
AND DELIVERED BY THE TRANSFEROR AND, IF APPLICABLE, THE TRANSFEREE TO
109
THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL NOTES OF THE
SERIES.
REGISTERED REGISTERED
NO. [ ]
PRINCIPAL AMOUNT
CUSIP NO. $___________
DEFINITIVE SECURITY
SIMON DEBARTOLO GROUP, L.P.
6-3/4% Note due 2005
Simon DeBartolo Group, L.P., a Delaware limited partnership (the
"Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to [ ] or its
registered assigns, the principal sum of $___________ Dollars on June 15, 2005
(the "Maturity Date"), and to pay interest thereon from June 22, 1998,
semi-annually in arrears on June 15 and December 15 of each year (each, an
"Interest Payment Date"), commencing on December 15, 1998, and on the Maturity
Date, at the rate of 6-3/4% per annum, until payment of said principal sum has
been made or duly provided for.
The interest so payable and punctually paid or duly provided for on
any Interest Payment Date and on the Maturity Date will be paid to the Holder in
whose name this Note (or one or more predecessor Notes) is registered in the
Security Register applicable to this Note at the close of business on the
"Record Date" for such payment, which will be 15 calendar days prior to such
payment date or the Maturity Date, as the case may be, regardless of whether
such day is a Business Day (as defined below). Any interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date, and may be paid to the Holder in whose name this Note
(or one or more predecessor Notes) is registered at the close of business on a
subsequent record date for the payment of such defaulted interest (which shall
be not less than 10 calendar days prior to the date of the payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders of the Notes not less than 10 calendar days preceding such
subsequent record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture (as defined below). Interest on this
Note will be computed on the basis of a 360-day year of twelve 30-day months.
110
Interest payable on this Note on any Interest Payment Date and on the
Maturity Date, as the case may be, will be the amount of interest accrued from
and including the immediately preceding Interest Payment Date (or from and
including June 22, 1998, in the case of the initial Interest Payment Date) to
but excluding the applicable Interest Payment Date or the Maturity Date, as the
case may be. If any date for the payment of principal, premium, if any, interest
on, or any other amount with respect to, this Note (each a "Payment Date") falls
on a day that is not a Business Day, the principal, premium, if any, or interest
payable with respect to such Payment Date will be made on the next succeeding
Business Day with the same force and effect as if made on such Payment Date, and
no interest shall accrue on the amount so payable for the period from and after
such Payment Date to such next succeeding Business Day. "Business Day" means any
day, other than a Saturday or a Sunday, that is neither a legal holiday nor a
day on which banking institutions in The City of New York are authorized or
required by law, regulation or executive order to close.
If this Note is exchanged in an Exchange Offer prior to the Record Date
for the first Interest Payment Date following such exchange, accrued and unpaid
interest, if any, on this Note, up to but not including the date of issuance of
the Note(s) issued in exchange (the "Exchange Note") for this Note, shall be
paid on the first Interest Payment Date for such Exchange Note(s) to the Holder
or Holders of such Exchange Note(s) on the first Record Date with respect to
such Exchange Note(s). If this Note is exchanged in an Exchange Offer subsequent
to the Record Date for the first Interest Payment Date following such exchange
but on or prior to the Interest Payment Date, then any such accrued and unpaid
interest with respect to this Note and any accrued and unpaid interest on the
Exchange Note(s) issued in exchange for this Note, through the day before such
Interest Payment Date, shall be paid on such Interest Payment Date to the Holder
of this Note on the Record Date.
The Holder of this Note is entitled to the benefits of the Registration
Rights Agreement dated June 22, 1998 (the "Registration Rights Agreement") among
the Issuer and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch"), Morgan Stanley & Co. Incorporated ("Morgan
Stanley"), Chase Securities Inc., Lehman Brothers Inc., J.P. Morgan Securities
Inc., NationsBanc Montgomery Securities LLC and UBS Securities LLC
(collectively, the "Initial Purchasers").
If the Operating Partnership fails to comply with certain provisions of
the Registration Rights Agreement, in each case as described below, then a
special interest premium (the "Special Interest Premium") shall become payable
in respect of the Notes as follows:
If (i) a registration statement with respect to the Exchange Notes (the
"Exchange Offer Registration Statement") is not filed with the Commission on or
prior to the 90th day following the Closing Date, (ii) the Exchange Offer
Registration Statement is not declared effective on or prior to the 135th day
following the Closing Date or (iii) the Exchange Offer is not consummated or the
shelf registration statement covering resales of the Notes (the "Shelf
111
Registration Statement") is not declared effective on or prior to the 180th day
following the Closing Date, the Special Interest Premium shall accrue from and
including the next day following each of (a) such 90-day period in the case of
clause (i) above, (b) such 135-day period in the case of clause (ii) above and
(c) such 180-day period in the cause of clause (iii) above, in each case at a
rate equal to 0.50% per annum. The aggregate amount of the Special Interest
Premium payable pursuant to the above provisions will in no event exceed 0.5%
per annum. If the Exchange Offer Registration Statement is not declared
effective on or prior to the 135th day following the Closing Date and the
Operating Partnership shall request the Holder of this Note to provide the
information called for by the Registration Rights Agreement for inclusion in the
Shelf Registration Statement and the Holder of this Note does not deliver such
information to the Operating Partnership when required pursuant to the
Registration Rights Agreement, then the Holder of this Note will not be entitled
to any such increase in the interest rate for any day after the 180th day
following the Closing Date. Upon (1) the filing of the Exchange Offer
Registration statement after the 90-day period described in clause (i), (2) the
effectiveness of the Exchange Offer Registration Statement after the 135-day
period described in clause (ii) above or (3) the consummation of the Exchange
Offer or the effectiveness of a Shelf Registration Statement, as the case may
be, after the 180-day period described in clause (iii) above, the interest rate
on this Note from the date of such effectiveness or consummation, as the case
may be, will be reduced to the original interest rate provided for herein.
If a Shelf Registration Statement is declared effective, and if the
Operating Partnership fails to keep such Shelf Registration Statement
continuously (x) effective or (y) useable for resales for the period required by
the Registration Rights Agreement due to certain circumstances relating to
pending corporate developments, public filings with the Commission and similar
events, or because the prospectus contains an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, and such
failure continues for more than 60 days (whether or not consecutive) in any
12-month period (the 61st day being referred to as the "Default Day"), then from
the Default Day until the earlier of (i) the date that is the second anniversary
of the Closing Date (or, if Rule 144(k) of the Securities Act is amended to
provide a shorter restrictive period, the end of such shorter period) or (ii)
the date as of which this Note is sold pursuant to the Shelf Registration
Statement, the Special Interest Premium shall accrue at a rate equal to 0.50%
per annum.
The principal of this Note payable on the Maturity Date will be paid
against presentation and surrender of this Note at the office or agency of the
Issuer maintained for that purpose in The Borough of Manhattan, The City of New
York. The Issuer hereby initially designates the Corporate Trust Office of the
Trustee in The City of New York as the office to be maintained by it where Notes
may be presented for payment, registration of transfer or exchange, and where
notices to or demands upon the Issuer in respect of the Notes or the Indenture
referred to on the reverse hereof may be served.
112
Payments of principal and interest in respect of this Note will be made
by wire transfer of immediately available funds in such coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Reference is made to the further provisions of this Note set forth on
the reverse hereof after the Trustee's Certificate of Authentication. Such
further provisions shall for all purposes have the same effect as though fully
set forth at this place.
This Note shall not be entitled to the benefits of the Indenture or be
valid or obligatory for any purpose until the Certificate of Authentication
hereon shall have been signed by the Trustee under such Indenture.
Capitalized terms used herein which are not otherwise defined shall
have the respective meanings assigned to them in the Indenture and the Sixth
Supplemental Indenture hereinafter referred to.
113
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed manually or by facsimile by its authorized officers.
Dated:
SIMON DEBARTOLO GROUP, L.P.
as Issuer
By: SD PROPERTY GROUP, INC.
as Managing General Partner
By: ______________________________
Name:
Attest: Title:
______________________________
Name:
Title:
114
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By: ___________________________
Authorized Officer
115
[REVERSE OF NOTE]
SIMON DEBARTOLO GROUP, L.P.
6-3/4% NOTE DUE 2005
This Note is one of a duly authorized issue of debt securities of the
Issuer (hereinafter called the "Securities"), all issued or to be issued under
and pursuant to an Indenture dated as of November 26, 1996 (herein called the
"Indenture"), duly executed and delivered by the Issuer and Simon Property
Group, L.P. (which was, effective December 31, 1997, merged with the Issuer), as
Guarantor, to The Chase Manhattan Bank, as Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture with respect to
the series of Securities of which this Note is a part), to which Indenture and
all indentures supplemental thereto relating to this Note (including, without
limitation, the Sixth Supplemental Indenture, dated as of June 22, 1998 (the
"Sixth Supplemental Indenture"), between the Issuer and the Trustee) reference
is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Issuer and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. The Securities may be issued in one or
more series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any) at different
rates, may be subject to different redemption provisions (if any), and may
otherwise vary as provided in the Indenture or any indenture supplemental
thereto. This Note is one of a series designated as the Simon DeBartolo Group,
L.P. 6-3/4% Notes due 2005, limited in aggregate principal amount to
$300,000,000 (the "Notes").
In case an Event of Default with respect to the Notes shall have
occurred and be continuing, the principal amount of the Notes and the Make-Whole
Amount may be declared accelerated and thereupon become due and payable, in the
manner, with the effect, and subject to the conditions provided in the
Indenture.
The Notes may be redeemed at any time at the option of the Issuer, in
whole or from time to time in part, at a redemption price equal to the sum of
(i) the principal amount of the Notes being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Notes. Notice of any optional redemption will be given to
Holders at their addresses, as shown in the Security Register for the Notes, not
more than 60 nor less than 30 days prior to the date fixed for redemption. The
notice of redemption will specify, among other items, the redemption price and
the principal amount of the Notes to be redeemed.
The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of not less than a majority of the
aggregate principal amount of the Securities at the time Outstanding of all
series to be affected (voting as one class), evidenced as
116
provided in the Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the Holders of the Securities of each series; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security so affected, (i) change the Stated Maturity of the
principal of, or premium, (if any) or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate or
amount of interest thereon or any premium payable upon the redemption or
acceleration thereof, or adversely affect any right of repayment at the option
of the Holder of any Security, or change any Place of Payment where, or the
currency or currencies, currency unit or units or composite currency or
currencies in which, the principal of any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof, or (ii) reduce the
aforesaid percentage of Securities the Holders of which are required to consent
to any such supplemental indenture, or (iii) reduce the percentage of Securities
the Holders of which are required to consent to any waiver of compliance with
certain provisions of the Indenture or any waiver of certain defaults and
consequences thereunder or to reduce the quorum or voting requirements set forth
in the Indenture, or (iv) effect certain other changes to the Indenture or any
supplemental indenture or in the rights of Holders of the Securities. The
Indenture also permits the Holders of a majority in principal amount of the
Outstanding Securities of any series (or, in the case of certain defaults or
Events of Default, all series of Securities), on behalf of the Holders of all
the Securities of such series (or all of the Securities, as the case may be), to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults or Events of Default under the Indenture and their
consequences, prior to any declaration accelerating the maturity of such
Securities, or subject to certain conditions, rescind a declaration of
acceleration and its consequences with respect to such Securities. Any such
consent or waiver by the Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note that may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Note in the manner, at the respective times, at the rate and in
the coin or currency herein prescribed.
Notwithstanding any other provision of the Indenture to the contrary,
no recourse shall be had, whether by levy or execution or otherwise, for the
payment of any sums due under the Securities, including, without limitation, the
principal of, premium, if any, or interest payable under the Securities, or for
the payment or performance of any obligation under, or for any claim based on,
the Indenture or otherwise in respect thereof, against any partner of the
Issuer, whether limited or general, including SD Property Group, Inc., or such
partner's assets or against any principal, shareholder, officer, director,
trustee or employee of such partner. It is expressly understood that the sole
remedies under the Securities and the Indenture or under any other
117
document with respect to the Securities, against such parties with respect to
such amounts, obligations or claims shall be against the Issuer.
This Note is issuable only in registered form without Coupons in
denominations of $100,000 and integral multiples of $1,000 in excess thereof.
This Note may be exchanged for a like aggregate principal amount of Notes of
other authorized denominations at the office or agency of the Issuer in The
Borough of Manhattan, The City of New York, in the manner and subject to the
limitations provided in the Indenture, but without the payment of any service
charge, except for any tax or other governmental charge imposed in connection
therewith.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Issuer in The Borough of Manhattan, The City of New
York, one or more new Notes of authorized denominations in an equal aggregate
principal amount will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture, without charge, except for any tax
or other governmental charge imposed in connection therewith.
The Issuer, the Trustee and any authorized agent of the Issuer or the
Trustee may deem and treat the Person in whose name this Note is registered as
the absolute owner of this Note (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal and any premium
hereof or hereon, and subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and neither the Issuer nor the Trustee nor
any authorized agent of the Issuer or the Trustee shall be affected by any
notice to the contrary.
This Note, including the validity hereof, and the Indenture shall be
governed by and construed in accordance with the laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of such
state, except as may otherwise by required by mandatory provisions of law.
118
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ____________ Custodian ____________
(Cust) (minor)
under Uniform Gifts to Minors Act
_________________________ (State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
____________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
______________________________________________________________ this Note and all
rights thereunder hereby irrevocably constituting and appointing
_________________________________________________ Attorney to transfer this Note
on the books of the Trustee, with full power of substitution in the premises.
Dated: ________________________ ______________________
___________________________
Notice: The signature(s) on
this Assignment must
correspond with the name(s)
as written upon the face of
this Note in every
particular, without
alteration or enlargement
or any change whatsoever.
119
ASSIGNMENT & TRANSFER CERTIFICATE
TO BE COMPLETED AND DELIVERED WITH THIS NOTE TO THE TRUSTEE IF THE UNDERSIGNED
REGISTERED HOLDER WISHES TO SELL, ASSIGN AND TRANSFER NOTE:
In connection with the resale or other transfer of this Note occurring
prior to the time the legend originally set forth on the face of this Note (or
one or more predecessor Notes) restricting resales and other transfers thereof
has been removed in accordance with the procedures set forth in the Indenture
(other than a resale or other transfer made to the Operating Partnership or to,
by, through, or in a transaction approved by an Initial Purchaser), the
undersigned registered holder certifies that without utilizing any general
solicitation or general advertising:
[CHECK ONE]
/ / (a) Such Note is being transferred by the undersigned registered
holder to a "qualified institutional buyer", as defined in
Rule 144A under the Securities Act of 1933, as amended,
pursuant to the exemption from registration under the
Securities Act of 1933, as amended, provided by Rule 144A
thereunder.
or
/ / (b) Such Note is being transferred by the undersigned registered
holder to an institutional investor which is an "accredited
investor", as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933, as amended, and that the
undersigned has been advised by the prospective transferee
that such transferee will hold such Note for its own account,
or as a fiduciary or agent for others (which others are also
institutional accredited investors, unless such transferee is
a bank acting in its fiduciary capacity), for investment
purposes and not for distribution, subject to any requirement
of law that the disposition of such transferee's property
shall at all times be and remain within its control.
or
/ / (c) Such Note is being transferred by the undersigned registered
holder to an institutional investor which is a person that is
not a "U.S. person" (or acquiring such Note for the account or
benefit of a U.S. person) in an "offshore transaction", as
such terms are defined in Regulation S under the Securities
Act of 1933, as amended, pursuant to the exemption from
registration under the Securities Act of 1933, as amended,
provided by Regulation S thereunder.
If none of the foregoing boxes are checked, then, so long as this Note
shall bear a legend on the face thereof restricting resales and other transfers
thereof (except in the case of a resale or other transfer made to the Operating
Partnership or to, by, through, or in a transaction approved by, an
120
Initial Purchaser), the Trustee shall not be obligated to register such Note in
the name of any Person other than the registered holder thereof and until the
conditions to any such registration of transfer set forth in this Note and in
the Indenture shall have been satisfied.
Dated:__________________ ____________________________________________
[Type or print name of registered holder]
By:_________________________________________
The signature of the registered
holder must correspond with the name
as written upon the face of this
Note in every particular, without
alteration or enlargement or any
change whatsoever.
TO BE COMPLETED BY TRANSFEREE
IF (a) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that (i) it is a
"qualified institutional buyer", as defined in Rule 144A under the Securities
Act of 1933, as amended, and acknowledges that the undersigned either has
received such information regarding the Operating Partnership as the undersigned
transferee has requested pursuant to Rule 144A or has determined not to request
such information, (ii) this instrument has been executed on behalf of the
undersigned transferee by one of its executive officers and (iii) it is aware
that the registered holder of this Note is relying upon the undersigned
transferee's foregoing representations in order to claim the exemption from
registration provided by Rule 144A. The undersigned transferee acknowledges and
agrees that this Note has not been registered under the Securities Act of 1933,
as amended, and may not be transferred except in accordance with the resale and
other transfer restrictions set forth in the legend on the face thereof.
Dated:__________________ ____________________________________________
[Type or print name of transferee]
By:_________________________________________
Executive Officer
TO BE COMPLETED BY TRANSFEREE
IF (b) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that it is an
institutional investor and an "accredited investor", as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended, and
that this instrument has been executed on behalf of the undersigned transferee
by one of its executive officers. The undersigned transferee undertakes to hold
this Note acquired from the registered holder thereof for its own account, or as
a fiduciary or agent for others (which
121
others are also institutional accredited investors, unless such transferee is a
bank acting in its fiduciary capacity), for investment purposes and not for
distribution, subject to any requirement of law that the disposition of the
undersigned transferee's property shall at all times be and remain within its
control. The undersigned acknowledges and agrees that this Note has not been
registered under the Securities Act of 1933, as amended, and may not be
transferred except in accordance with the resale and other transfer restrictions
set forth in the legend on the face thereof.
Dated:__________________ ____________________________________________
[Type or print name of transferee]
By:_________________________________________
Executive Officer
TO BE COMPLETED BY TRANSFEREE
IF (c) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that it is an
institutional investor and that it is not a U.S. person (as defined in
Regulation S under the Securities Act of 1933, as amended) and it is acquiring
this Note from the registered holder thereof in an "offshore transaction" (as
defined in Regulation S) pursuant to the exemption from registration under the
Securities Act of 1933, as amended, provided by Regulation S thereunder. The
undersigned transferee acknowledges and agrees that this Note has not been
registered under the Securities Act of 1933, as amended, and may not be
transferred except in accordance with the resale and other transfer restrictions
set forth in the legend on the face thereof.
Dated:__________________ ____________________________________________
[Type or print name of transferee]
By:_________________________________________
Executive Officer
122
EXHIBIT C-3
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. THIS NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY
IN MINIMUM DENOMINATIONS OF $100,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS
THEREOF.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OTHERWISE
TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION
DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS
NOTE AND THE LAST DATE ON WHICH THE OPERATING PARTNERSHIP OR ANY AFFILIATE OF
THE OPERATING PARTNERSHIP WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH
NOTE), ONLY (A) TO THE OPERATING PARTNERSHIP OR ONE OF THE INITIAL PURCHASERS OR
BY, THROUGH OR IN A TRANSACTION APPROVED BY, AN INITIAL PURCHASER, (B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) INSIDE
THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE
501(A)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT) ACQUIRING THE SECURITIES
FOR ITS OWN ACCOUNT OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS MUST
ALSO BE INSTITUTIONAL ACCREDITED INVESTORS UNLESS SUCH TRANSFEREE IS A BANK
ACTING IN ITS FIDUCIARY CAPACITY) FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (E) PURSUANT TO OFFERS AND
SALES THAT OCCUR OUTSIDE THE UNITED STATES TO AN INSTITUTION THAT IS NOT A U.S.
PERSON (AND WAS NOT PURCHASING FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON), OR
(F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES, TO A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE BEING COMPLETED
AND DELIVERED BY THE TRANSFEROR AND, IF APPLICABLE, THE TRANSFEREE TO
123
THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER
THE RESALE RESTRICTION TERMINATION DATE.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL NOTES OF THE
SERIES.
REGISTERED REGISTERED
NO. [ ] PRINCIPAL AMOUNT
CUSIP NO. $___________
GLOBAL SECURITY
SIMON DEBARTOLO GROUP, L.P.
7-3/8% Note due 2018
Simon DeBartolo Group, L.P., a Delaware limited partnership (the
"Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to [ ]. or its
registered assigns, the principal sum of $___________ Dollars on June 15, 2018
(the "Maturity Date"), and to pay interest thereon from June 22, 1998,
semi-annually in arrears on June 15 and December 15 of each year (each, an
"Interest Payment Date"), commencing on December 15, 1998, and on the Maturity
Date, at the rate of 7-3/8% per annum, until payment of said principal sum has
been made or duly provided for.
The interest so payable and punctually paid or duly provided for on any
Interest Payment Date and on the Maturity Date will be paid to the Holder in
whose name this Note (or one or more predecessor Notes) is registered in the
Security Register applicable to this Note at the close of business on the
"Record Date" for such payment, which will be 15 calendar days prior to such
payment date or the Maturity Date, as the case may be, regardless of whether
such day is a Business Day (as defined below). Any interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date, and may be paid to the Holder in whose name this Note
(or one or more predecessor Notes) is registered at the close of business on a
subsequent record date for the payment of such defaulted interest (which shall
be not less than 10 calendar days prior to the date of the payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders of the Notes not less than 10 calendar days preceding such
subsequent record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture (as defined below). Interest on this
Note will be computed on the basis of a 360-day year of twelve 30-day months.
124
Interest payable on this Note on any Interest Payment Date and on the
Maturity Date, as the case may be, will be the amount of interest accrued from
and including the immediately preceding Interest Payment Date (or from and
including June 22, 1998, in the case of the initial Interest Payment Date) to
but excluding the applicable Interest Payment Date or the Maturity Date, as the
case may be. If any date for the payment of principal, premium, if any, interest
on, or any other amount with respect to, this Note (each a "Payment Date") falls
on a day that is not a Business Day, the principal, premium, if any, or interest
payable with respect to such Payment Date will be made on the next succeeding
Business Day with the same force and effect as if made on such Payment Date, and
no interest shall accrue on the amount so payable for the period from and after
such Payment Date to such next succeeding Business Day. "Business Day" means any
day, other than a Saturday or a Sunday, that is neither a legal holiday nor a
day on which banking institutions in The City of New York are authorized or
required by law, regulation or executive order to close.
If this Note is exchanged in an Exchange Offer prior to the Record Date
for the first Interest Payment Date following such exchange, accrued and unpaid
interest, if any, on this Note, up to but not including the date of issuance of
the Note(s) issued in exchange (the "Exchange Note") for this Note, shall be
paid on the first Interest Payment Date for such Exchange Note(s) to the Holder
or Holders of such Exchange Note(s) on the first Record Date with respect to
such Exchange Note(s). If this Note is exchanged in an Exchange Offer subsequent
to the Record Date for the first Interest Payment Date following such exchange
but on or prior to the Interest Payment Date, then any such accrued and unpaid
interest with respect to this Note and any accrued and unpaid interest on the
Exchange Note(s) issued in exchange for this Note, through the day before such
Interest Payment Date, shall be paid on such Interest Payment Date to the Holder
of this Note on the Record Date.
The Holder of this Note is entitled to the benefits of the Registration
Rights Agreement dated June 22, 1998 (the "Registration Rights Agreement") among
the Issuer and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch"), Morgan Stanley & Co. Incorporated ("Morgan
Stanley"), Chase Securities Inc., Lehman Brothers Inc., J.P. Morgan Securities
Inc., NationsBanc Montgomery Securities LLC and UBS Securities LLC
(collectively, the "Initial Purchasers").
If the Operating Partnership fails to comply with certain provisions of
the Registration Rights Agreement, in each case as described below, then a
special interest premium (the "Special Interest Premium") shall become payable
in respect of the Notes as follows:
If (i) a registration statement with respect to the Exchange Notes (the
"Exchange Offer Registration Statement") is not filed with the Commission on or
prior to the 90th day following the Closing Date, (ii) the Exchange Offer
Registration Statement is not declared effective on or prior to the 135th day
following the Closing Date or (iii) the Exchange Offer is not consummated or the
shelf registration statement covering resales of the Notes (the "Shelf
125
Registration Statement") is not declared effective on or prior to the 180th day
following the Closing Date, the Special Interest Premium shall accrue from and
including the next day following each of (a) such 90-day period in the case of
clause (i) above, (b) such 135-day period in the case of clause (ii) above and
(c) such 180-day period in the cause of clause (iii) above, in each case at a
rate equal to 0.50% per annum. The aggregate amount of the Special Interest
Premium payable pursuant to the above provisions will in no event exceed 0.5%
per annum. If the Exchange Offer Registration Statement is not declared
effective on or prior to the 135th day following the Closing Date and the
Operating Partnership shall request the Holder of this Note to provide the
information called for by the Registration Rights Agreement for inclusion in the
Shelf Registration Statement and the Holder of this Note does not deliver such
information to the Operating Partnership when required pursuant to the
Registration Rights Agreement, then the Holder of this Note will not be entitled
to any such increase in the interest rate for any day after the 180th day
following the Closing Date. Upon (1) the filing of the Exchange Offer
Registration statement after the 90-day period described in clause (i), (2) the
effectiveness of the Exchange Offer Registration Statement after the 135-day
period described in clause (ii) above or (3) the consummation of the Exchange
Offer or the effectiveness of a Shelf Registration Statement, as the case may
be, after the 180-day period described in clause (iii) above, the interest rate
on this Note from the date of such effectiveness or consummation, as the case
may be, will be reduced to the original interest rate provided for herein.
If a Shelf Registration Statement is declared effective, and if the
Operating Partnership fails to keep such Shelf Registration Statement
continuously (x) effective or (y) useable for resales for the period required by
the Registration Rights Agreement due to certain circumstances relating to
pending corporate developments, public filings with the Commission and similar
events, or because the prospectus contains an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, and such
failure continues for more than 60 days (whether or not consecutive) in any
12-month period (the 61st day being referred to as the "Default Day"), then from
the Default Day until the earlier of (i) the date that is the second anniversary
of the Closing Date (or, if Rule 144(k) of the Securities Act is amended to
provide a shorter restrictive period, the end of such shorter period) or (ii)
the date as of which this Note is sold pursuant to the Shelf Registration
Statement, the Special Interest Premium shall accrue at a rate equal to 0.50%
per annum.
The principal of this Note payable on the Maturity Date will be paid
against presentation and surrender of this Note at the office or agency of the
Issuer maintained for that purpose in The Borough of Manhattan, The City of New
York. The Issuer hereby initially designates the Corporate Trust Office of the
Trustee in The City of New York as the office to be maintained by it where Notes
may be presented for payment, registration of transfer or exchange, and where
notices to or demands upon the Issuer in respect of the Notes or the Indenture
referred to on the reverse hereof may be served.
126
Payments of principal and interest in respect of this Note will be made
by wire transfer of immediately available funds in such coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Reference is made to the further provisions of this Note set forth on
the reverse hereof after the Trustee's Certificate of Authentication. Such
further provisions shall for all purposes have the same effect as though fully
set forth at this place.
This Note shall not be entitled to the benefits of the Indenture or be
valid or obligatory for any purpose until the Certificate of Authentication
hereon shall have been signed by the Trustee under such Indenture.
Capitalized terms used herein which are not otherwise defined shall
have the respective meanings assigned to them in the Indenture and the Sixth
Supplemental Indenture hereinafter referred to.
127
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed
manually or by facsimile by its authorized officers.
Dated:
SIMON DEBARTOLO GROUP, L.P.
as Issuer
By: SD PROPERTY GROUP, INC.
as Managing General Partner
By: ______________________________
Name:
Attest: Title:
______________________________
Name:
Title:
128
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By: _____________________________
Authorized Officer
129
[REVERSE OF NOTE]
SIMON DEBARTOLO GROUP, L.P.
7-3/8% NOTE DUE 2018
This Note is one of a duly authorized issue of debt securities of the
Issuer (hereinafter called the "Securities"), all issued or to be issued under
and pursuant to an Indenture dated as of November 26, 1996 (herein called the
"Indenture"), duly executed and delivered by the Issuer and Simon Property
Group, L.P. (which was, effective December 31, 1997, merged with the Issuer), as
Guarantor, to The Chase Manhattan Bank, as Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture with respect to
the series of Securities of which this Note is a part), to which Indenture and
all indentures supplemental thereto relating to this Note (including, without
limitation, the Sixth Supplemental Indenture, dated as of June 22, 1998 (the
"Sixth Supplemental Indenture"), between the Issuer and the Trustee) reference
is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Issuer and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. The Securities may be issued in one or
more series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any) at different
rates, may be subject to different redemption provisions (if any), and may
otherwise vary as provided in the Indenture or any indenture supplemental
thereto. This Note is one of a series designated as the Simon DeBartolo Group,
L.P. 7-3/8% Notes due 2018, limited in aggregate principal amount to
$200,000,000 (the "Notes").
In case an Event of Default with respect to the Notes shall have
occurred and be continuing, the principal amount of the Notes and the Make-Whole
Amount may be declared accelerated and thereupon become due and payable, in the
manner, with the effect, and subject to the conditions provided in the
Indenture.
The Notes may be redeemed at any time at the option of the Issuer, in
whole or from time to time in part, at a redemption price equal to the sum of
(i) the principal amount of the Notes being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Notes. Notice of any optional redemption will be given to
Holders at their addresses, as shown in the Security Register for the Notes, not
more than 60 nor less than 30 days prior to the date fixed for redemption. The
notice of redemption will specify, among other items, the redemption price and
the principal amount of the Notes to be redeemed.
The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of not less than a majority of the
aggregate principal amount of the Securities at the time Outstanding of all
series to be affected (voting as one class), evidenced as
130
provided in the Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the Holders of the Securities of each series; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security so affected, (i) change the Stated Maturity of the
principal of, or premium, (if any) or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate or
amount of interest thereon or any premium payable upon the redemption or
acceleration thereof, or adversely affect any right of repayment at the option
of the Holder of any Security, or change any Place of Payment where, or the
currency or currencies, currency unit or units or composite currency or
currencies in which, the principal of any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof, or (ii) reduce the
aforesaid percentage of Securities the Holders of which are required to consent
to any such supplemental indenture, or (iii) reduce the percentage of Securities
the Holders of which are required to consent to any waiver of compliance with
certain provisions of the Indenture or any waiver of certain defaults and
consequences thereunder or to reduce the quorum or voting requirements set forth
in the Indenture, or (iv) effect certain other changes to the Indenture or any
supplemental indenture or in the rights of Holders of the Securities. The
Indenture also permits the Holders of a majority in principal amount of the
Outstanding Securities of any series (or, in the case of certain defaults or
Events of Default, all series of Securities), on behalf of the Holders of all
the Securities of such series (or all of the Securities, as the case may be), to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults or Events of Default under the Indenture and their
consequences, prior to any declaration accelerating the maturity of such
Securities, or subject to certain conditions, rescind a declaration of
acceleration and its consequences with respect to such Securities. Any such
consent or waiver by the Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note that may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Note in the manner, at the respective times, at the rate and in
the coin or currency herein prescribed.
Notwithstanding any other provision of the Indenture to the contrary,
no recourse shall be had, whether by levy or execution or otherwise, for the
payment of any sums due under the Securities, including, without limitation, the
principal of, premium, if any, or interest payable under the Securities, or for
the payment or performance of any obligation under, or for any claim based on,
the Indenture or otherwise in respect thereof, against any partner of the
Issuer, whether limited or general, including SD Property Group, Inc., or such
partner's assets or against any principal, shareholder, officer, director,
trustee or employee of such partner. It is expressly understood that the sole
remedies under the Securities and the Indenture or under any other
131
document with respect to the Securities, against such parties with respect to
such amounts, obligations or claims shall be against the Issuer.
This Note is issuable only in registered form without Coupons in
denominations of $100,000 and integral multiples of $1,000 in excess thereof.
This Note may be exchanged for a like aggregate principal amount of Notes of
other authorized denominations at the office or agency of the Issuer in The
Borough of Manhattan, The City of New York, in the manner and subject to the
limitations provided in the Indenture, but without the payment of any service
charge, except for any tax or other governmental charge imposed in connection
therewith.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Issuer in The Borough of Manhattan, The City of New
York, one or more new Notes of authorized denominations in an equal aggregate
principal amount will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture, without charge, except for any tax
or other governmental charge imposed in connection therewith.
The Issuer, the Trustee and any authorized agent of the Issuer or the
Trustee may deem and treat the Person in whose name this Note is registered as
the absolute owner of this Note (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal and any premium
hereof or hereon, and subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and neither the Issuer nor the Trustee nor
any authorized agent of the Issuer or the Trustee shall be affected by any
notice to the contrary.
This Note, including the validity hereof, and the Indenture shall be
governed by and construed in accordance with the laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of such
state, except as may otherwise by required by mandatory provisions of law.
132
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ____________ Custodian ______________
(Cust) (minor)
under Uniform Gifts to Minors Act
_____________________________ (State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
___________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
______________________________________________________________ this Note and all
rights thereunder hereby irrevocably constituting and appointing
_________________________________________________ Attorney to transfer this Note
on the books of the Trustee, with full power of substitution in the premises.
Dated:__________________ _________________________
____________________________
Notice: The signature(s) on
this Assignment must
correspond with the name(s)
as written upon the face of
this Note in every
particular, without
alteration or enlargement
or any change whatsoever.
133
ASSIGNMENT & TRANSFER CERTIFICATE
TO BE COMPLETED AND DELIVERED WITH THIS NOTE TO THE TRUSTEE IF THE UNDERSIGNED
REGISTERED HOLDER WISHES TO SELL, ASSIGN AND TRANSFER NOTE:
In connection with the resale or other transfer of this Note occurring
prior to the time the legend originally set forth on the face of this Note (or
one or more predecessor Notes) restricting resales and other transfers thereof
has been removed in accordance with the procedures set forth in the Indenture
(other than a resale or other transfer made to the Operating Partnership or to,
by, through, or in a transaction approved by an Initial Purchaser), the
undersigned registered holder certifies that without utilizing any general
solicitation or general advertising:
[CHECK ONE]
/ / (a) Such Note is being transferred by the undersigned registered
holder to a "qualified institutional buyer", as defined in
Rule 144A under the Securities Act of 1933, as amended,
pursuant to the exemption from registration under the
Securities Act of 1933, as amended, provided by Rule 144A
thereunder.
or
/ / (b) Such Note is being transferred by the undersigned registered
holder to an institutional investor which is an "accredited
investor", as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933, as amended, and that the
undersigned has been advised by the prospective transferee
that such transferee will hold such Note for its own account,
or as a fiduciary or agent for others (which others are also
institutional accredited investors, unless such transferee is
a bank acting in its fiduciary capacity), for investment
purposes and not for distribution, subject to any requirement
of law that the disposition of such transferee's property
shall at all times be and remain within its control.
or
/ / (c) Such Note is being transferred by the undersigned registered
holder to an institutional investor which is a person that is
not a "U.S. person" (or acquiring such Note for the account or
benefit of a U.S. person) in an "offshore transaction", as
such terms are defined in Regulation S under the Securities
Act of 1933, as amended, pursuant to the exemption from
registration under the Securities Act of 1933, as amended,
provided by Regulation S thereunder.
If none of the foregoing boxes are checked, then, so long as this Note
shall bear a legend on the face thereof restricting resales and other transfers
thereof (except in the case of a resale or other transfer made to the Operating
Partnership or to, by, through, or in a transaction approved by, an
134
Initial Purchaser), the Trustee shall not be obligated to register such Note in
the name of any Person other than the registered holder thereof and until the
conditions to any such registration of transfer set forth in this Note and in
the Indenture shall have been satisfied.
Dated:__________________ ____________________________________________
[Type or print name of registered holder]
By:_________________________________________
The signature of the registered
holder must correspond with the name
as written upon the face of this
Note in every particular, without
alteration or enlargement or any
change whatsoever.
TO BE COMPLETED BY TRANSFEREE
IF (a) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that (i) it is a
"qualified institutional buyer", as defined in Rule 144A under the Securities
Act of 1933, as amended, and acknowledges that the undersigned either has
received such information regarding the Operating Partnership as the undersigned
transferee has requested pursuant to Rule 144A or has determined not to request
such information, (ii) this instrument has been executed on behalf of the
undersigned transferee by one of its executive officers and (iii) it is aware
that the registered holder of this Note is relying upon the undersigned
transferee's foregoing representations in order to claim the exemption from
registration provided by Rule 144A. The undersigned transferee acknowledges and
agrees that this Note has not been registered under the Securities Act of 1933,
as amended, and may not be transferred except in accordance with the resale and
other transfer restrictions set forth in the legend on the face thereof.
Dated:__________________ ____________________________________________
[Type or print name of transferee]
By:_________________________________________
Executive Officer
TO BE COMPLETED BY TRANSFEREE
IF (b) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that it is an
institutional investor and an "accredited investor", as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended, and
that this instrument has been executed on behalf of the undersigned transferee
by one of its executive officers. The undersigned transferee undertakes to hold
this Note acquired from the registered holder thereof for its own account, or as
a fiduciary or agent for others (which
135
others are also institutional accredited investors, unless such transferee is a
bank acting in its fiduciary capacity), for investment purposes and not for
distribution, subject to any requirement of law that the disposition of the
undersigned transferee's property shall at all times be and remain within its
control. The undersigned acknowledges and agrees that this Note has not been
registered under the Securities Act of 1933, as amended, and may not be
transferred except in accordance with the resale and other transfer restrictions
set forth in the legend on the face thereof.
Dated:__________________ ____________________________________________
[Type or print name of transferee]
By:_________________________________________
Executive Officer
TO BE COMPLETED BY TRANSFEREE
IF (c) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that it is an
institutional investor and that it is not a U.S. person (as defined in
Regulation S under the Securities Act of 1933, as amended) and it is acquiring
this Note from the registered holder thereof in an "offshore transaction" (as
defined in Regulation S) pursuant to the exemption from registration under the
Securities Act of 1933, as amended, provided by Regulation S thereunder. The
undersigned transferee acknowledges and agrees that this Note has not been
registered under the Securities Act of 1933, as amended, and may not be
transferred except in accordance with the resale and other transfer restrictions
set forth in the legend on the face thereof.
Dated:__________________ ____________________________________________
[Type or print name of transferee]
By:_________________________________________
Executive Officer
136
EXHIBIT D-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
REGISTERED REGISTERED
NO. [ ] PRINCIPAL AMOUNT
CUSIP NO.: $___________
GLOBAL SECURITY
SIMON DEBARTOLO GROUP, L.P.
6-5/8% Note due 2003
Simon DeBartolo Group, L.P., a Delaware limited partnership (the
"Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or its
registered assigns, the principal sum of $___________ Dollars on June 15, 2003
(the "Maturity Date"), and to pay interest thereon from June 22, 1998,
semi-annually in arrears on June 15 and December 15 of each year (each, an
"Interest Payment Date"), commencing on December 15, 1998, and on the Maturity
Date, at the rate of 6-5/8% per annum, until payment of said principal sum has
been made or duly provided for.
137
The interest so payable and punctually paid or duly provided for on any
Interest Payment Date and on the Maturity Date will be paid to the Holder in
whose name this Note (or one or more predecessor Notes) is registered in the
Security Register applicable to the Note at the close of business on the "Record
Date" for such payment, which will be 15 calendar days prior to such payment
date or the Maturity Date, as the case may be, regardless of whether such day is
a Business Day (as defined below). Any interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date, and may be paid to the Holder in whose name this Note (or one or
more predecessor Notes) is registered at the close of business on a subsequent
record date for the payment of such defaulted interest (which shall be not less
than 10 calendar days prior to the date of the payment of such defaulted
interest) established by notice given by mail by or on behalf of the Issuer to
the Holders of the Notes not less than 10 calendar days preceding such
subsequent record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture (as defined below). Interest on this
Note will be computed on the basis of a 360-day year of twelve 30-day months.
Interest payable on this Note on any Interest Payment Date and on the
Maturity Date, as the case may be, will be the amount of interest accrued from
and including the immediately preceding Interest Payment Date (or from and
including June 22, 1998, in the case of the initial Interest Payment Date) to
but excluding the applicable Interest Payment Date or the Maturity Date, as the
case may be. If any date for the payment of principal, premium, if any, interest
on, or any other amount with respect to, this Note (each a "Payment Date") falls
on a day that is not a Business Day, the principal, premium, if any, or interest
payable with respect to such Payment Date will be made on the next succeeding
Business Day with the same force and effect as if made on such Payment Date, and
no interest shall accrue on the amount so payable for the period from and after
such Payment Date to such next succeeding Business Day. "Business Day" means any
day, other than a Saturday or a Sunday, that is neither a legal holiday nor a
day on which banking institutions in The City of New York are authorized or
required by law, regulation or executive order to close.
The principal of this Note payable on the Maturity Date will be paid
against presentation and surrender of this Note at the office or agency of the
Issuer maintained for that purpose in The Borough of Manhattan, The City of New
York. The Issuer hereby initially designates the Corporate Trust Office of the
Trustee in The City of New York as the office to be maintained by it where Notes
may be presented for payment, registration of transfer or exchange, and where
notices to or demands upon the Issuer or the Guarantor in respect of the Notes
or the Indenture referred to on the reverse hereof may be served.
Payments of principal and interest in respect of this Note will be made
by wire transfer of immediately available funds in such coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
138
Reference is made to the further provisions of this Note set forth on
the reverse hereof after the Trustee's Certificate of Authentication. Such
further provisions shall for all purposes have the same effect as though fully
set forth at this place.
This Note shall not be entitled to the benefits of the Indenture or be
valid or obligatory for any purpose until the Certificate of Authentication
hereon shall have been signed by the Trustee under such Indenture.
Capitalized terms used herein which are not otherwise defined shall
have the respective meanings assigned to them in the Indenture and the Sixth
Supplemental Indenture hereinafter referred to.
139
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed
manually or by facsimile by its authorized officers.
Dated:
SIMON DEBARTOLO GROUP, L.P.
as Issuer
By: SD PROPERTY GROUP, INC.
its Managing General Partner
By: ______________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
140
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By: ______________________________
Authorized Officer
141
[REVERSE OF NOTE]
SIMON DEBARTOLO GROUP, L.P.
6-5/8% NOTE DUE 2003
This Note is one of a duly authorized issue of debt securities
of the Issuer (hereinafter called the "Securities"), all issued or to be issued
under and pursuant to an Indenture dated as of November 26, 1996 (herein called
the "Indenture"), duly executed and delivered by the Issuer and Simon Property
Group, L.P. (which was, effective December 31, 1997, merged into the Issuer), as
Guarantor, to The Chase Manhattan Bank, as Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture with respect to
the series of Securities of which this Note is a part), to which Indenture and
all indentures supplemental thereto relating to this Note (including, without
limitation, the Sixth Supplemental Indenture, dated as of June 22, 1998, between
the Issuer and the Trustee) reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and immunities thereunder of
the Trustee, the Issuer and the Holders of the Securities, and of the terms upon
which the Securities are, and are to be, authenticated and delivered. The
Securities may be issued in one or more series, which different series may be
issued in various aggregate principal amounts, may mature at different times,
may bear interest (if any) at different rates, may be subject to different
redemption provisions (if any), and may otherwise vary as provided in the
Indenture or any indenture supplemental thereto. This Note is one of a series
designated as the Simon DeBartolo Group, L.P. 7-3/8% Notes due June, 2018,
limited in aggregate principal amount to $375,000,000 (the "Notes").
In case an Event of Default with respect to the Notes shall
have occurred and be continuing, the principal amount of the Notes and the
Make-Whole Amount may be declared accelerated and thereupon become due and
payable, in the manner, with the effect, and subject to the conditions provided
in the Indenture.
The Notes may be redeemed at any time at the option of the
Issuer, in whole or from time to time in part, at a redemption price equal to
the sum of (i) the principal amount of the Notes being redeemed plus accrued
interest thereon to the Redemption Date and (ii) the Make- Whole Amount, if any,
with respect to such Notes. Notice of any optional redemption will be given to
Holders at their addresses, as shown in the Security Register for the Notes, not
more than 60 nor less than 30 days prior to the date fixed for redemption. The
notice of redemption will specify, among other items, the redemption price and
the principal amount of the Notes to be redeemed.
The Indenture contains provisions permitting the Issuer and
the Trustee, with the consent of the Holders of not less than a majority of the
aggregate principal amount of the Securities at the time Outstanding of all
series to be affected (voting as one class), evidenced as
142
provided in the Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the Holders of the Securities of each series; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security so affected, (i) change the Stated Maturity of the
principal of, or premium, (if any) or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate or
amount of interest thereon or any premium payable upon the redemption or
acceleration thereof, or adversely affect any right of repayment at the option
of the Holder of any Security, or change any Place of Payment where, or the
currency or currencies, currency unit or units or composite currency or
currencies in which, the principal of any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof, or (ii) reduce the
aforesaid percentage of Securities the Holders of which are required to consent
to any such supplemental indenture, or (iii) reduce the percentage of Securities
the Holders of which are required to consent to any waiver of compliance with
certain provisions of the Indenture or any waiver of certain defaults and
consequences thereunder or to reduce the quorum or voting requirements set forth
in the Indenture, or (iv) effect certain other changes to the Indenture or any
supplemental indenture or in the rights of Holders of the Securities. The
Indenture also permits the Holders of a majority in principal amount of the
Outstanding Securities of any series (or, in the case of certain defaults or
Events of Default, all series of Securities), on behalf of the Holders of all
the Securities of such series (or all of the Securities, as the case may be), to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults or Events of Default under the Indenture and their
consequences, prior to any declaration accelerating the maturity of such
Securities, or subject to certain conditions, rescind a declaration of
acceleration and its consequences with respect to such Securities. Any such
consent or waiver by the Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note that may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of, premium, if any,
and interest on this Note in the manner, at the respective times, at the rate
and in the coin or currency herein prescribed.
Notwithstanding any other provision of the Indenture to the
contrary, no recourse shall be had, whether by levy or execution or otherwise,
for the payment of any sums due under the Securities, including, without
limitation, the principal of, premium, if any, or interest payable under the
Securities, or for the payment or performance of any obligation under, or for
any claim based on, the Indenture or otherwise in respect thereof, against any
partner of the Issuer, whether limited or general, including SD Property Group,
Inc., or such partner's assets or against any principal, shareholder, officer,
director, trustee or employee of such partner. It is expressly understood that
the sole remedies under the Securities and the Indenture or under any other
143
document with respect to the Securities, against such parties with respect to
such amounts, obligations or claims shall be against the Issuer.
This Note is issuable only in registered form without Coupons
in denominations of $1,000 and integral multiples of $1,000 in excess thereof.
This Note may be exchanged for a like aggregate principal amount of Securities
of other authorized denominations at the office or agency of the Issuer in The
Borough of Manhattan, The City of New York, in the manner and subject to the
limitations provided in the Indenture, but without the payment of any service
charge, except for any tax or other governmental charge imposed in connection
therewith.
Upon due presentment for registration of transfer of this Note
at the office or agency of the Issuer in The Borough of Manhattan, The City of
New York, one or more new Securities of authorized denominations in an equal
aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without charge,
except for any tax or other governmental charge imposed in connection therewith.
The Issuer, the Trustee and any authorized agent of the Issuer
or the Trustee may deem and treat the Person in whose name this Note is
registered as the absolute owner of this Note (whether or not this Note shall be
overdue and notwithstanding any notation of ownership or other writing hereon),
for the purpose of receiving payment of, or on account of, the principal and any
premium hereof or hereon, and subject to the provisions on the face hereof,
interest hereon, and for all other purposes, and neither the Issuer nor the
Trustee nor any authorized agent of the Issuer or the Trustee shall be affected
by any notice to the contrary.
This Note, including the validity hereof, and the Indenture
shall be governed by and construed in accordance with the laws of the State of
New York, and for all purposes shall be construed in accordance with the laws of
such state, except as may otherwise by required by mandatory provisions of law.
144
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ___________Custodian____________________
(Cust) (minor)
under Uniform Gifts to Minors Act
_________________________(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
_________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
_______________________________________________________________this Note and all
rights thereunder hereby irrevocably constituting and appointing
__________________________________________________Attorney to transfer this Note
on the books of the Trustee, with full power of substitution in the premises.
Dated:_______________________________ _____________________
____________________________
Notice: The signature(s) on
this Assignment must
correspond with the name(s)
as written upon the face of
this Note in every
particular, without
alteration or enlargement
or any change whatsoever.
145
EXHIBIT D-2
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
REGISTERED REGISTERED
NO. [ ] PRINCIPAL AMOUNT
CUSIP NO.: $___________
GLOBAL SECURITY
SIMON DEBARTOLO GROUP, L.P.
6-3/4% Note due 2005
Simon DeBartolo Group, L.P., a Delaware limited partnership
(the "Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or its
registered assigns, the principal sum of $___________ Dollars on June 15, 2005
(the "Maturity Date"), and to pay interest thereon from June 22, 1998,
semi-annually in arrears on June 15 and December 15 of each year (each, an
"Interest Payment Date"), commencing on December 15, 1998, and on the Maturity
Date, at the rate of 6-3/4% per annum, until payment of said principal sum has
been made or duly provided for.
146
The interest so payable and punctually paid or duly provided
for on any Interest Payment Date and on the Maturity Date will be paid to the
Holder in whose name this Note (or one or more predecessor Notes) is registered
in the Security Register applicable to the Note at the close of business on the
"Record Date" for such payment, which will be 15 calendar days prior to such
payment date or the Maturity Date, as the case may be, regardless of whether
such day is a Business Day (as defined below). Any interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date, and may be paid to the Holder in whose name this Note
(or one or more predecessor Notes) is registered at the close of business on a
subsequent record date for the payment of such defaulted interest (which shall
be not less than 10 calendar days prior to the date of the payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders of the Notes not less than 10 calendar days preceding such
subsequent record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture (as defined below). Interest on this
Note will be computed on the basis of a 360-day year of twelve 30-day months.
Interest payable on this Note on any Interest Payment Date and
on the Maturity Date, as the case may be, will be the amount of interest accrued
from and including the immediately preceding Interest Payment Date (or from and
including June 22, 1998, in the case of the initial Interest Payment Date) to
but excluding the applicable Interest Payment Date or the Maturity Date, as the
case may be. If any date for the payment of principal, premium, if any, interest
on, or any other amount with respect to, this Note (each a "Payment Date") falls
on a day that is not a Business Day, the principal, premium, if any, or interest
payable with respect to such Payment Date will be made on the next succeeding
Business Day with the same force and effect as if made on such Payment Date, and
no interest shall accrue on the amount so payable for the period from and after
such Payment Date to such next succeeding Business Day. "Business Day" means any
day, other than a Saturday or a Sunday, that is neither a legal holiday nor a
day on which banking institutions in The City of New York are authorized or
required by law, regulation or executive order to close.
The principal of this Note payable on the Maturity Date will
be paid against presentation and surrender of this Note at the office or agency
of the Issuer maintained for that purpose in The Borough of Manhattan, The City
of New York. The Issuer hereby initially designates the Corporate Trust Office
of the Trustee in The City of New York as the office to be maintained by it
where Notes may be presented for payment, registration of transfer or exchange,
and where notices to or demands upon the Issuer or the Guarantor in respect of
the Notes or the Indenture referred to on the reverse hereof may be served.
Payments of principal and interest in respect of this Note
will be made by wire transfer of immediately available funds in such coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
147
Reference is made to the further provisions of this Note set
forth on the reverse hereof after the Trustee's Certificate of Authentication.
Such further provisions shall for all purposes have the same effect as though
fully set forth at this place.
This Note shall not be entitled to the benefits of the
Indenture or be valid or obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by the Trustee under such
Indenture.
Capitalized terms used herein which are not otherwise defined
shall have the respective meanings assigned to them in the Indenture and the
Sixth Supplemental Indenture hereinafter referred to.
148
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed manually or by facsimile by its authorized officers.
Dated:
SIMON DEBARTOLO GROUP, L.P.
as Issuer
By: SD PROPERTY GROUP, INC.
its Managing General Partner
By: ______________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
149
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By: ______________________________
Authorized Officer
150
[REVERSE OF NOTE]
SIMON DEBARTOLO GROUP, L.P.
6-3/4% NOTE DUE 2005
This Note is one of a duly authorized issue of debt securities
of the Issuer (hereinafter called the "Securities"), all issued or to be issued
under and pursuant to an Indenture dated as of November 26, 1996 (herein called
the "Indenture"), duly executed and delivered by the Issuer and Simon Property
Group, L.P. (which was, effective December 31, 1997, merged into the Issuer), as
Guarantor, to The Chase Manhattan Bank, as Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture with respect to
the series of Securities of which this Note is a part), to which Indenture and
all indentures supplemental thereto relating to this Note (including, without
limitation, the Sixth Supplemental Indenture, dated as of June 22, 1998, between
the Issuer and the Trustee) reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and immunities thereunder of
the Trustee, the Issuer and the Holders of the Securities, and of the terms upon
which the Securities are, and are to be, authenticated and delivered. The
Securities may be issued in one or more series, which different series may be
issued in various aggregate principal amounts, may mature at different times,
may bear interest (if any) at different rates, may be subject to different
redemption provisions (if any), and may otherwise vary as provided in the
Indenture or any indenture supplemental thereto. This Note is one of a series
designated as the Simon DeBartolo Group, L.P. 6-3/4% Notes due June 2005,
limited in aggregate principal amount to $300,000,000 (the "Notes").
In case an Event of Default with respect to the Notes shall
have occurred and be continuing, the principal amount of the Notes and the
Make-Whole Amount may be declared accelerated and thereupon become due and
payable, in the manner, with the effect, and subject to the conditions provided
in the Indenture.
The Notes may be redeemed at any time at the option of the
Issuer, in whole or from time to time in part, at a redemption price equal to
the sum of (i) the principal amount of the Notes being redeemed plus accrued
interest thereon to the Redemption Date and (ii) the Make- Whole Amount, if any,
with respect to such Notes. Notice of any optional redemption will be given to
Holders at their addresses, as shown in the Security Register for the Notes, not
more than 60 nor less than 30 days prior to the date fixed for redemption. The
notice of redemption will specify, among other items, the redemption price and
the principal amount of the Notes to be redeemed.
The Indenture contains provisions permitting the Issuer and
the Trustee, with the consent of the Holders of not less than a majority of the
aggregate principal amount of the Securities at the time Outstanding of all
series to be affected (voting as one class), evidenced as
151
provided in the Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the Holders of the Securities of each series; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security so affected, (i) change the Stated Maturity of the
principal of, or premium, (if any) or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate or
amount of interest thereon or any premium payable upon the redemption or
acceleration thereof, or adversely affect any right of repayment at the option
of the Holder of any Security, or change any Place of Payment where, or the
currency or currencies, currency unit or units or composite currency or
currencies in which, the principal of any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof, or (ii) reduce the
aforesaid percentage of Securities the Holders of which are required to consent
to any such supplemental indenture, or (iii) reduce the percentage of Securities
the Holders of which are required to consent to any waiver of compliance with
certain provisions of the Indenture or any waiver of certain defaults and
consequences thereunder or to reduce the quorum or voting requirements set forth
in the Indenture, or (iv) effect certain other changes to the Indenture or any
supplemental indenture or in the rights of Holders of the Securities. The
Indenture also permits the Holders of a majority in principal amount of the
Outstanding Securities of any series (or, in the case of certain defaults or
Events of Default, all series of Securities), on behalf of the Holders of all
the Securities of such series (or all of the Securities, as the case may be), to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults or Events of Default under the Indenture and their
consequences, prior to any declaration accelerating the maturity of such
Securities, or subject to certain conditions, rescind a declaration of
acceleration and its consequences with respect to such Securities. Any such
consent or waiver by the Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note that may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of, premium, if any,
and interest on this Note in the manner, at the respective times, at the rate
and in the coin or currency herein prescribed.
Notwithstanding any other provision of the Indenture to the
contrary, no recourse shall be had, whether by levy or execution or otherwise,
for the payment of any sums due under the Securities, including, without
limitation, the principal of, premium, if any, or interest payable under the
Securities, or for the payment or performance of any obligation under, or for
any claim based on, the Indenture or otherwise in respect thereof, against any
partner of the Issuer, whether limited or general, including SD Property Group,
Inc., or such partner's assets or against any principal, shareholder, officer,
director, trustee or employee of such partner. It is expressly understood that
the sole remedies under the Securities and the Indenture or under any other
152
document with respect to the Securities, against such parties with respect to
such amounts, obligations or claims shall be against the Issuer.
This Note is issuable only in registered form without Coupons
in denominations of $1,000 and integral multiples of $1,000 in excess thereof.
This Note may be exchanged for a like aggregate principal amount of Securities
of other authorized denominations at the office or agency of the Issuer in The
Borough of Manhattan, The City of New York, in the manner and subject to the
limitations provided in the Indenture, but without the payment of any service
charge, except for any tax or other governmental charge imposed in connection
therewith.
Upon due presentment for registration of transfer of this Note
at the office or agency of the Issuer in The Borough of Manhattan, The City of
New York, one or more new Securities of authorized denominations in an equal
aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without charge,
except for any tax or other governmental charge imposed in connection therewith.
The Issuer, the Trustee and any authorized agent of the Issuer
or the Trustee may deem and treat the Person in whose name this Note is
registered as the absolute owner of this Note (whether or not this Note shall be
overdue and notwithstanding any notation of ownership or other writing hereon),
for the purpose of receiving payment of, or on account of, the principal and any
premium hereof or hereon, and subject to the provisions on the face hereof,
interest hereon, and for all other purposes, and neither the Issuer nor the
Trustee nor any authorized agent of the Issuer or the Trustee shall be affected
by any notice to the contrary.
This Note, including the validity hereof, and the Indenture
shall be governed by and construed in accordance with the laws of the State of
New York, and for all purposes shall be construed in accordance with the laws of
such state, except as may otherwise by required by mandatory provisions of law.
153
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ________________Custodian_____________________
(Cust) (minor)
under Uniform Gifts to Minors Act
_____________________________(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
___________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
______________________________________________this Note and all
rights thereunder hereby irrevocably constituting and appointing
_________________________________________________Attorney to transfer this Note
on the books of the Trustee, with full power of substitution in the premises.
Dated:_____________________ __________________________
________________________________
Notice: The signature(s) on
this Assignment must
correspond with the name(s)
as written upon the face of
this Note in every
particular, without
alteration or enlargement
or any change whatsoever.
154
EXHIBIT D-3
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
REGISTERED REGISTERED
NO. [ ] PRINCIPAL AMOUNT
CUSIP NO.: $___________
GLOBAL SECURITY
SIMON DEBARTOLO GROUP, L.P.
7-3/8% Note due 2018
Simon DeBartolo Group, L.P., a Delaware limited partnership
(the "Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or its
registered assigns, the principal sum of $___________ Dollars on June 15, 2018
(the "Maturity Date"), and to pay interest thereon from June 22, 1998,
semi-annually in arrears on June 15 and December 15 of each year (each, an
"Interest Payment Date"), commencing on December 15, 1998, and on the Maturity
Date, at the rate of 7-3/8% per annum, until payment of said principal sum has
been made or duly provided for.
155
The interest so payable and punctually paid or duly provided
for on any Interest Payment Date and on the Maturity Date will be paid to the
Holder in whose name this Note (or one or more predecessor Notes) is registered
in the Security Register applicable to the Note at the close of business on the
"Record Date" for such payment, which will be 15 calendar days prior to such
payment date or the Maturity Date, as the case may be, regardless of whether
such day is a Business Day (as defined below). Any interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date, and may be paid to the Holder in whose name this Note
(or one or more predecessor Notes) is registered at the close of business on a
subsequent record date for the payment of such defaulted interest (which shall
be not less than 10 calendar days prior to the date of the payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders of the Notes not less than 10 calendar days preceding such
subsequent record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture (as defined below). Interest on this
Note will be computed on the basis of a 360-day year of twelve 30-day months.
Interest payable on this Note on any Interest Payment Date and
on the Maturity Date, as the case may be, will be the amount of interest accrued
from and including the immediately preceding Interest Payment Date (or from and
including June 22, 1998, in the case of the initial Interest Payment Date) to
but excluding the applicable Interest Payment Date or the Maturity Date, as the
case may be. If any date for the payment of principal, premium, if any, interest
on, or any other amount with respect to, this Note (each a "Payment Date") falls
on a day that is not a Business Day, the principal, premium, if any, or interest
payable with respect to such Payment Date will be made on the next succeeding
Business Day with the same force and effect as if made on such Payment Date, and
no interest shall accrue on the amount so payable for the period from and after
such Payment Date to such next succeeding Business Day. "Business Day" means any
day, other than a Saturday or a Sunday, that is neither a legal holiday nor a
day on which banking institutions in The City of New York are authorized or
required by law, regulation or executive order to close.
The principal of this Note payable on the Maturity Date will
be paid against presentation and surrender of this Note at the office or agency
of the Issuer maintained for that purpose in The Borough of Manhattan, The City
of New York. The Issuer hereby initially designates the Corporate Trust Office
of the Trustee in The City of New York as the office to be maintained by it
where Notes may be presented for payment, registration of transfer or exchange,
and where notices to or demands upon the Issuer or the Guarantor in respect of
the Notes or the Indenture referred to on the reverse hereof may be served.
Payments of principal and interest in respect of this Note
will be made by wire transfer of immediately available funds in such coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
156
Reference is made to the further provisions of this Note set
forth on the reverse hereof after the Trustee's Certificate of Authentication.
Such further provisions shall for all purposes have the same effect as though
fully set forth at this place.
This Note shall not be entitled to the benefits of the
Indenture or be valid or obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by the Trustee under such
Indenture.
Capitalized terms used herein which are not otherwise defined
shall have the respective meanings assigned to them in the Indenture and the
Sixth Supplemental Indenture hereinafter referred to.
157
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed manually or by facsimile by its authorized officers.
Dated:
SIMON DEBARTOLO GROUP, L.P.
as Issuer
By: SD PROPERTY GROUP, INC.
its Managing General Partner
By: ______________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
158
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By: ______________________________
Authorized Officer
159
[REVERSE OF NOTE]
SIMON DEBARTOLO GROUP, L.P.
7-3/8% NOTE DUE 2018
This Note is one of a duly authorized issue of debt securities
of the Issuer (hereinafter called the "Securities"), all issued or to be issued
under and pursuant to an Indenture dated as of November 26, 1996 (herein called
the "Indenture"), duly executed and delivered by the Issuer and Simon Property
Group, L.P. (which was, effective December 31, 1997, merged into the Issuer), as
Guarantor, to The Chase Manhattan Bank, as Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture with respect to
the series of Securities of which this Note is a part), to which Indenture and
all indentures supplemental thereto relating to this Note (including, without
limitation, the Sixth Supplemental Indenture, dated as of June 22, 1998, between
the Issuer and the Trustee) reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and immunities thereunder of
the Trustee, the Issuer and the Holders of the Securities, and of the terms upon
which the Securities are, and are to be, authenticated and delivered. The
Securities may be issued in one or more series, which different series may be
issued in various aggregate principal amounts, may mature at different times,
may bear interest (if any) at different rates, may be subject to different
redemption provisions (if any), and may otherwise vary as provided in the
Indenture or any indenture supplemental thereto. This Note is one of a series
designated as the Simon DeBartolo Group, L.P. 7-3/8% Notes due June 2018,
limited in aggregate principal amount to $200,000,000 (the "Notes").
In case an Event of Default with respect to the Notes shall
have occurred and be continuing, the principal amount of the Notes and the
Make-Whole Amount may be declared accelerated and thereupon become due and
payable, in the manner, with the effect, and subject to the conditions provided
in the Indenture.
The Notes may be redeemed at any time at the option of the
Issuer, in whole or from time to time in part, at a redemption price equal to
the sum of (i) the principal amount of the Notes being redeemed plus accrued
interest thereon to the Redemption Date and (ii) the Make- Whole Amount, if any,
with respect to such Notes. Notice of any optional redemption will be given to
Holders at their addresses, as shown in the Security Register for the Notes, not
more than 60 nor less than 30 days prior to the date fixed for redemption. The
notice of redemption will specify, among other items, the redemption price and
the principal amount of the Notes to be redeemed.
The Indenture contains provisions permitting the Issuer and
the Trustee, with the consent of the Holders of not less than a majority of the
aggregate principal amount of the Securities at the time Outstanding of all
series to be affected (voting as one class), evidenced as
160
provided in the Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the Holders of the Securities of each series; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security so affected, (i) change the Stated Maturity of the
principal of, or premium, (if any) or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate or
amount of interest thereon or any premium payable upon the redemption or
acceleration thereof, or adversely affect any right of repayment at the option
of the Holder of any Security, or change any Place of Payment where, or the
currency or currencies, currency unit or units or composite currency or
currencies in which, the principal of any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof, or (ii) reduce the
aforesaid percentage of Securities the Holders of which are required to consent
to any such supplemental indenture, or (iii) reduce the percentage of Securities
the Holders of which are required to consent to any waiver of compliance with
certain provisions of the Indenture or any waiver of certain defaults and
consequences thereunder or to reduce the quorum or voting requirements set forth
in the Indenture, or (iv) effect certain other changes to the Indenture or any
supplemental indenture or in the rights of Holders of the Securities. The
Indenture also permits the Holders of a majority in principal amount of the
Outstanding Securities of any series (or, in the case of certain defaults or
Events of Default, all series of Securities), on behalf of the Holders of all
the Securities of such series (or all of the Securities, as the case may be), to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults or Events of Default under the Indenture and their
consequences, prior to any declaration accelerating the maturity of such
Securities, or subject to certain conditions, rescind a declaration of
acceleration and its consequences with respect to such Securities. Any such
consent or waiver by the Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note that may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of, premium, if any,
and interest on this Note in the manner, at the respective times, at the rate
and in the coin or currency herein prescribed.
Notwithstanding any other provision of the Indenture to the
contrary, no recourse shall be had, whether by levy or execution or otherwise,
for the payment of any sums due under the Securities, including, without
limitation, the principal of, premium, if any, or interest payable under the
Securities, or for the payment or performance of any obligation under, or for
any claim based on, the Indenture or otherwise in respect thereof, against any
partner of the Issuer, whether limited or general, including SD Property Group,
Inc., or such partner's assets or against any principal, shareholder, officer,
director, trustee or employee of such partner. It is expressly understood that
the sole remedies under the Securities and the Indenture or under any other
161
document with respect to the Securities, against such parties with respect to
such amounts, obligations or claims shall be against the Issuer.
This Note is issuable only in registered form without Coupons
in denominations of $1,000 and integral multiples of $1,000 in excess thereof.
This Note may be exchanged for a like aggregate principal amount of Securities
of other authorized denominations at the office or agency of the Issuer in The
Borough of Manhattan, The City of New York, in the manner and subject to the
limitations provided in the Indenture, but without the payment of any service
charge, except for any tax or other governmental charge imposed in connection
therewith.
Upon due presentment for registration of transfer of this Note
at the office or agency of the Issuer in The Borough of Manhattan, The City of
New York, one or more new Securities of authorized denominations in an equal
aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without charge,
except for any tax or other governmental charge imposed in connection therewith.
The Issuer, the Trustee and any authorized agent of the Issuer
or the Trustee may deem and treat the Person in whose name this Note is
registered as the absolute owner of this Note (whether or not this Note shall be
overdue and notwithstanding any notation of ownership or other writing hereon),
for the purpose of receiving payment of, or on account of, the principal and any
premium hereof or hereon, and subject to the provisions on the face hereof,
interest hereon, and for all other purposes, and neither the Issuer nor the
Trustee nor any authorized agent of the Issuer or the Trustee shall be affected
by any notice to the contrary.
This Note, including the validity hereof, and the Indenture
shall be governed by and construed in accordance with the laws of the State of
New York, and for all purposes shall be construed in accordance with the laws of
such state, except as may otherwise by required by mandatory provisions of law.
162
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - _________________Custodian__________________
(Cust) (minor)
under Uniform Gifts to Minors Act
___________________________(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
_____________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
_____________________________________________________this Note and all
rights thereunder hereby irrevocably constituting and appointing
__________________________________________________Attorney to transfer this Note
on the books of the Trustee, with full power of substitution in the premises.
Dated:_________________________ ________________________
_____________________________
Notice: The signature(s) on
this Assignment must
correspond with the name(s)
as written upon the face of
this Note in every
particular, without
alteration or enlargement
or any change whatsoever.
163
EXHIBIT E-1
REGISTERED REGISTERED
NO. [ ] PRINCIPAL AMOUNT
CUSIP NO. $___________
DEFINITIVE SECURITY
SIMON DEBARTOLO GROUP, L.P.
6-5/8% Note due 2003
Simon DeBartolo Group, L.P., a Delaware limited partnership
(the "Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to [ ] or its
registered assigns, the principal sum of $___________ Dollars on June 15, 2003
(the "Maturity Date"), and to pay interest thereon from June 22, 1998,
semi-annually in arrears on June 15 and December 15 of each year (each, an
"Interest Payment Date"), commencing on December 15, 1998, and on the Maturity
Date, at the rate of 6-5/8% per annum, until payment of said principal sum has
been made or duly provided for.
The interest so payable and punctually paid or duly provided
for on any Interest Payment Date and on the Maturity Date will be paid to the
Holder in whose name this Note (or one or more predecessor Notes) is registered
in the Security Register applicable to the Note at the close of business on the
"Record Date" for such payment, which will be 15 calendar days prior to such
payment date or the Maturity Date, as the case may be, regardless of whether
such day is a Business Day (as defined below). Any interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date, and may be paid to the Holder in whose name this Note
(or one or more predecessor Notes) is registered at the close of business on a
subsequent record date for the payment of such defaulted interest (which shall
be not less than 10 calendar days prior to the date of the payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders of the Notes not less than 10 calendar days preceding such
subsequent record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture (as defined below). Interest on this
Note will be computed on the basis of a 360-day year of twelve 30-day months.
Interest payable on this Note on any Interest Payment Date and
on the Maturity Date, as the case may be, will be the amount of interest accrued
from and including the immediately preceding Interest Payment Date (or from and
including June 22, 1998, in the case of the initial Interest Payment Date) to
but excluding the applicable Interest Payment Date or the
164
Maturity Date, as the case may be. If any date for the payment of principal,
premium, if any, interest on, or any other amount with respect to, this Note
(each a "Payment Date") falls on a day that is not a Business Day, the
principal, premium, if any, or interest payable with respect to such Payment
Date will be made on the next succeeding Business Day with the same force and
effect as if made on such Payment Date, and no interest shall accrue on the
amount so payable for the period from and after such Payment Date to such next
succeeding Business Day. "Business Day" means any
day, other than a Saturday or a Sunday, that is neither a legal holiday nor a
day on which banking institutions in The City of New York are authorized or
required by law, regulation or executive order to close.
The principal of this Note payable on the Maturity Date will
be paid against presentation and surrender of this Note at the office or agency
of the Issuer maintained for that purpose in The Borough of Manhattan, The City
of New York. The Issuer hereby initially designates the Corporate Trust Office
of the Trustee in The City of New York as the office to be maintained by it
where Notes may be presented for payment, registration of transfer or exchange,
and where notices to or demands upon the Issuer or the Guarantor in respect of
the Notes or the Indenture referred to on the reverse hereof may be served.
Payments of principal and interest in respect of this Note
will be made by wire transfer of immediately available funds in such coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Reference is made to the further provisions of this Note set
forth on the reverse hereof after the Trustee's Certificate of Authentication.
Such further provisions shall for all purposes have the same effect as though
fully set forth at this place.
This Note shall not be entitled to the benefits of the
Indenture or be valid or obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by the Trustee under such
Indenture.
Capitalized terms used herein which are not otherwise defined
shall have the respective meanings assigned to them in the Indenture and the
Sixth Supplemental Indenture hereinafter referred to.
165
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed manually or by facsimile by its authorized officers.
Dated:
SIMON DEBARTOLO GROUP, L.P.
as Issuer
Attest: By: SD PROPERTY GROUP, INC.
its Managing General Partner
______________________________ By: ______________________________
Name: Name:
Title: Title:
166
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By: ______________________________
Authorized Officer
167
[REVERSE OF NOTE]
SIMON DEBARTOLO GROUP, L.P.
6-5/8% NOTE DUE 2003
This Note is one of a duly authorized issue of debt securities
of the Issuer (hereinafter called the "Securities"), all issued or to be issued
under and pursuant to an Indenture dated as of November 26, 1996 (herein called
the "Indenture"), duly executed and delivered by the Issuer and Simon Property
Group, L.P. (which was, effective December 31, 1997, merged into the Issuer), as
Guarantor, to The Chase Manhattan Bank, as Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture with respect to
the series of Securities of which this Note is a part), to which Indenture and
all indentures supplemental thereto relating to this Note (including, without
limitation, the Sixth Supplemental Indenture, dated as of June 22, 1998, between
the Issuer and the Trustee) reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and immunities thereunder of
the Trustee, the Issuer and the Holders of the Securities, and of the terms upon
which the Securities are, and are to be, authenticated and delivered. The
Securities may be issued in one or more series, which different series may be
issued in various aggregate principal amounts, may mature at different times,
may bear interest (if any) at different rates, may be subject to different
redemption provisions (if any), and may otherwise vary as provided in the
Indenture or any indenture supplemental thereto. This Note is one of a series
designated as the Simon DeBartolo Group, L.P. 6-5/8% Notes due June 2003,
limited in aggregate principal amount to $375,000,000 (the "Notes").
In case an Event of Default with respect to the Notes shall
have occurred and be continuing, the principal amount of the Notes and the
Make-Whole Amount may be declared accelerated and thereupon become due and
payable, in the manner, with the effect, and subject to the conditions provided
in the Indenture.
The Notes may be redeemed at any time at the option of the
Issuer, in whole or from time to time in part, at a redemption price equal to
the sum of (i) the principal amount of the Notes being redeemed plus accrued
interest thereon to the Redemption Date and (ii) the Make- Whole Amount, if any,
with respect to such Notes. Notice of any optional redemption will be given to
Holders at their addresses, as shown in the Security Register for the Notes, not
more than 60 nor less than 30 days prior to the date fixed for redemption. The
notice of redemption will specify, among other items, the redemption price and
the principal amount of the Notes to be redeemed.
The Indenture contains provisions permitting the Issuer and
the Trustee, with the consent of the Holders of not less than a majority of the
aggregate principal amount of the Securities at the time Outstanding of all
series to be affected (voting as one class), evidenced as
168
provided in the Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the Holders of the Securities of each series; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security so affected, (i) change the Stated Maturity of the
principal of, or premium, (if any) or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate or
amount of interest thereon or any premium payable upon the redemption or
acceleration thereof, or adversely affect any right of repayment at the option
of the Holder of any Security, or change any Place of Payment where, or the
currency or currencies, currency unit or units or composite currency or
currencies in which, the principal of any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof, or (ii) reduce the
aforesaid percentage of Securities the Holders of which are required to consent
to any such supplemental indenture, or (iii) reduce the percentage of Securities
the Holders of which are required to consent to any waiver of compliance with
certain provisions of the Indenture or any waiver of certain defaults and
consequences thereunder or to reduce the quorum or voting requirements set forth
in the Indenture, or (iv) effect certain other changes to the Indenture or any
supplemental indenture or in the rights of Holders of the Securities. The
Indenture also permits the Holders of a majority in principal amount of the
Outstanding Securities of any series (or, in the case of certain defaults or
Events of Default, all series of Securities), on behalf of the Holders of all
the Securities of such series (or all of the Securities, as the case may be), to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults or Events of Default under the Indenture and their
consequences, prior to any declaration accelerating the maturity of such
Securities, or subject to certain conditions, rescind a declaration of
acceleration and its consequences with respect to such Securities. Any such
consent or waiver by the Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note that may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of, premium, if any,
and interest on this Note in the manner, at the respective times, at the rate
and in the coin or currency herein prescribed.
Notwithstanding any other provision of the Indenture to the
contrary, no recourse shall be had, whether by levy or execution or otherwise,
for the payment of any sums due under the Securities, including, without
limitation, the principal of, premium, if any, or interest payable under the
Securities, or for the payment or performance of any obligation under, or for
any claim based on, the Indenture or otherwise in respect thereof, against any
partner of the Issuer, whether limited or general, including SD Property Group,
Inc., or such partner's assets or against any principal, shareholder, officer,
director, trustee or employee of such partner. It is expressly understood that
the sole remedies under the Securities and the Indenture or under any other
169
document with respect to the Securities, against such parties with respect to
such amounts, obligations or claims shall be against the Issuer.
This Note is issuable only in registered form without Coupons
in denominations of $1,000 and in integral multiples of $1,000 in excess
thereof. This Note may be exchanged for a like aggregate principal amount of
Securities of other authorized denominations at the office or agency of the
Issuer in The Borough of Manhattan, The City of New York, in the manner and
subject to the limitations provided in the Indenture, but without the payment of
any service charge, except for any tax or other governmental charge imposed in
connection therewith.
Upon due presentment for registration of transfer of this Note
at the office or agency of the Issuer in The Borough of Manhattan, The City of
New York, one or more new Securities of authorized denominations in an equal
aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without charge,
except for any tax or other governmental charge imposed in connection therewith.
The Issuer, the Trustee and any authorized agent of the Issuer
or the Trustee may deem and treat the Person in whose name this Note is
registered as the absolute owner of this Note (whether or not this Note shall be
overdue and notwithstanding any notation of ownership or other writing hereon),
for the purpose of receiving payment of, or on account of, the principal and any
premium hereof or hereon, and subject to the provisions on the face hereof,
interest hereon, and for all other purposes, and neither the Issuer nor the
Trustee nor any authorized agent of the Issuer or the Trustee shall be affected
by any notice to the contrary.
This Note, including the validity hereof, and the Indenture
shall be governed by and construed in accordance with the laws of the State of
New York, and for all purposes shall be construed in accordance with the laws of
such state, except as may otherwise by required by mandatory provisions of law.
170
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - _______________Custodian_______________________
(Cust) (minor)
under Uniform Gifts to Minors Act
______________________(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
______________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
___________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
__________________________________________this Note and all
rights thereunder hereby irrevocably constituting and appointing
_____________________________________________Attorney to transfer this Note
on the books of the Trustee, with full power of substitution in the premises.
Dated:________________________ ______________________
__________________________
Notice: The signature(s) on
this Assignment must
correspond with the name(s)
as written upon the face of
this Note in every
particular, without
alteration or enlargement
or any change whatsoever.
171
EXHIBIT E-2
REGISTERED REGISTERED
NO. [ ] PRINCIPAL AMOUNT
CUSIP NO. $___________
DEFINITIVE SECURITY
SIMON DEBARTOLO GROUP, L.P.
6-3/4% Note due 2005
Simon DeBartolo Group, L.P., a Delaware limited partnership
(the "Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to [ ]. or its
registered assigns, the principal sum of $___________ Dollars on June 15, 2005
(the "Maturity Date"), and to pay interest thereon from June 22, 1998,
semi-annually in arrears on June 15 and December 15 of each year (each, an
"Interest Payment Date"), commencing on December 15, 1998, and on the Maturity
Date, at the rate of 6-3/4% per annum, until payment of said principal sum has
been made or duly provided for.
The interest so payable and punctually paid or duly provided
for on any Interest Payment Date and on the Maturity Date will be paid to the
Holder in whose name this Note (or one or more predecessor Notes) is registered
in the Security Register applicable to the Note at the close of business on the
"Record Date" for such payment, which will be 15 calendar days prior to such
payment date or the Maturity Date, as the case may be, regardless of whether
such day is a Business Day (as defined below). Any interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date, and may be paid to the Holder in whose name this Note
(or one or more predecessor Notes) is registered at the close of business on a
subsequent record date for the payment of such defaulted interest (which shall
be not less than 10 calendar days prior to the date of the payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders of the Notes not less than 10 calendar days preceding such
subsequent record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture (as defined below). Interest on this
Note will be computed on the basis of a 360-day year of twelve 30-day months.
Interest payable on this Note on any Interest Payment Date and
on the Maturity Date, as the case may be, will be the amount of interest accrued
from and including the immediately preceding Interest Payment Date (or from and
including June 22, 1998, in the case of the initial Interest Payment Date) to
but excluding the applicable Interest Payment Date or the
172
Maturity Date, as the case may be. If any date for the payment of principal,
premium, if any, interest on, or any other amount with respect to, this Note
(each a "Payment Date") falls on a day that is not a Business Day, the
principal, premium, if any, or interest payable with respect to such Payment
Date will be made on the next succeeding Business Day with the same force and
effect as if made on such Payment Date, and no interest shall accrue on the
amount so payable for the period from and after such Payment Date to such next
succeeding Business Day. "Business Day" means any day, other than a Saturday or
a Sunday, that is neither a legal holiday nor a day on which banking
institutions in The City of New York are authorized or required by law,
regulation or executive order to close.
The principal of this Note payable on the Maturity Date will
be paid against presentation and surrender of this Note at the office or agency
of the Issuer maintained for that purpose in The Borough of Manhattan, The City
of New York. The Issuer hereby initially designates the Corporate Trust Office
of the Trustee in The City of New York as the office to be maintained by it
where Notes may be presented for payment, registration of transfer or exchange,
and where notices to or demands upon the Issuer or the Guarantor in respect of
the Notes or the Indenture referred to on the reverse hereof may be served.
Payments of principal and interest in respect of this Note
will be made by wire transfer of immediately available funds in such coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Reference is made to the further provisions of this Note set
forth on the reverse hereof after the Trustee's Certificate of Authentication.
Such further provisions shall for all purposes have the same effect as though
fully set forth at this place.
This Note shall not be entitled to the benefits of the
Indenture or be valid or obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by the Trustee under such
Indenture.
Capitalized terms used herein which are not otherwise defined
shall have the respective meanings assigned to them in the Indenture and the
Sixth Supplemental Indenture Sworn to before me on this _______________________
hereinafter referred to.
173
IN WITNESS WHEREOF, the Issuer has caused this instrument
to be signed manually or by facsimile by its authorized officers.
Dated:
SIMON DEBARTOLO GROUP, L.P.
as Issuer
Attest: By: SD PROPERTY GROUP, INC.
its Managing General Partner
______________________________ By: ______________________________
Name: Name:
Title: Title:
174
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By: ______________________________
Authorized Officer
175
[REVERSE OF NOTE]
SIMON DEBARTOLO GROUP, L.P.
6-3/4% NOTE DUE 2005
This Note is one of a duly authorized issue of debt securities of
the Issuer (hereinafter called the "Securities"), all issued or to be issued
under and pursuant to an Indenture dated as of November 26, 1996 (herein called
the "Indenture"), duly executed and delivered by the Issuer and Simon Property
Group, L.P. (which was, effective December 31, 1997, merged into the Issuer), as
Guarantor, to The Chase Manhattan Bank, as Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture with respect to
the series of Securities of which this Note is a part), to which Indenture and
all indentures supplemental thereto relating to this Note (including, without
limitation, the Sixth Supplemental Indenture, dated as of June 22, 1998, between
the Issuer and the Trustee) reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and immunities thereunder of
the Trustee, the Issuer and the Holders of the Securities, and of the terms upon
which the Securities are, and are to be, authenticated and delivered. The
Securities may be issued in one or more series, which different series may be
issued in various aggregate principal amounts, may mature at different times,
may bear interest (if any) at different rates, may be subject to different
redemption provisions (if any), and may otherwise vary as provided in the
Indenture or any indenture supplemental thereto. This Note is one of a series
designated as the Simon DeBartolo Group, L.P. 6-3/4% Notes due June 2005,
limited in aggregate principal amount to $300,000,000 (the "Notes").
In case an Event of Default with respect to the Notes shall have
occurred and be continuing, the principal amount of the Notes and the Make-Whole
Amount may be declared accelerated and thereupon become due and payable, in the
manner, with the effect, and subject to the conditions provided in the
Indenture.
The Notes may be redeemed at any time at the option of the
Issuer, in whole or from time to time in part, at a redemption price equal to
the sum of (i) the principal amount of the Notes being redeemed plus accrued
interest thereon to the Redemption Date and (ii) the Make- Whole Amount, if any,
with respect to such Notes. Notice of any optional redemption will be given to
Holders at their addresses, as shown in the Security Register for the Notes, not
more than 60 nor less than 30 days prior to the date fixed for redemption. The
notice of redemption will specify, among other items, the redemption price and
the principal amount of the Notes to be redeemed.
The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of not less than a majority of the
aggregate principal amount of the Securities at the time Outstanding of all
series to be affected (voting as one class), evidenced as
176
provided in the Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the Holders of the Securities of each series; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security so affected, (i) change the Stated Maturity of the
principal of, or premium, (if any) or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate or
amount of interest thereon or any premium payable upon the redemption or
acceleration thereof, or adversely affect any right of repayment at the option
of the Holder of any Security, or change any Place of Payment where, or the
currency or currencies, currency unit or units or composite currency or
currencies in which, the principal of any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof, or (ii) reduce the
aforesaid percentage of Securities the Holders of which are required to consent
to any such supplemental indenture, or (iii) reduce the percentage of Securities
the Holders of which are required to consent to any waiver of compliance with
certain provisions of the Indenture or any waiver of certain defaults and
consequences thereunder or to reduce the quorum or voting requirements set forth
in the Indenture, or (iv) effect certain other changes to the Indenture or any
supplemental indenture or in the rights of Holders of the Securities. The
Indenture also permits the Holders of a majority in principal amount of the
Outstanding Securities of any series (or, in the case of certain defaults or
Events of Default, all series of Securities), on behalf of the Holders of all
the Securities of such series (or all of the Securities, as the case may be), to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults or Events of Default under the Indenture and their
consequences, prior to any declaration accelerating the maturity of such
Securities, or subject to certain conditions, rescind a declaration of
acceleration and its consequences with respect to such Securities. Any such
consent or waiver by the Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note that may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of, premium, if any,
and interest on this Note in the manner, at the respective times, at the rate
and in the coin or currency herein prescribed.
Notwithstanding any other provision of the Indenture to the
contrary, no recourse shall be had, whether by levy or execution or otherwise,
for the payment of any sums due under the Securities, including, without
limitation, the principal of, premium, if any, or interest payable under the
Securities, or for the payment or performance of any obligation under, or for
any claim based on, the Indenture or otherwise in respect thereof, against any
partner of the Issuer, whether limited or general, including SD Property Group,
Inc., or such partner's assets or against any principal, shareholder, officer,
director, trustee or employee of such partner. It is expressly understood that
the sole remedies under the Securities and the Indenture or under any other
177
document with respect to the Securities, against such parties with respect to
such amounts, obligations or claims shall be against the Issuer.
This Note is issuable only in registered form without Coupons in
denominations of $1,000 and in integral multiples of $1,000 in excess thereof.
This Note may be exchanged for a like aggregate principal amount of Securities
of other authorized denominations at the office or agency of the Issuer in The
Borough of Manhattan, The City of New York, in the manner and subject to the
limitations provided in the Indenture, but without the payment of any service
charge, except for any tax or other governmental charge imposed in connection
therewith.
Upon due presentment for registration of transfer of this Note at
the office or agency of the Issuer in The Borough of Manhattan, The City of New
York, one or more new Securities of authorized denominations in an equal
aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without charge,
except for any tax or other governmental charge imposed in connection therewith.
The Issuer, the Trustee and any authorized agent of the Issuer or
the Trustee may deem and treat the Person in whose name this Note is registered
as the absolute owner of this Note (whether or not this Note shall be overdue
and notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal and any premium
hereof or hereon, and subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and neither the Issuer nor the Trustee nor
any authorized agent of the Issuer or the Trustee shall be affected by any
notice to the contrary.
This Note, including the validity hereof, and the Indenture shall
be governed by and construed in accordance with the laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of
such state, except as may otherwise by required by mandatory provisions of law.
178
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Note, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - _____________ Custodian_______________
(Cust) (minor)
under Uniform Gifts to Minors Act
______________________ (State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
_______________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
______________________________________________________________ this Note and all
rights thereunder hereby irrevocably constituting and appointing
_______________________________________________ Attorney to transfer this Note
on the books of the Trustee, with full power of substitution in the premises.
Dated:__________________ _______________________________________
____________________________________________
Notice: The signature(s) on this Assignment
must correspond with the name(s) as written
upon the face of this Note in every
particular, without alteration or
enlargement or any change whatsoever.
179
EXHIBIT E-3
REGISTERED REGISTERED
NO. [ ] PRINCIPAL AMOUNT
CUSIP NO. $___________
DEFINITIVE SECURITY
SIMON DEBARTOLO GROUP, L.P.
7-3/8% Note due 2018
Simon DeBartolo Group, L.P., a Delaware limited partnership (the
"Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to [ ] or its
registered assigns, the principal sum of $___________ Dollars on June 15, 2018
(the "Maturity Date"), and to pay interest thereon from June 22, 1998,
semi-annually in arrears on June 15 and December 15 of each year (each, an
"Interest Payment Date"), commencing on December 15, 1998, and on the Maturity
Date, at the rate of 7-3/8% per annum, until payment of said principal sum has
been made or duly provided for.
The interest so payable and punctually paid or duly provided for on
any Interest Payment Date and on the Maturity Date will be paid to the Holder in
whose name this Note (or one or more predecessor Notes) is registered in the
Security Register applicable to the Note at the close of business on the "Record
Date" for such payment, which will be 15 calendar days prior to such payment
date or the Maturity Date, as the case may be, regardless of whether such day is
a Business Day (as defined below). Any interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date, and may be paid to the Holder in whose name this Note (or one or
more predecessor Notes) is registered at the close of business on a subsequent
record date for the payment of such defaulted interest (which shall be not less
than 10 calendar days prior to the date of the payment of such defaulted
interest) established by notice given by mail by or on behalf of the Issuer to
the Holders of the Notes not less than 10 calendar days preceding such
subsequent record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture (as defined below). Interest on this
Note will be computed on the basis of a 360-day year of twelve 30-day months.
Interest payable on this Note on any Interest Payment Date and on
the Maturity Date, as the case may be, will be the amount of interest accrued
from and including the immediately preceding Interest Payment Date (or from and
including June 22, 1998, in the case of the initial Interest Payment Date) to
but excluding the applicable Interest Payment Date or the
180
Maturity Date, as the case may be. If any date for the payment of principal,
premium, if any, interest on, or any other amount with respect to, this Note
(each a "Payment Date") falls on a day that is not a Business Day, the
principal, premium, if any, or interest payable with respect to such Payment
Date will be made on the next succeeding Business Day with the same force and
effect as if made on such Payment Date, and no interest shall accrue on the
amount so payable for the period from and after such Payment Date to such next
succeeding Business Day. "Business Day" means any day, other than a Saturday or
a Sunday, that is neither a legal holiday nor a day on which banking
institutions in The City of New York are authorized or required by law,
regulation or executive order to close.
The principal of this Note payable on the Maturity Date will be paid
against presentation and surrender of this Note at the office or agency of the
Issuer maintained for that purpose in The Borough of Manhattan, The City of New
York. The Issuer hereby initially designates the Corporate Trust Office of the
Trustee in The City of New York as the office to be maintained by it where Notes
may be presented for payment, registration of transfer or exchange, and where
notices to or demands upon the Issuer or the Guarantor in respect of the Notes
or the Indenture referred to on the reverse hereof may be served.
Payments of principal and interest in respect of this Note will be
made by wire transfer of immediately available funds in such coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Reference is made to the further provisions of this Note set forth
on the reverse hereof after the Trustee's Certificate of Authentication. Such
further provisions shall for all purposes have the same effect as though fully
set forth at this place.
This Note shall not be entitled to the benefits of the Indenture or
be valid or obligatory for any purpose until the Certificate of Authentication
hereon shall have been signed by the Trustee under such Indenture.
Capitalized terms used herein which are not otherwise defined shall
have the respective meanings assigned to them in the Indenture and the Sixth
Supplemental Indenture hereinafter referred to.
181
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed manually or by facsimile by its authorized officers.
Dated:
SIMON DEBARTOLO GROUP, L.P.
as Issuer
Attest: By: SD PROPERTY GROUP, INC.
its Managing General Partner
______________________________ By: ______________________________
Name: Name:
Title: Title:
182
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By: ______________________________
Authorized Officer
183
[REVERSE OF NOTE]
SIMON DEBARTOLO GROUP, L.P.
7-3/8% NOTE DUE 2018
This Note is one of a duly authorized issue of debt securities of
the Issuer (hereinafter called the "Securities"), all issued or to be issued
under and pursuant to an Indenture dated as of November 26, 1996 (herein called
the "Indenture"), duly executed and delivered by the Issuer and Simon Property
Group, L.P. (which was, effective December 31, 1997, merged into the Issuer), as
Guarantor, to The Chase Manhattan Bank, as Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture with respect to
the series of Securities of which this Note is a part), to which Indenture and
all indentures supplemental thereto relating to this Note (including, without
limitation, the Sixth Supplemental Indenture, dated as of June 22, 1998, between
the Issuer and the Trustee) reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and immunities thereunder of
the Trustee, the Issuer and the Holders of the Securities, and of the terms upon
which the Securities are, and are to be, authenticated and delivered. The
Securities may be issued in one or more series, which different series may be
issued in various aggregate principal amounts, may mature at different times,
may bear interest (if any) at different rates, may be subject to different
redemption provisions (if any), and may otherwise vary as provided in the
Indenture or any indenture supplemental thereto. This Note is one of a series
designated as the Simon DeBartolo Group, L.P. 7-3/8% Notes due June 2018,
limited in aggregate principal amount to $200,000,000 (the "Notes").
In case an Event of Default with respect to the Notes shall have
occurred and be continuing, the principal amount of the Notes and the Make-Whole
Amount may be declared accelerated and thereupon become due and payable, in the
manner, with the effect, and subject to the conditions provided in the
Indenture.
The Notes may be redeemed at any time at the option of the Issuer,
in whole or from time to time in part, at a redemption price equal to the sum of
(i) the principal amount of the Notes being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make- Whole Amount, if any, with
respect to such Notes. Notice of any optional redemption will be given to
Holders at their addresses, as shown in the Security Register for the Notes, not
more than 60 nor less than 30 days prior to the date fixed for redemption. The
notice of redemption will specify, among other items, the redemption price and
the principal amount of the Notes to be redeemed.
The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of not less than a majority of the
aggregate principal amount of the Securities at the time Outstanding of all
series to be affected (voting as one class), evidenced as
184
provided in the Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the Holders of the Securities of each series; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security so affected, (i) change the Stated Maturity of the
principal of, or premium, (if any) or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate or
amount of interest thereon or any premium payable upon the redemption or
acceleration thereof, or adversely affect any right of repayment at the option
of the Holder of any Security, or change any Place of Payment where, or the
currency or currencies, currency unit or units or composite currency or
currencies in which, the principal of any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof, or (ii) reduce the
aforesaid percentage of Securities the Holders of which are required to consent
to any such supplemental indenture, or (iii) reduce the percentage of Securities
the Holders of which are required to consent to any waiver of compliance with
certain provisions of the Indenture or any waiver of certain defaults and
consequences thereunder or to reduce the quorum or voting requirements set forth
in the Indenture, or (iv) effect certain other changes to the Indenture or any
supplemental indenture or in the rights of Holders of the Securities. The
Indenture also permits the Holders of a majority in principal amount of the
Outstanding Securities of any series (or, in the case of certain defaults or
Events of Default, all series of Securities), on behalf of the Holders of all
the Securities of such series (or all of the Securities, as the case may be), to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults or Events of Default under the Indenture and their
consequences, prior to any declaration accelerating the maturity of such
Securities, or subject to certain conditions, rescind a declaration of
acceleration and its consequences with respect to such Securities. Any such
consent or waiver by the Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note that may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Note.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Note in the manner, at the respective times, at the rate and in
the coin or currency herein prescribed.
Notwithstanding any other provision of the Indenture to the
contrary, no recourse shall be had, whether by levy or execution or otherwise,
for the payment of any sums due under the Securities, including, without
limitation, the principal of, premium, if any, or interest payable under the
Securities, or for the payment or performance of any obligation under, or for
any claim based on, the Indenture or otherwise in respect thereof, against any
partner of the Issuer, whether limited or general, including SD Property Group,
Inc., or such partner's assets or against any principal, shareholder, officer,
director, trustee or employee of such partner. It is expressly understood that
the sole remedies under the Securities and the Indenture or under any other
185
document with respect to the Securities, against such parties with respect to
such amounts, obligations or claims shall be against the Issuer.
This Note is issuable only in registered form without Coupons in
denominations of $1,000 and in integral multiples of $1,000 in excess thereof.
This Note may be exchanged for a like aggregate principal amount of Securities
of other authorized denominations at the office or agency of the Issuer in The
Borough of Manhattan, The City of New York, in the manner and subject to the
limitations provided in the Indenture, but without the payment of any service
charge, except for any tax or other governmental charge imposed in connection
therewith.
Upon due presentment for registration of transfer of this Note at
the office or agency of the Issuer in The Borough of Manhattan, The City of New
York, one or more new Securities of authorized denominations in an equal
aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without charge,
except for any tax or other governmental charge imposed in connection therewith.
The Issuer, the Trustee and any authorized agent of the Issuer or
the Trustee may deem and treat the Person in whose name this Note is registered
as the absolute owner of this Note (whether or not this Note shall be overdue
and notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal and any premium
hereof or hereon, and subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and neither the Issuer nor the Trustee nor
any authorized agent of the Issuer or the Trustee shall be affected by any
notice to the contrary.
This Note, including the validity hereof, and the Indenture shall be
governed by and construed in accordance with the laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of such
state, except as may otherwise by required by mandatory provisions of law.
186
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Note, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ____________ Custodian ________________
(Cust) (minor)
under Uniform Gifts to Minors Act
__________________________(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
______________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_____________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
______________________________________________________________ this Note and all
rights thereunder hereby irrevocably constituting and appointing
______________________________________________ Attorney to transfer this Note
on the books of the Trustee, with full power of substitution in the premises.
Dated:__________________ ______________________________
____________________________________________
Notice: The signature(s) on this Assignment
must correspond with the name(s) as written
upon the face of this Note in every
particular, without alteration or
enlargement or any change whatsoever.
187
EXHIBIT F
THIS MOPPRS HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS MOPPRS NOR ANY INTEREST HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. THIS MOPPRS WILL BE ISSUED AND MAY BE TRANSFERRED ONLY
IN MINIMUM DENOMINATIONS OF $100,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS
THEREOF.
THE HOLDER OF THIS MOPPRS BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OTHERWISE TRANSFER SUCH MOPPRS, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
OF THIS MOPPRS AND THE LAST DATE ON WHICH THE OPERATING PARTNERSHIP OR ANY
AFFILIATE OF THE OPERATING PARTNERSHIP WAS THE OWNER OF THIS MOPPRS (OR ANY
PREDECESSOR OF SUCH MOPPRS), ONLY (A) TO THE OPERATING PARTNERSHIP OR ONE OF THE
INITIAL PURCHASERS OR BY, THROUGH OR IN A TRANSACTION APPROVED BY, AN INITIAL
PURCHASER, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE MOPPRS ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) INSIDE THE UNITED STATES TO AN INSTITUTIONAL
ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3), OR (7) UNDER THE
SECURITIES ACT) ACQUIRING THE SECURITIES FOR ITS OWN ACCOUNT OR AS A FIDUCIARY
OR AGENT FOR OTHERS (WHICH OTHERS MUST ALSO BE INSTITUTIONAL ACCREDITED
INVESTORS UNLESS SUCH TRANSFEREE IS A BANK ACTING IN ITS FIDUCIARY CAPACITY) FOR
INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT,
(E) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES TO AN
INSTITUTION THAT IS NOT A U.S. PERSON (AND WAS NOT PURCHASING FOR THE ACCOUNT OR
BENEFIT OF A U.S. PERSON), OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE
FOREGOING CASES, TO A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER
SIDE OF THIS MOPPRS BEING COMPLETED AND DELIVERED BY THE TRANSFEROR AND, IF
APPLICABLE, THE TRANSFEREE TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
188
THE HOLDER OF THIS MOPPRS BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL MOPPRS OF THE
SERIES.
UNLESS THIS MOPPRS IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
OPERATING PARTNERSHIP OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
CERTIFICATED FORM, THIS MOPPRS MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC
TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR
BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
REGISTERED REGISTERED PRINCIPAL
No. [ ] AMOUNT: $___________
CUSIP No.:
SIMON DEBARTOLO GROUP, L.P.
7% MandatOry Par Put Remarketed Securities_ ("MOPPRS_") due 2028.
ORIGINAL ISSUE DATE: INTEREST RATE TO REMARKETING DATE: 7%
June 22, 1998
REMARKETING DATE: INTEREST RATE FROM REMARKETING DATE TO
June 16, 2008 MATURITY:
To be determined as provided herein
and set forth in the records of the
Trustee
STATED MATURITY DATE: INTEREST PAYMENT DATE(S):
June 15, 2028 June 15 and December 15, except that
the interest payment date in June 2008
AUTHORIZED DENOMINATION: will be June 16, 2008
$100,000 and integral multiples of
$1,000 in
189
______________
excess thereof "MandatOry Par Put Remarketed Securities_" and "MOPPRS_" are
service marks owned by Merrill Lynch & Co., Inc.
190
SIMON DEBARTOLO GROUP, L.P., a Delaware limited partnership (the
"Operating Partnership"), which term includes any successor under the Indenture
hereinafter referred to, for value received, hereby promises to pay to Cede &
Co., a nominee of The Depository Trust Company ("DTC"), or its registered
assigns, the principal amount of ($___________), on the Stated Maturity Date
specified above (or any earlier redemption date or repurchase date) (each such
Stated Maturity Date, redemption date or repurchase date being hereinafter
referred to as the "Maturity Date" with respect to the principal repayable on
such date) and to pay interest thereon (and on any overdue principal, premium
and/or interest to the extent legally enforceable) at the Interest Rate per
annum specified above to June 16, 2008 (the "Remarketing Date"), and thereafter,
subject to the terms and conditions set forth herein, at the Interest Rate
determined by the Remarketing Dealer (as defined below) in accordance with the
procedures set forth below (the "Interest Rate to Maturity"), until the
principal hereof is paid or duly made available for payment. The Operating
Partnership will pay interest in arrears on each Interest Payment Date, if any,
specified above (each, an "Interest Payment Date"), commencing with the first
Interest Payment Date next succeeding the Original Issue Date specified above,
and on the Maturity Date. Interest on this MOPPRS will be computed on the basis
of a 360-day year of twelve 30-day months.
If, pursuant to the Remarketing Agreement, dated as of the date
hereof (the "Remarketing Agreement"), between Merrill Lynch, Pierce, Fenner &
Smith Incorporated, as Remarketing Dealer (the "Remarketing Dealer"), and the
Operating Partnership, the Remarketing Dealer elects to remarket the MOPPRS,
then, except as otherwise set forth herein, (i) this MOPPRS shall be subject to
mandatory tender to the Remarketing Dealer for remarketing on the Remarketing
Date, on the terms and subject to the conditions set forth herein, and (ii) on
and after the Remarketing Date, this MOPPRS shall bear interest at the Interest
Rate to Maturity determined by the Remarketing Dealer in accordance with the
procedures set forth in Section 3 herein. The Remarketing Dealer's duties set
forth herein shall be performed pursuant to the Remarketing Agreement.
Interest on this MOPPRS will accrue from, and including, the
immediately preceding Interest Payment Date to which interest has been paid or
duly provided for (or from, and including, the Original Issue Date, if no
interest has been paid or duly provided for) to, but excluding, the applicable
Interest Payment Date or the Maturity Date, as the case may be. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, subject to certain exceptions described herein, be paid to the Person in
whose name this MOPPRS (or one or more predecessor MOPPRS) is registered at the
close of business on the fifteenth calendar day (whether or not a Business Day,
as defined below) immediately preceding such Interest Payment Date (the "Record
Date"). Any such interest not so punctually paid or duly provided for on any
Interest Payment Date other than the Maturity Date ("Defaulted Interest") shall
forthwith cease to be payable to the Holder on any Record Date, and, instead,
shall be paid to the Person in whose name this MOPPRS is registered at the close
of business on a special record date (the "Special Record Date") for the payment
of such Defaulted Interest to be fixed by the Trustee hereinafter referred to,
notice whereof shall be given to the Holder of this MOPPRS by the Trustee not
less than 10
191
calendar days prior to such Special Record Date or may be paid at any time in
any other lawful manner, all as more fully provided for in the Indenture.
Payment of principal and premium, if any, in respect of this MOPPRS
due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this MOPPRS at the office or agency maintained by
the Operating Partnership for that purpose in the Borough of Manhattan, The City
of New York, currently the office of the Trustee located at 450 West 33rd
Street, 15th Floor, New York, New York, 10001, or at such other paying agency in
the Borough of Manhattan, The City of New York, as the Operating Partnership may
determine. Payment of interest due on any Interest Payment Date will be made at
the aforementioned office or agency maintained by the Operating Partnership or,
at the option of the Operating Partnership, by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register maintained by the Trustee; provided, however, that a Holder of
U.S.$10,000,000 or more in aggregate principal amount of MOPPRS (whether having
identical or different terms and provisions) will be entitled to receive
interest payments on such Interest Payment Date by wire transfer of immediately
available funds if appropriate wire transfer instructions have been received in
writing by the Trustee not less than 15 calendar days prior to such Interest
Payment Date. Any such wire transfer instructions received by the Trustee shall
remain in effect until revoked by such Holder. Notwithstanding the foregoing or
any provision hereof, if this MOPPRS is a global security (as evidenced by the
legend forth above and provided in the Indenture), and is held in book-entry
form through the facilities of DTC, payments on this MOPPRS will be made to DTC
or its nominee in accordance with the arrangements then in effect between the
Trustee and DTC.
If this MOPPRS is exchanged in an Exchange Offer prior to the Record
Date for the first Interest Payment Date following such exchange, accrued and
unpaid interest, if any, on this MOPPRS, up to but not including the date of
issuance of the Exchange MOPPRSs issued in exchange for this MOPPRSs, shall be
paid on the first Interest Payment Date for the Exchange MOPPRSs to the Holder
or Holders of the Exchange MOPPRSs on the first Record Date with respect to the
Exchange MOPPRSs. If this MOPPRS is exchanged in an Exchange Offer subsequent to
the Record Date for the first Interest Payment Date following such exchange but
on or prior to such Interest Payment Date, then any such accrued and unpaid
interest with respect to such MOPPRS and any accrued and unpaid interest on the
Exchange issued in exchange for this MOPPRS, through the day before the Interest
Payment Date, shall be paid on the Interest Payment Date to the Holder of this
MOPPRS on the Record Date.
The Holder of this MOPPRS is entitled to the benefits of the
Registration Rights Agreement dated June 22, 1998 (the"Registration Rights
Agreement") among the Issuer and Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch"), Morgan Stanley & Co. Incorporated
("Morgan Stanley"), Chase Securities Inc., Lehman Brothers Inc., J.P. Morgan
Securities Inc., NationsBanc Montgomery Securities LLC and UBS Securities LLC
(collectively, the "Initial Purchasers").
192
If the Operating Partnership fails to comply with certain provisions
of the Registration Rights Agreement, in each case as described below, then a
special interest premium (the "Special Interest Premium") shall become payable
in respect of the Securities as follows:
If (i) a registration statement with respect to the Exchange MOPPRS
("the Exchange Offer Registration Statement") is not filed with the Commission
on or prior to the 90th day following the Closing Date, (ii) the Exchange Offer
Registration Statement is not declared effective on or prior to the 135th day
following the Closing Date or (iii) the Exchange Offer is not consummated or the
shelf registration statement covering resales of the MOPPRS (the "Shelf
Registration Statement") is not declared effective on or prior to the 180th day
following the Closing Date, the Special Interest Premium shall accrue from and
including the next day following each of (a) such 90-day period in the case of
clause (i) above, (b) such 135-day period in the case of clause (ii) above and
(c) such 180-day period in the cause of clause (iii) above, in each case at a
rate equal to 0.50% per annum. The aggregate amount of the Special Interest
Premium payable pursuant to the above provisions will in no event exceed 0.50%
per annum. If the Exchange Offer Registration Statement is not declared
effective on or prior to the 135th day following the Closing Date and the
Operating Partnership shall request the Holder of this MOPPRS to provide the
information called for by the Registration Rights Agreement for inclusion in the
Shelf Registration Statement, and the Holder of this MOPPRS does not deliver
such information to the Operating Partnership when required pursuant to the
Registration Rights Agreement, then the Holder of this MOPPRS will not be
entitled to any such increase in the interest rate for any day after the 180th
day following the Closing Date. Upon (1) the filing of the Exchange Offer
Registration statement after the 90-day period described in clause (i), (2) the
effectiveness of the Exchange Offer Registration Statement after the 135-day
period described in clause (ii) above or (3) the consummation of the Exchange
Offer or the effectiveness of a Shelf Registration Statement, as the case may
be, after the 180-day period described in clause (iii) above, the interest rate
on this MOPPRS from the date of such effectiveness or consummation, as the case
may be, will be reduced to the original interest rate provided for herein.
If a Shelf Registration Statement is declared effective, and if the
Operating Partnership fails to keep such Shelf Registration Statement
continuously (x) effective or (y) useable for resales for the period required by
the Registration Rights Agreement due to certain circumstances relating to
pending corporate developments, public filings with the Commission and similar
events, or because the prospectus contains an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, and such
failure continues for more than 60 days (whether or not consecutive) in any
12-month period (the 61st day being referred to as the "Default Day"), then from
the Default Day until the earlier of (i) the date that is the second anniversary
of the Closing Date (or, if Rule 144(k) of the Securities Act is amended to
provide a shorter restrictive period, the end of such shorter period) or (ii)
the date as of which this Note is sold pursuant to the Shelf Registration
Statement, the Special Interest Premium shall accrue at a rate equal to 0.50%
per annum.
193
If any Interest Payment Date or the Stated Maturity Date falls on a
day that is not a Business Day, the required payment of principal, premium, if
any, and/or interest shall be made on the next succeeding Business Day with the
same force and effect as if it were made on the date such payment was due, and
no interest shall accrue with respect to such payment for the period from and
after such Interest Payment Date or the Stated Maturity Date, as the case may
be, to the date of such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday
or Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law, regulation or executive order to
close in New York, New York.
The Operating Partnership is obligated to make all payments of
principal, premium, if any, and interest in respect of this MOPPRS in such coin
or currency of the United States of America as at the time of such payment is
legal tender for the payment of public and private debts in the United States of
America.
Reference is hereby made to the further provisions of this MOPPRS
set forth on the reverse hereof, which further provisions shall have the same
force and effect as if set forth on the face hereof.
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this MOPPRS shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
Capitalized terms used herein which are not otherwise defined shall
have the respective meanings assigned to them in the Indenture and the Sixth
Supplemental Indenture hereinafter referred to.
194
IN WITNESS WHEREOF, SIMON DEBARTOLO GROUP, L.P. has caused this
MOPPRS to be duly executed by one of its duly authorized officers.
Dated:
SIMON DEBARTOLO GROUP, L.P.
as Issuer
By: SD Property Group, Inc.
as Managing General Partner
By:_________________________________________
Name:
Title:
Attest:
____________________
Name:
Title:
195
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:_______________________________________
Authorized Officer
196
[REVERSE OF CERTIFICATE]
SIMON DEBARTOLO GROUP, L.P.
7% MandatOry Par Put Remarketed Securities_ ("MOPPRS_") due 2028
23 INDENTURE. (a) This MOPPRS is one of a duly authorized series of
Securities (the "Debt Securities") of the Operating Partnership issued and to be
issued under an Indenture, dated as of November 26, 1996 (herein called the
"Indenture"), duly executed and delivered by the Issuer and Simon Property
Group, L.P. (which was, effective December 31, 1997, merged with the Issuer), as
Guarantor, to The Chase Manhattan Bank, as Trustee (herein called the "Trustee"
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto (including, without
limitation, the Sixth Supplemental Indenture, dated as of June 22, 1998 (the
"Sixth Supplemental Indenture") between the Issuer and the Trustee) reference is
hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Operating Partnership, the Trustee and
the Holders of the Debt Securities, and of the terms upon which the Debt
Securities are, and are to be, authenticated and delivered. This security is one
of the series of Debt Securities designated as "7% MandatOry Par Put Remarketed
Securities_ ("MOPPRS_") due 2028" ("MOPPRS"), which MOPPRS are limited to
aggregate principal amount of $200,000,000.
(a) The Initial MOPPRS are issuable only in registered form without
coupons in minimum denominations of U.S.$100,000 and integral multiples of
U.S.$1,000 in excess thereof.
(b) This MOPPRS will not be subject to any sinking fund and will not be
repayable at the option of the Holder hereof prior to the Stated Maturity Date.
24 MANDATORY TENDER. Provided that on a Business Day not later than five
Business Days prior to the Remarketing Date the Remarketing Dealer notifies the
Operating Partnership and the Trustee of its election to purchase the MOPPRS on
the Remarketing Date for remarketing (the "Notification Date"), this MOPPRS
shall be subject to mandatory tender to the Remarketing Dealer, and the
Remarketing Dealer shall be obligated to purchase the MOPPRS, for remarketing on
the Remarketing Date, subject in each case to the conditions described herein
and set forth in the Remarketing Agreement. The purchase price for the tendered
MOPPRS shall equal 100% of the principal amount thereof. From and after the
Remarketing Date, the MOPPRS shall bear interest at the Interest Rate to
Maturity determined pursuant to Section 3 hereof. If the Remarketing Dealer
elects to remarket the MOPPRS, the obligation of the Remarketing Dealer to
purchase this MOPPRS on the Remarketing Date is subject to the conditions
specified in Section 8 of the Remarketing Agreement. If for any reason the
Remarketing Dealer does not purchase all tendered MOPPRS on the Remarketing
Date, the Operating Partnership shall be required to repurchase from the
Beneficial Owners thereof, and the Beneficial Owners will be required to sell to
the Operating Partnership, all the MOPPRS at a price equal to the principal
amount thereof plus all accrued and unpaid interest, if any, on the MOPPRS to
the Remarketing Date as provided in Section 4 hereof.
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"Beneficial Owner" shall mean each Person who acquires an interest in the
MOPPRS which is reflected on the records of the DTC through its participants.
25 DETERMINATION OF INTEREST RATE TO MATURITY. (a) Subject to the
Remarketing Dealer's election to remarket the MOPPRS as provided in Section 2
hereof and the Remarketing Agreement, the Interest Rate to Maturity shall be
determined by the Remarketing Dealer by 3:30 p.m., New York City time, on and as
of the third Business Day immediately preceding the Remarketing Date (the
"Determination Date") to the nearest one hundred-thousandth (0.00001) of one
percent per annum, and will be equal to the sum of 5.649% (the "Base Rate") plus
the Applicable Spread, which will be based on the Dollar Price of the MOPPRS.
The "Applicable Spread" will be the lowest bid indication, expressed as a
spread (in the form of a percentage or in basis points) above the Base Rate,
obtained by the Remarketing Dealer on the Determination Date from the bids
quoted by five Reference Corporate Dealers for the full aggregate principal
amount of the MOPPRS at a purchase price equal to the Dollar Price, but assuming
(i) an issue date equal to the Remarketing Date, with settlement on such date
without accrued interest, (ii) a maturity date equal to the Stated Maturity Date
of the MOPPRS, and (iii) a stated annual interest rate, payable semiannually on
each Interest Payment Date, equal to the Base Rate plus the spread bid by the
applicable Reference Corporate Dealer. If fewer than five Reference Corporate
Dealers bid as described above, then the Applicable Spread shall be the lowest
of such bid indications obtained as described above. The Interest Rate to
Maturity announced by the Remarketing Dealer, absent manifest error, shall be
binding and conclusive upon the Beneficial Owners and Holders of the MOPPRS, the
Operating Partnership and the Trustee.
"Dollar Price" means, with respect to the MOPPRS, the present value
determined by the Remarketing Dealer, as of the Remarketing Date, of the
Remaining Scheduled Payments discounted to the Remarketing Date, on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day months), at the
Treasury Rate.
"Reference Corporate Dealers" means leading dealers of publicly traded
debt securities of the Operating Partnership in The City of New York (which may
include the Remarketing Dealer or one of its Affiliates, but not both the
Remarketing Dealer (and reasonably acceptable to the Operating Partnership).
"Treasury Rate" means, with respect to the Determination Date, the rate
per annum equal to the semiannual equivalent yield to maturity or interpolated
(on a day count basis) yield to maturity of the Comparable Treasury Issues,
assuming a price for the Comparable Treasury Issues (expressed as a percentage
of its principal amount), equal to the Comparable Treasury Price for the
Determination Date.
"Comparable Treasury Issues" means the United States Treasury security or
securities selected by the Remarketing Dealer as having an actual or
interpolated remaining maturity or maturities of 30 years.
198
"Comparable Treasury Price" means, with respect to the Determination Date,
(a) the offer prices for the Comparable Treasury Issues (expressed in each case
as a percentage of its principal amount) on the Determination Date, as set forth
on "Telerate Page 500" (or such other page as may replace Telerate Page 500), or
(b) if such page (or any successor page) is not displayed or does not contain
such offer prices on the Determination Date, (i) the average of the Reference
Treasury Dealer Quotations for the Determination Date, after excluding the
highest and lowest of such Reference Treasury Dealer Quotations, or (ii) if the
Remarketing Dealer obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such Reference Treasury Dealer Quotations.
"Telerate Page 500" means the display designated as "Telerate Page 500" on Dow
Jones Markets Limited (or such other page as may replace Telerate Page 500 on
such service) or such other service displaying the offer prices specified in (a)
above as may replace Dow Jones Markets Limited.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and the Remarketing Date, the offer prices for the
Comparable Treasury Issues (expressed in each case as a percentage of its
principal amount) quoted to the Remarketing Dealer by such Reference Treasury
Dealer by 3:30 p.m., New York City time, on the Determination Date.
"Reference Treasury Dealer" means each of Credit Suisse First Boston
Corporation, Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Morgan Stanley & Co. Incorporated and Salomon Brothers Inc. (or
their respective affiliates which are primary U.S. Government Securities
Dealers) and their respective successors; provided, however, that if any of the
foregoing or their Affiliates shall cease to be a primary U.S. Government
securities dealer in The City of New York (a "Primary Treasury Dealer"), the
Remarketing Dealer shall substitute therefor another Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to the MOPPRS, the
remaining scheduled payments of the principal thereof and interest thereon,
calculated at the Base Rate only, that would be due after the Remarketing Date
to and including the Stated Maturity Date, as determined by the Remarketing
Dealer.
(a) Provided that the Remarketing Dealer has previously notified the
Operating Partnership and the Trustee on the Notification Date of its intention
to purchase all tendered MOPPRS on the Remarketing Date, the Remarketing Dealer
will notify the Operating Partnership, the Trustee and DTC by telephone,
confirmed in writing (which may include facsimile or other electronic
transmission), by 4:00 p.m., New York City time, on the Determination Date, of
the Interest Rate to Maturity. All of the tendered MOPPRS shall be automatically
delivered to the account of the Trustee, by book-entry through DTC pending
payment of the purchase price therefor, on the Remarketing Date.
In the event that the Remarketing Dealer purchases the tendered MOPPRS on
the Remarketing Date, the Remarketing Dealer shall make or cause the Trustee to
make payment to the
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DTC Participant of each tendering Beneficial Owner of MOPPRS subject to
remarketing, by book-entry through DTC by the close of business on the
Remarketing Date against delivery through DTC of such Beneficial Owner's
tendered MOPPRS, of 100% of the principal amount of the tendered MOPPRS that
have been purchased for remarketing by the Remarketing Dealer. If the
Remarketing Dealer does not purchase all of the MOPPRS on the Remarketing Date,
it shall be the obligation of the Operating Partnership to make or cause to be
made such payment for the MOPPRS, as provided in Section 4 hereof. In any case,
the Operating Partnership shall make or cause the Trustee to make payment of
interest to each Beneficial Owner of MOPPRS due on the Remarketing Date by
book-entry through DTC by the close of business on the Remarketing Date.
"DTC Participant" shall mean any Person that has an account with DTC
through which Beneficial Owners acquire, directly or indirectly, an interest in
the MOPPRS.
The transactions set forth in this Section shall be executed on the
Remarketing Date through DTC in accordance with the procedures of DTC, and the
accounts of the respective DTC Participants will be debited and credited and the
MOPPRS delivered by book entry as necessary to effect the purchases and sales
thereof.
Transactions involving the sale and purchase of MOPPRS remarketed by the
Remarketing Dealer on and after the Remarketing Date shall settle in immediately
available funds through DTC's Same-Day Funds Settlement System.
The tender and settlement procedures set forth above, including provisions
for payment by purchasers of MOPPRS in the remarketing or for payment to selling
Beneficial Owners of tendered MOPPRS, may be modified to the extent required by
DTC or to the extent required to facilitate the tender and remarketing of MOPPRS
in certificated form, if the book-entry system is no longer available for the
MOPPRS at the time of the remarketing. In addition, the Remarketing Dealer may,
in accordance with the terms of the Indenture, modify the tender and settlement
procedures set forth above in order to facilitate the tender and settlement
process.
As long as DTC's nominee holds the certificates representing any MOPPRS in
the book-entry system of DTC, no certificates for such MOPPRS will be delivered
by any selling Beneficial Owner to reflect any transfer of such MOPPRS effected
in the remarketing.
(b) Notwithstanding any provision herein to the contrary, upon the
occurrence of any event as specified in Section 11(b) of the Remarketing
Agreement, the Remarketing Dealer, in its sole discretion at any time between
the Determination Date and 3:30 p.m., New York City time, on the Business Day
immediately preceding the Remarketing Date, may elect to purchase the MOPPRS for
remarketing and determine a new Interest Rate to Maturity in the manner provided
in Section 3(a) hereof, except that for purposes of determining the new Interest
Rate to Maturity pursuant to this paragraph, the Determination Date referred to
therein shall be the date of such election and redetermination. The Remarketing
Dealer shall notify the Operating Partnership, the Trustee and DTC by telephone,
confirmed in writing (which may include facsimile or other
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electronic transmission), by 4:00 p.m., New York City time, on the date of such
election, of the new Interest Rate to Maturity applicable to the MOPPRS.
Thereupon, such new Interest Rate to Maturity shall supersede and replace any
Interest Rate to Maturity previously determined by the Remarketing Dealer and,
absent manifest error, shall be binding and conclusive upon the Beneficial
Owners and Holders of the MOPPRS on or after the Remarketing Date, the Operating
Partnership and the Trustee.
26 REPURCHASE BY OPERATING PARTNERSHIP. In the event that (i) the
Remarketing Dealer for any reason does not notify the Operating Partnership of
the Interest Rate to Maturity by 4:00 p.m., New York City time, on the
Determination Date, or (ii) prior to the Remarketing Date, the Remarketing
Dealer has resigned and no successor has been appointed on or before the
Determination Date, or (iii) the Remarketing Dealer has elected to terminate the
Remarketing Agreement pursuant to Section 8 or Section 11 of the Remarketing
Agreement at any time after the Remarketing Dealer elects on the Notification
Date to remarket the MOPPRS, or (iv) the Remarketing Dealer for any reason does
not elect to purchase the MOPPRS for remarketing on the Remarketing Date, or (v)
the Remarketing Dealer for any reason does not purchase all tendered MOPPRS on
the Remarketing Date, the Operating Partnership shall repurchase all the MOPPRS
as a whole on the Remarketing Date at a price equal to 100% of the principal
amount of the MOPPRS plus all accrued and unpaid interest, if any, on the MOPPRS
to the Remarketing Date. In any such case, payment will be made by the Operating
Partnership through the Trustee to the DTC Participant of each tendering
Beneficial Owner of MOPPRS, by book entry through DTC by the close of business
on the Remarketing Date against delivery through DTC of such Beneficial Owner's
tendered MOPPRS.
27 REDEMPTION. If the Remarketing Dealer elects to remarket the MOPPRS on
the Remarketing Date, the MOPPRS shall be subject to redemption at the option of
the Operating Partnership from the Remarketing Dealer, as a whole but not in
part, as set forth in this Section. The Operating Partnership shall notify the
Remarketing Dealer and the Trustee, not later than the Business Day immediately
preceding the Determination Date, if the Operating Partnership irrevocably
elects to exercise its right to redeem the MOPPRS, in whole but not in part,
from the Remarketing Dealer on the Remarketing Date at the Optional Redemption
Price. If the Operating Partnership so elects, it shall redeem the MOPPRS by
payment to the Remarketing Dealer as provided in the Remarketing Agreement.
The "Optional Redemption Price" shall be the greater of (i) 100% of the
principal amount of the MOPPRS and (ii) the sum of the present values of the
Remaining Scheduled Payments thereon, as determined by the Remarketing Dealer,
discounted to the Remarketing Date on a semiannual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate, plus in either
case accrued and unpaid interest from the Remarketing Date on the principal
amount being redeemed to the date of redemption. If the Operating Partnership
elects of redeem the MOPPRS, it shall pay such Optional Redemption Price in
same-day funds by wire transfer to an account designated by the Remarketing
Dealer on the Remarketing Date.
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In addition, the MOPPRS may be redeemed at any time at the option of the
Operating Partnership, (x) prior to the Remarketing Date with the consent of the
Remarketing Dealer and (y) if the Remarketing Dealer has remarketed the MOPPRS,
after the Remarketing Date, in all cases, in whole or from time to time in part,
at a redemption price equal to the sum of (i) the principal amount of the MOPPRS
being redeemed plus accrued interest thereon to the redemption date and (ii) the
Make-Whole Amount (as defined below).
"Make-Whole Amount" means, in connection with any optional redemption or
accelerated payment of any MOPPRS, the excess, if any, of (i) the aggregate
present value, as of the date of such redemption or accelerated payment of each
dollar of principal being redeemed or paid and the amount of interest (exclusive
of interest accrued to the date of redemption or accelerated payment) that would
have been payable in respect of each such dollar if such redemption or
accelerated payment had not been made (through the Remarketing Date in the case
of a Make-Whole Amount with respect to a redemption of MOPPRS prior to the
Remarketing Date) determined by discounting, on a semi-annual basis, such
principal and interest at the Reinvestment Rate (determined on the third
Business Day preceding the date notice of such redemption is given or
declaration of acceleration is made) from the respective dates on which such
principal and interest would have been payable if such redemption or accelerated
payment had not been made, to the date of redemption or accelerated payment,
over (ii) the aggregate principal amount of the MOPPRS being redeemed or
accelerated.
28 EFFECT OF EVENTS OF DEFAULT. If an Event of Default shall occur and be
continuing, the principal of this MOPPRS may, and in certain cases shall, be
accelerated in the manner and with the effect provided in the Indenture.
29 DEFEASANCE. The Indenture contains provisions for defeasance of (i) the
entire indebtedness of certain Debt Securities or (ii) certain covenants and
Events of Default with respect to the Debt Securities, in each case upon
compliance with certain conditions set forth therein. Except as otherwise
permitted herein and in the Remarketing Agreement, prior to the Remarketing
Date, neither the Operating Partnership nor any of its subsidiaries or
affiliates shall defease, purchase or otherwise acquire, or enter into any
agreement to defease, purchase or otherwise acquire, any of the MOPPRS prior to
the remarketing thereof by the Remarketing Dealer; provided, however, that the
provisions in Article Fourteen of the Indenture relating to covenant defeasance
shall apply to the MOPPRS at all times.
30 MAINTENANCE IN BOOK-ENTRY FORM. Notwithstanding any provision to the
contrary set forth in the Indenture, the Operating Partnership (i) shall use its
best efforts to maintain the MOPPRS in book-entry form with DTC or any successor
thereto and to appoint a successor depositary to the extent necessary to
maintain the MOPPRS in book-entry form, and (ii) waives any discretionary right
it otherwise has under the Indenture to cause the MOPPRS to be issued in
certificated form.
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31 TAX TREATMENT. Each Holder and Beneficial Owner of this MOPPRS or any
interest therein prior to remarketing on the Remarketing Date, by its purchase
of this MOPPRS or any interest therein, agrees to treat this MOPPRS as maturing
on the Remarketing Date for United States federal income tax purposes.
32 AMENDMENT AND MODIFICATION. The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Operating Partnership and the rights of the
Holders of the Debt Securities at any time by the Operating Partnership and the
Trustee with the consent of the Holders of a majority of the aggregate principal
amount of all Debt Securities at the time outstanding and affected thereby. The
Indenture also contains provisions permitting the Holders of a majority of the
aggregate principal amount of the outstanding Debt Securities of any series, on
behalf of the Holders of all such Debt Securities, to waive compliance by the
Operating Partnership with certain provisions of the Indenture. Furthermore,
provisions in the Indenture permit the Holders of a majority of the aggregate
principal amount of the outstanding Debt Securities of any series, in certain
instances, to waive, on behalf of all of the Holders of Debt Securities of such
series, certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Holder of this MOPPRS shall be conclusive and
binding upon such Holder and upon all future Holders of this MOPPRS and other
MOPPRS issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this MOPPRS.
33 OBLIGATION TO PAY PRINCIPAL, PREMIUM, IF ANY, AND INTEREST. No
reference herein to the Indenture and no provision of this MOPPRS or of the
Indenture shall alter or impair the obligation of the Operating Partnership,
which is absolute and unconditional, to pay principal, premium, if any, and
interest in respect of this MOPPRS at the times, places and rate or formula, and
in the manner and coin or currency, herein prescribed.
34 TRANSFER AND EXCHANGE. As provided in the Indenture and subject to
certain limitations therein and herein set forth, the transfer of this MOPPRS is
registrable in the Security Register of the Operating Partnership upon surrender
of this MOPPRS for registration of transfer at the office or agency of the
Operating Partnership in any place where the principal hereof and any premium or
interest hereon are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Operating Partnership and the
Security Registrar duly executed by, the Holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new MOPPRS having the same
terms and provisions, of authorized denominations and for the same aggregate
principal amount, will be issued by the Operating Partnership to the designated
transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, this MOPPRS is exchangeable for a like aggregate principal
amount of MOPPRS of different authorized denominations but otherwise having the
same terms and provisions, as requested by the Holder hereof surrendering the
same.
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No service charge shall be made for any such registration of transfer or
exchange, but the Operating Partnership may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this MOPPRS for registration of transfer, the
Operating Partnership, the Trustee and any agent of the Operating Partnership or
the Trustee may treat the Holder as the owner hereof for all purposes, whether
or not this MOPPRS be overdue, and neither the Operating Partnership, the
Trustee nor any such agent shall be affected by notice to the contrary, except
as required by law.
35 GOVERNING LAW. The Indenture and this MOPPRS shall be governed by, and
construed in accordance with, the laws of the State of New York without regard
to conflict of law principles.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this MOPPRS, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ____________ Custodian __________________
(Cust) (minor)
under Uniform Gifts to Minors Act
______________________(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
______________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_____________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
___________________________________________________________ this MOPPRS and all
rights thereunder hereby irrevocably constituting and appointing
_____________________________________________ Attorney to transfer this MOPPRS
on the books of the Trustee, with full power of substitution in the premises.
Dated:_______________________ ____________________________________
___________________________________________
Notice: The signature(s) on this Assignment
must correspond with the name(s) as written
upon the face
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of this MOPPRS in every
particular, without alteration or
enlargement or any change whatsoever.
206
EXHIBIT G
UNLESS THIS MOPPRS IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
OPERATING PARTNERSHIP OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
CERTIFICATED FORM, THIS MOPPRS MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC
TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR
BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
REGISTERED REGISTERED PRINCIPAL
No. AMOUNT:
CUSIP No.:
SIMON DEBARTOLO GROUP, L.P.
7% MandatOry Par Put Remarketed Securities_ ("MOPPRS_") due June 15, 2028.
ORIGINAL ISSUE DATE: INTEREST RATE TO REMARKETING DATE: 7%
June 22, 1998
REMARKETING DATE: INTEREST RATE FROM REMARKETING DATE TO
June 16, 2008 MATURITY:
To be determined as provided herein
STATED MATURITY DATE and set forth in the records of the
JUNE 15, 2028 Trustee
AUTHORIZED DENOMINATION: INTEREST PAYMENT DATE(S):
$1,000 and integral multiples of June 15 and December 15, except that
$1,000 in excess thereof the interest payment date in June 2008
will be June 16, 2008
_____________________
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"MandatOry Par Put Remarketed Securities_" and "MOPPRS_" are service marks owned
by Merrill Lynch & Co., Inc.
208
SIMON DEBARTOLO GROUP, L.P., a Delaware limited partnership (the
"Operating Partnership"), which term includes any successor under the Indenture
hereinafter referred to, for value received, hereby promises to pay to Cede &
Co., a nominee of The Depository Trust Company ("DTC"), or its registered
assigns, the principal amount of ($___________), on the Stated Maturity Date
specified above (or any earlier redemption date or repurchase date) (each such
Stated Maturity Date, redemption date or repurchase date being hereinafter
referred to as the "Maturity Date" with respect to the principal repayable on
such date) and to pay interest thereon (and on any overdue principal, premium
and/or interest to the extent legally enforceable) at the Interest Rate per
annum specified above to June 16, 2008 (the "Remarketing Date"), and thereafter,
subject to the terms and conditions set forth herein, at the Interest Rate
determined by the Remarketing Dealer (as defined below) in accordance with the
procedures set forth below (the "Interest Rate to Maturity"), until the
principal hereof is paid or duly made available for payment. The Operating
Partnership will pay interest in arrears on each Interest Payment Date, if any,
specified above (each, an "Interest Payment Date"), commencing with the first
Interest Payment Date next succeeding the Original Issue Date specified above,
and on the Maturity Date. Interest on this MOPPRS will be computed on the basis
of a 360-day year of twelve 30-day months.
If, pursuant to the Remarketing Agreement, dated as of the date hereof
(the "Remarketing Agreement"), between Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as Remarketing Dealer (the "Remarketing Dealer"), and the
Operating Partnership, the Remarketing Dealer elects to remarket the MOPPRS,
then, except as otherwise set forth herein, (i) this MOPPRS shall be subject to
mandatory tender to the Remarketing Dealer for remarketing on the Remarketing
Date, on the terms and subject to the conditions set forth herein, and (ii) on
and after the Remarketing Date, this MOPPRS shall bear interest at the Interest
Rate to Maturity determined by the Remarketing Dealer in accordance with the
procedures set forth in Section 3 herein. The Remarketing Dealer's duties set
forth herein shall be performed pursuant to the Remarketing Agreement.
Interest on this MOPPRS will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date, if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, subject
to certain exceptions described herein, be paid to the Person in whose name this
MOPPRS (or one or more predecessor MOPPRS) is registered at the close of
business on the fifteenth calendar day (whether or not a Business Day, as
defined below) immediately preceding such Interest Payment Date (the "Record
Date"). Any such interest not so punctually paid or duly provided for on any
Interest Payment Date other than the Maturity Date ("Defaulted Interest") shall
forthwith cease to be payable to the Holder on any Record Date, and, instead,
shall be paid to the Person in whose name this MOPPRS is registered at the close
of business on a special record date (the "Special Record Date") for the payment
of such Defaulted Interest to be fixed by the Trustee hereinafter referred to,
notice whereof shall be given to the Holder of this MOPPRS by the Trustee not
less than 10
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calendar days prior to such Special Record Date or may be paid at any time in
any other lawful manner, all as more fully provided for in the Indenture.
Payment of principal and premium, if any, in respect of this MOPPRS due on
the Maturity Date will be made in immediately available funds upon presentation
and surrender of this MOPPRS at the office or agency maintained by the Operating
Partnership for that purpose in the Borough of Manhattan, The City of New York,
currently the office of the Trustee located at 450 West 33rd Street, 15th Floor,
New York, New York, 10001, or at such other paying agency in the Borough of
Manhattan, The City of New York, as the Operating Partnership may determine.
Payment of interest due on any Interest Payment Date will be made at the
aforementioned office or agency maintained by the Operating Partnership or, at
the option of the Operating Partnership, by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register
maintained by the Trustee; provided, however, that a Holder of U.S.$10,000,000
or more in aggregate principal amount of MOPPRS (whether having identical or
different terms and provisions) will be entitled to receive interest payments on
such Interest Payment Date by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received in writing by the
Trustee not less than 15 calendar days prior to such Interest Payment Date. Any
such wire transfer instructions received by the Trustee shall remain in effect
until revoked by such Holder. Notwithstanding the foregoing or any provision
hereof, if this MOPPRS is a global security (as evidenced by the legend set
forth above and provided in the Indenture), and is held in book-entry form
through the facilities of DTC, payments on this MOPPRS will be made to DTC or
its nominee in accordance with the arrangements then in effect between the
Trustee and DTC.
If any Interest Payment Date or the Stated Maturity Date falls on a day
that is not a Business Day, the required payment of principal, premium, if any,
and/or interest shall be made on the next succeeding Business Day with the same
force and effect as if it were made on the date such payment was due, and no
interest shall accrue with respect to such payment for the period from and after
such Interest Payment Date or the Stated Maturity Date, as the case may be, to
the date of such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law, regulation or executive order to close in New
York, New York.
The Operating Partnership is obligated to make all payments of principal,
premium, if any, and interest in respect of this MOPPRS in such coin or currency
of the United States of America as at the time of such payment is legal tender
for the payment of public and private debts in the United States of America.
Reference is hereby made to the further provisions of this MOPPRS set
forth on the reverse hereof, which further provisions shall have the same force
and effect as if set forth on the face hereof.
210
Unless the Certificate of Authentication hereon has been executed by the
Trustee by manual signature, this MOPPRS shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
Capitalized terms used herein which are not otherwise defined shall have
the respective meanings assigned to them in the Indenture and the Sixth
Supplemental Indenture hereinafter referred to.
211
IN WITNESS WHEREOF, SIMON DEBARTOLO GROUP, L.P. has caused this MOPPRS
to be duly executed by one of its duly authorized officers.
Dated: June __, 1998
SIMON DEBARTOLO GROUP, L.P.
as Issuer
By: SD Property Group, Inc.
its Managing General Partner
By:_____________________________________
Name:
212
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:__________________________________
Authorized Officer
213
[REVERSE OF CERTIFICATE]
SIMON DEBARTOLO GROUP, L.P.
7% MandatOry Par Put Remarketed Securities_ ("MOPPRS_") due 2028
36 INDENTURE. (a) This MOPPRS is one of a duly authorized series of
Securities (the "Debt Securities") of the Operating Partnership issued and to be
issued under an Indenture, dated as of November 26, 1996 (herein called the
"Indenture"), duly executed and delivered by the Issuer and Simon Property
Group, L.P. (which was, effective December 31, 1997, merged with the Issuer), as
Guarantor, to The Chase Manhattan Bank, as Trustee (herein called the "Trustee"
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto (including, without
limitation, the Sixth Supplemental Indenture, dated as of June 22, 1998 (the
"Sixth Supplemental Indenture") between the Issuer and the Trustee) reference is
hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Operating Partnership, the Trustee and
the Holders of the Debt Securities, and of the terms upon which the Debt
Securities are, and are to be, authenticated and delivered. This security is one
of the series of Debt Securities designated as "7% MandatOry Par Put Remarketed
Securities_ ("MOPPRS_") due 2028" ("MOPPRS"), which MOPPRS are limited to
aggregate principal amount of $200,000,000.
(a) The MOPPRS are issuable only in registered form without coupons in
minimum denominations of $1,000 and integral multiples of $1,000 in excess
thereof.
(b) This MOPPRS will not be subject to any sinking fund and will not be
repayable at the option of the Holder hereof prior to the Stated Maturity Date.
37 MANDATORY TENDER. Provided that on a Business Day not later than five
Business Days prior to the Remarketing Date the Remarketing Dealer notifies the
Operating Partnership and the Trustee of its election to purchase the MOPPRS on
the Remarketing Date for remarketing (the "Notification Date"), this MOPPRS
shall be subject to mandatory tender to the Remarketing Dealer, and the
Remarketing Dealer shall be obligated to purchase the MOPPRS, for remarketing on
the Remarketing Date, subject in each case to the conditions described herein
and set forth in the Remarketing Agreement. The purchase price for the tendered
MOPPRS shall equal 100% of the principal amount thereof. From and after the
Remarketing Date, the MOPPRS shall bear interest at the Interest Rate to
Maturity determined pursuant to Section 3 hereof. If the Remarketing Dealer
elects to remarket the MOPPRS, the obligation of the Remarketing Dealer to
purchase this MOPPRS on the Remarketing Date is subject to the conditions
specified in Section 8 of the Remarketing Agreement. If for any reason the
Remarketing Dealer does not purchase all tendered MOPPRS on the Remarketing
Date, the Operating Partnership shall be required to repurchase from the
Beneficial Owners thereof, and the Beneficial Owners will be required to sell to
the Operating Partnership, all the MOPPRS at a price equal to the principal
amount thereof plus all accrued and unpaid interest, if any, on the MOPPRS to
the Remarketing Date as provided in Section 4 hereof.
214
"Beneficial Owner" shall mean each Person who acquires an interest in the
MOPPRS which is reflected on the records of the DTC through its participants.
38 DETERMINATION OF INTEREST RATE TO MATURITY. (a) Subject to the
Remarketing Dealer's election to remarket the MOPPRS as provided in Section 2
hereof and the Remarketing Agreement, the Interest Rate to Maturity shall be
determined by the Remarketing Dealer by 3:30 p.m., New York City time, on and as
of the third Business Day immediately preceding the Remarketing Date (the
"Determination Date") to the nearest one hundred-thousandth (0.00001) of one
percent per annum, and will be equal to the sum of 5.649% (the "Base Rate") plus
the Applicable Spread, which will be based on the Dollar Price of the MOPPRS.
The "Applicable Spread" will be the lowest bid indication, expressed as a
spread (in the form of a percentage or in basis points) above the Base Rate,
obtained by the Remarketing Dealer on the Determination Date from the bids
quoted by five Reference Corporate Dealers for the full aggregate principal
amount of the MOPPRS at a purchase price equal the Dollar Price, but assuming
(i) an issue date equal to the Remarketing Date, with settlement on such date
without accrued interest, (ii) a maturity date equal to the Stated Maturity Date
of the MOPPRS, and (iii) a stated annual interest rate, payable semiannually on
each Interest Payment Date, equal to the Base Rate plus the spread bid by the
applicable Reference Corporate Dealer. If fewer than five Reference Corporate
Dealers bid as described above, then the Applicable Spread shall be the lowest
of such bid indications obtained as described above. The Interest Rate to
Maturity announced by the Remarketing Dealer, absent manifest error, shall be
binding and conclusive upon the Beneficial Owners and Holders of the MOPPRS, the
Operating Partnership and the Trustee.
"Dollar Price" means, with respect to the MOPPRS, the present value,
determined by the Remarketing Dealer, as of the Remarketing Date, of the
Remaining Scheduled Payments discounted to the Remarketing Date, on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day months), at the
Treasury Rate.
"Reference Corporate Dealers" means leading dealers of publicly traded
debt securities of the Operating Partnership in The City of New York (which may
include the Remarketing Dealer or one of its Affiliates, but not both the
Remarketing Dealer (and reasonably acceptable to the Operating Partnership).
"Treasury Rate" means, with respect to the Determination Date, the rate
per annum equal to the semiannual equivalent yield to maturity or interpolated
(on a day count basis) yield to maturity of the Comparable Treasury Issues,
assuming a price for the Comparable Treasury Issues (expressed as a percentage
of its principal amount), equal to the Comparable Treasury Price for the
Determination Date.
"Comparable Treasury Issues" means the United States Treasury security or
securities selected by the Remarketing Dealer as having an actual or
interpolated remaining maturity or maturities of 30 years.
215
"Comparable Treasury Price" means, with respect to the Determination Date,
(a) the offer prices for the Comparable Treasury Issues (expressed in each case
as a percentage of its principal amount) on the Determination Date, as set forth
on "Telerate Page 500" (or such other page as may replace Telerate Page 500), or
(b) if such page (or any successor page) is not displayed or does not contain
such offer prices on the Determination Date, (i) the average of the Reference
Treasury Dealer Quotations for the Determination Date, after excluding the
highest and lowest of such Reference Treasury Dealer Quotations, or (ii) if the
Remarketing Dealer obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such Reference Treasury Dealer Quotations.
"Telerate Page 500" means the display designated as "Telerate Page 500" on Dow
Jones Markets Limited (or such other page as may replace Telerate Page 500 on
such service) or such other service displaying the offer prices specified in (a)
above as may replace Dow Jones Markets Limited.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and the Remarketing Date, the offer prices for the
Comparable Treasury Issues (expressed in each case as a percentage of its
principal amount) quoted to the Remarketing Dealer by such Reference Treasury
Dealer by 3:30 p.m., New York City time, on the Determination Date.
"Reference Treasury Dealer" means each of Credit Suisse First Boston
Corporation, Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Morgan Stanley & Co. Incorporated and Salomon Brothers Inc. (or
their respective affiliates which are primary U.S. Government Securities
Dealers) and their respective successors; provided, however, that if any of the
foregoing or their Affiliates shall cease to be a primary U.S. Government
securities dealer in The City of New York (a "Primary Treasury Dealer"), the
Remarketing Dealer shall substitute therefor another Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to the MOPPRS, the
remaining scheduled payments of the principal thereof and interest thereon,
calculated at the Base Rate only, that would be due after the Remarketing Date
to and including the Stated Maturity Date as determined by the Remarketing
Dealer.
(a) Provided that the Remarketing Dealer has previously notified the
Operating Partnership and the Trustee on the Notification Date of its intention
to purchase all tendered MOPPRS on the Remarketing Date, the Remarketing Dealer
will notify the Operating Partnership, the Trustee and DTC by telephone,
confirmed in writing (which may include facsimile or other electronic
transmission), by 4:00 p.m., New York City time, on the Determination Date, of
the Interest Rate to Maturity. All of the tendered MOPPRS shall be automatically
delivered to the account of the Trustee, by book-entry through DTC pending
payment of the purchase price therefor, on the Remarketing Date.
In the event that the Remarketing Dealer purchases the tendered MOPPRS on
the Remarketing Date, the Remarketing Dealer shall make or cause the Trustee to
make payment to the
216
DTC Participant of each tendering Beneficial Owner of MOPPRS subject to
remarketing, by book-entry through DTC by the close of business on the
Remarketing Date against delivery through DTC of such Beneficial Owner's
tendered MOPPRS, of 100% of the principal amount of the tendered MOPPRS that
have been purchased for remarketing by the Remarketing Dealer. If the
Remarketing Dealer does not purchase all of the MOPPRS on the Remarketing Date,
it shall be the obligation of the Operating Partnership to make or cause to be
made such payment for the MOPPRS, as provided in Section 4 hereof. In any case,
the Operating Partnership shall make or cause the Trustee to make payment of
interest to each Beneficial Owner of MOPPRS due on the Remarketing Date by
book-entry through DTC by the close of business on the Remarketing Date.
"DTC Participant" shall mean any Person that has an account with DTC
through which Beneficial Owners acquire, directly or indirectly, an interest in
the MOPPRS.
The transactions set forth in this Section shall be executed on the
Remarketing Date through DTC in accordance with the procedures of DTC, and the
accounts of the respective DTC Participants will be debited and credited and the
MOPPRS delivered by book entry as necessary to effect the purchases and sales
thereof.
Transactions involving the sale and purchase of MOPPRS remarketed by the
Remarketing Dealer on and after the Remarketing Date shall settle in immediately
available funds through DTC's Same-Day Funds Settlement System.
The tender and settlement procedures set forth above, including provisions
for payment by purchasers of MOPPRS in the remarketing or for payment to selling
Beneficial Owners of tendered MOPPRS, may be modified to the extent required by
DTC or to the extent required to facilitate the tender and remarketing of MOPPRS
in certificated form, if the book-entry system is no longer available for the
MOPPRS at the time of the remarketing. In addition, the Remarketing Dealer may,
in accordance with the terms of the Indenture, modify the tender and settlement
procedures set forth above in order to facilitate the tender and settlement
process.
As long as DTC's nominee holds the certificates representing any MOPPRS in
the book-entry system of DTC, no certificates for such MOPPRS will be delivered
by any selling Beneficial Owner to reflect any transfer of such MOPPRS effected
in the remarketing.
(b) Notwithstanding any provision herein to the contrary, upon the
occurrence of any event as specified in Section 11(b) of the Remarketing
Agreement, the Remarketing Dealer, in its sole discretion at any time between
the Determination Date and 3:30 p.m., New York City time, on the Business Day
immediately preceding the Remarketing Date, may elect to purchase the MOPPRS for
remarketing and determine a new Interest Rate to Maturity in the manner provided
in Section 3(a) hereof, except that for purposes of determining the new Interest
Rate to Maturity pursuant to this paragraph, the Determination Date referred to
therein shall be the date of such election and redetermination. The Remarketing
Dealer shall notify the Operating Partnership, the Trustee and DTC by telephone,
confirmed in writing (which may include facsimile or other
217
electronic transmission), by 4:00 p.m., New York City time, on the date of such
election, of the new Interest Rate to Maturity applicable to the MOPPRS.
Thereupon, such new Interest Rate to Maturity shall supersede and replace any
Interest Rate to Maturity previously determined by the Remarketing Dealer and,
absent manifest error, shall be binding and conclusive upon the Beneficial
Owners and Holders of the MOPPRS on or after the Remarketing Date, the Operating
Partnership and the Trustee.
39 REPURCHASE BY OPERATING PARTNERSHIP. In the event that (i) the
Remarketing Dealer for any reason does not notify the Operating Partnership of
the Interest Rate to Maturity by 4:00 p.m., New York City time, on the
Determination Date, or (ii) prior to the Remarketing Date, the Remarketing
Dealer has resigned and no successor has been appointed on or before the
Determination Date, or (iii) the Remarketing Dealer has elected to terminate the
Remarketing Agreement pursuant to Section 8 or Section 11 of the Remarketing
Agreement at any time after the Remarketing Dealer elects on the Notification
Date to remarket the MOPPRS, or (iv) the Remarketing Dealer for any reason does
not elect to purchase the MOPPRS for remarketing on the Remarketing Date, or (v)
the Remarketing Dealer for any reason does not purchase all tendered MOPPRS on
the Remarketing Date, the Operating Partnership shall repurchase all the MOPPRS
as a whole on the Remarketing Date at a price equal to 100% of the principal
amount of the MOPPRS plus all accrued and unpaid interest, if any, on the MOPPRS
to the Remarketing Date. In any such case, payment will be made by the Operating
Partnership through the Trustee to the DTC Participant of each tendering
Beneficial Owner of MOPPRS, by book entry through DTC by the close of business
on the Remarketing Date against delivery through DTC of such Beneficial Owner's
tendered MOPPRS.
40 REDEMPTION. If the Remarketing Dealer elects to remarket the MOPPRS on
the Remarketing Date, the MOPPRS shall be subject to redemption at the option of
the Operating Partnership from the Remarketing Dealer, as a whole but not in
part, as set forth in this Section. The Operating Partnership shall notify the
Remarketing Dealer and the Trustee, not later than the Business Day immediately
preceding the Determination Date, if the Operating Partnership irrevocably
elects to exercise its right to redeem the MOPPRS, in whole but not in part,
from the Remarketing Dealer on the Remarketing Date at the Optional Redemption
Price. If the Operating Partnership so elects, it shall redeem the MOPPRS by
payment to the Remarketing Dealer as provided in the Remarketing Agreement.
The "Optional Redemption Price" shall be the greater of (i) 100% of the
principal amount of the MOPPRS and (ii) the sum of the present values of the
Remaining Scheduled Payments thereon, as determined by the Remarketing Dealer,
discounted to the Remarketing Date on a semiannual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate, plus in either
case accrued and unpaid interest from the Remarketing Date on the principal
amount being redeemed to the date of redemption. If the Operating Partnership
elects of redeem the MOPPRS, it shall pay such Optional Redemption Price in
same-day funds by wire transfer to an account designated by the Remarketing
Dealer on the Remarketing Date.
218
In addition, the MOPPRS may be redeemed at any time at the option of the
Operating Partnership, (x) prior to the Remarketing Date with the consent of the
Remarketing Dealer and (y) if the Remarketing Dealer has remarketed the MOPPRS,
after the Remarketing Date, in all cases, in whole or from time to time in part,
at a redemption price equal to the sum of (i) the principal amount of the MOPPRS
being redeemed plus accrued interest thereon to the redemption date and (ii) the
Make-Whole Amount (as defined below).
"Make-Whole Amount" means, in connection with any optional redemption or
accelerated payment of any MOPPRS, the excess, if any, of (i) the aggregate
present value, as of the date of such redemption or accelerated payment of each
dollar of principal being redeemed or paid and the amount of interest (exclusive
of interest accrued to the date of redemption or accelerated payment) that would
have been payable in respect of each such dollar if such redemption or
accelerated payment had not been made (through the Remarketing Date in the case
of a Make-Whole Amount with respect to a redemption of MOPPRS prior to the
Remarketing Date) determined by discounting, on a semi-annual basis, such
principal and interest at the Reinvestment Rate (determined on the third
Business Day preceding the date notice of such redemption is given or
declaration of acceleration is made) from the respective dates on which such
principal and interest would have been payable if such redemption or accelerated
payment had not been made, to the date of redemption or accelerated payment,
over (ii) the aggregate principal amount of the MOPPRS being redeemed or
accelerated.
41 EFFECT OF EVENTS OF DEFAULT. If an Event of Default shall occur and be
continuing, the principal of this MOPPRS may, and in certain cases shall, be
accelerated in the manner and with the effect provided in the Indenture.
42 DEFEASANCE. The Indenture contains provisions for defeasance of (i) the
entire indebtedness of certain Debt Securities or (ii) certain covenants and
Events of Default with respect to the Debt Securities, in each case upon
compliance with certain conditions set forth therein. Except as otherwise
permitted herein and in the Remarketing Agreement, prior to the Remarketing
Date, neither the Operating Partnership nor any of its subsidiaries or
affiliates shall defease, purchase or otherwise acquire, or enter into any
agreement to defease, purchase or otherwise acquire, any of the MOPPRS prior to
the remarketing thereof by the Remarketing Dealer; provided, however, that the
provisions in Article Fourteen of the Indenture relating to covenant defeasance
shall apply to the MOPPRS at all times.
43 MAINTENANCE IN BOOK-ENTRY FORM. Notwithstanding any provision to the
contrary set forth in the Indenture, the Operating Partnership (i) shall use its
best efforts to maintain the MOPPRS in book-entry form with DTC or any successor
thereto and to appoint a successor depositary to the extent necessary to
maintain the MOPPRS in book-entry form, and (ii) waives any discretionary right
it otherwise has under the Indenture to cause the MOPPRS to be issued in
certificated form.
219
44 TAX TREATMENT. Each Holder and Beneficial Owner of this MOPPRS or any
interest therein prior to remarketing on the Remarketing Date, by its purchase
of this MOPPRS or any interest therein, agrees to treat this MOPPRS as maturing
on the Remarketing Date for United States federal income tax purposes.
45 AMENDMENT AND MODIFICATION. The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Operating Partnership and the rights of the
Holders of the Debt Securities at any time by the Operating Partnership and the
Trustee with the consent of the Holders of a majority of the aggregate principal
amount of all Debt Securities at the time outstanding and affected thereby. The
Indenture also contains provisions permitting the Holders of a majority of the
aggregate principal amount of the outstanding Debt Securities of any series, on
behalf of the Holders of all such Debt Securities, to waive compliance by the
Operating Partnership with certain provisions of the Indenture. Furthermore,
provisions in the Indenture permit the Holders of a majority of the aggregate
principal amount of the outstanding Debt Securities of any series, in certain
instances, to waive, on behalf of all of the Holders of Debt Securities of such
series, certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Holder of this MOPPRS shall be conclusive and
binding upon such Holder and upon all future Holders of this MOPPRS and other
MOPPRS issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this MOPPRS.
46 OBLIGATION TO PAY PRINCIPAL, PREMIUM, IF ANY, AND INTEREST. No
reference herein to the Indenture and no provision of this MOPPRS or of the
Indenture shall alter or impair the obligation of the Operating Partnership,
which is absolute and unconditional, to pay principal, premium, if any, and
interest in respect of this MOPPRS at the times, places and rate or formula, and
in the manner and coin or currency, herein prescribed.
47 TRANSFER AND EXCHANGE. As provided in the Indenture and subject to
certain limitations therein and herein set forth, the transfer of this MOPPRS is
registrable in the Security Register of the Operating Partnership upon surrender
of this MOPPRS for registration of transfer at the office or agency of the
Operating Partnership in any place where the principal hereof and any premium or
interest hereon are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Operating Partnership and the
Security Registrar duly executed by, the Holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new MOPPRS having the same
terms and provisions, of authorized denominations and for the same aggregate
principal amount, will be issued by the Operating Partnership to the designated
transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, this MOPPRS is exchangeable for a like aggregate principal
amount of MOPPRS of different authorized denominations but otherwise having the
same terms and provisions, as requested by the Holder hereof surrendering the
same.
220
No service charge shall be made for any such registration of transfer or
exchange, but the Operating Partnership may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this MOPPRS for registration of transfer, the
Operating Partnership, the Trustee and any agent of the Operating Partnership or
the Trustee may treat the Holder as the owner hereof for all purposes, whether
or not this MOPPRS be overdue, and neither the Operating Partnership, the
Trustee nor any such agent shall be affected by notice to the contrary, except
as required by law.
48 GOVERNING LAW. The Indenture and this MOPPRS shall be governed by, and
construed in accordance with, the laws of the State of New York without regard
to conflict of law principles.
221
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this MOPPRS, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ___________ Custodian _____________
(Cust) (minor)
under Uniform Gifts to Minors Act
______________________ (State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
_______________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
__________________________________________________________ this MOPPRS and all
rights thereunder hereby irrevocably constituting and appointing
_____________________________________________ Attorney to transfer this MOPPRS
on the books of the Trustee, with full power of substitution in the premises.
Dated:_________________ _____________________________________
____________________________________________
Notice: The signature(s) on this Assignment
must correspond with the name(s) as written
upon the face
222
of this MOPPRS in every particular, without
alteration or enlargement or any change
whatsoever.
1
EXHIBIT 4.3
-------------------
REGISTRATION RIGHTS AGREEMENT
DATED AS OF JUNE 22, 1998
AMONG
SIMON DEBARTOLO GROUP, L.P.
AND
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
CHASE SECURITIES INC.
LEHMAN BROTHERS INC.
J.P. MORGAN SECURITIES INC.
NATIONSBANC MONTGOMERY SECURITIES LLC
AND
UBS SECURITIES LLC
-------------------
2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made
and entered into this 22nd day of June, 1998, among Simon DeBartolo Group, L.P.,
a Delaware limited partnership (the "Operating Partnership"), and Merrill Lynch
& Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch"),
Morgan Stanley & Co. Incorporated ("Morgan Stanley"), Chase Securities Inc.,
Lehman Brothers Inc., J.P. Morgan Securities Inc., NationsBanc Montgomery
Securities LLC and UBS Securities LLC (collectively, the "Initial Purchasers").
Capitalized terms used, but not defined, herein shall have the meanings ascribed
to them in the Purchase Agreement.
This Agreement is made pursuant to the Purchase Agreement,
dated June 16, 1998, among the Operating Partnership and the Initial Purchasers
(the "Purchase Agreement"), which provides for the sale by the Operating
Partnership to the Initial Purchasers of an aggregate of $1,075,000,000
principal amount of the Operating Partnership's 6 5/8% senior unsecured notes
due 2003 (the "2003 Notes"), 6 3/4% senior unsecured notes due 2005 (the "2005
Notes"), 7 3/8% senior unsecured notes due 2018 (the "2018 Notes") and 7.0%
MandatOry Par Put Remarketed Securities(sm) ("MOPPRS(sm)") due 2028 (the
"MOPPRS(sm)" and, together with the 2003 Notes, the 2005 Notes and the 2018
Notes, the "Securities"). In order to induce the Initial Purchasers to enter
into the Purchase Agreement, the Operating Partnership has agreed to provide to
the Initial Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution of this Agreement
is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. DEFINITIONS.
As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"1933 ACT" shall mean the Securities Act of 1933, as amended
from time to time.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"CLOSING DATE" shall mean the Closing Time as defined in the
Purchase Agreement.
- ---------------
"MandatOry Par Put Remarketed Securities(sm)" and "MOPPRS(sm)" are service marks
owned by Merrill Lynch & Co. Incorporated.
3
"Depositary" shall mean The Depository Trust Company, or any
other depositary appointed by the Operating Partnership, provided, however, that
such depositary must have an address in the Borough of Manhattan, in the City of
New York.
"Exchange Offer" shall mean the exchange offer by the
Operating Partnership of Exchange Securities for Registrable Securities pursuant
to Section 2.1 hereof.
"Exchange Offer Registration" shall mean a registration under
the 1933 Act effected pursuant to Section 2.1 hereof.
"Exchange Offer Registration Statement" shall mean an exchange
offer registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such registration
statement, including the Prospectus contained therein, all exhibits thereto and
all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section
2.1 hereof.
"Exchange Securities" shall mean the 6 5/8% senior unsecured
notes due 2003, 6 3/4% senior unsecured notes due 2005, 7 3/8% senior unsecured
notes due June 2018 and 7.0% MandatOry Par Put Remarketed Securities(sm)
("MOPPRS(sm)") due 2028, respectively issued by the Operating Partnership under
the Indenture containing terms identical to the Securities in all material
respects (except for references to certain interest rate provisions,
restrictions on transfers and restrictive legends), to be offered to Holders of
Securities in exchange for Registrable Securities pursuant to the Exchange
Offer.
"Holder" shall mean an Initial Purchaser, for so long as it
owns any Registrable Securities, and each of its successors, assigns and direct
and indirect transferees who become registered owners of Registrable Securities
under the Indenture and each Participating Broker-Dealer that holds Exchange
Securities for so long as such Participating Broker-Dealer is required to
deliver a prospectus meeting the requirements of the 1933 Act in connection with
any resale of such Exchange Securities.
"Indenture" shall mean the Indenture relating to the
Securities, dated as of November 26,1996, between the Operating Partnership,
Simon Property Group, L.P., a Delaware limited partnership (which, effective
December 31, 1997, was merged into the Operating Partnership) and The Chase
Manhattan Bank, as trustee, as the same may be amended, supplemented, waived or
otherwise modified from time to time in accordance with the terms thereof.
"Initial Purchaser" or "Initial Purchasers" shall have the
meaning set forth in the preamble.
4
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Outstanding (as defined in the Indenture)
Registrable Securities; provided that whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Operating Partnership and other
obligors or any Affiliate (as defined in the Indenture) of the Operating
Partnership shall be disregarded in determining whether such consent or approval
was given by the Holders of such required percentage amount.
"Merrill Lynch" shall have the meaning set forth in the
preamble.
"Operating Partnership" shall have the meaning set forth in
the preamble and shall also include the Operating Partnership's successors.
"Participating Broker-Dealer" shall mean any of Merrill Lynch,
Morgan Stanley and any other broker-dealer which makes a market in the
Securities and exchanges Registrable Securities in the Exchange Offer for
Exchange Securities.
"Person" shall mean an individual, partnership (general or
limited), corporation, limited liability company, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
"Private Exchange" shall have the meaning set forth in Section
2.1 hereof.
"Private Exchange Securities" shall have the meaning set forth
in Section 2.1 hereof.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any such
prospectus as amended or supplemented by any prospectus supplement, including
any such prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration Statement,
and by all other amendments and supplements to a prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble.
"Registrable Securities" shall mean the Securities and, if
issued, the Private Exchange Securities; provided, however, the Securities and,
if issued, the Private Exchange Securities, shall cease to be Registrable
Securities when (i) a Registration Statement with respect to such Securities
shall have been declared effective under the 1933 Act and such Securities shall
have been disposed of pursuant to such Registration Statement, (ii) such
Securities have been sold to the public pursuant to Rule 144 (or any similar
provision then in force, but not Rule 144A) under the 1933 Act, (iii) such
Securities shall have ceased to be outstanding, or (iv) the Exchange Offer is
5
consummated (except in the case of Securities purchased from the Operating
Partnership and continued to be held by the Initial Purchasers).
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Operating Partnership with this
Agreement, including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. (the "NASD") registration and filing
fees, including, if applicable, the fees and expenses of any "qualified
independent underwriter" (and its counsel) that is required to be retained by
any holder of Registrable Securities in accordance with the rules and
regulations of the NASD, (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws and compliance with the rules
of the NASD (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with the blue sky qualification of any of
the Exchange Securities or Registrable Securities and any filings with the
NASD), (iii) all expenses of any Persons in preparing or assisting in preparing,
word processing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, any underwriting agreements,
securities sales agreements and other documents relating to the performance of
and compliance with this Agreement, (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Securities on any
securities exchange or exchanges, (v) all rating agency fees, (vi) the fees and
disbursements of counsel for the Operating Partnership and of the independent
public accountants of the Operating Partnership, including the expenses of any
special audits or "cold comfort" letters required by or incident to such
performance and compliance, (vii) the fees and expenses of the Trustee, and any
escrow agent or custodian, (viii) the reasonable fees and expenses of the
Initial Purchasers in connection with the Exchange Offer, including the
reasonable fees and expenses of counsel to the Initial Purchasers in connection
therewith, (ix) the reasonable fees and disbursements of any special counsel
representing the Holders of Registrable Securities, and (x) any fees and
disbursements of the underwriters customarily required to be paid by issuers or
sellers of securities and the fees and expenses of any special experts retained
by the Operating Partnership in connection with any Registration Statement, but
excluding underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of Registrable Securities by a Holder.
"Registration Statement" shall mean any registration statement
of the Operating Partnership which covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement, and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission or any
successor agency or government body performing the functions currently performed
by the United States Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2.2 hereof.
6
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Operating Partnership pursuant to the provisions
of Section 2.2 of this Agreement which covers all of the Registrable Securities
or all of the Private Exchange Securities on an appropriate form under Rule 415
under the 1933 Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"TIA" shall mean the Trust Indenture Act of 1939, as amended
from time to time.
"Trustee" shall mean the trustee with respect to the
Securities under the Indenture.
2. Registration Under the 1933 Act.
2.1 Exchange Offer. The Operating Partnership shall, for the
benefit of the Holders, at the Operating Partnership's cost, (A) use its
reasonable best efforts to prepare and, as soon as practicable but not later
than 90 days after the Closing Date, file with the SEC an Exchange Offer
Registration Statement on an appropriate form under the 1933 Act with respect to
a proposed Exchange Offer and the issuance and delivery to the Holders, in
exchange for the Registrable Securities (other than Private Exchange
Securities), of a like principal amount of Exchange Securities, (B) use its
reasonable best efforts to cause the Exchange Offer Registration Statement to be
declared effective under the 1933 Act within 135 days of the Closing Date, (C)
use its reasonable best efforts to keep the Exchange Offer Registration
Statement effective until the closing of the Exchange Offer, and (D) use its
reasonable best efforts to cause the Exchange Offer to be consummated not later
than 180 days following the Closing Date. The Exchange Securities will be issued
under the Indenture. Upon the effectiveness of the Exchange Offer Registration
Statement, the Operating Partnership shall promptly commence the Exchange Offer,
it being the objective of such Exchange Offer to enable each Holder eligible and
electing to exchange Registrable Securities for Exchange Securities (assuming
that such Holder (a) is not an affiliate of the Operating Partnership within the
meaning of Rule 405 under the 1933 Act, (b) is not a broker-dealer tendering
Registrable Securities acquired directly from the Operating Partnership for its
own account, (c) acquired the Exchange Securities in the ordinary course of such
Holder's business, and (d) has no arrangements or understandings with any Person
to participate in the Exchange Offer for the purpose of distributing the
Exchange Securities) to transfer such Exchange Securities from and after their
receipt without any limitations or restrictions under the 1933 Act and under
state securities or blue sky laws.
In connection with the Exchange Offer, the Operating
Partnership shall:
7
(a) mail as promptly as practicable to each Holder a copy of
the Prospectus forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related documents;
(b) keep the Exchange Offer open for acceptance for a period
of not less than 30 calendar days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law) (such period referred to
herein as the "Exchange Period");
(c) utilize the services of the Depositary for the Exchange
Offer;
(d) permit Holders to withdraw tendered Registrable Securities
at any time prior to 5:00 p.m. (Eastern Time), on the last business day of the
Exchange Period, by sending to the institution specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Registrable Securities delivered for exchange,
and a statement that such Holder is withdrawing such Holder's election to have
such Securities exchanged;
(e) notify each Holder that any Registrable Security not
tendered will remain outstanding and continue to accrue interest, but will not
retain any rights under this Agreement (except in the case of the Initial
Purchasers and Participating Broker-Dealers as provided herein); and
(f) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Securities acquired by them and having the status of an
unsold allotment in the initial distribution, the Operating Partnership upon the
request of any Initial Purchaser shall, simultaneously with the delivery of the
Exchange Securities in the Exchange Offer, issue and deliver to such Initial
Purchaser in exchange (the "Private Exchange") for the Securities held by such
Initial Purchaser, a like principal amount of debt securities of the Operating
Partnership that are identical (except that such securities shall bear
appropriate transfer restrictions) to the Exchange Securities (the "Private
Exchange Securities").
The Exchange Securities and the Private Exchange Securities
shall be issued under (i) the Indenture or (ii) an indenture identical in all
material respects to the Indenture and which, in either case, has been qualified
under the Trust Indenture Act of 1939, as amended (the "TIA"), or is exempt from
such qualification and shall provide that the Exchange Securities shall not be
subject to the transfer restrictions set forth in the Indenture but that the
Private Exchange Securities shall be subject to such transfer restrictions. The
Indenture or such indenture shall provide that the Exchange Securities, the
Private Exchange Securities and the Securities shall vote and consent together
on all matters as one class and that none of the Exchange Securities, the
Private Exchange Securities or the Securities will have the right to vote or
consent as a separate class on any matter.
8
The Private Exchange Securities shall be of the same series as and the Operating
Partnership shall use all commercially reasonable efforts to have the Private
Exchange Securities bear the same CUSIP number as the Exchange Securities. The
Operating Partnership shall not have any liability under this Agreement solely
as a result of such Private Exchange Securities not bearing the same CUSIP
number as the Exchange Securities.
As soon as practicable after the close of the Exchange Offer
and/or the Private Exchange, as the case may be, the Operating Partnership
shall:
(i) accept for exchange all Registrable Securities duly
tendered and not validly withdrawn pursuant to the Exchange Offer in
accordance with the terms of the Exchange Offer Registration Statement
and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities properly tendered
pursuant to the Private Exchange;
(iii) deliver to the Trustee for cancellation all Registrable
Securities so accepted for exchange; and
(iv) cause the Trustee promptly to authenticate and deliver
Exchange Securities or Private Exchange Securities, as the case may be,
to each Holder of Registrable Securities so accepted for exchange in a
principal amount equal to the principal amount of the Registrable
Securities of such Holder so accepted for exchange.
Interest on each Exchange Security and Private Exchange
Security will accrue from the last date on which interest was paid on the
Registrable Securities surrendered in exchange therefor or, if no interest has
been paid on the Registrable Securities, from the date of original issuance. The
Exchange Offer and the Private Exchange shall not be subject to any conditions,
other than (i) that the Exchange Offer or the Private law or any applicable
interpretation of the staff of the SEC, (ii) the due tendering of Registrable
Securities in accordance with the Exchange Offer and the Private Exchange, (iii)
that each Holder of Registrable Securities exchanged in the Exchange Offer shall
have represented that all Exchange Securities to be received by it shall be
acquired in the ordinary course of its business and that at the time of the
consummation of the Exchange Offer it shall have no arrangement or understanding
with any person to participate in the distribution (within the meaning of the
1933 Act) of the Exchange Securities and shall have made such other
representations as may be reasonably necessary under applicable SEC rules,
regulations or interpretations to render the use of Form S-4 or other
appropriate form under the 1933 Act available, and (iv) that no action or
proceeding shall have been instituted or threatened in any court or by or before
any governmental agency with respect to the Exchange Offer or the Private
Exchange which, in the Operating Partnership's judgment, would reasonably be
expected to impair the ability of the Operating Partnership to proceed with the
Exchange Offer or the Private
9
Exchange. The Operating Partnership shall inform the Initial Purchasers of the
names and addresses of the Holders to whom the Exchange Offer is made, and the
Initial Purchasers shall have the right to contact such Holders and otherwise
facilitate the tender of Registrable Securities in the Exchange Offer.
2.2 Shelf Registration. (i) If, because of any changes in law,
SEC rules or regulations or applicable interpretations thereof by the staff of
the SEC, the Operating Partnership is not permitted to effect the Exchange Offer
as contemplated by Section 2.1 hereof, (ii) if for any other reason the Exchange
Offer is not consummated within 180 days after the original issue of the
Registrable Securities, or (iii) if a Holder is not permitted to participate in
the Exchange Offer or does not receive fully tradeable Exchange Securities
pursuant to the Exchange Offer (other than due solely to the status of such
holder as an affiliate of the Operating Partnership within the meaning of the
1933 Act or as a broker dealer), then in case of each of clauses (i) through
(iii) the Operating Partnership shall (x) promptly deliver to the holders
written notice thereof and (y) at the Operating, Partnership's sole expense:
(a) As promptly as practicable, (but in no event more than 60
days after so required or requested pursuant to this Agreement) file
with the SEC, and thereafter shall use its best efforts to cause to be
declared effective as promptly as practicable but no later than 180
days after the original issue of the Registrable Securities, a Shelf
Registration Statement relating to the offer and sale of the
Registrable Securities by the Holders from time to time in accordance
with the methods of distribution elected by the Majority Holders
participating in the Shelf Registration and set forth in such Shelf
Registration Statement.
(b) Use its best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus
forming part thereof to be usable by Holders for a period of two years
from the date the Shelf Registration Statement is declared effective by
the SEC, or for such shorter period that will terminate when all
Registrable Securities covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement or cease to be
outstanding or otherwise to be Registrable Securities (the
"Effectiveness Period"); provided, however, that the Effectiveness
Period in respect of the Shelf Registration Statement shall be extended
to the extent required to permit dealers to comply with the applicable
prospectus delivery requirements of Rule 174 under the 1933 Act and as
otherwise provided herein.
(c) Notwithstanding any other provisions hereof, use its best
efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
supplement thereto complies in all material respects with the 1933 Act
and the rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and (iii) any Prospectus
forming part of any Shelf Registration Statement, and any supplement to
such Prospectus (as amended or
10
supplemented from time to time), does not include an untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements, in light of the circumstances under which they
were made, not misleading.
No Holder of Registrable Securities shall be entitled to
include any of its Registrable Securities in any Shelf Registration pursuant to
this Agreement unless and until such Holder agrees in writing to be bound by all
of the provisions of this Agreement applicable to such Holder and furnishes to
the Operating Partnership in writing within 15 days after receipt of a request
therefor, such information as the Operating Partnership may, after conferring
with counsel, reasonably request for inclusion in any Shelf Registration
Statement or Prospectus included therein. Each Holder as to which any Shelf
Registration is being effected agrees to furnish to the Operating Partnership
all information with respect to such Holder necessary to make the information
previously furnished to the Operating Partnership by such Holder not materially
misleading.
The Operating Partnership shall not permit any securities
other than Registrable Securities to be included in the Shelf Registration
Statement. The Operating Partnership further agrees, if necessary, to supplement
or amend the Shelf Registration Statement, as required by Section 3(b) below,
and to furnish to the Holders of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed with the SEC.
2.3 Expenses. The Operating Partnership shall pay all
Registration Expenses in connection with the registration pursuant to Section
2.1 or 2.2. Each Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Shelf Registration Statement.
2.4 Effectiveness. (a) The Operating Partnership will be
deemed not have used its best efforts to cause the Exchange Offer Registration
Statement or the Shelf Registration Statement, as the case may be, to become, or
to remain, effective during the requisite period if the Operating Partnership
voluntarily takes any action that would, or omits to take any action which
omission would, result in any such Registration Statement not being declared
effective or in the Holders of Registrable Securities covered thereby not being
able to exchange or offer and sell such Registrable Securities during that
period as and to the extent contemplated hereby, unless such action is required
by applicable law.
(a) An Exchange Offer Registration Statement pursuant to
Section 2.1 hereof or a Shelf Registration Statement pursuant to Section 2.2
hereof will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been declared
effective, the offering of Registrable Securities pursuant to an Exchange Offer
Registration Statement or a Shelf Registration Statement is interfered with by
any stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement will be deemed not to
have become effective during the period of such interference, until the offering
of Registrable Securities pursuant to such Registration Statement may legally
resume.
11
2.5 Interest. The Indenture executed in connection with the
Securities will provide that if (i) the Exchange Offer Registration Statement is
not filed with the Commission on or prior to the 90th day following the Closing
Date, (ii) the Exchange Offer Registration Statement is not declared effective
on or prior to the 135th day following the Closing Date or (iii) the Exchange
Offer is not consummated or the Shelf Registration Statement is not declared
effective on or prior to the 180th day following the Closing Date, the Special
Interest Premium shall accrue from and including the next day following each of
(a) such 90 day period in the case of clause (i) above, (b) such 135-day period
in the case of clause (ii) above and (c) such 180-day period in the case of
clause (iii) above, in each case at a rate equal to 0.5% per annum. The
aggregate amount of the Special Interest Premium payable pursuant to the above
provisions will in no event exceed 0.5% per annum. If the Exchange Offer
Registration Statement is not declared effective on or prior to the 135th day
following the Closing Date and the Operating Partnership shall request holders
of Securities to provide the information called for by the Registration Rights
Agreement referred to herein for inclusion in the Shelf Registration Statement,
the Securities owned by holders who do not deliver such information to the
Operating Partnership when required pursuant to the Registration Rights
Agreement will not be entitled to any such increase in the interest rate for any
day after the 180th day following the Closing Date. Upon (1) the filing of the
Exchange Offer Registration Statement after the 90-day period described in
clause (i) above, (2) the effectiveness of the Exchange Offer Registration
Statement after the 135-day period described in clause (ii) above or (3) the
consummation of the Exchange Offer or the effectiveness of a Shelf Registration
Statement, as the case may be, after the 180-day period described in clause
(iii) above, the interest rate on each series of Securities from the date of
such effectiveness or consummation, as the case may be, will be reduced to the
original interest rate.
If a Shelf Registration Statement is declared effective
pursuant to the foregoing paragraphs, and if the Operating Partnership fails to
keep such Shelf Registration Statement continuously (x) effective or (y) useable
for resales for the period required by this Agreement due to certain
circumstances relating to pending corporate developments, public filings with
the Commission and similar events, or because the prospectus contains an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, and such failure continues for more than 60 days (whether or not
consecutive) in any 12-month period (the 61st day being referred to as the
"Default Day"), then from the Default Day until the earlier of (i) the date that
the Shelf Registration Statement is again deemed effective or is useable, (ii)
the date that is the second anniversary of the Closing Date (or, if Rule 144(k)
is amended to provide a shorter restrictive period, the end of such shorter
period) or (iii) the date as of which all the Securities are sold pursuant to
the Shelf Registration Statement, the Special Interest Premium shall accrue at a
rate equal to 0.5% per annum.
If the Operating Partnership fails to keep the Shelf
Registration Statement continuously effective or useable for resales pursuant to
the preceding paragraph, it shall give the holders notice to suspend the sale of
the Securities and shall extend the relevant period referred to
12
above during which the Operating Partnership is required to keep effective the
Shelf Registration Statement (or the period during which Participating
Broker-Dealers are entitled to use the prospectus included in the Exchange Offer
Registration Statement in connection with the resale of Exchange Securities, as
the case may be) by the number of days during the period from and including the
date of the giving of such notice to and including the date when holders shall
have received copies of the supplemental or amended prospectus necessary to
permit resales of the Securities or to and including the date on which the
Operating Partnership has given notice that the sale of Securities may be
resumed, as the case may be.
Each Note will contain a legend to the effect that the holder
thereof, by its acceptance thereof, will be deemed to have agreed to be bound by
the provisions of this Agreement.
The Operating Partnership shall notify the Trustee within
three business days after each and every date on which an event occurs in
respect of which Additional Interest is required to be paid (an "Event Date").
Additional Interest shall be paid by depositing with the Trustee, in trust, for
the benefit of the Holders of Registrable Securities, on or before the
applicable semiannual interest payment date, immediately available funds in sums
sufficient to pay the Additional Interest then due. The Additional Interest due
shall be payable on each interest payment date to the record Holder of
Securities entitled to receive the interest payment to be paid on such date as
set forth in the Indenture. Each obligation to pay Additional Interest shall be
deemed to accrue from and including the day following the applicable Event Date.
3. Registration Procedures.
In connection with the obligations of the Operating
Partnership with respect to Registration Statements pursuant to Sections 2.1 and
2.2 hereof, the Operating Partnership shall:
(a) prepare and file with the SEC a Registration Statement,
within the relevant time period specified in Section 2, on the appropriate form
under the 1933 Act, which form (i) shall be selected by the Operating
Partnership, (ii) shall, in the case of a Shelf Registration, be available for
the sale of the Registrable Securities by the selling Holders thereof, (iii)
shall comply as to form in all material respects with the requirements of the
applicable form and include or incorporate by reference all financial statements
required by the SEC to be filed therewith or incorporated by reference therein,
and (iv) shall comply in all respects with the requirements of Regulation S-T
under the 1933 Act, and use its best efforts to cause such Registration
Statement to become effective and remain effective in accordance with Section 2
hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary
under applicable law to keep such Registration Statement effective for the
applicable period; and cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
(or any similar provision then in force) under the 1933 Act and comply with the
13
provisions of the 1933 Act, the 1934 Act and the rules and regulations
thereunder applicable to them with respect to the disposition of all securities
covered by each Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the selling
Holders thereof (including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities, at least five business days prior to filing,
that a Shelf Registration Statement with respect to the Registrable Securities
is being filed and advise such Holders that the distribution of Registrable
Securities will be made in accordance with the method selected by the Majority
Holders participating in the Shelf Registration; (ii) furnish to each Holder of
Registrable Securities and to each underwriter of an underwritten offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or underwriter may
reasonably request, including financial statements and schedules and, if the
Holder so requests, all exhibits in order to facilitate the public sale or other
disposition of the Registrable Securities; and (iii) hereby consent to the use
of the Prospectus or any amendment or supplement thereto by each of the selling
Holders of Registrable Securities in connection with the offering and sale of
the Registrable Securities covered by the Prospectus or any amendment or
supplement thereto;
(d) in the case of a Shelf Registration, use its best efforts
to register or qualify the Registrable Securities under all applicable state
securities or "blue sky" laws of such jurisdictions as any Holder of Registrable
Securities covered by a Registration Statement and each underwriter of an
underwritten offering of Registrable Securities shall reasonably request by the
time the applicable Registration Statement is declared effective by the SEC, and
do any and all other acts and things which may be reasonably necessary or
advisable to enable each such Holder and underwriter to consummate the
disposition in each such jurisdiction of such Registrable Securities owned by
such Holder; provided, however, that the Operating Partnership shall not be
required to (i) qualify as a foreign corporation or as a dealer in securities in
any jurisdiction where it would not otherwise be required to qualify but for
this Section 3(d), or (ii) take any action which would subject it to general
service of process or taxation in any such jurisdiction where it is not then so
subject;
(e) notify promptly each Holder of Registrable Securities
under a Shelf Registration or any Participating Broker-Dealer who has notified
the Operating Partnership that it is utilizing the Exchange Offer Registration
Statement as provided in paragraph (f) below and, if requested by such Holder or
Participating Broker-Dealer, confirm such advice in writing promptly (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any request by the
SEC or any state securities authority for post-effective amendments and
supplements to a Registration Statement and Prospectus or for additional
information after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, (iv) in the case of a Shelf Registration, if,
between the effective date of a Registration Statement and the
14
closing of any sale of Registrable Securities covered thereby, the
representations and warranties of the Operating Partnership contained in any
underwriting agreement, securities sales agreement or other similar agreement,
if any, relating to the offering cease to be true and correct in all material
respects, (v) of the happening of any event or the discovery of any facts during
the period a Shelf Registration Statement is effective which makes any statement
made in such Registration Statement or the related Prospectus untrue in any
material respect or which requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements therein not
misleading, (vi) of the receipt by the Operating Partnership of any notification
with respect to the suspension of the qualification of the Registrable
Securities or the Exchange Securities, as the case may be, for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, and (vii) of any determination by the Operating Partnership that a
post-effective amendment to such Registration Statement would be appropriate;
(f) (A) in the case of the Exchange Offer Registration
Statement (i) include in the Exchange Offer Registration Statement a section
entitled "Plan of Distribution" which section shall be reasonably acceptable to
Merrill Lynch and Morgan Stanley on behalf of the Participating Broker-Dealers,
and which shall contain a summary statement of the positions taken or policies
made by the staff of the SEC with respect to the potential "underwriter" status
of any broker-dealer that holds Registrable Securities acquired for its own
account as a result of market-making activities or other trading activities and
that will be the beneficial owner (as defined in Rule 13d-3 under the Exchange
Act) of Exchange Securities to be received by such broker-dealer in the Exchange
Offer, whether such positions or policies have been publicly disseminated by the
staff of the SEC or such positions or policies, in the reasonable judgment of
Merrill Lynch and Morgan Stanley on behalf of the Participating Broker-Dealers
and its counsel, represent the prevailing views of the staff of the SEC,
including a statement that any such broker-dealer who receives Exchange
Securities for Registrable Securities pursuant to the Exchange Offer may be
deemed a statutory underwriter and must deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of such Exchange
Securities, (ii) furnish to each Participating Broker-Dealer who has delivered
to the Operating Partnership the notice referred to in Section 3(e), without
charge, as many copies of each Prospectus included in the Exchange Offer
Registration Statement, including any preliminary prospectus, and any amendment
or supplement thereto, as such Participating Broker-Dealer may reasonably
request, (iii) hereby consent to the use of the Prospectus forming part of the
Exchange Offer Registration Statement or any amendment or supplement thereto, by
any Person subject to the prospectus delivery requirements of the SEC, including
all Participating Broker-Dealers, in connection with the sale or transfer of the
Exchange Securities covered by the Prospectus or any amendment or supplement
thereto, and (iv) include in the transmittal letter or similar documentation to
be executed by an exchange offeree in order to participate in the Exchange Offer
(x) the following provision:
"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as a
result of market-making activities or other trading
activities, it will deliver a prospectus meeting the
requirements of the 1933 Act in connection with any
15
resale of Exchange Securities received in respect of such
Registrable Securities pursuant to the Exchange Offer;" and
(y) a statement to the effect that, by a broker-dealer making the acknowledgment
described in clause (x) and by delivering a Prospectus in connection with the
exchange of Registrable Securities, the broker-dealer will not be deemed to
admit that it is an underwriter within the meaning of the 1933 Act; and
(A) in the case of any Exchange Offer Registration Statement,
the Operating Partnership agrees to deliver to the Initial Purchasers on behalf
of the Participating Broker-Dealers upon the effectiveness of the Exchange Offer
Registration Statement (i) an opinion of counsel or opinions of counsel
substantially in the form attached hereto as Exhibit A, (ii) officers'
certificates substantially in the form customarily delivered in a public
offering of debt securities and (iii) a comfort letter or comfort letters in
customary form to the extent permitted by Statement on Auditing Standards No. 72
of the American Institute of Certified Public Accountants (or if such a comfort
letter is not permitted, an agreed upon procedures letter in customary form)
from the Operating Partnership's independent certified public accountants (and,
if necessary, any other independent certified public accountants of any
subsidiary of the Operating Partnership or of any business acquired by the
Operating Partnership for which financial statements are, or are required to be,
included in the Registration Statement) at least as broad in scope and coverage
as the comfort letter or comfort letters delivered to the Initial Purchasers in
connection with the initial sale of the Securities to the Initial Purchasers;
(g) The Operating Partnership may require each seller of Registrable
Securities as to which any registration is being effected to furnish to the
Operating Partnership, as applicable, such information regarding such seller as
may be required by the staff of the SEC to be included in a Registration
Statement. The Operating Partnership shall have no obligation to register under
the Securities Act the Registrable Securities of a seller who so fails to
furnish such information.
(h) (i) in the case of an Exchange Offer, furnish counsel for the
Initial Purchasers and (ii) in the case of a Shelf Registration, furnish counsel
for the Holders of Registrable Securities copies of any comment letters received
from the SEC or any other request by the SEC or any state securities authority
for amendments or supplements to a Registration Statement and Prospectus or for
additional information;
(i) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment;
(j) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, and each underwriter, if any, without charge, at least
one conformed copy of each Registration Statement and any post-effective
amendment thereto, including financial statements and schedules (without
documents incorporated therein by reference and all exhibits thereto, unless
requested);
16
(k) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and enable such Registrable Securities to be in
such denominations (consistent with the provisions of the Indenture) and
registered in such names as the selling Holders or the underwriters, if any, may
reasonably request at least three business days prior to the closing of any sale
of Registrable Securities;
(l) in the case of a Shelf Registration, upon the occurrence of any
event or the discovery of any facts, each as contemplated by Sections 3(e)(v)
and 3(e)(vi) hereof, as promptly as practicable after the occurrence of such an
event, use its best efforts to prepare a supplement or post-effective amendment
to the Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of the Registrable Securities or
Participating Broker-Dealers, such Prospectus will not contain at the time of
such delivery any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or will remain so
qualified. At such time as such public disclosure is otherwise made or the
Operating Partnership determines that such disclosure is not necessary, in each
case to correct any misstatement of a material fact or to include any omitted
material fact, the Operating Partnership agrees promptly to notify each Holder
of such determination and to furnish each Holder such number of copies of the
Prospectus as amended or supplemented, as such Holder may reasonably request;
(m) in the case of a Shelf Registration, a reasonable time prior to the
filing of any Registration Statement, any Prospectus, any amendment to a
Registration Statement or amendment or supplement to a Prospectus or any
document which is to be incorporated by reference into a Registration Statement
or a Prospectus after initial filing of a Registration Statement, provide copies
of such document to the Initial Purchasers on behalf of such Holders; and make
representatives of the Operating Partnership as shall be reasonably requested by
the Holders of Registrable Securities, or the Initial Purchasers on behalf of
such Holders, available for discussion of such document;
(n) use its reasonable best efforts to obtain a CUSIP number for all
Exchange Securities, Private Exchange Securities or Registrable Securities, as
the case may be, not later than the effective date of a Registration Statement,
and provide the Trustee with printed certificates for the Exchange Securities,
Private Exchange Securities or the Registrable Securities, as the case may be,
in a form eligible for deposit with the Depositary;
(o) use its reasonable best effort to (i) cause the Indenture
Supplement to be qualified under the TIA in connection with the registration of
the Exchange Securities or Registrable Securities, as the case may be, (ii)
cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in accordance
with the terms of the TIA, and (iii) execute, and use its best efforts to cause
the Trustee to execute,
17
all documents as may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(p) in the case of a Shelf Registration, enter into agreements (including
underwriting agreements) and take all other customary and appropriate actions in
order to expedite or facilitate the disposition of such Registrable Securities
and in such connection whether or not an underwriting agreement is entered into
and whether or not the registration is an underwritten registration:
(i) make such representations and warranties to the Holders of
such Registrable Securities and the underwriters, if any, in form,
substance and scope as are customarily made by issuers to underwriters in
similar underwritten offerings as may be reasonably requested by them;
(ii) obtain opinions of counsel to the Operating Partnership and
updates thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if any, and
the holders of a majority in principal amount of the Registrable Securities
being sold) addressed to each selling Holder and the underwriters, if any,
covering the matters customarily covered in opinions requested in sales of
securities or underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters;
(iii) obtain "cold comfort" letters and updates thereof from the
Operating Partnership's independent certified public accountants (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Operating Partnership or of any business acquired by the
Operating Partnership for which financial statements are, or are required
to be, included in the Registration Statement) addressed to the
underwriters, if any, and use reasonable efforts to have such letter
addressed to the selling Holders of Registrable Securities (to the extent
consistent with Statement on Auditing Standards No. 72 of the American
Institute of Certified Public Accounts), such letters to be in customary
form and covering matters of the type customarily covered in "cold comfort"
letters to underwriters in connection with similar underwritten offerings;
(iv) enter into a securities sales agreement with the Holders and
an agent of the Holders providing for, among other things, the appointment
of such agent for the selling Holders for the purpose of soliciting
purchases of Registrable Securities, which agreement shall be in form,
substance and scope customary for similar offerings;
(v) if an underwriting agreement is entered into, cause the same
to set forth indemnification provisions and procedures substantially
equivalent to the
18
indemnification provisions and procedures set forth in Section 4 hereof
with respect to the underwriters and all other parties to be indemnified
pursuant to said Section or, at the request of any underwriters, in the
form customarily provided to such underwriters in similar types of
transactions; and
(vi) deliver such documents and certificates as may be reasonably
requested and as are customarily delivered in similar offerings to the
Holders of a majority in principal amount of the Registrable Securities
being sold and the managing underwriters, if any.
The above shall be done at (i) the effectiveness of such Registration Statement
(and each post-effective amendment thereto) and (ii) each closing under any
underwriting or similar agreement as and to the extent required thereunder;
(q) in the case of a Shelf Registration or if a Prospectus is
required to be delivered by any Participating Broker-Dealer in the case of an
Exchange Offer, make available for inspection by representatives of the Holders
of the Registrable Securities, any underwriters participating in any disposition
pursuant to a Shelf Registration Statement, any Participating Broker-Dealer and
any counsel or accountant retained by any of the foregoing, all financial and
other records, pertinent corporate documents and properties of the Operating
Partnership reasonably requested by any such persons, and cause the respective
officers, directors, employees, and any other agents of the Operating
Partnership to supply all information reasonably requested by any such
representative, underwriter, special counsel or accountant in connection with a
Registration Statement, and make such representatives of the Operating
Partnership available for discussion of such documents as shall be reasonably
requested by the Initial Purchasers provided, however, that the foregoing
inspection and information gathering shall be coordinated on behalf of the
Purchasers by the Representative and on behalf of the other parties, by one
counsel designated by the Representatives and on behalf of such other parties as
described in Section 2(c) hereof. Records which the Operating Partnership
determines in good faith, to be confidential and any records which they notify
such representatives are confidential shall not be disclosed by such
representatives unless (i) the disclosure of such Records is necessary to avoid
or correct a material misstatement or omission in such Registration Statement,
(ii) the release of such Records is ordered pursuant to a subpoena or other
order from a court a competent jurisdiction or is necessary in connection with
any action, suit or proceeding or (iii) the information in such Records has been
made generally available to the public. Each selling Holder of such Registrable
Securities and each such Participating Broker-Dealer will be required to agree
in writing that information obtained by it as a result of such inspections shall
be deemed confidential, shall not be communicated to any third-party (other than
its agents and affiliates (who shall also be subject to the confidentially
requirements of this paragraph) on a "need-to-know" basis) and shall not be used
by it as the basis for market transaction in the securities of the Operating
Partnership unless and until such is made generally available to the public.
Each selling holder of such Registrable Securities and each such Participating
Broker-Dealer will be required to further agree in writing that it will, upon
learning that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the
19
Operating Partnership and allow the Operating Partnership at its expense to
undertake appropriate action to prevent disclosure of the Records deemed
confidential;
(r) (i) in the case of an Exchange Offer Registration
Statement, a reasonable time prior to the filing of any Exchange Offer
Registration Statement, any Prospectus forming a part thereof, any amendment to
an Exchange Offer Registration Statement or amendment or supplement to such
Prospectus, provide copies of such document to the Initial Purchasers and to
counsel to the Holders of Registrable Securities and make such changes in any
such document prior to the filing thereof as the Initial Purchasers or counsel
to the Holders of Registrable Securities may reasonably request and, except as
otherwise required by applicable law, not file any such document in a form to
which the Initial Purchasers on behalf of the Holders of Registrable Securities
and counsel to the Holders of Registrable Securities shall not have previously
been advised and furnished a copy of or to which the Initial Purchasers on
behalf of the Holders of Registrable Securities or counsel to the Holders of
Registrable Securities shall reasonably object, and make the representatives of
the Operating Partnership available for discussion of such documents as shall be
reasonably requested by the Initial Purchasers; and
(i) in the case of a Shelf Registration, a reasonable time
prior to filing any Shelf Registration Statement, any Prospectus forming a part
thereof, any amendment to such Shelf Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to the Holders of
Registrable Securities, to the Initial Purchasers, to counsel for the Holders
and to the underwriter or underwriters of an underwritten offering of
Registrable Securities, if any, make such changes in any such document prior to
the filing thereof as the Initial Purchasers, the counsel to the Holders or the
underwriter or underwriters reasonably request and not file any such document in
a form to which the Majority Holders, the Initial Purchasers on behalf of the
Holders of Registrable Securities, counsel for the Holders of Registrable
Securities or any underwriter shall not have previously been advised and
furnished a copy of or to which the Majority Holders, the Initial Purchasers on
behalf of the Holders of Registrable Securities, counsel to the Holders of
Registrable Securities or any underwriter shall reasonably object, and make the
representatives of the Operating Partnership available for discussion of such
document as shall be reasonably requested by the Holders of Registrable
Securities, the Initial Purchasers on behalf of such Holders, counsel for the
Holders of Registrable Securities or any underwriter.
(s) in the case of a Shelf Registration, use its best efforts
to cause all Registrable Securities to be listed on any securities exchange on
which similar debt securities issued by the Operating Partnership are then
listed if requested by the Majority Holders, or if requested by the underwriter
or underwriters of an underwritten offering of Registrable Securities, if any;
(t) in the case of a Shelf Registration, use its best efforts
to cause the Registrable Securities to be rated by the appropriate rating
agencies, if so requested by the Majority Holders, or if requested by the
underwriter or underwriters of an underwritten offering of Registrable
Securities, if any;
20
(u) otherwise comply with all applicable rules and regulations
of the SEC and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder;
(v) cooperate and assist in any filings required to be made
with the NASD and, in the case of a Shelf Registration, in the performance of
any due diligence investigation by any underwriter and its counsel (including
any "qualified independent underwriter" that is required to be retained in
accordance with the rules and regulations of the NASD); and
(w) upon consummation of an Exchange Offer or a Private
Exchange, obtain a customary opinion of counsel to the Operating Partnership
addressed to the Trustee for the benefit of all Holders of Registrable
Securities participating in the Exchange Offer or Private Exchange, and which
includes an opinion that (i) the Operating Partnership has duly authorized,
executed and delivered the Exchange Securities and/or Private Exchange
Securities, as applicable, and the related indenture, and (ii) each of the
Exchange Securities and related indenture constitute a legal, valid and binding
obligation of the Operating Partnership, enforceable against the Operating
Partnership in accordance with its respective terms (with customary exceptions).
In the case of a Shelf Registration Statement, the Operating
Partnership may (as a condition to such Holder's participation in the Shelf
Registration) require each Holder of Registrable Securities to furnish to the
Operating Partnership such information regarding the Holder and the proposed
distribution by such Holder of such Registrable Securities as the Operating
Partnership may from time to time reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder
agrees that, upon receipt of any notice from the Operating Partnership of the
happening of any event or the discovery of any facts, each of the kind described
in Section 3(e)(v) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(k) hereof, and, if so directed by the Operating Partnership, such
Holder will deliver to the Operating Partnership (at its expense) all copies in
such Holder's possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Securities current at
the time of receipt of such notice.
In the event that the Operating Partnership fails to effect
the Exchange Offer or file any Shelf Registration Statement and maintain the
effectiveness of any Shelf Registration Statement as provided herein, the
Operating Partnership shall not file any Registration Statement with respect to
any securities (within the meaning of Section 2(1) of the 1933 Act) of the
Operating Partnership other than Registrable Securities.
If any of the Registrable Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
underwriter or underwriters and manager or managers
21
that will manage such offering will be selected by the Majority Holders of such
Registrable Securities included in such offering and shall be acceptable to the
Operating Partnership. No Holder of Registrable Securities may participate in
any underwritten registration hereunder unless such Holder (a) agrees to sell
such Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
4. INDEMNIFICATION, CONTRIBUTION.
(a) The Operating Partnership agrees to indemnify and hold harmless the
Initial Purchasers, each Holder, each Participating Broker-Dealer, each Person
who participates as an underwriter (any such Person being an "Underwriter") and
each Person, if any, who controls any Holder or Underwriter within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment or supplement thereto)
pursuant to which Exchange Securities or Registrable Securities were
registered under the 1933 Act, including all documents incorporated
therein by reference, or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
any 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;
(ii) 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 4(d) below) any such settlement is effected
with the written consent of the Operating Partnership; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by any
indemnified party), 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
22
statement or omission, to the extent that any such expense is not paid
under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Operating
Partnership by the Holder or Underwriter expressly for use in a Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto).
(b) Each Holder severally, but not jointly, agrees to
indemnify and hold harmless the Operating Partnership, the Initial Purchasers,
each Underwriter and the other selling Holders, and each of their respective
directors and officers, and each Person, if any, who controls the Operating
Partnership, the Initial Purchasers, any Underwriter or any other selling Holder
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 4(a) hereof, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Shelf Registration Statement (or any amendment thereto) or any
Prospectus included therein (or any amendment or supplement thereto) in reliance
upon and in conformity with written information with respect to such Holder
furnished to the Operating Partnership by such Holder expressly for use in the
Shelf Registration Statement (or any amendment thereto) or such Prospectus (or
any amendment or supplement thereto); provided, however, that no such Holder
shall be liable for any claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Registrable Securities pursuant to such
Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action or proceeding
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. An
indemnifying party may participate at its own expense in the defense of 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 party or parties be liable
for the fees and expenses of more than one counsel (in addition to 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 4 (whether or not the indemnified parties are actual or
potential parties thereto), unless such
23
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) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into 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.
(e) If the indemnification provided for in this Section 4 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, in such proportion as is
appropriate to reflect the relative fault of the Operating Partnership on the
one hand and the Holders and the Initial Purchasers 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 fault of the Operating Partnership on the one
hand and the Holders and the Initial Purchasers on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Operating
Partnership, the Holders or the Initial Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Operating Partnership, the Holders and the Initial
Purchasers agree that it would not be just and equitable if contributions
pursuant to this Section 4 were determined by pro rata allocation (even if the
Initial Purchasers 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 4. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 4 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.
24
Notwithstanding the provisions of this Section 4, no Holder or
Initial Purchaser shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities sold by it were offered
exceeds the amount of any damages which such Holder or Initial Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each Person, if any, who
controls an Initial Purchaser or Holder 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 Initial Purchaser or Holder, and each director of the
Operating Partnership, and each Person, if any, who controls the Operating
Partnership within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Operating
Partnership. The Initial Purchasers' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the principal amount of
Securities set forth opposite their respective names in Schedule A to the
Purchase Agreement and not joint.
5. Miscellaneous.
5.1 Rule 144 and Rule 144A. For so long as the Operating
Partnership is subject to the reporting requirements of Section 13 or 15 of the
1934 Act, the Operating Partnership covenants that it will file the reports
required to be filed by it under the 1933 Act and Section 13(a) or 15(d) of the
1934 Act and the rules and regulations adopted by the SEC thereunder. If the
Operating Partnership ceases to be so required to file such reports, the
Operating Partnership covenants that it will upon the request of any Holder of
Registrable Securities (a) make publicly available such information as is
necessary to permit sales pursuant to Rule 144 under the 1933 Act, (b) deliver
such information to a prospective purchaser as is necessary to permit sales
pursuant to Rule 144A under the 1933 Act and it will take such further action as
any Holder of Registrable Securities may reasonably request, and (c) take such
further action that is reasonable in the circumstances, in each case, to the
extent required from time to time to enable such Holder to sell its Registrable
Securities without registration under the 1933 Act within the limitation of the
exemptions provided by (i) Rule 144 under the 1933 Act, as such Rule may be
amended from time to time, (ii) Rule 144A under the 1933 Act, as such Rule may
be amended from time to time, or (iii) any similar rules or regulations
hereafter adopted by the SEC. Upon the request of any Holder of Registrable
Securities, the Operating Partnership will deliver to such Holder a written
statement as to whether it has complied with such requirements.
5.2 No Inconsistent Agreements. The Operating Partnership has
not entered into and the Operating Partnership will not after the date of this
Agreement enter into any agreement which is inconsistent with the rights granted
to the Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
25
hereunder do not and will not for the term of this Agreement in any way conflict
with the rights granted to the holders of the Operating Partnership's other
issued and outstanding securities under any such agreements.
5.3 Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Operating Partnership has obtained the written
consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or departure.
5.4 Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (a) if to a Holder, at the most current address given by such Holder to
the Operating Partnership by means of a notice given in accordance with the
provisions of this Section 5.4, which address initially is the address set forth
in the Purchase Agreement with respect to the Initial Purchasers; and (b) if to
the Operating Partnership, initially at the Operating Partnership's address set
forth in the Purchase Agreement, and thereafter at such other address of which
notice is given in accordance with the provisions of this Section 5.4.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; two
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the person giving the same to the Trustee
under the Indenture, at the address specified in such Indenture.
5.5 Successor and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or the Indenture.
If any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities such person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this Agreement
and, if applicable, the Purchase Agreement, and such person shall be entitled to
receive the benefits hereof.
26
5.6 Third Party Beneficiaries. The Initial Purchasers (even if
the Initial Purchasers are not Holders of Registrable Securities) shall be third
party beneficiaries to the agreements made hereunder between the Operating
Partnership, on the one hand, and the Holders, on the other hand, and shall have
the right to enforce such agreements directly to the extent they deem such
enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder. Each Holder of Registrable Securities shall be a third party
beneficiary to the agreements made hereunder between the Operating Partnership,
on the one hand, and the Initial Purchasers, on the other hand, and shall have
the right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights hereunder.
5.7 Specific Enforcement. Without limiting the remedies
available to the Initial Purchasers and the Holders, the Operating Partnership
acknowledges that any failure by the Operating Partnership to comply with its
obligations under Sections 2.1 through 2.4 hereof may result in material
irreparable injury to the Initial Purchasers or the Holders for which there is
no adequate remedy at law, that it would not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Operating Partnership's obligations under Sections 2.1
through 2.4 hereof.
5.8 Restriction on Resales. Until the expiration of two years
after the original issuance of the Securities, the Operating Partnership and the
Guarantor will not, and will cause its "affiliates" (as such term is defined in
Rule 144(a)(1) under the 1933 Act) not to, resell any Securities which are
"restricted securities" (as such term is defined under Rule 144(a)(3) under the
1933 Act) that have been reacquired by any of them and shall immediately upon
any purchase of any such Securities submit such Securities to the Trustee for
cancellation.
5.9 Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
5.10 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.12 Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
27
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
SIMON DeBARTOLO GROUP, L.P.
By: SD Property Group, Inc.
By: ____________________________________
Name:
Title:
Confirmed and accepted
as of the date first above
written:
MERRILL LYNCH PIERCE, FENNER & SMITH INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
CHASE SECURITIES INC.
LEHMAN BROTHERS INC.
J.P. MORGAN SECURITIES INC.
NATIONSBANC MONTGOMERY SECURITIES LLC
UBS SECURITIES LLC
By: Merrill Lynch, Pierce, Fenner & Smith Incorporated
By:_______________________
Name:
Title:
28
Exhibit A
FORM OF OPINION OF COUNSEL
Merrill Lynch & Co.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
Morgan Stanley & Co. Incorporated
Chase Securities Inc.
Lehman Brothers Inc.
J.P. Morgan Securities Inc.
NationsBanc Montgomery Securities LLC
and
UBS Securities LLC c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Investment Banking Division
Merrill Lynch World Headquarters
World Financial Center
North Tower, 30th Floor
New York, New York 10281-1209
Ladies and Gentlemen:
We have acted as counsel for Simon DeBartolo Group, L.P., a Delaware
limited partnership (the "Operating Partnership"), in connection with the sale
by the Operating Partnership to the Initial Purchasers (as defined below) of
$1,075,000,000 aggregate principal amount of 6 5/8% senior unsecured notes due
June 15, 2003, 6 3/4% senior unsecured notes due June 15, 2005, 7 3/8% senior
unsecured notes due June 15, 2018 and 7.0% MandatOry Par Put Remarketed
Securities(sm) due June 15, 2028 (the "Securities") of the Operating Partnership
pursuant to the Purchase Agreement dated June 16, 1998 (the "Purchase
Agreement") among the Operating Partnership and Merrill Lynch & Co., Inc.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co.
Incorporated, Chase Securities Inc., Lehman Brothers Inc., J.P. Morgan
Securities Inc., NationsBanc Montgomery Securities LLC and UBS Securities LLC
(collectively, the "Initial Purchasers") and the filing by the Operating
Partnership of an Exchange Offer Registration Statement (the "Registration
Statement") in connection with an Exchange Offer to be effected pursuant to the
Registration Rights Agreement (the "Registration Rights Agreement"), dated June
22, 1998, between the Operating Partnership and the Initial Purchasers. This
opinion is furnished to you pursuant to Section 3(f)(B) of the Registration
Rights Agreement. Unless otherwise defined herein, capitalized terms used in
this opinion that are defined in the Registration Rights Agreement are used
herein as so defined.
We have examined such documents, records and matters of law as we have
deemed necessary for purposes of this opinion. In rendering this opinion, as to
all matters of fact relevant
29
to this opinion, we have assumed the completeness and accuracy of, and are
relying solely upon, the representations and warranties of each of the Simon
DeBartolo Group, Inc. (the "Company"), the Operating Partnership and SD Property
Group,Inc., a Maryland corporation, ("SD Property") set forth in the Purchase
Agreement and the statements set forth in certificates of public officials and
officers of the Operating Partnership, without making any independent
investigation or inquiry with respect to the completeness or accuracy of such
representations, warranties or statements, other than a review of the
certificate of incorporation, by-laws and relevant minute books of the Operating
Partnership.
Based on and subject to the foregoing, we are of the opinion that:
1. The Exchange Offer Registration Statement and the
Prospectus (other than the financial statements, notes or schedules thereto and
other financial data and supplemental schedules included or incorporated by
reference therein or omitted therefrom and the Form T-1, as to which such
counsel need express no opinion), comply as to form in all material respects
with the requirements of the 1933 Act and the applicable rules and regulations
promulgated under the 1933 Act.
2. We have participated in the preparation of the Registration
Statement and the Prospectus and in the course thereof have had discussions with
representatives of the Underwriters, officers and other representatives of the
Operating Partnership and Arthur Andersen LLP, the Operating Partnership's
independent public accountants, during which the contents of the Registration
Statement and the Prospectus were discussed. We have not, however, independently
verified and are not passing upon, and do not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus. Based on our participation as
described above, nothing has come to our attention that would lead us to believe
that the Registration Statement (except for financial statements and schedules
and other financial data included therein as to which we make no statement)
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 schedules and other financial data included
therein, as to which such counsel need make no statement), at the time the
Prospectus was issued, at the time any such amended or supplemented Prospectus
was issued or at the Closing Time, included or includes 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.
This opinion is being furnished to you solely for your benefit in
connection with the transactions contemplated by the Registration Rights
Agreement, and may not be used for any other purpose or relied upon by any
person other than you. Except with our prior written consent, the opinions
herein expressed are not to be used, circulated, quoted or otherwise referred to
in connection with any transactions other than those contemplated by the
Registration Rights Agreement by or to any other person.
30
Very truly yours,
1
EXHIBIT 4.4
REMARKETING AGREEMENT
REMARKETING AGREEMENT, dated as of June 22, 1998 (the "Remarketing
Agreement"), between Simon DeBartolo Group, L.P., a Delaware limited partnership
(the "Company"), and Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch" and, in its capacity as the remarketing dealer hereunder, the
"Remarketing Dealer").
WHEREAS, the Company has issued $200,000,000 aggregate principal amount
of its 7.0% MandatOry Par Put Remarketed Securities(SM) due June 15, 2028 (the
"MOPPRS(SM)"), pursuant to an indenture, dated as of November 26, 1996 (the
"Original Indenture"), among the Company, Simon Property Group, L.P., a Delaware
limited partnership (which, effective December 31, 1997, was merged into the
Company) and The Chase Manhattan Bank, as trustee (the "Trustee"), as
supplemented by a sixth supplemental indenture dated as of June 22, 1998,
between by the Company and the Trustee (the Original Indenture, as so
supplemented and as it may be further amended or supplemented, the "Indenture");
and
WHEREAS, the MOPPRS are being sold initially pursuant to a purchase
agreement, dated June 16, 1998 (the "Purchase Agreement"), among the Company,
Simon DeBartolo Group, Inc., a Maryland real estate investment trust which is a
general partner of the Company ("SDG"), SD Property Group, Inc., an Ohio
corporation which is the managing general partner of the Company ("SD Property")
and the Initial Purchasers named therein (collectively, the "Initial
Purchasers"), for whom Merrill Lynch and Morgan Stanley & Co. Incorporated
("Morgan Stanley") are acting as representatives (in such capacity, the
"Representatives"); and
WHEREAS, the Company has prepared a preliminary offering memorandum
dated June 5, 1998 (the "Preliminary Offering Memorandum") and a final offering
memorandum dated June 16, 1998 (the "Final Offering Memorandum" and, together
with the Preliminary Offering Memorandum, the "Offering Memorandum") in
connection with the offering of the MOPPRS pursuant to an exemption from
registration under the Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Company, in connection with the issuance of the MOPPRS,
has entered into a Registration Rights Agreement, dated June 22, 1998 (the
"Registration Rights Agreement"), relating to the MOPPRS; and
- -------------------
"MandatOry Par Put Remarketed Securities(SM)" and "MOPPRS(SM)" are service marks
owned by Merrill Lynch & Co., Inc.
2
WHEREAS, Merrill Lynch is prepared to act as the Remarketing Dealer
with respect to the remarketing of the MOPPRS on June 16, 2008 (the "Remarketing
Date") pursuant to the terms of, but subject to the conditions set forth in,
this Agreement;
NOW, THEREFORE, for and in consideration of the covenants herein made,
and subject to the conditions herein set forth, the parties hereto agree as
follows:
1. DEFINITIONS. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Indenture (including
the form of the MOPPRS). As used herein, the term MOPPRS shall include the
MOPPRS sold initially pursuant to the Purchase Agreement (the "Original MOPPRS")
or, as the case may be, the securities issued in exchange therefor as
contemplated by the Registration Rights Agreement (the "Exchange Offer MOPPRS")
or, if applicable, MOPPRS with respect to which a shelf registration statement
is declared effective as contemplated by the Registration Rights Agreement (the
"Shelf MOPPRS").
2. REPRESENTATIONS AND WARRANTIES. (a) The Company represents and
warrants to the Remarketing Dealer as of the date hereof, the Notification Date
(as defined below), the Determination Date (as defined below) and the
Remarketing Date (each such date being hereinafter referred to as a
"Representation Date"), that (i) it has made all the filings with the Securities
and Exchange Commission (the "Commission") that it is required to make under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and the rules and
regulations thereunder (the "1934 Act Regulations") (collectively, the "1934 Act
Documents"), (ii) each 1934 Act Document complies in all material respects with
the requirements of the 1934 Act and 1934 Act Regulations, and each 1934 Act
Document did not at the time of filing with the Commission, and as of each
Representation Date, as modified or superseded by any subsequently filed 1934
Act Document on or prior to such Representation Date, will not, include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided
that this representation and warranty shall not apply to statements in or
omissions from any 1934 Act Document made in reliance upon and in conformity
with information furnished to the Operating Partnership in writing by any
Initial Purchaser through the Representatives expressly for use in such 1934 Act
Document, and (iii) the applicable Remarketing Materials (as defined herein), as
of each Representation Date after the date hereof, as modified or superseded by
any subsequently filed 1934 Act Document on or prior to such Representation Date
(or, if applicable, by any document filed pursuant to the 1933 Act and the rules
and regulations thereunder (the "1933 Act Regulations")), will not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
3
(a) The Company further represents and warrants to the Remarketing Dealer as of
each Representation Date as follows:
(i) The accountants who certified the financial statements and
supporting schedules included or incorporated by reference in the 1934
Act Documents are independent public accountants as required by the
1933 Act and the 1933 Act Regulations.
(ii) The financial statements included or incorporated by
reference in the 1934 Act Documents, together with the related
schedules and notes, present fairly the financial position of the
Company and its consolidated subsidiaries at the dates indicated and
the statement of operations, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified;
said 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 1934
Act Documents present fairly in accordance with GAAP the information
required to be stated therein. The pro forma financial statements and
the related notes thereto, if any, included or incorporated by
reference in the 1934 Act Documents present fairly the information
shown therein, have been prepared in accordance with the Commission's
rules and guidelines with respect to pro forma financial statements 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.
(iii) Since the respective dates as of which information is given
in the 1934 Act Documents, 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, SDG, M.S. Management Associates, Inc., a
Delaware corporation ("SPG Management Company"), M.S. Management
Associates (Indiana), Inc., an Indiana corporation ("Management
(Indiana)"), Simon MOA, Inc., an Indiana corporation ("MOA"), DeBartolo
Properties Management, Inc., an Ohio corporation ("DRC Management," and
together with SPG Management Company, Management (Indiana), MOA and any
other management company in which either the Company or SDG may now or
hereafter have an interest, the "Management Companies"), any subsidiary
of the Company or SDG which may now or hereafter be qualified as a real
estate investment trust under the Internal Revenue Code of 1986, as
amended (collectively, the "Qualified Reit Subs") or any other now or
hereafter existing subsidiary of the Company (other than any Property
Partnership (as defined below)) (the Company, SDG, the Management
Companies, and the Qualified Reit Subs and such other subsidiaries
being
4
sometimes hereinafter collectively referred to as the "Simon DeBartolo
Entities" and individually as a "Simon DeBartolo Entity"), or of any
entity which owns any SDG Property (as such term is defined in the
Offering Memorandum) or any direct interest in any SDG Property (the
"Property Partnerships") whether or not arising in the ordinary course
of business, which would be material to the Company and SDG, taken as a
whole (anything which would be material to the Company and SDG, 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 SDG
Properties has occurred which would be Material, (C) there have been no
transactions or acquisitions entered into by the Simon DeBartolo
Entities or the Property Partnerships, other than those in the ordinary
course of business, which would be Material, (D) except for
distributions in amounts per unit that are consistent with past
practices, there has been no distribution of any kind declared, paid or
made by the Company on any of its general, limited and/or preferred
partnership interests, and (E) there has been no change in the capital
stock of the corporate Simon DeBartolo Entities or in the partnership
interests of the Company or any Property Partnership, or any increase
in the indebtedness of the Simon DeBartolo Entities, the Property
Partnerships or the SDG Properties which would be Material.
(iv) The Company 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 1934 Act Documents and to
enter into and perform its obligations under this Agreement. The
Company 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.
(v) SDG 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 the business in which it is engaged and
proposes to engage as described in the 1934 Act Documents and to enter
into and perform its obligations under, or as contemplated under, this
Agreement. SDG 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.
5
(vi) Each of the Simon DeBartolo Entities other than the Company
and SDG 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 1934 Act Documents.
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 1934 Act Documents, 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, directly or indirectly, by the Company,
the Management Companies or SDG, 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 1934 Act
Documents. No such shares of capital stock or other equity interests of
such entities were issued in violation of preemptive or other similar
rights arising by operation of law, under the charter or bylaws of such
entity or under any agreement to which any Simon DeBartolo Entity is a
party.
(vii) 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.
6
(viii) This Agreement has been duly authorized, executed and
delivered by the Company.
(ix) The Indenture has been duly authorized, executed and
delivered by the Company, and assuming due authorization, execution and
delivery by the Trustee, constitutes a valid and binding agreement of
the Company, enforceable against the Company in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law). The Original Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act").
(x) The MOPPRS have been duly authorized and executed by the
Company and authenticated, issued and delivered in the manner provided
for in the Indenture and delivered against payment of the purchase
price therefor as provided in the Purchase Agreement, and constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law), and are in the form contemplated
by, and entitled to the benefits of, the Indenture.
(xi) The Exchange Offer MOPPRS have been duly authorized by the
Company for issuance and sale pursuant to the Indenture and the
Registration Rights Agreement and, when executed, authenticated, issued
and delivered in the manner provided for in the Registration Rights
Agreement and the Indenture and delivered against payment of
consideration therefor in the form of Original MOPPRS, will constitute
valid and legally binding obligations of the Company, entitled to the
benefit of the Indenture, enforceable against the Company in accordance
with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding
in equity or at law). Such Exchange Offer MOPPRS will be in the form
contemplated by, and each registered holder thereof will be entitled to
the benefits of, the Indenture.
7
(xii) None of the Simon DeBartolo Entities or any Property
Partnership is in violation of its charter, by-laws, certificate of
limited partnership or partnership agreement or other organizational
document, as the case may be, or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to which
any such 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 SDG 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.
(xiii) The execution, delivery and performance of this Agreement,
the Indenture and the MOPPRS and the consummation of the transactions
contemplated herein and in the Offering Memorandum (including the
issuance and sale of the MOPPRS and the use of the proceeds from the
sale of the MOPPRS as described in the Offering Memorandum under the
caption "Use of Proceeds") and compliance by the Company with its
obligations hereunder and under the Indenture and the MOPPRS have been
duly authorized by all necessary partnership action and do not and will
not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any assets, properties or
operations of the Company or any other Simon DeBartolo Entity or any
Property Partnership pursuant to, the Agreements and Instruments
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor
will such action result in any violation of the provisions of the
charter, by-laws, limited liability company agreement, certificate of
limited partnership or partnership agreement, as the case may be, of
the Company or any other Simon DeBartolo Entity or any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary or any of their
assets, properties or operations. As used herein, a "Repayment Event"
means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a material portion of such indebtedness by the
Company, any other Simon DeBartolo Entity or any Property Partnership.
(xiv) There is no action, suit, proceeding, inquiry or
investigation before or by any court or governmental agency or body,
domestic or foreign, now pending, or to the knowledge of the Company
threatened against or affecting the Company, any other Simon DeBartolo
Entity, or any Property Partnership or any officer or director of the
8
Company 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 transactions contemplated
herein. The aggregate of all pending legal or governmental proceedings
to which the Company or any other Simon DeBartolo Entity, or any
Property Partnership is a party or of which any of their respective
assets, properties or operations is the subject which are not described
in the 1934 Act Documents including ordinary routine litigation
incidental to the business, could not reasonably be expected to result
in a Material Adverse Effect.
(xv) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder, in connection
with the remarketing of the MOPPRS hereunder or the consummation of the
transactions contemplated by this Agreement or for the due execution,
delivery or performance of the Indenture by the Company, except such as
have been or shall have been obtained.
(xvi) Each of the Company, the other Simon DeBartolo Entities and
the Property Partnerships is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended.
(xvii) The Company and the other Simon DeBartolo Entities and each
Property Partnership possess such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them except for such Governmental Licenses the failure of
which to obtain would not, singly or in the aggregate, result in a
Material Adverse Effect. The Company and the other Simon DeBartolo
Entities and each Property Partnership are in compliance with the terms
and conditions of all such Governmental Licenses, except where the
failure so to comply would not, singly or in the aggregate, result in a
Material Adverse Effect. All of the Governmental Licenses are valid and
in full force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to
be in full force and effect would not result in a Material Adverse
Effect. None of the Company, the other Simon DeBartolo Entities or 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.
9
(xviii) No labor dispute with the employees of the Company or any
other Simon DeBartolo Entity or any Property Partnership exists or, to
the knowledge of the Company, is imminent, and the Company is not aware
of any existing or imminent labor disturbance by the employees of any
of its or any subsidiary's principal suppliers, manufacturers,
customers or contractors, which dispute or disturbance, in either case,
may reasonably be expected to result in a Material Adverse Effect.
(xix) Each of the Simon DeBartolo Entities and the Property
Partnerships has filed all federal, state, local and foreign income tax
returns which have been required to be filed (except in any case in
which an extension has been granted or the failure to so file would not
have a Material Adverse Effect) and has paid all taxes required to be
paid and any other assessment, fine or penalty levied against it, to
the extent that any of the foregoing is due and payable, except, in all
cases, for any such tax, assessment, fine or penalty that is being
contested in good faith.
(xx) To the knowledge of the Company, none of the Simon DeBartolo
Entities or the Property Partnerships is required to own, possess or
obtain the consent of any holder of any trademarks, service marks,
trade names or copyrights not now lawfully owned, possessed or licensed
in order to conduct the business now operated by such entity.
(xxi) The Company, the other Simon DeBartolo Entities and the
Property Partnerships have good and marketable title to the SDG
Properties free and clear of Liens, except (A) as otherwise disclosed
in the 1934 Act Documents, or referred to in any title policy for such
SDG 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 Company,
any other Simon DeBartolo Entity or any Property Partnership. All
leases and subleases under which the Company, any other Simon DeBartolo
Entity or any Property Partnerships hold properties are in full force
and effect, except for such which would not have a Material Adverse
Effect. None of the Company, the other Simon DeBartolo Entities or the
Property Partnerships has received any notice of any Material claim of
any sort that has been asserted by anyone adverse to the rights of the
Company, any other Simon DeBartolo Entity or the Property Partnerships
under any Material leases or subleases, or affecting or questioning the
rights of the Company, such other Simon DeBartolo Entity or the
Property Partnerships of the continued possession of the leased or
subleased premises under any such lease or sublease, other than claims
that would not have a Material Adverse Effect. All liens, charges,
encumbrances, claims or restrictions on or affecting any of the SDG
Properties and the assets of any Simon DeBartolo Entity or any Property
Partnership which are required to be disclosed in the 1934 Act
Documents are disclosed therein. None of the Simon DeBartolo Entities,
the Property
10
Partnerships or any tenant of any of the SDG 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 SDG Properties, and the Company does
not know 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 or any Property Partnership, as
lessor, leases its SDG 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 SDG
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 SDG Properties), except
for such failures to comply that would not in the aggregate have a
Material Adverse Effect. The Company does not have 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 SDG Properties,
except such proceedings, changes or actions that would not have a
Material Adverse Effect.
(xxii) Except as otherwise disclosed in the 1934 Act Documents and
except such violations as would not, singly or in the aggregate, result
in a Material Adverse Effect, (A) neither the Company, any of the other
Simon DeBartolo Entities nor any Property Partnership is in violation
of any federal, state, local or foreign statute, law, rule, regulation,
ordinance, 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 Company, the
other Simon DeBartolo Entities and the Property Partnerships have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company, any of the other
Simon DeBartolo Entities or the Property Partnerships and (D) there are
no events or circumstances that
11
might reasonably be expected to form the basis of an order for clean-up
or remediation, or an action, suit or proceeding by any private party
or governmental body or agency, against or affecting the Company, any
of the other Simon DeBartolo Entities or any Property Partnership
relating to any Hazardous Materials or the violation of any
Environmental Laws.
References in the foregoing representations and warranties to the 1934
Act Documents shall be deemed to refer to the Registration Statement (as defined
in Section 3(b) below) and Prospectus (as defined in Section 3(b) below), in
each case including the documents incorporated by reference therein, if such are
required pursuant to Section 3(e) hereof.
(b) Additional Certifications. Any certificate signed by any
director or officer of the Company and delivered to the Remarketing
Dealer or to counsel for the Remarketing Dealer in connection with the
remarketing of the MOPPRS shall be deemed a representation and warranty
by the Company to the Remarketing Dealer as to the matters covered
thereby.
Section 3. Covenants of the Company. The Company covenants with the
Remarketing Dealer as follows:
(a) The Company will provide prompt notice by telephone, confirmed in
writing (which may include facsimile or other electronic transmission), to the
Remarketing Dealer of (i) any notification or announcement by a "nationally
recognized statistical rating organization" (as defined by the Commission for
purposes of Rule 436(g)(2) under the 1933 Act) with regard to the ratings of any
securities of the Company, including, without limitation, notification or
announcement of a downgrade in or withdrawal of the rating of any security of
the Company or notification or announcement of the placement of any rating of
any securities of the Company under surveillance or review, including placement
on CreditWatch or on Watch List with negative implications, or (ii) the
occurrence at any time of any event set forth in Section 8(b) of this Agreement.
(b) The Company will furnish to the Remarketing Dealer:
(i) if required as provided in paragraph (e) below for purposes of
the remarketing, a then currently effective registration statement
under the 1933 Act and a then current prospectus relating to the MOPPRS
to be used by the Remarketing Dealer for remarketing and resale of the
MOPPRS (such registration statement (whether consisting of the
registration statement relating to the Exchange Offer MOPPRS or the
Shelf MOPPRS or, in each case, any amendment thereto or a new
registration statement) and any amendments thereto, including any such
prospectus (whether consisting of the prospectus relating to the
Exchange Offer MOPPRS or the Shelf MOPPRS or, in each case, any
amendment or
12
supplement thereto or a new prospectus) relating to the MOPPRS
constituting a part thereof, and all documents incorporated therein by
reference, as from time to time amended or supplemented pursuant to the
1934 Act, the 1933 Act, or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus," respectively), except
that if any revised prospectus shall be provided to the Remarketing
Dealer by the Company for use in connection with the remarketing of the
MOPPRS which differs from the Prospectus on file at the Commission at
the time the Registration Statement becomes effective, the term
"Prospectus" shall refer to such revised prospectus from and after the
time it is first provided to the Remarketing Dealer for such use);
(ii) each 1934 Act Document filed after the date hereof for so
long as this Agreement shall remain in effect; and
(iii) in connection with the remarketing of MOPPRS, such other
information as the Remarketing Dealer may reasonably request from time
to time.
The Company agrees to provide the Remarketing Dealer with as many
copies of the foregoing written materials and other Company approved information
as the Remarketing Dealer may reasonably request for use in connection with the
remarketing of MOPPRS and consents to the use thereof for such purpose.
(c) If, at any time during which the Remarketing Dealer would be
obligated to take any action under this Agreement, any event or condition known
to the Company relating to or affecting the Company, any subsidiary thereof or
the MOPPRS shall occur which could reasonably be expected to cause any of the
reports, documents, materials or information referred to in paragraph (b) above
or any document incorporated therein by reference (collectively, the
"Remarketing Materials") to contain an untrue statement of a material fact or
omit to state a material fact, the Company shall promptly notify the Remarketing
Dealer in writing of the circumstances and details of such event or condition.
(d) So long as the MOPPRS are outstanding, the Company will file all
documents required to be filed with the Commission pursuant to the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act Regulations.
(e) The Company will comply with the 1933 Act and the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and the
rules and regulations of the Commission thereunder so as to permit the
completion of the remarketing of the MOPPRS, as contemplated in this Agreement
and in the Offering Memorandum. In furtherance of the foregoing, if it shall be
necessary, in the opinion of counsel for the Remarketing Dealer or for the
13
Company, to have a Registration Statement and a Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations and the
Commission's interpretations of the 1933 Act and the 1933 Act Regulations, or if
at any time when a Prospectus is required by the 1933 Act to be delivered in
connection with remarketing and resales of the MOPPRS, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Remarketing Dealer or for the Company, to amend the Registration
Statement or amend or supplement the Prospectus in order that the Prospectus
will not include any untrue statements of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, the Company, at its expense, will promptly (i) prepare and file with
the Commission such Registration Statement and Prospectus, or such amendment or
supplement as may be necessary to correct such statement or omission as referred
to above or to make the Registration Statement or the Prospectus comply with
such requirements as referred to above, (ii) furnish to the Remarketing Dealer
such number of copies of such Registration Statement and Prospectus or such
amendment, supplement or other document as the Remarketing Dealer may reasonably
request and (iii) furnish to the Remarketing Dealer an officers' certificate, an
opinion (including a statement as to the absence of material misstatements in or
omissions from the Registration Statement and Prospectus, as amended or
supplemented) of counsel for the Company satisfactory to the Remarketing Dealer
and a "comfort letter" from the Company's independent accountants, in each case
in form and substance satisfactory to the Remarketing Dealer, of the same tenor
as the officers' certificate, opinion and comfort letter, respectively,
delivered pursuant to the Purchase Agreement, but modified to relate to the
Registration Statement and Prospectus as amended or supplemented to the date
thereof.
(f) The Company agrees that neither it nor any of its subsidiaries or
affiliates shall defease, purchase or otherwise acquire, or enter into any
agreement to defease, purchase or otherwise acquire, any of the MOPPRS prior to
the remarketing thereof by the Remarketing Dealer, other than pursuant to
Section 4(g) or 4(h) of this Agreement, without the prior written consent of the
Remarketing Dealer. If the Remarketing Dealer, in its sole discretion, elects to
give its consent to any request of the Company pursuant to this Section 3(f),
the Remarketing Dealer will have rights set forth in Section 11(e).
(g) Notwithstanding any provision to the contrary set forth in the
Indenture, the Company shall (i) use its best efforts to maintain the MOPPRS in
book-entry form with The Depository Trust Company ("DTC") or any successor
thereto and to appoint a successor depositary to the extent necessary to
maintain the MOPPRS in book-entry form, and (ii) waive any discretionary right
it otherwise has under the Indenture to cause the MOPPRS to be issued in
certificated form.
14
(h) To the extent that a Registration Statement and a Prospectus are
required as contemplated in paragraph (e) above, the Company will comply with
covenants of the same tenor as those set forth in the Purchase Agreement, but
modified to relate to the Registration Statement and Prospectus.
Section 4. Appointment and Obligations of the Remarketing Dealer. (a)
Unless this Agreement is otherwise terminated in accordance with Section 11
hereof, in accordance with the terms, but subject to the conditions, of this
Agreement, the Company hereby appoints Merrill Lynch, and Merrill Lynch hereby
accepts such appointment, as the exclusive Remarketing Dealer with respect to
$200,000,000 aggregate principal amount of MOPPRS, subject further to repurchase
of the MOPPRS in accordance with clause (g) of this section or redemption of the
MOPPRS in accordance with clause (h) of this section.
(b) It is expressly understood and agreed by the parties hereto that
the obligations of the Remarketing Dealer hereunder with respect to the MOPPRS
to be remarketed on the Remarketing Date are conditioned on (i) the issuance and
delivery of such MOPPRS pursuant to the terms and conditions of the Purchase
Agreement and (ii) the Remarketing Dealer's election on the Notification Date to
purchase the MOPPRS for remarketing on the Remarketing Date. It is further
expressly understood and agreed by and between the parties hereto that, if the
Remarketing Dealer has elected to remarket the MOPPRS pursuant to clause (c)
below, the Remarketing Dealer shall not be obligated to set the Interest Rate to
Maturity on any MOPPRS, to remarket any MOPPRS or to perform any of the other
duties set forth herein at any time after the Notification Date that (i) any of
the conditions set forth in clause (a) of Section 8 hereof shall not have been
fully and completely met to the satisfaction of the Remarketing Dealer, or (ii)
any of the events set forth in clause (b) of Section 8 hereof shall have
occurred.
(c) On a Business Day not later than five Business Days prior to the
Remarketing Date, the Remarketing Dealer shall notify the Company and the
Trustee as to whether it elects to purchase the MOPPRS on the Remarketing Date
(the "Notification Date"). If, and only if, the Remarketing Dealer so elects,
the MOPPRS shall be subject to mandatory tender to the Remarketing Dealer for
remarketing on the Remarketing Date, subject to the conditions described herein.
(c) Subject to the Remarketing Dealer's election to remarket the MOPPRS
as provided in clause (c) above, the Interest Rate to Maturity shall be
determined by the Remarketing Dealer by 3:30 p.m., New York City time, on the
third Business Day preceding the Remarketing Date (the "Determination Date") to
the nearest one hundred-thousandth (0.00001) of one percent per annum, and will
be equal to the sum of 5.649% (the "Base Rate") plus the Applicable Spread (as
defined below), which will be based on the Dollar Price (as defined below) of
the MOPPRS.
15
The "Applicable Spread" will be the lowest bid indication, expressed as
a spread (in the form of a percentage or in basis points) above the Base Rate,
obtained by the Remarketing Dealer on the Determination Date from the bids
quoted by five Reference Corporate Dealers (as defined below) for the full
aggregate principal amount of the MOPPRS at a purchase price equal to the Dollar
Price, but assuming (i) an issue date equal to the Remarketing Date, with
settlement on such date without accrued interest, (ii) a maturity date equal to
the Stated Maturity Date of the MOPPRS, and (iii) a stated annual interest rate,
payable semiannually on each Interest Payment Date for the MOPPRS, equal to the
Base Rate plus the spread bid by the applicable Reference Corporate Dealer. If
fewer than five Reference Corporate Dealers bid as described above, then the
Applicable Spread shall be the lowest of such bid indications obtained as
described above. The Interest Rate to Maturity announced by the Remarketing
Dealer, absent manifest error, shall be binding and conclusive upon the
Beneficial Owners and Holders of the MOPPRS, the Company and the Trustee.
"Dollar Price" means, with respect to the MOPPRS, the present value
determined by the Remarketing Dealer, as of the Remarketing Date, of the
Remaining Scheduled Payments (as defined below) discounted to the Remarketing
Date, on a semiannual basis (assuming a 360-day year consisting of twelve 30-day
months), at the Treasury Rate (as defined below).
"Reference Corporate Dealers" means leading dealers of publicly traded
debt securities of the Company in The City of New York (which may include the
Remarketing Dealer or one of its affiliates, but not both the Remarketing Dealer
and one of its affiliates) selected by the Remarketing Dealer and reasonably
acceptable to the Company.
"Treasury Rate" means, with respect to the Determination Date, the rate
per annum equal to the semi-annual equivalent yield to maturity or interpolated
(on a day count basis) yield to maturity of the Comparable Treasury Issues (as
defined below), assuming a price for the Comparable Treasury Issues (expressed
as a percentage of its principal amount), equal to the Comparable Treasury Price
(as defined below) for the Determination Date.
"Comparable Treasury Issues" means the United States Treasury security
or securities selected by the Remarketing Dealer as having an actual or
interpolated remaining maturity or maturities of 30 years.
"Comparable Treasury Price" means, with respect to the Determination
Date, (a) the offer prices for the Comparable Treasury Issues (expressed in each
case as a percentage of its principal amount) on the Determination Date, as set
forth on "Telerate Page 500" (or such other page as may replace Telerate Page
500), or (b) if such page (or any successor page) is not displayed or does not
contain such offer prices on the Determination Date, (i) the average of the
Reference Treasury
16
Dealer Quotations for the Determination Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (ii) if the Remarketing
Dealer obtains fewer than four such Reference Treasury Dealer Quotations, the
average of all such Reference Treasury Dealer Quotations. "Telerate Page 500"
means the display designated as "Telerate Page 500" on Dow Jones Markets Limited
(or such other page as may replace Telerate Page 500 on such service) or such
other service displaying the offer prices specified in (a) above as may replace
Dow Jones Markets Limited.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and the Remarketing Date, the offer prices for the
Comparable Treasury Issues (expressed in each case as a percentage of its
principal amount) quoted to the Remarketing Dealer by such Reference Treasury
Dealer by 3:30 p.m., New York City time, on the Determination Date.
"Reference Treasury Dealer" means each of Credit Suisse First Boston
Corporation, Lehman Brothers Inc., Merrill Lynch, Morgan Stanley & Co.
Incorporated and Salomon Brothers Inc (or their respective affiliates which are
primary U.S. Government securities dealers) and their respective successors;
provided, however, that if any of the foregoing or their affiliates shall cease
to be a primary U.S. Government securities dealer in The City of New York (a
"Primary Treasury Dealer"), the Remarketing Dealer shall substitute therefor
another Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to the MOPPRS, the
remaining scheduled payments of the principal thereof and interest thereon,
calculated at the Base Rate only, that would be due after the Remarketing Date
to and including the Stated Maturity Date, as determined by the Remarketing
Dealer.
(d) Subject to the Remarketing Dealer's election to remarket the MOPPRS
as provided in clause (c) above, the Remarketing Dealer shall notify the
Company, the Trustee and DTC by telephone, confirmed in writing (which may
include facsimile or other electronic transmission), by 4:00 p.m., New York City
time, on the Determination Date of the Interest Rate to Maturity applicable to
the MOPPRS effective from and including the Remarketing Date.
(e) In the event that the MOPPRS are remarketed as provided herein, the
Remarketing Dealer shall make, or cause the Trustee to make, payment to the DTC
Participant of each tendering Beneficial Owner of MOPPRS subject to remarketing,
by book entry through DTC by the close of business on the Remarketing Date
against delivery through DTC of such Beneficial Owner's tendered MOPPRS, of 100%
of the principal amount of the tendered MOPPRS that have been purchased for
remarketing by the Remarketing Dealer. The Company shall make, or cause the
Trustee to make, payment of interest to each Beneficial Owner of MOPPRS due on
the Remarketing Date by book entry through DTC by the close of business on the
Remarketing Date.
17
(f) Subject to Section 11(c) of this Agreement, in the event that (i)
the Remarketing Dealer for any reason does not notify the Company of the
Interest Rate to Maturity by 4:00 p.m., New York City time, on the Determination
Date, or (ii) prior to the Remarketing Date, the Remarketing Dealer has resigned
and no successor has been appointed on or before the Determination Date, or
(iii) the Remarketing Dealer has terminated this Agreement pursuant to Section 8
or Section 11 hereof at any time after the Remarketing Dealer elects on the
Notification Date to remarket the MOPPRS, or (iv) the Remarketing Dealer for any
reason does not elect, by notice to the Company, and the Trustee not later than
the Notification Date, to purchase the MOPPRS for remarketing on the Remarketing
Date, or (v) the Remarketing Dealer for any reason does not purchase all
tendered MOPPRS on the Remarketing Date, the Company shall repurchase the MOPPRS
as a whole on the Remarketing Date at a price equal to 100% of the principal
amount of the MOPPRS plus all accrued and unpaid interest, if any, on the MOPPRS
to the Remarketing Date. In any such case, payment will be made by the Company
through the Trustee to the DTC Participant of each tendering Beneficial Owner of
MOPPRS, by book-entry through DTC by the close of business on the Remarketing
Date against delivery through DTC of such Beneficial Owner's tendered MOPPRS.
(g) If the Remarketing Dealer elects to remarket the MOPPRS as provided
in clause (c) above, then not later than the Business Day immediately preceding
the Determination Date, the Company shall notify the Remarketing Dealer and the
Trustee if the Company irrevocably elects to exercise its right to redeem the
MOPPRS, in whole but not in part, from the Remarketing Dealer on the Remarketing
Date at the Optional Redemption Price. The "Optional Redemption Price" shall be
the greater of (i) 100% of the principal amount of the MOPPRS and (ii) the
Dollar Price, plus in either case accrued and unpaid interest from the
Remarketing Date on the principal amount being redeemed to the date of
redemption. If the Company elects to redeem the MOPPRS, it shall pay the
redemption price therefor in same-day funds by wire transfer to an account
designated by the Remarketing Dealer on the Remarketing Date.
(h) The Remarketing Dealer may, in accordance with the terms of
the Indenture, modify the tender and settlement procedures set forth in
the Indenture in order to facilitate the tender and settlement process.
(ii) The tender and settlement procedures described above,
including provisions for payment by purchasers of MOPPRS in the
remarketing or for payment to selling Beneficial Owners of tendered
MOPPRS, may be modified to the extent required by DTC or, if agreed to
by the Remarketing Dealer in accordance with Section 8(b)(viii) of this
Agreement, to the extent required to facilitate the tender and
remarketing of MOPPRS in
18
certificated form, if the book-entry system is no longer available for
the MOPPRS at the time of the remarketing.
Section 5. Fees and Expenses. Subject to Section 11 of this Agreement,
for its services in performing its duties set forth herein, the Remarketing
Dealer will not receive any fees or reimbursement of expenses from the Company.
Section 6. Resignation of the Remarketing Dealer. The Remarketing
Dealer may resign and be discharged from its duties and obligations hereunder at
any time, such resignation to be effective 10 days after delivery of a written
notice to the Company and the Trustee of such resignation. The Remarketing
Dealer also may resign and be discharged from its duties and obligations
hereunder at any time, such resignation to be effective immediately, upon
termination of this Agreement in accordance with Section 11(b) hereof. It shall
be the sole responsibility of the Company to appoint a successor Remarketing
Dealer if it desires to do so.
Section 7. Dealing in the MOPPRS; Purchase of MOPPRS by the Company.
(a) Merrill Lynch, when acting as the Remarketing Dealer or in its individual or
any other capacity, may, to the extent permitted by law, buy, sell, hold and
deal in any of the MOPPRS. Merrill Lynch, as Holder or Beneficial Owner of the
MOPPRS, may exercise any vote or join as a Holder or Beneficial Owner, as the
case may be, in any action which any Holder or Beneficial Owner of MOPPRS may be
entitled to exercise or take pursuant to the Indenture with like effect as if it
did not act in any capacity hereunder. The Remarketing Dealer, in its capacity
either as principal or agent, may also engage in or have an interest in any
financial or other transaction with the Company as freely as if it did not act
in any capacity hereunder.
(b) The Company may purchase MOPPRS in the remarketing, provided that
the Interest Rate to Maturity established with respect to MOPPRS in the
remarketing is not different from the Interest Rate to Maturity that would have
been established if the Company had not purchased such MOPPRS.
Section 8. Conditions to Remarketing Dealer's Obligations. The
obligations of the Remarketing Dealer under this Agreement have been undertaken
in reliance on, and shall be subject to, (a) the due performance by the Company
of its obligations and agreements as set forth in this Agreement and the
accuracy of the representations and warranties in this Agreement and any
certificate delivered pursuant hereto, and (b) the further condition that none
of the following events shall have occurred at any time:
(i) the rating of any securities of the Company shall have been
down-graded or put under surveillance or review, including being put on
CreditWatch or Watch
19
List with negative implications, or withdrawn by a nationally
recognized statistical rating organization;
(ii) without the prior written consent of the Remarketing Dealer,
the Indenture (including the MOPPRS) shall have been amended in any
manner, or otherwise contain any provision not contained therein as of
the date hereof, that in either case in the reasonable judgment of the
Remarketing Dealer materially changes the nature of the MOPPRS or the
remarketing procedures (it being understood that, notwithstanding the
provisions of this clause (ii), the Company shall not be prohibited
from amending the Indenture);
(iii) trading in any securities of the Company or SDG shall have
been suspended or materially limited by the Commission or the New York
Stock Exchange, or if trading generally on the American Stock Exchange
or the New York Stock Exchange or in the Nasdaq National Market shall
have been suspended or materially limited, or minimum or maximum prices
for trading shall have been fixed, or maximum ranges for prices shall
have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities
Dealers, Inc. or any other governmental authority, or if a banking
moratorium shall have been declared by either Federal or New York
authorities;
(iv) there shall have occurred any material adverse change in the
financial markets in the United States or the international financial
markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective
change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in
the judgment of the Remarketing Dealer, impracticable or inadvisable to
remarket the MOPPRS or to enforce contracts for the sale of the MOPPRS;
(v) an Event of Default (as defined in the Indenture), or any
event which, with the giving of notice or passage of time, or both,
would constitute an Event of Default, with respect to the MOPPRS shall
have occurred and be continuing;
(vi) a material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, shall have
occurred;
20
(vii) if a Prospectus is required under the 1933 Act to be
delivered in connection with the remarketing of the MOPPRS, the Company
shall fail to furnish to the Remarketing Dealer on the Remarketing Date
the officers' certificate, opinion and comfort letter referred to in
Section 3(e) of this Agreement and such other documents and opinions as
counsel for the Remarketing Dealer may reasonably require for the
purpose of enabling such counsel to pass upon the sale of MOPPRS in the
remarketing 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;
(viii) the MOPPRS are not maintained in book-entry form with DTC
or any successor thereto; provided, that the Remarketing Dealer, in its
sole discretion and subject to receipt of an opinion of counsel for the
Company reasonably satisfactory to the Remarketing Dealer, may waive
the foregoing condition if in the Remarketing Dealer's judgment the
Indenture and the MOPPRS can be amended, and they are amended, so as to
permit the remarketing of the MOPPRS in certificated form and otherwise
as contemplated herein; or
(ix) not later than 10 Business Days prior to the Remarketing Date
(such tenth Business Day prior to the Remarketing Date, the
"Transferability Determination Date"), (A) less than 100% of the
aggregate principal amount of the Original MOPPRS have been exchanged
for Exchange Offer MOPPRS or otherwise registered pursuant to a shelf
registration statement, in each case as contemplated by the
Registration Rights Agreement and (B) as to any Original MOPPRS not so
exchanged or otherwise registered, the Company has not provided to the
Remarketing Dealer an opinion of counsel reasonably satisfactory to the
Remarketing Dealer to the effect that such MOPPRS are not "restricted
securities" within the meaning of the 1933 Act Regulations;
and the Remarketing Dealer shall have received on the Remarketing Date a
certificate of the chief executive officer and of the chief financial officer of
the Company, dated as of the Remarketing Date, to the effect that (i) the
representations and warranties in this Agreement are true and correct with the
same force and effect as though expressly made at and as of the Remarketing
Date, (ii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Remarketing Date and (iii) none of the events specified in the preceding clause
(b) has occurred.
(c) In furtherance of the foregoing, the effectiveness of the
Remarketing Dealer's election on the Notification Date to remarket the MOPPRS
shall be subject to the condition that the Remarketing Dealer shall have
received a certificate of the chief executive officer and of the chief
21
financial officer of the Company, dated as of the Notification Date, to the
effect that (i) the Company has, prior to the Remarketing Dealer's election on
the Notification Date to remarket the MOPPRS, provided the Remarketing Dealer
with notice of all events as required under Section 3(a) of this Agreement, (ii)
the representations and warranties in this Agreement are true and correct at and
as of the Notification Date and (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to the Notification Date. Such certificate shall be delivered by the
Company to the Remarketing Dealer as soon as practicable following notification
by the Remarketing Dealer to the Company on the Notification Date of its
election to remarket the MOPPRS and in any event prior to the Determination
Date.
In the event of the failure of any of the foregoing conditions, the
Remarketing Dealer may terminate its obligations under this Agreement or
redetermine the Interest Rate to Maturity as provided in Section 11.
Section 9. Indemnification. (a) The Company agrees to indemnify and
hold harmless the Remarketing Dealer and its officers, directors and employees
and each person, if any, who controls the Remarketing Dealer within the meaning
of Section 20 of the 1934 Act as follows:
(i) against any loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of, (A) the failure to have an
effective Registration Statement under the 1933 Act relating to the
MOPPRS, if required, or the failure to satisfy the prospectus delivery
requirements of the 1933 Act because the Company failed to provide the
Remarketing Dealer with a Prospectus for delivery, or (B) any untrue
statement or alleged untrue statement of a material fact contained in
any of the Remarketing Materials (including any incorporated
documents), or (C) the omission or alleged omission therefrom of a
material fact necessary to make the statements therein, in the light of
the circumstances in which they were made, not misleading, or (D) any
violation by the Company of, or any failure by the Company to perform
any of its obligations under, this Agreement, or (E) the acts or
omissions of the Remarketing Dealer in connection with its duties and
obligations to determine the Interest Rate to Maturity hereunder except
that are finally judicially determined to be due to its gross
negligence or willful misconduct;
(ii) 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 investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever arising out of, or based upon, any of items (A)
through (E) in clause (i) above; provided that (subject to clause (d)
below) such settlement is effected with the written consent of the
Company, which consent shall not be unreasonably withheld; and
22
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Remarketing Dealer), 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 arising out of, or based upon, any of items (A) through (E)
in clause (i) above to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that the foregoing indemnity shall not apply to any losses,
liabilities, claims, damages and expenses to the extent arising out of any
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by the Remarketing Dealer expressly
for use in the Remarketing Materials.
(b) The Remarketing Dealer agrees to indemnify and hold harmless the
Company, its directors and each of its officers who signed the Registration
Statement, from and against any loss, liability, claim, damage and expense, as
incurred, but only with respect to untrue statements or omissions made in the
Remarketing Materials in reliance upon and in conformity with information
furnished to the Company in writing by the Remarketing Dealer expressly for use
in such Remarketing Materials. The indemnity agreement in this paragraph shall
extend upon the same terms and conditions to each person, if any, who controls
the Company within the meaning of Section 20 of the 1934 Act.
(c) 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 clause (a) above, counsel to the indemnified parties shall be
selected by Merrill Lynch, and, in the case of parties indemnified pursuant to
clause (b) above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the defense
of any such action; provided, however, that counsel to the indemnifying party
shall not (except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to 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
23
or threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 9 or Section 10 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 or fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by clause (a) (ii) effected without its
written consent if (i) such settlement is entered into 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.
(e) The indemnity agreements contained in this Section 9 shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of the Remarketing Dealer, and shall survive the termination or
cancellation of this Agreement and the remarketing of any MOPPRS hereunder.
Section 10. Contribution. If the indemnification provided for in
Section 9 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Remarketing Dealer on the other hand from the
remarketing of the MOPPRS pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and of the
Remarketing Dealer on the other hand in connection with the acts, failures to
act, statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Remarketing Dealer on the other hand in connection with the remarketing of the
MOPPRS pursuant to this Agreement shall be deemed to be in the same respective
proportions as (i) the aggregate principal amount of the MOPPRS, and (ii) the
aggregate positive difference, if any, between the price at which the
24
MOPPRS are sold by the Remarketing Dealer in the remarketing and the price paid
by the Remarketing Dealer for the MOPPRS tendered on the Remarketing Date.
The relative fault of the Company on the one hand and the Remarketing
Dealer on the other hand shall be determined by reference to, among other
things, the responsibility hereunder of the applicable party for any act or
failure to act relating to the losses, liabilities, claims, damages or expenses
incurred or, in the case of any losses, liabilities, claims, damages or expenses
arising out of any untrue or alleged untrue statement of a material fact
contained in any of the Remarketing Materials or the omission or alleged
omission to state a material fact therefrom, whether any such untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Remarketing Dealer and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Remarketing Dealer agree that it would not be just
and equitable if contribution pursuant to this Section 10 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 10. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 10 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 act or failure to act or
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 10, the Remarketing
Dealer shall not be required to contribute any amount in excess of the amount by
which the total price at which the MOPPRS remarketed by it and resold to the
public were sold to the public exceeds the amount of any damages which the
Remarketing Dealer has otherwise been required to pay by reason of any act or
failure to act for which it is responsible hereunder or any untrue or alleged
untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 10, each person, if any, who controls the
Remarketing Dealer 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 Remarketing
Dealer, and each director of the Company, each officer of the Company who signed
the Registration Statement, and each person, if any, who controls the
25
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company.
Section 11. Termination of Remarketing Agreement or Redetermination of
Interest Rate to Maturity. (a) This Agreement shall terminate as to the
Remarketing Dealer on the effective date of the resignation of the Remarketing
Dealer pursuant to Section 6 hereof or the repurchase of the MOPPRS by the
Company pursuant to Section 4(g) hereof or the redemption of the MOPPRS by the
Company pursuant to Section 4(h) hereof.
(b) In addition, the Remarketing Dealer may terminate all of its
obligations under this Agreement immediately by notifying the Company and the
Trustee of its election to do so, at any time on or before the Remarketing Date,
in the event that: (i) any of the conditions referred to or set forth in Section
8(a) hereof have not been met or satisfied in full, (ii) any of the events set
forth in Section 8(b) shall have occurred at any time or (iii) the Remarketing
Dealer determines, in its sole discretion, after consultation with the Company,
that it shall not have received all of the information, whether or not
specifically referenced herein, necessary to fulfill its obligations under this
Agreement.
(c) Notwithstanding any provision herein to the contrary, in lieu of
terminating this Agreement pursuant to Section 11(b) above, upon the occurrence
of any of the events set forth therein, the Remarketing Dealer, in its sole
discretion at any time between the Determination Date and 3:30 p.m., New York
City time, on the Business Day immediately preceding the Remarketing Date, may
elect to purchase the MOPPRS for remarketing and determine a new Interest Rate
to Maturity in the manner provided in Section 4(d) of this Agreement, except
that for purposes of determining the new Interest Rate to Maturity pursuant to
this paragraph the Determination Date referred to therein shall be the date of
such election and redetermination. The Remarketing Dealer shall notify the
Company, the Trustee and DTC by telephone, confirmed in writing (which may
include facsimile or other electronic transmission), by 4:00 p.m., New York City
time, on the date of such election, of the new Interest Rate to Maturity
applicable to the MOPPRS. Thereupon, such new Interest Rate to Maturity shall
supersede and replace any Interest Rate to Maturity previously determined by the
Remarketing Dealer and, absent manifest error, shall be binding and conclusive
upon the Beneficial Owners and Holders of the MOPPRS on or after the Remarketing
Date, the Company and the Trustee; provided, however, that the Remarketing
Dealer, by redetermining the Interest Rate to Maturity upon the occurrence of
any event set forth in Section 11(b) as set forth above, shall not thereby be
deemed to have waived its right to determine a new Interest Rate to Maturity or
terminate this Agreement upon the occurrence of any other event set forth in
Section 11(b).
26
(d) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
that, in the case of termination pursuant to Section 11(b) of this Agreement,
the Company shall reimburse the Remarketing Dealer for all of its out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Remarketing Dealer, and except further as set forth in Section 11(e) below.
Sections 1, 9, 10, 11(d) and 11(e) shall survive such termination and remain in
full force and effect.
(e) In the case of either (i) termination of this Agreement after the
Remarketing Dealer's election on the Notification Date to remarket the MOPPRS
pursuant to Section 11(b) (but with respect to events or circumstances giving
rise to such right of termination that occur or arise prior to the Remarketing
Dealer's election on the Notification Date to remarket the MOPPRS, only if, in
the judgment of the Remarketing Dealer, the effect thereof is to make it illegal
or impracticable for the Remarketing Dealer to remarket the MOPPRS) or (ii)
termination of this Agreement due to the occurrence, prior to the Remarketing
Dealer's election on the Notification Date to remarket the MOPPRS, of any event
set forth in Section 8(b)(ii), (v) or (viii), upon the request of the
Remarketing Dealer, the Company shall immediately following the Call Price
Determination Date (as defined below) pay the Remarketing Dealer, in same-day
funds by wire transfer to an account designated by the Remarketing Dealer, the
fair market value, calculated as set forth below, of the Remarketing Dealer's
right to purchase and remarket the MOPPRS pursuant to this Agreement (the "Call
Price").
In the case of termination of this Agreement pursuant to Section 11(b)
after the Remarketing Dealer elects on the Notification Date to remarket the
MOPPRS, the Call Price shall be equal to the excess of (i) the Dollar Price of
the MOPPRS determined as provided in Section 4 over (ii) the aggregate principal
amount of the MOPPRS.
In the case of termination of this Agreement due to the occurrence,
prior to the Remarketing Dealer's election on the Notification Date to remarket
the MOPPRS, of any event set forth in Section 8(b)(ii), (v) or (viii), the Call
Price shall be determined in good faith by the Remarketing Dealer on a
commercially reasonable basis by reference to, among other factors, the
formulation set forth in the preceding paragraph.
The Remarketing Dealer shall determine the applicable Call Price on the
Business Day immediately following the date of termination or notification of
the occurrence, prior to the Remarketing Dealer's election on the Notification
Date to remarket the MOPPRS, of any event set forth in Section 8(b)(ii), (v) or
(viii), as the case may be, or as soon as practicable thereafter (the "Call
Price Determination Date"). The Remarketing Dealer shall promptly notify the
Company of the Call Price Determination Date and the Call Price by telephone,
confirmed in writing (which
27
may include facsimile or other electronic transmission). The Call Price, absent
manifest error, shall be binding and conclusive upon the parties hereto.
Notwithstanding the foregoing, in the case of the failure of the
conditions set forth in Section 8(b)(ix), then at any time after the
Transferability Determination Date, the Remarketing Dealer in its sole
discretion may either terminate this Agreement and receive payment of the Call
Price in full, calculated as provided in the second paragraph of this Section
11(e) and payable as provided in the immediately preceding paragraph, or, in
lieu thereof, elect to (i) not terminate this Agreement, (ii) receive a pro rata
portion (as determined in good faith by the Remarketing Dealer) of the Call
Price, calculated as provided in the second paragraph of this Section 11(e) and
payable as provided in the immediately preceding paragraph, based on the
aggregate principal amount of the MOPPRS as to which the requisite opinion has
not been delivered and (iii) retain its right to elect to remarket as provided
herein the balance of the principal amount of MOPPRS outstanding.
If the Company seeks to redeem all or any portion of the MOPPRS prior
to the Remarketing Date, and the Remarketing Dealer, in its sole discretion in
accordance with Section 3(f), gives its consent to all or any portion of the
MOPPRS being so redeemed, the Remarketing Dealer in its sole discretion may, as
a condition to the granting of such consent, either (i) require this Agreement
to be terminated and the Call Price paid in full (the amount of such Call Price
to be determined in good faith by the Remarketing Dealer and to be calculated
and payable as provided in the third full paragraph of this Section 11(e)), or
(ii) in lieu thereof, elect to (x) not terminate this Agreement, (y) receive a
pro rata portion of the Call Price as determined in good faith by the
Remarketing Dealer, calculated and payable as provided in the third full
paragraph of this Section 11(e), based on the aggregate principal amount of the
MOPPRS repurchased or subject to repurchase and (z) retain its right to elect to
remarket as provided herein the portion of the MOPPRS remaining outstanding.
(f) This Agreement shall not be subject to termination by the Company.
Section 12. Remarketing Dealer's Performance; Duty of Care. The duties
and obligations of the Remarketing Dealer shall be determined solely by the
express provisions of this Agreement and the Indenture. No implied covenants or
obligations of or against the Remarketing Dealer shall be read into this
Agreement or the Indenture. In the absence of bad faith on the part of the
Remarketing Dealer, the Remarketing Dealer may conclusively rely upon any
document furnished to it, which purports to conform to the requirements of this
Agreement and the Indenture, as to the truth of the statements expressed in any
of such documents. The Remarketing Dealer shall be protected in acting upon any
document or communication reasonably believed by it to have been signed,
presented or made by the proper party or parties. The Remarketing Dealer shall
incur no liability hereunder to any Beneficial Owner or Holder of MOPPRS in its
individual capacity or as
28
Remarketing Dealer for any action or failure to act in connection with the
remarketing or otherwise. The Remarketing Dealer shall incur no liability to the
Company with respect to calculation of the Interest Rate to Maturity, except as
a result of gross negligence or willful misconduct on its part.
Section 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE.
Section 14. Term of Agreement. Unless otherwise terminated in
accordance with the provisions hereof, this Agreement shall remain in full force
and effect from the date hereof until the earlier of the first day thereafter on
which no MOPPRS are outstanding or the completion of the remarketing of the
MOPPRS. Regardless of any termination of this Agreement pursuant to any of the
provisions hereof, the obligations of the Company pursuant to Sections 9, 10 and
11 hereof shall remain operative and in full force and effect until fully
satisfied.
Section 15. Successors and Assigns. The rights and obligations of the
Company hereunder may not be assigned or delegated to any other person without
the prior written consent of the Remarketing Dealer, except that the rights and
obligations of the Company hereunder may be assigned or delegated to any
successor corporation under the Indenture with the prior written consent of the
Remarketing Dealer which consent shall not be unreasonably withheld. This
Agreement shall inure to the benefit of and be binding upon the Company and the
Remarketing Dealer and their respective successors and assigns, and will not
confer any benefit upon any other person, partnership, association or
corporation other than persons, if any, controlling the Remarketing Dealer
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
or any indemnified party to the extent provided in Section 9 hereof, or any
person entitled to contribution to the extent provided in Section 10 hereof. The
terms "successors" and "assigns" shall not include any purchaser of any MOPPRS
merely because of such purchase.
Section 16. Headings. Section headings have been inserted in this
Agreement as a matter of convenience of reference only, and it is agreed that
such section headings are not a part of this Agreement and will not be used in
the interpretation of any provisions of this Agreement.
Section 17. Severability. If any provision of this Agreement shall be
held or deemed to be or shall, in fact, be invalid, inoperative or unenforceable
as applied in any particular case in any or all jurisdictions because it
conflicts with any provision of any constitution, statute, rule or public policy
or for any other reason, such circumstances shall not have the effect of
rendering the provision in question invalid, inoperative or unenforceable in any
other case, circumstance or
29
jurisdiction, or of rendering any other provision or provisions of this
Agreement invalid, inoperative or unenforceable to any extent whatsoever.
Section 18. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
Section 19. Amendments. This Agreement may be amended by any instrument
in writing signed by each of the parties hereto so long as this Agreement as
amended is not inconsistent with the Indenture in effect as of the date of any
such amendment.
Section 20. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing (which may include facsimile or other electronic
transmission) and shall be deemed to have been validly given or made when
delivered or mailed, registered or certified mail, return receipt requested and
postage prepaid, addressed as follows:
(a) to the Company:
Simon DeBartolo Group, L.P.
National City Center
115 West Washington Street, Suite 15 East
Indianapolis, Indiana 46204
Attention: David Simon
Facsimile No.: (317) 263-7177
(b) to Merrill Lynch:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
North Tower
World Financial Center
New York, New York 10281-1307
Attention: Swaps Option Desk
Facsimile No.: (212) 449-8920
With a copy to: Scott Primrose/Transaction Management
Group
Facsimile No.: (212) 449-2234
or to such other address as the Company or the Remarketing Dealer shall specify
in writing.
30
IN WITNESS WHEREOF, each of the Company and the Remarketing Dealer has
caused this Remarketing Agreement to be executed in its name and on its behalf
by one of its duly authorized officers as of the date first above written.
SIMON DEBARTOLO GROUP, L.P.
By: SD Property Group, Inc.
Managing General Partner
By
-------------------------------
Name:
Title:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By
-------------------------------
Authorized Signatory
1
EXHIBIT 12.1
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS OF DOLLARS)
SIMON
PROPERTY
GROUP
SIMON DeBARTOLO GROUP, L.P. SIMON PROPERTY GROUP, L.P. (the Predecessor)
-------------------------------------- --------------------------------- -----------------
For the six months For the period For the period
ended June 30, For the year ended December 31, December 20, January 1 to
------------------ -------------------------------------- to December December
1998 1997 1997 1996 1995 1994 31, 1993 19, 1993
-------- -------- -------- -------- -------- -------- -------------- -----------------
Earnings:
Income before extraordinary
items and preferred distributions... $ 88,638 $ 91,475 $220,434 $134,663 $101,505 $60,308 $ 8,707 $ 6,912
Add:
Minority interest in income of
majority owned subsidiaries...... 3,596 2,225 5,270 4,300 2,681 3,759 58 3,558
Distributed income from
unconsolidated entities.......... 6,910 12,240 15,619 5,538 6,214 5,795 -- 6,076
Fixed charges........................ 215,343 141,095 322,685 210,913 154,159 154,580 3,690 161,856
Less:
Income from unconsolidated
entities......................... 2,295 (1,377) (8,690) (4,060) (5,140) (1,034) (43) 1,091
Interest capitalized............... (6,197) (4,396) (11,932) (5,831) (1,515) (1,586) -- (86)
-------- -------- -------- -------- -------- -------- ------- --------
Earnings............................... $310,585 $241,262 $543,386 $345,523 $257,904 $221,822 $12,412 $179,407
======== ======== ======== ======== ======== ======== ======= ========
Fixed Charges:
Portion of rents representative of
the interest factor................ 2,257 1,705 3,732 2,900 2,420 2,087 37 1,491
Interest on indebtedness
(including amortization of debt
expense).......................... 206,889 134,994 307,021 202,182 150,224 150,907 3,653 160,279
Interest capitalized................. 6,197 4,396 11,932 5,831 1,515 1,586 -- 86
-------- -------- -------- -------- -------- -------- ------- --------
Fixed Charges.......................... $215,343 $141,095 $322,685 $210,913 $154,159 $154,580 $ 3,690 $161,856
======== ======== ======== ======== ======== ======== ======= ========
Ratio of Earnings to Fixed Charges..... 1.44 1.71 1.68 1.64 1.67 1.43 3.36 1.11
======== ======== ======== ======== ======== ======== ======= ========
1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Prospectus of our reports dated February 17, 1998
included in Simon DeBartolo Group, Inc.'s Form 10-K/A for the year ended
December 31, 1997 and in Simon DeBartolo Group, L.P.'s Form 10-K/A for the
year ended December 31, 1997, and to the incorporation by reference of our
examination report dated August 12, 1998, on the pro forma combined
condensed financial statements of Simon Property Group, Inc. and SPG Realty
Consultants, Inc., as of and for the year ended December 31, 1997, included
in the Joint Proxy Statement/Prospectus of Simon DeBartolo Group, Inc.,
Corporate Property Investors, Inc. and Corporate Realty Consultants, Inc.,
dated August 13, 1998, and to all references to our Firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
Indianapolis, Indiana,
September 15, 1998
1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-4) and related Prospectus of Simon DeBartolo
Group, L.P. with respect to the registration of an Offer to Exchange $1,000 in
principal amount of 6 5/8% Notes due 2003, 6 3/4% Notes due 2005, 7 3/8% Notes
due 2018 and 7% Mandatory Par Put Remarketed Securities due 2028 for each $1,000
in principal amount outstanding of like series of Notes and to the incorporation
by reference therein of our reports dated February 5, 1998 (except for the note,
Commitments, Contingencies and Other Comments item (1), as to which the date is
February 19, 1998) relating to Corporate Property Investors, Inc. and June 30,
1998 relating to Corporate Realty Consultants, Inc., with respect to the
consolidated financial statements of Corporate Property Investors, Inc. and
Corporate Realty Consultants, Inc. included in the Proxy Statement of Simon
DeBartolo Group, Inc. that is made part of the Registration Statement (Form S-4
Nos. 333-61399 and 333-61399-01) and Prospectus of Corporate Property Investors,
Inc. and Corporate Realty Consultants, Inc. for the year ended December 31,
1997, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
New York, New York
September 14, 1998
1
EXHIBIT 25
-----------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
------------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)_______
------------------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
------------------------------------------------
SIMON DeBARTOLO GROUP, L.P.
(Exact name of obligor as specified in its charter)
DELAWARE 34-1755769
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
NATIONAL CITY CENTER
115 WEST WASHINGTON STREET, SUITE 15 EAST
INDIANAPOLIS, IA 46204
(Address of principal executive offices) (Zip Code)
------------------------------------------------
MANDATORY PAR PUT
REMARKETED SECURITIES ("MOPPRS")
(Title of the indenture securities)
------------------------------------------------
2
GENERAL
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
3
- 3 -
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see
Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-06249, which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which
is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York, on the 8th day
of September, 1998.
THE CHASE MANHATTAN BANK
By /s/ Gregory P. Shea
-----------------------------------
/s/ Gregory P. Shea
Senior Trust Officer
- 3 -
4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
ASSETS DOLLAR AMOUNTS
IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin.................................... $ 12,546
Interest-bearing balances............................ 6,610
Securities:
Held to maturity securities............................... 2,014
Available for sale securities............................. 46,342
Federal funds sold and securities purchased under
agreements to resell................................. 27,489
Loans and lease financing receivables:
Loans and leases, net of unearned income... $129,281
Less: Allowance for loan and lease losses.. 2,796
Less: Allocated transfer risk reserve...... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve............................... 126,485
Trading Assets............................................ 58,015
Premises and fixed assets (including capitalized
leases).............................................. 3,001
Other real estate owned................................... 260
Investments in unconsolidated subsidiaries and
associated companies................................. 255
Customers' liability to this bank on acceptances
outstanding.......................................... 1,245
Intangible assets......................................... 1,492
Other assets.............................................. 16,408
--------
TOTAL ASSETS.............................................. $302,162
========
-4-
5
LIABILITIES
Deposits
in domestic offices...................................... $99,347
Noninterest-bearing...................................... $41,566
Interest-bearing......................................... 57,781
-------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's................................... 80,602
Noninterest-bearing...................................... $ 4,109
Interest-bearing......................................... 76,493
Federal funds purchased and securities sold under agree-
ments to repurchase....................................... 37,760
Demand notes issued to the U.S. Treasury.................. 1,000
Trading liabilities....................................... 42,941
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less............ 4,162
With a remaining maturity of more than one year
through three years..................................... 213
With a remaining maturity of more than three years....... 106
Bank's liability on acceptances executed and outstanding.. 1,245
Subordinated notes and debentures......................... 5,408
Other liabilities......................................... 11,796
TOTAL LIABILITIES......................................... 284,580
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock............................................. 1,211
Surplus (exclude all surplus related to preferred stock). 10,441
Undivided profits and capital reserves................... 5,916
Net unrealized holding gains (losses)
on available-for-sale securities......................... (2)
Cumulative foreign currency translation adjustments...... 16
TOTAL EQUITY CAPITAL..................................... 17,582
--------
TOTAL LIABILITIES AND EQUITY CAPITAL..................... $302,162
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
6
-----------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
------------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)_______
------------------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
------------------------------------------------
SIMON DeBARTOLO GROUP, L.P.
(Exact name of obligor as specified in its charter)
DELAWARE 34-1755769
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
NATIONAL CITY CENTER
115 WEST WASHINGTON STREET, SUITE 15 EAST
INDIANAPOLIS, IA 46204
(Address of principal executive offices) (Zip Code)
------------------------------------------------
NOTES
(Title of the indenture securities)
------------------------------------------------
7
GENERAL
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
8
-3-
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see
Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-06249, which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 8th day of September, 1998.
THE CHASE MANHATTAN BANK
By /s/ Gregory P. Shea
-----------------------------------
/s/ Gregory P. Shea
Senior Trust Officer
-3-
9
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
IN MILLIONS
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin...................................... $12,546
Interest-bearing balances.............................. 6,610
Securities:
Held to maturity securities................................. 2,014
Available for sale securities............................... 46,342
Federal funds sold and securities purchased under
agreements to resell................................... 27,489
Loans and lease financing receivables:
Loans and leases, net of unearned income............... $129,281
Less: Allowance for loan and lease losses.............. 2,796
Less: Allocated transfer risk reserve.................. 0
--------
Loans and leases, net of unearned income,
allowance, and reserve................................. 126,485
Trading Assets.............................................. 58,015
Premises and fixed assets (including capitalized leases).... 3,001
Other real estate owned..................................... 260
Investments in unconsolidated subsidiaries and
associated companies................................... 255
Customers' liability to this bank on acceptances
outstanding............................................ 1,245
Intangible assets........................................... 1,492
Other assets................................................ 16,408
--------
TOTAL ASSETS................................................ $302,162
========
-4-
10
LIABILITIES
Deposits
In domestic offices............................................................... $ 99,347
Noninterest-bearing........................................ $41,566
Interest-bearing........................................... 57,781
In foreign offices, Edge and Agreement, -------
subsidiaries and IBF's............................................................ 80,602
Noninterest-bearing........................................ $ 4,109
Interest-bearing........................................... 76,493
Federal funds purchased and securities sold under agree-
ments to repurchase............................................................... 37,760
Demand notes issued to the U.S. Treasury............................................ 1,000
Trading liabilities................................................................. 42,941
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less..................................... 4,162
With a remaining maturity of more than one year
through three years............................................................. 213
With a remaining maturity of more than three years................................ 106
Bank's liability on acceptances executed and outstanding............................ 1,245
Subordinated notes and debentures................................................... 5,408
Other liabilities................................................................... 11,796
TOTAL LIABILITIES................................................................... 284,580
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus....................................... 0
Common stock........................................................................ 1,211
Surplus (exclude all surplus related to preferred stock)............................ 10,441
Undivided profits and capital reserves.............................................. 5,916
Net unrealized holding gains (losses)
on available-for-sale securities.................................................. (2)
Cumulative foreign currency translation adjustments................................. 16
TOTAL EQUITY CAPITAL................................................................ 17,582
-------
TOTAL LIABILITIES AND EQUITY CAPITAL................................................ $302,162
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
