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As filed with the Securities and Exchange Commission on September 6, 1996
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
___________________
SIMON-DeBARTOLO GROUP, L.P.
(Exact name of each registrant as specified in its charter)
Delaware 34-1755769
(State or other jurisdiction of (IRS employer
incorporation or organization) identification no.)
_____________________
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 registrant's principal executive offices)
DAVID SIMON
Chief Executive Officer
Simon DeBartolo Group, Inc.
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)
_________________
Copies to:
Edwin S. Maynard, Esq. James M. Asher, Esq.
Paul, Weiss, Rifkind, Wharton &Garrison Robert E. King, Jr., Esq.
1285 Avenue of the Americas Rogers & Wells
New York, New York 10019-6064 200 Park Avenue
(212) 373-3000 New York, New York 10166
(212) 878-8000
_________________
Approximate date of commencement of proposed sale to the public:
From time to time or at one time after the effective date of the
Registration Statement.
If the only securities being registered on this Form are to be
offered pursuant to dividend or interest reinvestment plans, please
check the following box [ ].
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box [x].
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for
the same offering[ ].
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier
effective registration statement for the same offering[ ].
If delivery of the prospectus is expected to be made pursuant
to Rule 434, please check the following box[ ].
_____________________
CALCULATION OF REGISTRATION FEE
===============================================================================
Title of Each Class of Securities Proposed Maximum Amount of
Aggregate Offering Price(1) Registration Fee
Debt Securities . . . . . $750,000,000 $258,620(2)
===============================================================================
(1) In U.S. dollars or the equivalent thereof denominated in one
or more foreign currencies or units of two or more foreign
currencies or composite currencies (such as European
Currency Units).
(2) Calculated pursuant to Rule 457(o) of the rules and
regulations under the Securities Act of 1933, as amended.
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 or until this Registration Statement shall
become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
_________________
Subject to Completion, Dated September 6, 1996
PROSPECTUS
$750,000,000
SIMON-DeBARTOLO GROUP, L.P.
Debt Securities
____________________
Simon-DeBartolo Group, L.P. (the "Operating Partnership")
may from time to time offer in one or more series unsecured
non-convertible investment grade debt securities ("Debt Securities")
with an aggregate public offering price of up to $750,000,000 (or its
equivalent in another currency based on the exchange rate at the
time of sale) in amounts, at prices and on terms to be set forth in one
or more supplements to this Prospectus (each a "Prospectus
Supplement"). The Operating Partnership is a subsidiary of Simon
DeBartolo Group, Inc. (the "Company") and is the Company's
primary operating partnership following the consummation on
August 9, 1996 of the merger of DeBartolo Realty Corporation with
a subsidiary of the Company.
The specific terms of the Debt Securities in respect of which
this Prospectus is being delivered will be set forth in the applicable
Prospectus Supplement and will include a specific title, aggregate
principal amount, currency, form (which may be registered or
bearer, or certificated or global), authorized denominations,
maturity, rate (or manner of calculation thereof) and time of
payment of interest, terms for redemption at the option of the
Operating Partnership or repayment at the option of the holder,
terms for sinking fund payments, covenants and any initial public
offering price.
The applicable Prospectus Supplement will also contain
information, where applicable, concerning material United States
federal income tax considerations relating to, and any listing on a
securities exchange of, the Debt Securities covered by such
Prospectus Supplement.
The Debt Securities may be offered directly, through agents
designated from time to time by the Operating Partnership, or to and
through underwriters or dealers. If any agents, dealers or
underwriters are involved in the sale of any of the Debt Securities,
their names, and any applicable purchase price, fee, commission or
discount arrangement between or among them, will be set forth, or
will be calculable from the information set forth, in an
accompanying Prospectus Supplement. See "Plan of Distribution."
No Debt Securities may be sold without delivery of a Prospectus
Supplement describing the method and terms of the offering of such
series of Debt Securities.
________________________
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.
________________________
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON
OR ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION
TO THE CONTRARY IS UNLAWFUL.
________________________
The date of this Prospectus is ______ __, 1996.
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AVAILABLE INFORMATION
Simon DeBartolo Group, Inc. (the "Company") is the holder
of approximately a 99.99% interest in SD Property Group, Inc.,
which is the managing general partner of the Operating Partnership.
Simon Property Group, L.P. ("SPG, LP") is a subsidiary partnership
of the Operating Partnership. The Company and SPG, LP are and,
following the effectiveness of the registration statement of which this
Prospectus is a part, the Operating Partnership will be, subject to the
informational requirements of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and, in accordance therewith, the
Company and SPG, LP file and the Operating Partnership may be
required to file reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such
reports, proxy statements and other information filed by the
Company and SPG, LP can be inspected and copied, at the
prescribed rates, at the public reference facilities of the Commission
at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549,
and at the Commission's regional offices at 7 World Trade Center,
Suite 1300, New York, New York 10048, and Northwestern Atrium
Center, 500 W. Madison Street, Chicago, Illinois 60661. The
Company's Common Stock is traded on the New York Stock
Exchange ("NYSE"). Reports and other information concerning the
Company may be inspected at the principal office of the NYSE at 20
Broad Street, New York, New York 10005.
The Company, SPG, LP and the Operating Partnership will
provide without charge to each person to whom a copy of this
Prospectus is delivered, upon written or oral request, a copy of any
or all of the documents incorporated herein by reference (other than
exhibits to such documents). Written requests for such copies
should be addressed to National City Center, 115 West Washington
Street, Suite 15 East, Indianapolis, Indiana 46204, Attn: Investor
Relations, telephone number (317) 685-7330.
This Prospectus constitutes a part of a Registration Statement
on Form S 3 (the "Registration Statement") filed by the Operating
Partnership with the Commission under the Securities Act of 1933,
as amended (the "Securities Act"), with respect to the Debt
Securities offered hereby. This Prospectus omits certain of the
information contained in the Registration Statement and the exhibits
and schedules thereto, in accordance with the rules and regulations
of the Commission. For further information concerning the
Operating Partnership and the Debt Securities offered hereby,
reference is hereby made to the Registration Statement and the
exhibits and schedules filed therewith, which may be inspected
without charge at the office of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549 and copies of which may be
obtained from the Commission at prescribed rates. The Commission
maintains a World Wide Web Site (http://www.sec.gov) that
contains such material regarding issuers that file electronically with
the Commission. This Registration Statement has been so filed and
may be obtained at such site. Any statements contained herein
concerning the provisions of any document are not necessarily
complete, and, in each instance, reference is made to the copy of
such document filed as an exhibit to the Registration Statement or
otherwise filed with the Commission. Each such statement is
qualified in its entirety by such reference.
Certain information, including, but not limited to, information
relating to the Operating Partnership's properties, principal security
holders, management, executive compensation, certain relationships
and related transactions and legal proceedings that would be required
to be disclosed in a prospectus included in a registration statement
on Form S-11, has been omitted from this Prospectus because such
information is not materially different from the information
contained in the Company's and SPG, LP's periodic reports, proxy
statements and other information filed by the Company and SPG, LP
with the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of the Company and SPG, LP
which have been filed with the Commission are hereby incorporated
by reference in this Prospectus.
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1. The Company's Registration Statement on Form S-4
(Registration No. 333-06933);
2. The Company's Proxy Statement dated June 28, 1996,
relating to the annual and special meeting of stockholders held on
August 7, 1996;
3. The Company's Annual Report on Form 10-K for the
year ended December 31, 1995, as amended by Form 10-K/A-1;
4. The Company's Quarterly Reports on Form 10-Q for the
calendar quarters ended March 31, 1996, as amended by Form 10-Q/A-1,
and June 30, 1996;
5. The Company's Current Reports on Form 8-K dated
March 26, August 9, and August 26, 1996;
6. SPG, LP's Annual Report on Form 10-K for the year
ended December 31, 1995;
7. SPG, LP's Quarterly Reports on Form 10-Q for the
calendar quarters ended March 31 and June 30, 1996; and
8. SPG, LP's Current Report on Form 8-K dated August 26,
1996, as amended on August 28, 1996.
The Exchange Act filing number of the Company and SPG,
LP is 1-12618.
Each document filed by the Company, SPG, LP or the
Operating Partnership subsequent to the date of this Prospectus
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
and prior to termination of the offering of all Debt Securities to
which this Prospectus relates shall be deemed to be incorporated by
reference in this Prospectus and shall be part hereof from the date of
filing of such document. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained in this
Prospectus (in the case of a statement in a previously-filed document
incorporated or deemed to be incorporated by reference herein), in
any accompanying Prospectus Supplement relating to a specific
offering of Debt Securities or in any other subsequently filed
document that is also incorporated or deemed to be incorporated by
reference herein, modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this Prospectus or
any accompanying Prospectus Supplement. Subject to the
foregoing, all information appearing in this Prospectus and each
accompanying Prospectus Supplement is qualified in its entirety by
the information appearing in the documents incorporated by
reference.
Although the Operating Partnership is the Registrant under
the Registration Statement, the foregoing documents of the Company
and SPG, LP 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 the Company conducts its operations.
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THE OPERATING PARTNERSHIP
Simon-DeBartolo Group, L.P. (the "Operating Partnership")
is a subsidiary partnership of Simon DeBartolo Group, Inc. (the
"Company") (formerly known as Simon Property Group, Inc.
("SPG")), and is the primary operating partnership of the Company
as a result of the merger (the "Merger") of DeBartolo Realty
Corporation ("DRC") with a subsidiary of the Company. The
Merger was consummated on August 9, 1996 (the "Merger Date"), at
which time DRC became an approximately 99.99% owned
subsidiary of the Company and was renamed SD Property Group,
Inc. (the "Managing General Partner"). The Managing General
Partner and the Company are both general partners of the Operating
Partnership, but the Managing General Partner is the sole managing
general partner of the Operating Partnership. As part of the
Merger, the Company, as general partner of Simon Property Group,
L.P. ("SPG, LP" and, together with the Operating Partnership, the
"Partnerships"), and the limited partners of SPG, LP acquired a
majority of the partnership interests in the Operating Partnership,
and in exchange the Operating Partnership acquired a 49.5% limited
partnership interest in, and an additional 49.5% interest in the
profits of, SPG, LP.
The Company is the parent of the Managing General Partner
and owned effectively as of the Merger Date a controlling 61.4%
equity interest in, the Operating Partnership. As of the Merger
Date, Melvin Simon, Herbert Simon, David Simon and certain of
their affiliates, including certain other Simon family members and
estates, trusts and other entities established for their benefit
(collectively, the "Simons"), effectively owned a 21.7% equity
interest in the Operating Partnership, and the estate of Edward J.
DeBartolo, Edward J. DeBartolo, Jr., M. Denise DeBartolo York,
The Edward J. DeBartolo Corporation, an Ohio corporation
("EJDC"), and certain of their affiliates, including certain other
DeBartolo family members and estates and trusts established for
their benefit (collectively, the "DeBartolos"), effectively owned a
14.2% equity interest in the Operating Partnership.
The Partnerships own or hold interests in a diversified
portfolio of 183 income producing properties (the "Portfolio
Properties"), including 112 super-regional and regional malls, 65
community shopping centers, two specialty retail centers and four
mixed-use properties located in 33 states. The Portfolio Properties
contain an aggregate of approximately 110 million square feet of
gross leasable area ("GLA"), of which approximately 65 million
square feet is GLA owned by the Partnerships ("Owned GLA").
More than 3,600 different retailers occupy approximately 12,000
stores in the Portfolio Properties. Total estimated retail sales at the
Portfolio Properties approached $16 billion in fiscal 1995. In
addition, the Partnerships have interests in eight properties under
construction in the United States, and land held for future
development. The Operating Partnership, together with its affiliated
management companies (collectively, the "Management
Companies"), manage over 127 million square feet of GLA of retail
and mixed-use properties.
As of the Merger Date, the Operating Partnership and the
Management Companies had approximately 8,000 employees. The
Operating Partnership's executive offices are located at National
City Center, 115 West Washington Street, Suite 15 East,
Indianapolis, Indiana 46204, and its telephone number is (317) 636-1600.
USE OF PROCEEDS
Except as otherwise provided in the applicable Prospectus
Supplement, proceeds to the Operating Partnership from the sale of
the Debt Securities offered hereby will be added to the working
capital of the Operating Partnership and will be available for general
purposes, which may include the repayment of indebtedness, the
financing of capital commitments and possible future acquisitions
associated with the continued expansion of the Partnerships'
business.
RATIO OF EARNINGS TO FIXED CHARGES
SPG, LP's ratio of earnings to fixed charges for the six
months ended June 30, 1996 and 1995 was 1.54x and 1.59x,
respectively, and for the fiscal years ended December 31, 1995 and
1994 was 1.67x and 1.43x, respectively. From the commencement
of its operations on December 20, 1993 through December 31,
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1993, the ratio of earnings to fixed charges for SPG, LP was 3.36x.
The pro forma ratio of earnings to fixed charges for the six months
ended June 30, 1996 and for the fiscal year ended December 31,
1995 of SDG, LP, assuming the Merger and related transactions had
occurred as of January 1, 1995 and carried forward through June 30,
1996, was 1.55x and 1.72x, respectively.
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 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.
Prior to the commencement of business by SPG, LP in
December 1993, the predecessor of SPG, LP maintained a different
ownership and equity structure. The predecessor's operating
properties have historically generated positive net cash flow. The
financial statements of the predecessor show net income for the
period January 1, 1993 through December 19, 1993, and net losses
for the fiscal years ended December 31, 1992 and 1991. The ratio
of earnings to fixed charges for the period January 1, 1993 through
December 19, 1993 was 1.11x. As a consequence of the net losses
for the fiscal years ended December 31, 1992 and 1991, the
computation of the ratio of earnings to fixed charges for these fiscal
years indicates that earnings were inadequate to cover fixed charges
by approximately $12.million and $18.7 million, respectively.
The new capitalization of the Company effected in December
1993 in connection with its initial public offering permitted the
Company to deleverage significantly, resulting in an improved ratio
of earnings to fixed charges subsequent to its commencement of
operations.
ACCOUNTING TREATMENT OF
MERGER AND OTHER RELATED TRANSACTIONS
For financial reporting purposes, the completion of the
Merger and related transactions resulted in a reverse acquisition of
all of the assets and liabilities of DeBartolo Realty Partnership, L.P.
on the books and records of SPG, L.P. Although the Operating
Partnership became the primary operating partnership of the
Company, through which future business of the Company will be
conducted, SPG, LP was the acquirer in the merger transaction for
accounting purposes. Accordingly, the financial statements and
ratios disclosed by the Operating Partnership for the post-Merger
periods will reflect the acquisition of DeBartolo Realty Partnership,
L.P. by SPG, LP using purchase accounting and for all pre-Merger
comparative periods the financial statements and ratios disclosed by
the Operating Partnership will reflect the financial statements and
ratios of SPG, LP or SPG, LP's predecessor.
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DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued under an Indenture (the
"Indenture"), between the Operating Partnership and Chemical
Bank, as trustee. The Indenture has been filed as an exhibit to the
Registration Statement of which this Prospectus is a part and is
available for inspection at the corporate trust office of the trustee at
450 West 33rd Street, New York, New York 10001, or as
described above under "Available Information." The Indenture is
subject to, and governed by, the Trust Indenture Act of 1939, as
amended (the "TIA"). The statements made hereunder or in any
Prospectus Supplement relating to the Indenture and the Debt
Securities to be issued thereunder are summaries of certain
provisions thereof and do not purport to be complete and are subject
to, and are qualified in their entirety by reference to, all provisions
of the Indenture and such Debt Securities. All section references
appearing herein are to sections of the Indenture, and capitalized
terms used but not defined herein shall have the respective meanings
set forth in the Indenture.
General
The Debt Securities will be direct, unsecured obligations of
the Operating Partnership and will rank equally with all other
unsecured and unsubordinated indebtedness of the Operating
Partnership. At June 30, 1996, the total outstanding mortgage debt
of the Operating Partnership including its pro rata share of joint
venture debt was $3,888,702 million, 92.0% of which was secured
debt. The Debt Securities may be issued without limit as to
aggregate principal amount, in one or more series, in each case as
established from time to time in or pursuant to authority granted by
a resolution of the Board of Directors of the Managing General
Partner, as the managing general partner of the Operating
Partnership or as established in one or more indentures supplemental
to the Indenture. All Debt Securities of one series need not be
issued at the same time and, unless otherwise provided, a series may
be reopened, without the consent of the holders of the Debt
Securities of such series, for issuances of additional Debt Securities
of such series (Section 301).
The Indenture provides that there may be more than one
trustee (the "Trustee") thereunder, each with respect to one or more
series of Debt Securities. Any Trustee under the Indenture may
resign or be removed with respect to one or more series of Debt
Securities, and a successor Trustee may be appointed to act with
respect to such series (Section 608). In the event that two or more
persons are acting as Trustee with respect to different series of Debt
Securities, each such Trustee shall be a trustee of a trust under the
Indenture separate and apart from the trust administered by any
other Trustee (Section 609), and, except as otherwise indicated
herein, any action described herein to be taken by a Trustee may be
taken by each such Trustee with respect to, and only with respect to,
the one or more series of Debt Securities for which it is Trustee
under the Indenture.
Reference is made to the Prospectus Supplement relating to
the series of Debt Securities being offered for the specific terms
thereof, including:
(1) the title of such Debt Securities;
(2) the aggregate principal amount of such Debt Securities
and any limit on such aggregate principal amount;
(3) the percentage of the principal amount at which such
Debt Securities will be issued and, if other than the principal amount
thereof, the portion of the principal amount thereof payable upon
acceleration of the maturity thereof;
(4) the date or dates, or the method for determining
such date or dates, on which the principal of such Debt Securities
will be payable;
(5) the rate or rates (which may be fixed or
variable), or the method by which such rate or rates shall be
determined, at which such Debt Securities will bear interest, if any;
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(6) the date or dates, or the method for determining
such date or dates, from which any interest will accrue, the dates on
which any such interest will be payable, the record dates for such
interest payment dates, or the method by which any such record date
shall be determined, the person to whom such interest shall be
payable, and the basis upon which interest shall be calculated if
other than that of a 360-day year of twelve 30-day months;
(7) the place or places where the principal of (and
premium, if any) and interest, if any, on such Debt Securities will be
payable, such Debt Securities may be surrendered for registration of
transfer or exchange and notices or demands to or upon the
Operating Partnership in respect of such Debt Securities and the
Indenture may be served;
(8) the period or periods within which, the price or
prices at which and the terms and conditions upon which such Debt
Securities may be redeemed, as a whole or in part, at the option of
the Operating Partnership, if the Operating Partnership is to have
such an option;
(9) the obligation, if any, of the Operating
Partnership to redeem, repay or purchase such Debt Securities
pursuant to any sinking fund or analogous provision or at the option
of a holder thereof, and the period or periods within which, the price
or prices at which and the terms and conditions upon which such
Debt Securities will be redeemed, repaid or purchased, as a whole
or in part, pursuant to such obligation;
(10) if other than U.S. dollars, the currency or
currencies in which such Debt Securities are denominated and
payable, which may be a foreign currency or units of two or more
foreign currencies or a composite currency or currencies, and the
terms and conditions relating thereto;
(11) whether the amount of payments of principal of
(and premium, if any) or interest, if any, on such Debt Securities
may be determined with reference to an index, formula or other
method (which index, formula or method may, but need not be,
based on a currency, currencies, currency unit or units or composite
currency or currencies) and the manner in which such amounts shall
be determined;
(12) the events of default or covenants of such Debt
Securities, to the extent different from or in addition to those
described herein;
(13) whether such Debt Securities will be issued in
certificated or book-entry form;
(14) whether such Debt Securities will be in registered or
bearer form and, if in registered form, the denominations thereof if
other than $1,000 and any integral multiple thereof and, if in bearer
form, the denominations thereof if other than $5,000, and any
integral multiple thereof and the terms and conditions relating
thereto;
(15) the applicability, if any, of the defeasance and covenant
defeasance provisions described herein, or any modification thereof;
(16) if such Debt Securities are to be issued upon the
exercise of debt warrants, the time, manner and place of such Debt
Securities to be authenticated and delivered;
(17) whether and under what circumstances the Operating
Partnership will pay additional amounts on such Debt Securities in
respect of any tax, assessment or governmental charge and, if so,
whether the Operating Partnership will have the option to redeem
such Debt Securities in lieu of making such payment;
(18) with respect to any Debt Securities that provide
for optional redemption or prepayment upon the occurrence of
certain events (such as a change of control of the Operating
Partnership), (i) the possible effects of such provisions on the market
price of the Operating Partnership's securities or in deterring certain
mergers, tender offers or other takeover attempts, and the intention
of the Operating Partnership to comply with the requirements of Rule
14e-1 under the Exchange Act and any other applicable securities
laws in
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connection with such provisions; (ii) whether the occurrence
of the specified events may give rise to cross-defaults on other
indebtedness such that payment on such Debt Securities may be
effectively subordinated; and (iii) the existence of any limitation on
the Operating Partnership's financial or legal ability to repurchase
such Debt Securities upon the occurrence of such an event
(including, if true, the lack of assurance that such a repurchase can
be effected) and the impact, if any, under the Indenture of such a
failure, including whether and under what circumstances such a
failure may constitute an Event of Default; and
(19) any other terms of such Debt Securities.
The Debt Securities may provide for less than the entire
principal amount thereof to be payable upon acceleration of the
maturity thereof ("Original Issue Discount Securities"). If material or
applicable, special U.S. federal income tax, accounting and other
considerations applicable to Original Issue Discount Securities will be
described in the applicable Prospectus Supplement.
Except as described under " Merger, Consolidation or Sale"
below or as may be set forth in any Prospectus Supplement, the
Indenture does not contain any other provisions that would limit the
ability of the Operating Partnership to incur indebtedness or that
would afford holders of the Debt Securities protection in the event of
(i) a highly leveraged or similar transaction involving the Operating
Partnership, the Company or the management of the Company, or
any affiliate of any such party, (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
Debt Securities. 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 Debt Securities. Reference is made to
the applicable Prospectus Supplement for information with respect to
any deletions from, modifications of or additions to the events of
default or covenants that are described below, including any addition
of a covenant or other provision providing event risk or similar
protection.
Reference is made to " Certain Covenants" below and to the
description of any additional covenants with respect to a series of
Debt Securities in the applicable Prospectus Supplement. Except as
otherwise described in the applicable Prospectus Supplement,
compliance with such covenants generally may not be waived with
respect to a series of Debt Securities unless the Holders of at least a
majority in principal amount of all outstanding Debt Securities of
such series consent to such waiver, except to the extent that the
defeasance and covenant defeasance provisions of the Indenture
described under " Discharge, Defeasance and Covenant Defeasance"
below apply to such series of Debt Securities. See " Modification of
the Indenture."
Denominations, Interest, Registration and Transfer
Unless otherwise described in the applicable Prospectus
Supplement, the Debt Securities of any series which are registered
securities, other than registered securities issued in global form
(which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the
Debt Securities which are bearer securities, other than bearer
securities issued in global form (which may be of any denomination),
shall be issuable in denominations of $5,000 and any integral
multiple thereof (Section 302).
Unless otherwise specified in the applicable Prospectus
Supplement, the principal of (and premium, if any) and interest on
any series of Debt Securities in registered form will be payable at the
corporate trust office of the Trustee, initially located at [450 West
33rd Street, New York, New York 10001], provided that, at the
option of the Operating Partnership, payment of interest may be
made by check mailed to the address of the Person entitled thereto as
it appears in the applicable Security Register or by wire transfer of
funds to such Person at an account maintained within the United
States (Sections 301, 307 and 1002).
9
Unless otherwise specified in the applicable Prospectus
Supplement, any interest not punctually paid or duly provided for on
any Interest Payment Date with respect to a Debt Security in
registered form ("Defaulted Interest") will forthwith cease to be
payable to the Holder on the applicable Regular Record Date and
may either be paid to the Person in whose name such Debt Security
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, notice whereof shall be given to the Holder
of such Debt Security not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner,
all as more completely described in the Indenture (Section 307).
Subject to certain limitations imposed upon Debt Securities
issued in book-entry form, the Debt Securities of any series will be
exchangeable for other Debt Securities of the same series and of a
like aggregate principal amount and tenor of different authorized
denominations upon surrender of such Debt Securities at the
corporate trust office of the Trustee referred to above. In addition,
subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series may be
surrendered for registration of transfer thereof at the corporate trust
office of the Trustee referred to above. Every Debt Security
surrendered for registration of transfer or exchange shall be duly
endorsed or accompanied by a written instrument of transfer. No
service charge will be made for any registration of transfer or
exchange of any Debt Securities, but the Trustee or the Operating
Partnership may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith
(Section 305). If the applicable Prospectus Supplement refers to any
transfer agent (in addition to the Trustee) initially designated by the
Operating Partnership with respect to any series of Debt Securities,
the Operating Partnership may at any time rescind the designation of
any such transfer agent or approve a change in the location through
which any such transfer agent acts, except that the Operating
Partnership will be required to maintain a transfer agent in each place
of payment for such series. The Operating Partnership may at any
time designate additional transfer agents with respect to any series of
Debt Securities (Section 1002).
Neither the Operating Partnership nor the Trustee shall be
required (i) to issue, register the transfer of or exchange any Debt
Security if such Debt Security may be among those selected for
redemption during a period beginning at the opening of business 15
days before selection of the Debt Securities to be redeemed and
ending at the close of business on (A) if such Debt Securities are
issuable only as Registered Securities, the day of the mailing of the
relevant notice of redemption and (B) if such Debt Securities are
issuable as Bearer Securities, the day of the first publication of the
relevant notice of redemption or, if such Debt Securities are also
issuable as Registered Securities and there is no publication, the
mailing of the relevant notice of redemption, or (ii) to register the
transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except, in the case of any Registered
Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for
redemption except that, to the extent provided with respect to such
Bearer Security, such Bearer Security may be exchanged for a
Registered Security of that series and of like tenor, provided that
such Registered Security shall be simultaneously surrendered for
redemption, or (iv) to issue, register the transfer of or exchange any
Debt Security which has been surrendered for repayment at the
option of the Holder, except the portion, if any, of such Debt
Security not to be so repaid (Section 305).
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 any 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 all the 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
10
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 (Sections 801 and 803).
Certain Covenants
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 Debt Securities (Section 1006).
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 (Section
1007).
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 (Section 1008).
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 (Section
1009).
Provision of Financial Information. The Holders of Debt
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 Debt 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 Debt 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 (Section 1010).
11
Additional Covenants. Any additional or different covenants
of the Operating Partnership with respect to any series of Debt
Securities will be set forth in the Prospectus Supplement relating
thereto.
Events of Default, Notice and Waiver
The Indenture provides that the following events are "Events
of Default" with respect to any series of Debt Securities issued
thereunder: (a) default for 30 days in the payment of any installment
of interest on any Debt Security of such series; (b) default in the
payment of the principal of (or premium, if any, on) any Debt
Security of such series at its Maturity; (c) default in making any
sinking fund payment as required for any Debt Security of such
series; (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
Debt Securities issued thereunder other than such series), 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; (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; and (g) any other
Event of Default provided with respect to a particular series of Debt
Securities (Section 501).
If an Event of Default under the Indenture with respect to
Debt Securities of any series 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 Debt Securities
of that series may declare the principal amount (or, if the Debt
Securities of that series of the Original Issue Discount Securities or
Indexed Securities, such portion of the principal amount as may be
specified in the terms thereof) of all of the Debt Securities of that
series 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 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 Debt Securities of such series has 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 Debt Securities of such series 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 non-payment of accelerated
principal of the Debt Securities of such series, have been cured or
waived as provided in the Indenture (Section 502). The Indenture
also provides that the Holders of not less than a majority in principal
amount of the Outstanding Debt Securities of any series may waive
any past default with respect to such series and its consequences,
except a default (x) in the payment of the principal of (or premium, if
any) or interest on any Debt 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 Debt Security affected thereby (Section 513).
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 any series of Debt
Securities of any default with respect to such series (except a default
in the payment of the principal of (or premium, if any) or interest on
any Debt Security of such series or in the payment of any sinking
fund installment in respect of any Debt Security of such series) if a
trust committee of Responsible Officers of the Trustee consider such
withholding to be in the interest of such Holders (Section 601).
The Indenture provides that no Holders of Debt Securities of
any series 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 Debt
12
Securities of such series, as well as an offer of
indemnity reasonably satisfactory to it (Section 507). This provision
will not prevent, however, any Holder of Debt Securities from
instituting suit for the enforcement of payment of the principal of
(and premium, if any) and interest on such Debt Securities at the
respective due dates thereof (Section 508).
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 any series of Debt Securities then Outstanding under the
Indenture, unless such Holders shall have offered to the Trustee
thereunder reasonable security or indemnity (Section 602). The
Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series 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 Debt Securities
of such series. 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 Debt Securities of such series not
joining therein (Section 512).
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 (Section 1011).
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 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 of
any series 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 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 (Section 902).
The Indenture provides that the Holders of not less than a
majority in principal amount of a series of Outstanding Debt
Securities have the right to waive compliance by the Operating
Partnership with certain covenants relating to such series of Debt
Securities in the Indenture (Section 1013).
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 or any series of 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 or any series of Debt Securities; (iv) to add or change any
provisions of the Indenture to facilitate the issuance of, or to
liberalize certain terms
13
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 of any series 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 any series of such 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 (Section 901).
The Indenture provides that in determining whether the
Holders of the requisite principal amount of the Outstanding Debt
Securities of a series 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, (i) the principal
amount of an Original Issue Discount Security that shall be deemed
to be Outstanding shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon
acceleration of the maturity thereof, (ii) the principal amount of a
Debt Security denominated in a foreign currency that shall be deemed
Outstanding shall be the U.S. dollar equivalent, determined on the
issue date for such Debt Security, of the principal amount (or, in the
case of an Original Issue Discount Security, the U.S. dollar
equivalent on the issue date of such Debt Security of the amount
determined as provided in (i) above) of such Debt Security, (iii) the
principal amount of an Indexed Security that shall be deemed
Outstanding shall be the principal face amount of such Indexed
Security at original issuance, unless otherwise provided with respect
to such Indexed Security pursuant to the Indenture, and (iv) Debt
Securities owned by the Operating Partnership or any other obligor
upon the Debt Securities or any affiliate of the Operating Partnership
or of such other obligor shall be disregarded (Section 101).
The Indenture contains provisions for convening meetings of
the Holders of Debt Securities of a series issuable, in whole or in
part, as Bearer Securities (Section 1501). A meeting will be
permitted to be called at any time by the Trustee, and also, upon
request, by the Operating Partnership or the Holders of at least 10%
in principal amount of the Outstanding Debt Securities of such series,
in any such case upon notice given as provided in the Indenture
(Section 1502). Except for any consent that must be given by the
Holder of each Debt Security affected by certain modifications and
amendments of the Indenture, any resolution presented at a meeting
or adjourned meeting duly reconvened at which a quorum is present
will be permitted to be adopted by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Debt Securities
of that series; provided, however, that, except as referred to above,
any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action that may be made,
given or taken by the Holders of a specified percentage in principal
amount of the Outstanding Debt Securities of a series may be adopted
at a meeting at which a quorum is present by the affirmative vote of
the Holders of such specified percentage in principal amount of the
Outstanding Debt Securities of that series. Any resolution passed or
decision taken at any meeting of Holders of Debt Securities of any
series duly held in accordance with the Indenture will be binding on
all Holders of Debt Securities of that series. The quorum at any
meeting called to adopt a resolution, and at any reconvened meeting,
will be Persons holding or representing a majority in principal
amount of the Outstanding Debt Securities of a series; provided,
however, that if any action is to be taken at such meeting with respect
to any request, demand, authorization, direction, notice, consent,
waiver or other action which may be made, given or taken by the
Holders of not less than a specified percentage in principal amount of
the Outstanding Debt Securities of a series, then with respect to such
action (and only such action) the Persons holding or representing
such specified percentage in principal amount of the Outstanding
Debt Securities of such series will constitute a quorum
(Section 1504).
14
Notwithstanding the foregoing provisions, if any action is to
be taken at a meeting of Holders of Debt Securities of any series with
respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that the Indenture expressly provides
may be made, given or taken by the Holders of a specified
percentage in principal amount of all Outstanding Debt Securities
affected thereby, or of the Holders of such series and one or more
additional series: (i) there shall be no minimum quorum requirement
for such meeting and (ii) the principal amount of the Outstanding
Debt Securities of such series that vote in favor of such request,
demand, authorization, direction, notice, consent, waiver or other
action shall be taken into account in determining whether such
request, demand, authorization, direction, notice, consent, waiver or
other action has been made, given or taken under the Indenture
(Section 1504).
Discharge
The Operating Partnership may discharge certain obligations
to Holders of any series of Debt Securities that have not already been
delivered to the Trustee for cancellation and that either have become
due and payable or will become due and payable within one year (or
scheduled for redemption within one year) by irrevocably depositing
with the Trustee, in trust, funds in an amount sufficient to pay the
entire indebtedness on such Debt Securities in respect of principal
(and premium, if any) and interest to the date of such deposit (if such
Debt Securities have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be (Section 401).
Defeasance and Covenant Defeasance
The Indenture provides that, if the provisions of Article
Fourteen are made applicable to the Debt Securities of or within any
series pursuant to Section 301 of the Indenture, the Operating
Partnership may elect either (a) to defease and be discharged from
any and all obligations with respect to such Debt Securities (except
for the obligation to pay Additional Amounts, if any, upon the
occurrence of certain events of tax, assessment or governmental
charge with respect to payments on such Debt Securities and the
obligations to register the transfer or exchange of such Debt
Securities, to replace temporary or mutilated, destroyed, lost or
stolen Debt Securities, to maintain an office or agency in respect of
such Debt Securities and to hold moneys for payment in trust)
("defeasance") (Section 1402) or (b) to be released from its
obligations with respect to such Debt Securities under Sections 1004
to 1010, inclusive, of the Indenture (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 such Debt Securities ("covenant defeasance")
(Section 1403), 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 such Debt Securities are payable at
Stated Maturity, or Government Obligations (as defined below), or
both, applicable to such Debt Securities which 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 (and
premium, if any) and interest on such Debt Securities, and any
mandatory sinking fund or analogous payments thereon, on the
scheduled due dates therefor (Section 1404).
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
(Section 1404).
"Government Obligations" means securities which are
(i) direct obligations of the United States of America or the
government which issued the foreign currency in which the Debt
Securities of a particular series are payable, for the payment of which
its full faith and credit is pledged or (ii) obligations of a person
controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such
15
government
which issued the foreign currency in which the Debt Securities of
such series are payable, the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America or such other government, which, in either case, 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 (Section 101).
Unless otherwise provided in the applicable Prospectus
Supplement, if after the Operating Partnership has deposited funds or
Government Obligations to effect defeasance or covenant defeasance
with respect to Debt Securities of any series, (a) the Holder of a Debt
Security of such series is entitled to, and does, elect pursuant to the
Indenture or the terms of such Debt Security to receive payment in a
currency, currency unit or composite currency other than that in
which such deposit has been made in respect of such Debt Security,
or (b) a Conversion Event (as defined below) occurs in respect of the
currency, currency unit or composite currency in which such deposit
has been made, the indebtedness represented by such Debt Security
shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if
any) and interest on such Debt Security as they become due out of
the proceeds yielded by converting the amount so deposited in
respect of such Debt Security into a currency, currency unit or
composite currency in which such Debt Security becomes payable as
a result of such election or such Conversion Event based on the
applicable market exchange rate (Section 1405). "Conversion Event"
means the cessation of use of (i) a currency, currency unit or
composite currency both by the government of the country which
issued such currency and for the settlement of transactions by a
central bank or other public institutions of or within the international
banking community, (ii) the ECU both within the European
Monetary System and for the settlement of transactions by public
institutions of or within the European Community or (iii) any
currency unit (or composite currency) other than the ECU for the
purposes for which it was established (Section 101). Unless
otherwise provided in the applicable Prospectus Supplement, all
payments of principal of (and premium, if any) and interest on any
Debt Security that is payable in a foreign currency that ceases to be
used by its government of issuance shall be made in U.S. dollars.
In the event the Operating Partnership effects covenant
defeasance with respect to any Debt Securities and such Debt
Securities are declared due and payable because of the occurrence of
any Event of Default other than the Event of Default described in
clause (d) under " Events of Default, Notice and Waiver" with
respect to Sections 1004 to 1010, inclusive, of the Indenture (which
sections would no longer be applicable to such Debt Securities) or
described in clause (g) under " Events of Default, Notice and
Waiver" with respect to any other covenant as to which there has
been covenant defeasance, the amount in such currency, currency
unit or composite currency in which such Debt Securities are
payable, and Government Obligations on deposit with the Trustee,
will be sufficient to pay amounts due on such Debt Securities at the
time of their Stated Maturity but may not be sufficient to pay
amounts due on such Debt Securities at the time of the acceleration
resulting from such Event of Default. However, the Operating
Partnership would remain liable to make payment of such amounts
due at the time of acceleration.
The applicable Prospectus Supplement may further describe
the provisions, if any, permitting such defeasance or covenant
defeasance, including any modifications to the provisions described
above with respect to the Debt Securities of or within a particular
series.
No Conversion Rights
The Debt Securities will not be convertible into or
exchangeable for any capital stock of the Company or equity interest
in the Operating Partnership.
16
Global Securities
The Debt Securities of a series may be issued in whole or in
part in the form of one or more global securities (the "Global
Securities") that will be deposited with, or on behalf of, a depositary
(the "Depositary") identified in the applicable Prospectus Supplement
relating to such series. Global Securities may be issued in either
registered or bearer form and in either temporary or permanent form.
The specific terms of the depositary arrangement with respect to a
series of Debt Securities will be described in the applicable
Prospectus Supplement relating to such series.
PLAN OF DISTRIBUTION
The Operating Partnership may sell the Debt Securities to or
through underwriters, and also may sell the Debt Securities directly
to one or more other purchasers or through agents. The distribution
of the Debt Securities may be effected from time to time in one or
more transactions at a fixed price or prices, which may be changed,
or at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices.
The Prospectus Supplement will set forth terms of the offering
of the Debt Securities, including (i) the name of any underwriters or
agents with whom the Company has entered into arrangements with
respect to the sale or issuance of Debt Securities, (ii) the initial public
offering or purchase price of the Debt Securities, (iii) any
underwriting discounts, commissions and other items constituting
underwriter's compensation from the Operating Partnership and any
other discounts, concessions or commissions allowed or reallowed or
paid by any underwriters to other dealers, (iv) any commissions paid
to any agents and (v) the net proceeds to the Operating Partnership.
In connection with the sale of Debt Securities, underwriters may
receive compensation from the Operating Partnership or from
purchasers of Debt Securities, for whom they may act as agents, in
the form of discounts, concessions or commissions. Underwriters
may sell Debt Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or
commissions from the underwriters or commissions from the
purchasers for whom they may act as agents. Underwriters, dealers
and agents that participate in the distribution of Debt Securities may
be deemed to be underwriters, and any discounts or commissions
they receive from the Operating Partnership, and any profit on the
resale of Debt Securities they realize, may be deemed to be
underwriting discounts and commissions under the Securities Act.
Under agreements the Operating Partnership may enter into,
underwriters, dealers and agents who participate in the distribution of
Debt Securities may be entitled to indemnification by the Operating
Partnership against certain liabilities, including liabilities under the
Securities Act.
Underwriters, dealers and agents may engage in transactions
with, or perform services for, or be customers of, the Operating
Partnership in the ordinary course of business.
Unless otherwise set forth in the Prospectus Supplement
relating to the issuance of Debt Securities, the obligations of the
underwriters to purchase such Debt Securities will be subject to
certain conditions precedent and each of the underwriters with
respect to such Debt Securities will be obligated to purchase all of the
Debt Securities allocated to it if any such Debt Securities are
purchased. Any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be changed
from time to time.
If so indicated in the applicable Prospectus Supplement, the
Operating Partnership will authorize underwriters or other persons
acting as the Operating Partnership's agents to solicit offers by
certain institutions to purchase Debt Securities from the Operating
Partnership pursuant to contracts providing for payment and delivery
on a future date. Institutions with which such contracts may be made
include commercial and savings banks, insurance companies,
pensions funds, investment companies, educational and charitable
institutions and others, but in all cases such institutions must be
approved by the Operating Partnership. The obligations of any
purchaser under any such contract will be subject only to the
condition that the purchase of
17
the Debt Securities shall not at any
time of delivery be prohibited under the laws of the jurisdiction to
which such purchaser is subject. The underwriters and such other
agents will not have any responsibility in respect of the validity or
performance of such contracts.
LEGAL MATTERS
The validity of each issue of the Debt Securities will be passed
upon for the Operating Partnership by Paul, Weiss, Rifkind,
Wharton & Garrison, New York, New York. Paul, Weiss, Rifkind,
Wharton & Garrison will also pass upon certain tax matters. Rogers
& Wells, New York, New York, will act as counsel to any
underwriters, dealers or agents.
EXPERTS
The audited financial statements and schedule of SPG and
SPG, LP incorporated by reference in the Registration Statement of
which this Prospectus is a part, to the extent and for the periods
indicated in their reports, have been audited by Arthur Andersen
LLP, independent public accountants, 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 DRC and the
Operating Partnership (formerly DeBartolo Realty Partnership, L.P.)
incorporated by reference in the Registration
Statement of which this Prospectus is a part, to the extent and for the
periods indicated in their reports, have been audited by Ernst &
Young LLP, independent public accountants, and are incorporated by
reference herein in reliance upon the authority of said firm as experts
in giving said report.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses (not including underwriting commissions and fees) of
issuance and distribution of the securities are estimated to be:
Securities and Exchange Commission
Registration Fee . . . . . . . . . . . . . . . . . . . . $258,620
Printing and Engraver's Expenses. . . . . . . . . . . . . $ (1)*
Fees of Rating Agencies . . . . . . . . . . . . . . . . . $ (1)*
Accounting Fees and Expenses. . . . . . . . . . . . . . . $ (1)*
Attorneys' Fees and Expenses. . . . . . . . . . . . . . . $ (1)*
Blue Sky Fees and Expenses. . . . . . . . . . . . . . . . $60,000(1)
Miscellaneous Expenses. . . . . . . . . . . . . . . . . . $ (1)*
==========
Total. . . . . . . . . . . . . . . . . . . . . . . . $ (1)*
___________________
(1) Estimated
* To be filed by amendment
Item 15. Indemnification of Directors and Officers.
The Partnership Agreement of the Operating Partnership
contains provisions indemnifying the Company's officers and
directors against certain liabilities. The Partnership Agreements
provide for indemnification of the Company and its officers and
directors to the same extent indemnification is provided to officers
and directors of the Company in its Charter, and limits the liability of
the Company and its officers and directors to the Operating
Partnership and its partners to the same extent liability of officers and
directors of the Company to the Company and its stockholders is
limited under the Company's Charter. In addition, the Company's
officers and directors are indemnified under Maryland law and the
Company's Charter. The Company's Charter requires the Company
to indemnify its directors and officers to the fullest extent permitted
from time to time by the laws of Maryland. The Company's By-Laws
contain provisions which implement the indemnification provisions of
the Company'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 the Company'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 the
Company to provide indemnification to an officer to
II-1
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. The
Company's Charter contains a provision consistent with the MGCL.
No amendment of the Company's Charter shall limit or eliminate the
limitation of liability with respect to acts or omissions occurring prior
to such amendment or repeal.
The Company has entered into indemnification agreements
with each of the Company's directors and officers. The
indemnification agreements require, among other things, that the
Company 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. The Company 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 the Company obtains directors'
and officers' liability insurance.
Item 16. Exhibits.
EXHIBIT INDEX
Sequentially
Numbered
Exhibit No. Description Page
1.1* Form of Underwriting Agreement
4.1* Form of Indenture
5.1* Opinion of Paul, Weiss, Rifkind, Wharton &
Garrison
12.1 Calculation 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 Paul, Weiss, Rifkind, Wharton &
Garrison (contained in Exhibit 5.1)
23.4 Consent of Willkie Farr & Gallagher
24.1 Power of Attorney (included in the signature page
to the Registration Statement)
25.1* Statement of Eligibility of Trustee on Form T-1
___________________
* To be filed by amendment.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
II-2
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the registration
statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in
the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S 3 or Form S 8
and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the Offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at the
time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, 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 of 1933 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 opinion of its 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 of 1933
and will be governed by the final adjudication of such issue.
II-3
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under
the Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in reliance upon
Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this registration statement
as of the time it was declared effective.
(2) For the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(e) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the
Trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act in accordance with the rules and regulations prescribed
by the Commission under Section 305(b)(2) of the Act.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and
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 4, 1996.
SIMON-DeBARTOLO GROUP, L.P.
By: SD PROPERTY GROUP, INC.
By: /s/ David Simon
David Simon
(Chief Executive Officer)
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that each
person whose signature appears below constitutes and appoints
David Simon, Melvin Simon and Herbert Simon, and each of
them (with full power to each of them to act alone) his true and
lawful attorney-in-fact and agent, with full powers of substitution
and resubstitution, for him and in his name, place and stead, in
any and all capacities, to (i) act on, sign and file with the
Securities and Exchange Commission any and all amendments
(including post-effective amendments) to this registration
statement together with all schedules and exhibits thereto and any
subsequent registration statement filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended, together with all
schedules and exhibits thereto, (ii) act on, sign and file such
certificates, instruments, agreements and other documents as may
be necessary or appropriate in connection therewith, (iii) act on
and file any supplement to any prospectus included in this
registration statement or any such amendment or any subsequent
registration statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and (iv) take any and all
actions which may be necessary or appropriate in connection
therewith, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and
about the premises as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or any of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
II-6
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 date indicated.
Name Title Date
/s/ Melvin Simon Co-Chairman of the Board of September 4, 1996
MELVIN SIMON Directors
/s/ Herbert Simon Co-Chairman of the Board of September 4, 1996
HERBERT SIMON Directors
/s/ David Simon President, Chief Executive September 4, 1996
DAVID SIMON Officer and Director (Principal
Executive Officer, Financial
Officer and
Accounting Officer)
/s/ Richard S. Sokolov President, Chief Operating September 4, 1996
RICHARD S. SOKOLOV Officer and Director
/s/ Birch Bayh Director September 4, 1996
BIRCH BAYH
/s/ Edward J. DeBartolo, Jr. Director September 4, 1996
EDWARD J. DeBARTOLO, JR.
/s/ William T. Dillard, II Director September 4, 1996
WILLIAM T. DILLARD, II
/s/ G. William Miller Director September 4, 1996
G. WILLIAM MILLER
/s/ Fredrick W. Petri Director September 4, 1996
FREDRICK W. PETRI
/s/ Terry S. Prindiville Director September 4, 1996
TERRY S. PRINDIVILLE
/s/ J. Albert Smith, Jr. Director September 4, 1996
J. ALBERT SMITH, JR.
/s/ Phillip J. Ward Director September 4, 1996
PHILIP J. WARD
/s/ M. Denise DeBartolo York Director September 4, 1996
M. DENISE DeBARTOLO YORK
II-8
Exhibit 12.1
Computation of Ratio of Earnings to Fixed Charges
(in thousands of dollars)
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated
February 14, 1996 included in Simon Property Group, Inc.'s Form 10-K for
the year ended December 31, 1995, as amended on April 29, 1996, and our
reports dated February 14, 1996 included in Simon Property Group, L.P.'s
Form 10-K for the year ended December 31, 1995 and to all references to
our Firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Indianapolis, Indiana
August 29, 1996
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-3) of Simon DeBartolo Group, L.P. and
to the incorporation by reference therein of our reports dated
February 14, 1996, except for Note 16, first paragraph, as to which the
date is March 1, 1996, with respect to the consolidated financial
statements and schedules of DeBartolo Realty Corporation included in its
Annual Report (Form 10-K) for the year ended December 31, 1995 which
is incorporated by reference in the Prospectus/Joint Proxy Statement dated
June 28, 1996 forming a part of the Simon DeBartolo Group, Inc.'s
Registration Statement on Form S-4 (No. 333-06933) and the consolidated
financial statements of DeBartolo Realty Partnership, L.P. included in the
Current Report on Form 8-K of Simon Property Group, L.P. dated
August 9, 1996 as amended on Form 8-K/A on August 28, 1996, filed
with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
New York, New York
August 30, 1996
EXHIBIT 23.4
[LETTERHEAD OF WILLKIE FARR & GALLAGHER]
September 5, 1996
Simon DeBartolo Group, L.P.
National City Center
115 West Washington Street
Indianapolis, Indiana 46204
Ladies and Gentlemen:
We consent to the incorporation by reference into the Registration
Statement on Form S-3 of Simon-DeBartolo Group, L.P. (the
"Partnership") relating to the offer from time to time by the Partnership,
in one or more series, of unsecured non-convertible investment grade
debt securities, with an aggregate offering price of up to $750,000,000
of (i) the summarization of our opinions set forth in the Registration
Statement on Form S-4 (the Form "S-4") (Registration No. 333-06933)
of Simon DeBartolo Group, Inc. under the heading "The Merger -
Federal Income Tax Consequences to Holders of DRC Common Stock"
and "The Merger - Opinion of SPG's Counsel" in the Form S-4 and
(ii) of our opinion included as an Exhibit to the Form S-4. In giving this
consent we do not admit that we come within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933,
as amended, or the rules and regulations of the Securities and Exchange
Commission thereunder.
/s/ Willkie Farr & Gallagher