SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 26, 1996
SIMON DeBARTOLO GROUP, L.P.
SIMON PROPERTY GROUP, L.P.
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(Exact name of registrant as specified in charter)
Delaware 333-11491 34-1755769
Delaware 33-98364 and 333-11491-1 35-1903854
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
115 West Washington Street, Indianapolis, Indiana 46204
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (317) 636-1600
Simon - DeBartolo Group, L.P. in the case of Simon DeBartolo Group, L.P.
- --------------------------------------------------------------------------------
(Former name or former address, if changed since last report)
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
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(c) Exhibits:
The exhibits listed below relate to the Registration Statement (No.
333-11491) on Form S-3 of Simon DeBartolo Group, L.P. and Simon Property Group,
L.P. (the "Registrants") and are filed herewith for incorporation by reference
in such Registration Statement.
Exhibit number
(Referenced to
Item 601 of Regulation S-K) Description of Exhibit
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1.1 Underwriting Agreement together with
related Terms Agreement, each dated
November 21, 1996
4.1 Indenture together with First Supplemental
Indenture, each dated as of November 26, 1996
Signatures
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Pursuant to the requirements of the Securities Exchange Act of
1934, as amended, each Registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
Date: November 26, 1996
SIMON DeBARTOLO GROUP, L.P.
By: SD Property Group, Inc.,
managing general partner
/s/ James M. Barkley
----------------------------------
Name: James M. Barkley
Title: Secretary / General Counsel
SIMON PROPERTY GROUP, L.P.
By: Simon DeBartolo Group, Inc.,
managing general partner
/s/ James M. Barkley
------------------------------------
Name: James M. Barkley
Title: Secretary / General Counsel
EXHIBIT INDEX
Exhibit number
(Referenced to
Item 601 of
Regulation S-K) Description of Exhibit Sequentially Numbered Page
- --------------- ---------------------- --------------------------
1.1 Underwriting Agreement together with
related Terms Agreement, each dated
November 21, 1996
4.1 Indenture together with First Supplemental
Indenture, each dated as of November 26, 1996
SIMON DEBARTOLO GROUP, L.P.
AND
SIMON PROPERTY GROUP, L.P.
UNDERWRITING AGREEMENT
TABLE OF CONTENTS
PAGE
UNDERWRITING AGREEMENT.......................................................................................... 1
SECTION 1. Representations and Warranties......................................................... 4
(a) REPRESENTATIONS AND WARRANTIES BY THE TRANSACTION ENTITIES..................... 4
(1) Compliance with Registration Requirements............................. 4
(2) Incorporated Documents................................................ 5
(3) Independent Accountants............................................... 5
(4) Financial Statements.................................................. 5
(5) No Material Adverse Change in Business................................ 6
(6) Good Standing of the Company.......................................... 7
(7) Good Standing of the Operating Partnership............................ 7
(8) Good Standing of SPG, LP.............................................. 8
(9) Good Standing of Simon DeBartolo Entities............................. 8
(10) Good Standing of Property Partnerships................................ 9
(11) Capitalization........................................................ 9
(12) Authorization of SPG, LP Partners' Equity............................. 9
(13) Authorization of Debt Securities...................................... 10
(14) Authorization of the Guarantee........................................ 10
(15) Authorization of the Indenture........................................ 11
(16) Descriptions of the Underwritten Securities........................... 11
(17) Authorization of this Underwriting Agreement and
Terms Agreement....................................................... 11
(18) Absence of Defaults and Conflicts..................................... 11
(19) Absence of Labor Dispute.............................................. 12
(20) Absence of Proceedings................................................ 12
(21) Accuracy of Exhibits.................................................. 13
(22) REIT Qualification.................................................... 13
(23) Investment Company Act................................................ 13
(24) Intellectual Property................................................. 13
(25) Absence of Further Requirements....................................... 13
(26) Possession of Licenses and Permits.................................... 13
(27) Registration Rights................................................... 14
(28) Title to Property..................................................... 14
(29) Environmental Laws.................................................... 15
(30) Tax Returns........................................................... 15
(31) Environmental Consultants............................................. 16
(32) Compliance with Cuba Act.............................................. 16
(33) Investment Grade Rating............................................... 16
(34) Property Information.................................................. 16
(35) Beneficial Owners, Directors and Officers of the General
Partners. ........................................................... 16
(b) OFFICERS' CERTIFICATES......................................................... 16
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PAGE
SECTION 2. Sale and Delivery to Underwriters; Closing............................................. 17
(a) UNDERWRITTEN SECURITIES........................................................ 17
(b) OPTION UNDERWRITTEN SECURITIES................................................. 17
(c) PAYMENT........................................................................ 17
(d) DENOMINATIONS; REGISTRATION.................................................... 18
SECTION 3. Covenants of the Transaction Entities.................................................. 18
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION
REQUESTS....................................................................... 18
(b) FILING OF AMENDMENTS........................................................... 19
(c) DELIVERY OF REGISTRATION STATEMENTS............................................ 19
(d) DELIVERY OF PROSPECTUSES....................................................... 19
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS...................................... 19
(f) BLUE SKY QUALIFICATIONS........................................................ 20
(g) EARNINGS STATEMENT............................................................. 20
(h) REPORTING REQUIREMENTS......................................................... 20
(i) REIT QUALIFICATION............................................................. 20
(j) USE OF PROCEEDS................................................................ 20
(k) EXCHANGE ACT FILINGS........................................................... 21
(l) ............................................................................... 21
SUPPLEMENTAL INDENTURES................................................................ 21
(m) RATINGS........................................................................ 21
SECTION 4. Payment of Expenses.................................................................... 21
(a) EXPENSES....................................................................... 21
(b) TERMINATION OF AGREEMENT....................................................... 22
SECTION 5. Conditions of Underwriters' Obligations................................................ 22
(a) EFFECTIVENESS OF REGISTRATION STATEMENT........................................ 22
(b) OPINION OF COUNSEL FOR TRANSACTION ENTITIES.................................... 22
(c) OPINION OF COUNSEL FOR UNDERWRITERS............................................ 22
(d) OFFICERS' CERTIFICATE.......................................................... 23
(e) ACCOUNTANT'S COMFORT LETTER.................................................... 23
(f) BRING-DOWN COMFORT LETTER...................................................... 24
(g) RATINGS........................................................................ 24
(h) NO OBJECTION................................................................... 24
(i) LOCK-UP AGREEMENTS............................................................. 24
(j) OVER-ALLOTMENT OPTION.......................................................... 24
(k) ADDITIONAL DOCUMENTS........................................................... 25
(l) TERMINATION OF TERMS AGREEMENT................................................. 25
ii
PAGE
SECTION 6. Indemnification........................................................................ 26
(a) INDEMNIFICATION OF UNDERWRITERS................................................ 26
(b) INDEMNIFICATION OF THE TRANSACTION ENTITIES, DIRECTORS AND
OFFICERS....................................................................... 26
(c) ACTIONS AGAINST PARTIES; NOTIFICATION.......................................... 27
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE............................. 27
SECTION 7. Contribution........................................................................... 28
SECTION 8. Representations, Warranties and Agreements to Survive Delivery......................... 29
SECTION 9. Termination............................................................................ 29
(a) UNDERWRITING AGREEMENT......................................................... 29
(b) TERMS AGREEMENT................................................................ 29
(c) LIABILITIES.................................................................... 30
SECTION 10. Default by One or More of the Underwriters............................................. 30
SECTION 11. Notices................................................................................ 31
SECTION 12. Parties................................................................................ 31
SECTION 13. Governing Law and Time................................................................. 32
SECTION 14. Effect of Headings..................................................................... 32
iii
SIMON DEBARTOLO GROUP, L.P.
(a Delaware limited partnership)
SIMON PROPERTY GROUP, L.P.
(a Delaware limited partnership)
Debt Securities
together with
the Guarantee
UNDERWRITING AGREEMENT
November 21, 1996
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Simon DeBartolo Group, L.P., a Delaware limited partnership (the
"Operating Partnership") proposes to issue and sell up to $750,000,000 aggregate
principal amount of its unsecured, unsubordinated debt securities (the "Debt
Securities") from time to time, in or pursuant to one or more offerings on terms
to be determined at the time of sale. The Debt Securities will be issued in one
or more series under an indenture, dated as of November 21, 1996, (the "Initial
Indenture"), between the Operating Partnership, the Guarantor (as defined below)
and a trustee (a "Trustee"). Each series of Debt Securities may vary, as
applicable, as to title, aggregate principal amount, rank, interest rate or
formula and timing of payments thereof, stated maturity date, redemption and/or
repayment provisions, sinking fund requirements and any other variable terms
established by or pursuant to the Indenture, as the same may be amended or
supplemented from time to time (the "Indenture"). Simon Property Group, L.P., a
Delaware limited partnership and a subsidiary of the Operating Partnership (the
"Guarantor" and, together with the Operating Partnership, the "Partnerships")
will guarantee (the "Guarantee") the due and punctual payment of the principal
of, premium, if any, interest on, and any other amounts with respect to, the
Debt Securities, when and as the same shall become due and payable, whether at a
maturity date, on redemption, by declaration of acceleration or otherwise. As
used herein, "Securities" shall mean the Debt Securities together with the
Guarantee.
Whenever the Partnerships determine to make an offering of Securities
through Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch"), or through an underwriting syndicate managed by Merrill
Lynch, Merrill Lynch and the Partnerships will enter into an agreement (each, a
"Terms Agreement") providing for the sale of such Securities to, and the
purchase and offering thereof by, Merrill Lynch and such other underwriters, if
any, selected by Merrill Lynch (the "Underwriters", which term shall include
Merrill Lynch, whether acting as sole Underwriter or as a member of an
underwriting syndicate, as well as any Underwriter substituted pursuant to
Section 10 hereof); PROVIDED, that, the Partnerships are not obligated, and
shall have complete and absolute discretion to determine if and when, to make
any offering, to make any offering through Merrill Lynch or any other person, or
to enter into any Terms Agreement. The Terms Agreement relating to the offering
of Securities shall specify the aggregate principal amount of Securities to be
initially issued (the "Initial Underwritten Securities"), the name of each
Underwriter participating in such offering (subject to substitution as provided
in Section 10 hereof), the name of any Underwriter other than Merrill Lynch
acting as co-manager in connection with such offering, the aggregate principal
amount of Initial Underwritten Securities which each such Underwriter severally
agrees to purchase, whether such offering is on a fixed or variable price basis
and, if on a fixed price basis, the initial offering price, the price at which
the Initial Underwritten Securities are to be purchased by the Underwriters, the
form, time, date and place of delivery and payment of the Initial Underwritten
Securities and any other material variable terms of the Initial Underwritten
Securities, as well as the material variable terms of any related Underlying
Securities. In addition, if applicable, such Terms Agreement shall specify
whether the Partnerships have agreed to grant to the Underwriters an option to
purchase additional Securities to cover over-allotments, if any, and the
aggregate principal amount of Securities subject to such option (the "Option
Underwritten Securities"). As used herein, the term "Underwritten Securities"
shall include the Initial Underwritten Securities and all or any portion of any
Option Underwritten Securities. The Terms Agreement, which shall be
substantially in the form of EXHIBIT A hereto, may take the form of an exchange
of any standard form of written telecommunication between the Partnerships and
Merrill Lynch, acting for itself and, if applicable, as representative of any
other Underwriters. Each offering of Underwritten Securities through Merrill
Lynch as sole Underwriter or through an underwriting syndicate managed by
Merrill Lynch will be governed by this Underwriting Agreement, as supplemented
by the applicable Terms Agreement.
The Partnerships have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-11491) and
pre-effective amendment nos. 1, 2, 3 and 4 thereto for the registration of the
Securities under the Securities Act of 1933, as amended (the "1933 Act"), and
the offering thereof from time to time in accordance with Rule 415 of the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"), and the Partnerships have filed such post-effective amendments
thereto as may be required prior to the execution of the applicable Terms
Agreement. Such registration statement (as so amended, if applicable) has been
declared effective by the Commission and the Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such
registration statement (as so amended, if applicable), including the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) of the
1933 Act Regulations (the "Rule 430A Information") or Rule 434(d) of the 1933
Act Regulations (the "Rule 434 Information"),
2
is referred to herein as the "Registration Statement"; and the final prospectus
constituting a part thereof and the applicable prospectus supplement relating to
the offering of the Underwritten Securities, in the form first furnished to the
Underwriters by the Partnerships for use in connection with the offering of the
Underwritten Securities, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the execution of the applicable
Terms Agreement; provided, further, that if the Partnerships file a registration
statement with the Commission pursuant to Section 462(b) of the 1933 Act
Regulations (the "Rule 462 Registration Statement"), then, after such filing,
all references to "Registration Statement" shall be deemed to include the Rule
462 Registration Statement; provided, however, a prospectus supplement shall be
deemed to have supplemented the Prospectus only with respect to the offering of
the Underwritten Securities which it relates, and provided, further, that if the
Partnerships elect to rely upon Rule 434 of the 1933 Act Regulations, then all
references to "Prospectus" shall be deemed to include the final or preliminary
prospectus and the applicable term sheet or abbreviated term sheet (the "Term
Sheet"), as the case may be, in the form first furnished to the Underwriters by
the Partnerships in reliance upon Rule 434 of the 1933 Act Regulations, and all
references in this Underwriting Agreement to the date of the Prospectus shall
mean the date of the Term Sheet. A "preliminary prospectus" shall be deemed to
refer to any prospectus used before the registration statement became effective
and any prospectus that omitted, as applicable, the Rule 430A Information, the
Rule 434 Information or other information to be included upon pricing in a form
of prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations, that was used after such effectiveness and prior to the execution
and delivery of the applicable Terms Agreement. For purposes of this
Underwriting Agreement, all references to the Registration Statement,
Prospectus, Term Sheet or preliminary prospectus or to any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("EDGAR"). Capitalized terms used but not otherwise defined
herein shall have the meanings given to those terms in the Prospectus.
All references in this Underwriting Agreement to financial statements
and schedules and other information which is "contained," "included" or "stated"
(or other references of like import) in the Registration Statement, Prospectus
or preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is or is deemed to be
incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be; and all references in this
Underwriting Agreement to amendments or supplements to the Registration
Statement, Prospectus or preliminary prospectus shall be deemed to mean and
include the filing of any document under the 1934 Act which is or is deemed to
be incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be.
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 the Company or by one or more other subsidiaries of the
Operating Partnership and/or the Company.
3
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE TRANSACTION ENTITIES. The
Operating Partnership, SD Property Group, Inc. (formerly DeBartolo Realty
Corporation ("DeBartolo")), an Ohio corporation and the managing general partner
of the Operating Partnership ("SD Property", and together with the Company, the
"General Partners", and collectively with the Company and the Partnerships, the
"Transaction Entities"), the Company and the Guarantor represent and warrant,
jointly and severally, to Merrill Lynch, as of the date hereof, and to each
Underwriter named in the applicable Terms Agreement, as of the date thereof, as
of the Closing Time (as defined below) and, if applicable, as of each Date of
Delivery (as defined below) (in each case, a "Representation Date"), as follows:
(1) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The
Partnerships meet the requirements for use of Form S-3 under the 1933
Act. Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the 1933 Act and no
stop order suspending the effectiveness of the Registration Statement
or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or
are pending or, to the knowledge of the Transaction Entities, are
contemplated by the Commission or the state securities authority of any
jurisdiction, and any request on the part of the Commission for
additional information has been complied with. No order preventing or
suspending the use of the Prospectus has been issued and no proceeding
for that purpose has been instituted or, to the knowledge of the
Transaction Entities, threatened by the Commission or the state
securities authority of any jurisdiction. In addition, the Indenture
has been duly qualified under the 1939 Act.
At the respective times the Registration Statement,
any Rule 462(b) Registration Statement and any post-effective
amendments thereto (including the filing of the most recent Annual
Report on Form 10-K of any of the Company, the Operating Partnership
and the Guarantor with the Commission (the "Form 10-Ks")) became
effective and at each Representation Date, the Registration Statement,
any Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
the 1939 Act and the rules and regulations of the Commission under the
1939 Act (the "1939 Act Regulations") and did not and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. At the date of the Prospectus and at each
Representation Date, the Prospectus and any amendments and supplements
thereto did not and will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. If the Partnerships elect to rely upon Rule
434 of the 1933 Act Regulations, the Partnerships will comply with the
requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
4
furnished to the Partnerships in writing by any Underwriter through
Merrill Lynch expressly for use in the Registration Statement or the
Prospectus.
Each preliminary prospectus and Prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment or supplement thereto, or filed pursuant to Rule 424 under
the 1933 Act, complied when so filed in all material respects with the
1933 Act and the 1933 Act Regulations and, if applicable, each
preliminary prospectus and the Prospectus delivered to the Underwriters
for use in connection with the offering of Underwritten Securities
will, at the time of such delivery, be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
If a Rule 462(b) Registration Statement is required
in connection with the offering and sale of the Securities, the
Partnerships have complied or will comply with the requirements of Rule
111 under the 1933 Act Regulations relating to the payment of filing
fees therefor.
(2) INCORPORATED DOCUMENTS. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, when they become effective or at the time they were
or hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in the
Prospectus, at the date of the Prospectus, and at each Representation
Date, or during the period specified in Section 3(e), did not and will
not include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(3) INDEPENDENT ACCOUNTANTS. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(4) FINANCIAL STATEMENTS. The financial statements included,
or incorporated by reference, in the Registration Statement and the
Prospectus, together with the related schedules and notes, as well as
those financial statements, schedules and notes of any other entity
included therein, present fairly the financial position of the
respective entity or entities or group presented therein at the
respective dates indicated and the statement of operations,
stockholders' equity and cash flows of such entity, as the case may be,
for the periods specified. Such financial statements have been prepared
in conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included, or incorporated by reference,
in the Registration Statement and the Prospectus present fairly, in
accordance with GAAP, the information required to be stated therein.
The selected financial data, the summary financial information and
other financial information and data
5
included,or incorporated by reference, in the Prospectus present fairly
the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included, or
incorporated by reference, in the Registration Statement and the
Prospectus. In addition, any pro forma financial information and the
related notes thereto included, or incorporated by reference, in the
Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines and the guidelines of the American
Institute of Certified Public Accountants ("AICPA") with respect to pro
forma information and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof
are reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein. All
historical financial statements and information and all pro forma
financial statements and information required by the 1933 Act, the 1933
Act Regulations, the 1934 Act and the 1934 Act Regulations are
included, or incorporated by reference, in the Registration Statement
and the Prospectus.
(5) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, assets, business affairs or business
prospects of the Company, the Partnerships, SD Property, M.S.
Management Associates, Inc., a Delaware corporation ("SPG Management
Company"), M.S. Management Associates (Indiana), Inc., an Indiana
corporation ("Management (Indiana)"), Simon MOA Management Operating
Partnership, Inc., an Indiana corporation ("MOA"), DeBartolo Properties
Management, Inc., an Ohio corporation ("DRC Management Operating
Partnership," and together with SPG Management Company, Management
(Indiana) and MOA, the "Management Companies") and Simon Property Group
(Delaware), Inc. and Jefferson Simon Property, Inc. (collectively, the
"Reit Subs") or any subsidiary of the Operating Partnership (other than
any Property Partnership (as defined below)) not listed among the
foregoing entities, (the Company, the Partnerships, SD Property, the
Management Companies, and the Reit Subs and such subsidiaries being
sometimes hereinafter collectively referred to as the "Simon DeBartolo
Entities" and individually as a "Simon DeBartolo Entity"), or of any
entity which owns any Portfolio Property (as such term is defined in
the Prospectus) or any direct or indirect interest in any Portfolio
Property (the "Property Partnerships") whether or not arising in the
ordinary course of business, which would be material to the Company and
the Partnerships, taken as a whole (anything which would be material to
the Company and the Partnerships, taken as a whole, being hereinafter
referred to as "Material;" and such a material adverse change, a
"Material Adverse Effect"), (B) no casualty loss or condemnation or
other adverse event with respect to the Portfolio Properties has
occurred which would be Material, (C) there have been no transactions
or acquisitions entered into by the Simon DeBartolo Entities or the
Property Partnerships, other than those in the ordinary course of
business, which would be Material, (D) except for regular quarterly
distributions on shares of the Company's common stock, par value
$0.0001 per share (the "Common Stock"), the Class B Common Stock and
6
Class C Common Stock (each as defined below) in amounts per share that
are consistent with past practice, and except for regular quarterly
distributions of the required distributions with respect to the shares
of the Company's Series A and B Preferred Stock, par value $0.0001 per
share, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock, (E)
except for distributions in amounts per unit that are consistent with
past practices, there has been no distribution of any kind declared,
paid or made by either of the Partnerships on any of its respective
general, limited and/or preferred partnership interests and (F) with
the exception of transactions in connection with (1) the Simon Property
Group and Adopting Entities Matching Savings Plan, the Simon Property
Group, L.P. Employee Stock Plan, the Simon Property Group Incentive
Bonus Plan, the Simon Property Group Stock Incentive Plan, the Simon
Property Group, Inc. Director Stock Option Plan and the Simon DeBartolo
Group, Inc. Stock Incentive Plan (the "Stock Option Plans"), (2) the
Simon Property Group, Inc. Automatic Dividend Reinvestment and Stock
Purchase Plan (the "Distribution Reinvestment Plan"), and (3) the
possible issuance of shares of Common Stock upon the conversion of
Series A Preferred Stock, the exchange of partnership interests in (a)
the Operating Partnership ("OP Units") or (b) SPG, L.P. ("LP Units" and
together with the OP Units, the "Units"), or upon the exchange of
shares of Class B Common Stock, par value $0.0001 per share (the "Class
B Common Stock"), or upon the exchange of Class C Common Stock, par
value $0.0001 per share (the "Class C Common Stock"), there has been no
change in the capital stock of the corporate Simon DeBartolo Entities
or in the partnership interests of either of the Partnerships or any
Property Partnership, or any increase in the indebtedness of the Simon
DeBartolo Entities, the Property Partnerships or the Portfolio
Properties which would be Material.
(6) GOOD STANDING OF THE COMPANY. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Maryland and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under, or as contemplated under this Underwriting
Agreement and the applicable Terms Agreement. The Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or be
in good standing would not result in a Material Adverse Effect.
(7) GOOD STANDING OF THE OPERATING PARTNERSHIP. The Operating
Partnership is duly organized and validly existing as a limited
partnership in good standing under the laws of the State of Delaware,
with the requisite power and authority to own, lease and operate its
properties, to conduct the business in which it is engaged and proposes
to engage as described in the Prospectus and to enter into and perform
its obligations under this Agreement and the applicable Terms
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
7
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.
(8) GOOD STANDING OF SPG, LP. SPG, LP is duly organized and
validly existing as a limited partnership in good standing under the
laws of the State of Delaware, with the requisite power and authority
to own, lease and operate its properties, to conduct the business in
which it is engaged and proposes to engage as described in the
Prospectus and to enter into and perform its obligations under this
Agreement and the applicable Terms Agreement. SPG, LP is duly qualified
or registered as a foreign partnership and is in good standing in each
jurisdiction in which such qualification or registration is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or register
would not have a Material Adverse Effect. The Company is the sole
general partner of SPG, L.P. The amended and restated agreement of
limited partnership of SPG, L.P. (the "SPG, L.P. Partnership
Agreement") is in full force and effect in the form in which it was
filed as an exhibit to the Company's Registration Statement on Form S-4
(No. 333-06933), except for subsequent amendments relating to the
admission of new partners to SPG, L.P.
(9) GOOD STANDING OF SIMON DEBARTOLO ENTITIES. Each of the
Simon DeBartolo Entities other than the Partnerships has been duly
organized and is validly existing as a corporation, limited
partnership, limited liability company or other entity, as the case may
be, in good standing under the laws of the state of its jurisdiction of
incorporation or organization, as the case may be, with the requisite
power and authority to own, lease and operate its properties, and to
conduct the business in which it is engaged or proposes to engage as
described in the Prospectus. Each such entity is duly qualified or
registered as a foreign corporation, limited partnership or limited
liability company or other entity, as the case may be, to transact
business and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify or register would not have a Material
Adverse Effect. Except as otherwise stated in the Registration
Statement and the Prospectus, all of the issued and outstanding capital
stock or other equity interests of each such entity has been duly
authorized and validly issued and is fully paid and non-assessable, has
been offered and sold in compliance with all applicable laws (including
without limitation, federal or state securities laws) and are owned by
the Company, the Management Companies or the Partnerships, in each case
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity (collectively, "Liens"). No shares of
capital stock or other equity interests of such entities are reserved
for any purpose, and there are no outstanding securities convertible
into or exchangeable for any capital stock or other equity interests of
such entities and no outstanding options, rights (preemptive or
otherwise) or warrants to purchase or to subscribe for shares of such
capital stock or any other securities of such entities, except as
disclosed in the Prospectus.
8
No such shares of capital stock or other equity interests of such
entities were issued in violation of preemptive or other similar rights
arising by operation of law, under the charter or bylaws or such entity
or under any agreement to which any Simon DeBartolo Entity is a party.
(10) GOOD STANDING OF PROPERTY PARTNERSHIPS. Each of the
Property Partnerships is duly organized and validly existing as a
limited or general partnership, as the case may be, in good standing
under the laws of its respective jurisdiction of formation. Each of the
Property Partnerships has the requisite power and authority to own,
lease and operate its properties, and to conduct the business in which
it is engaged. Each of the partnership agreements of the Property
Partnerships is in full force and effect. Each of the Property
Partnerships is duly qualified or registered as a foreign partnership
to transact business and is in good standing in each jurisdiction in
which such qualification or registration is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or register would not have a
Material Adverse Effect.
(11) CAPITALIZATION. If the Prospectus contains a
"Capitalization" section, the issued and outstanding units of general,
limited and/or preferred partner interests of the Operating Partnership
("partners' equity") is as set forth in the column entitled
"Historical", (except for subsequent issuances thereof, if any,
contemplated under this Underwriting Agreement, pursuant to employee
benefit plans referred to in the Prospectus or pursuant to the exercise
of convertible securities or options referred to in the Prospectus).
Such 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 except as granted in this Underwriting
Agreement and any Terms Agreement, there are no outstanding options,
rights (preemptive or otherwise) or warrants to purchase or to
subscribe for such units of partners' equity or any other securities of
the Operating Partnership.
(12) AUTHORIZATION OF SPG, LP PARTNERS' EQUITY. All the issued
and outstanding units of general, limited and/or preferred partner
interests of SPG, LP ("SPG, LP partners' equity") have been duly
authorized and are validly issued, fully paid and non-assessable and
have been offered and sold or exchanged in compliance with all
applicable laws (including, without limitation, federal and state
securities laws). There are no outstanding securities convertible into
or exchangeable for any units of SPG, LP partners'
9
equity and no outstanding options, rights (preemptive or otherwise) or
warrants to purchase or to subscribe for units of SPG, LP partners'
equity.
(13) AUTHORIZATION OF DEBT SECURITIES. The Debt Securities
being sold pursuant to the applicable Terms Agreement has been, or as
of the date of such Terms Agreement will have been, duly authorized by
the Operating Partnership for issuance and sale pursuant to this
Underwriting Agreement and such Terms Agreement. Such Underwritten
Securities, when issued and authenticated in the manner provided for in
the applicable Indenture and delivered by the Operating Partnership
pursuant to the Underwriting Agreement and the applicable Terms
Agreement against payment of the consideration therefor specified in
such Terms Agreement, 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, and except further as enforcement thereof may be limited by
(A) requirements that a claim with respect to any Debt 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 States. Such
Underwritten Securities will be in the form contemplated by, and each
registered holder thereof is entitled to the benefits of, the
applicable Indenture. Such Underwritten Securities rank and will rank
on a party with all unsecured indebtedness (other than subordinated
indebtedness) of the Operating Partnership that is outstanding on a
Representation Date or that may be incurred thereafter and senior to
all subordinated indebtedness that is outstanding on a Representation
Date or that may be incurred thereafter, except that such Underwritten
Securities will be effectively subordinate to the prior claims of each
secured mortgage lender to any specific Portfolio Property which
secures such lender's mortgage and any claims of creditors of Joint
Venture Properties.
(14) AUTHORIZATION OF THE GUARANTEE. The Guarantee being sold
pursuant to the applicable Terms Agreement has been, or as of the date
of such Terms Agreement will have been, duly authorized by the
Guarantor for issuance and sale pursuant to this Underwriting Agreement
and such Terms Agreement. The Guarantee, when issued and authenticated
in the manner provided for in the applicable Indenture and delivered by
the Guarantor pursuant to the Underwriting Agreement and the applicable
Terms Agreement against payment of the consideration therefor specified
in such Terms Agreement, will constitute valid and legally binding,
unsecured obligations of the Guarantor, enforceable against the
Guarantor 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 Guarantee denominated other than in U.S. dollars
(or a foreign or composite currency judgment in respect of such claim)
be converted into U.S. dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law or (B)
10
governmental authority to limit, delay or prohibit the making of
payments outside the United States. The Guarantee will be in the form
contemplated by, and each registered holder thereof is entitled to the
benefits of, the applicable Indenture.
(15) AUTHORIZATION OF THE INDENTURE. For the Underwritten
Securities and the related Guarantee being sold pursuant to the
applicable Terms Agreement, the Indenture has been, or prior to the
issuance of the Debt Securities and the related Guarantee thereunder
will have been, duly authorized, executed and delivered by the
Partnerships and, upon such authorization, execution and delivery, will
constitute a valid and legally binding agreement of the Partnerships,
enforceable against the Partnerships, as applicable, in accordance with
its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally or by general
equitable principles. The Indenture has been duly qualified under the
1939 Act and conforms, in all material respects, to the descriptions
thereof contained in the Prospectus.
(16) DESCRIPTIONS OF THE UNDERWRITTEN SECURITIES. The
Underwritten Securities and the related Guarantee being sold pursuant
to the applicable Terms Agreement and the Indenture, as of the date of
the Prospectus, when issued and delivered in accordance with the terms
of the related Underwritten Securities, will conform in all material
respects to the statements relating thereto contained in the Prospectus
and will be in substantially the form filed or incorporated by
reference, as the case may be, as an exhibit to the Registration
Statement and will comply with all applicable legal requirements.
(17) AUTHORIZATION OF THIS UNDERWRITING AGREEMENT AND TERMS
AGREEMENT. This Underwriting Agreement has been, and the applicable
Terms Agreement as of the date thereof will have been, duly authorized,
executed and delivered by each of the Transaction Entities, to the
extent each is a party thereto and assuming due authorization,
execution and delivery by Merrill Lynch, is enforceable against each of
the Transaction Entities, to the extent each is a party thereto, in
accordance with its terms.
(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 each entity is a party or by which or any of
them may be bound, or to which any of its property or assets or any
Portfolio Property may be bound or subject (collectively, "Agreements
and Instruments"), except for such violations or defaults that would
not result in a Material Adverse Effect. The execution, delivery and
performance of this Underwriting Agreement, the applicable Terms
Agreement, the Indenture and any other agreement or instrument entered
into or issued or to be entered into or issued by any of the
Transaction Entities in connection with the transactions contemplated
hereby or thereby or in the Registration Statement and the Prospectus
and the consummation of the transactions contemplated herein and in the
11
Registration Statement and the Prospectus (including the issuance and
sale of the Underwritten Securities and the use of the proceeds from
the sale of the Underwritten Securities as described under the caption
"Use of Proceeds") and compliance by each of the Transaction Entities
with its obligations hereunder and thereunder have been duly authorized
by all necessary corporate or partnership action, as the case may be,
and do not and will not, whether with or without the giving of notice
or passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
assets, properties or operations of the Operating Partnership or any
other Simon DeBartolo Entity or any Property Partnership pursuant to,
any Agreements and Instruments, except for such conflicts, breaches,
defaults, Repayment Events or liens, charges or encumbrances that would
not result in a Material Adverse Effect, nor will such action result in
any violation of the provisions of the respective partnership agreement
and certificate of limited partnership of the Partnerships or the
organizational documents of any other Simon DeBartolo Entity or any
applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic
or foreign, having jurisdiction over the Operating Partnership, any
other Simon DeBartolo Entity or any Property Partnership or any of
their assets, properties or operations, except for such violations that
would not have a Material Adverse Effect. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a material portion of such indebtedness by the
Operating Partnership, any other Simon DeBartolo Entity or any Property
Partnership.
(19) ABSENCE OF LABOR DISPUTE. Except as otherwise described
in the Registration Statement and the Prospectus, no labor dispute with
the employees of the Operating Partnership or any other Simon DeBartolo
Entity or any Property Partnership exists or, to the knowledge of the
Transaction Entities, is imminent, and the Transaction Entities are not
aware of any existing or imminent labor disturbance by the employees of
any of its or any subsidiary's principal suppliers, manufacturers,
customers or contractors, which dispute or disturbance, in either case,
may reasonably be expected to result in a Material Adverse Effect.
(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 Transaction Entities threatened against or
affecting the Operating Partnership, any other Simon DeBartolo Entity
thereof, or any Property Partnership or any officer or director of the
Operating Partnership which is required to be disclosed in the
Registration Statement and the Prospectus (other than as stated
therein), or which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect the assets, properties or operations thereof or the
consummation of this Underwriting Agreement, the applicable Terms
Agreement or the Indenture or the transactions contemplated herein or
therein. The aggregate of all pending legal or governmental
12
proceedings to which the Operating Partnership or any other Simon
DeBartolo Entity, or any Property Partnership is a party or of which
any of their respective assets, properties or operations is the subject
which are not described in the Registration Statement and the
Prospectus, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material
Adverse Effect.
(21) ACCURACY OF EXHIBITS. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and/or filed
as required and the descriptions thereof or references thereto are
correct in all Material respects and no Material defaults exist in the
due performance or observance of any Material obligation, agreement,
covenant or condition contained in any such contract or document.
(22) REIT QUALIFICATION. At all times since January 1, 1994
the Company has been, and upon the sale of the applicable Underwritten
Securities, the Company will continue to be, organized and operated in
conformity with the requirements for qualification as a real estate
investment trust under the Internal Revenue Code of 1986, as amended
(the "Code"), and its proposed method of operation will enable it to
continue to meet the requirements for taxation as a real estate
investment trust under the Code. At all times since January 1, 1994,
DeBartolo had been organized and had operated in conformity with the
requirements for qualification as a real estate investment trust under
the Code.
(23) 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 Underwritten
Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be, an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended (the "1940 Act").
(24) INTELLECTUAL PROPERTY. To the knowledge of the
Transaction Entities, none of the Simon DeBartolo Entities or the
Property Partnerships is required to own, possess or obtain the consent
of any holder of any 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.
(25) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency or any other entity or person is necessary or required for the
performance by each of the Transaction Entities of its obligations
under this Underwriting Agreement, the applicable Terms Agreement or
the Indenture or in connection with the transactions contemplated under
this Underwriting Agreement, such Terms Agreement or the Indenture,
except such as have been already obtained or as may
13
be required under state securities laws or under the by-laws and rules
of the National Association of Securities Dealers, Inc. (the "NASD").
(26) POSSESSION OF LICENSES AND PERMITS. The Operating
Partnership and the other Simon DeBartolo Entities and each Property
Partnership possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them except
for such Governmental Licenses, the failure to obtain would not, singly
or in the aggregate, result in a Material Adverse Effect. The Operating
Partnership and the other Simon DeBartolo Entities and each Property
Partnership are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, result in a Material Adverse Effect. All of
the Governmental Licenses are valid and in full force and effect,
except where the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect
would not result in a Material Adverse Effect. Neither the Operating
Partnership nor any of the other Simon DeBartolo Entities nor any
Property Partnership has received any notice of proceedings relating to
the revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(27) REGISTRATION RIGHTS. Except as disclosed in the
Prospectus, there are no persons with registration or other similar
rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933 Act.
(28) TITLE TO PROPERTY. The Operating Partnership, the other
Simon DeBartolo Entities and the Property Partnerships have good and
marketable title to the Portfolio Properties free and clear of Liens,
except (A) as otherwise stated in the Registration Statement and the
Prospectus, or referred to in any title policy for such Portfolio
Property, or (B) those which do not, singly or in the aggregate,
Materially (i) affect the value of such property or (ii) interfere with
the use made and proposed to be made of such property by the Operating
Partnership, any other Simon DeBartolo Entity or any Property
Partnership. All leases and subleases under which the Operating
Partnership, any other Simon DeBartolo Entity or any Property
Partnerships hold properties are in full force and effect, except for
such which would not have a Material Adverse Effect. Neither the
Operating Partnership, the other Simon DeBartolo Entities nor the
Property Partnerships has received any notice of any Material claim of
any sort that has been asserted by anyone adverse to the rights of the
Operating Partnership, any other Simon DeBartolo Entity or the Property
Partnerships under any material leases or subleases, or affecting or
questioning the rights of the Operating Partnership, such other Simon
DeBartolo Entity or the Property Partnerships of the continued
possession of the leased or subleased premises under any such lease or
sublease, other than claims that would not have a Material Adverse
Effect. All liens, charges, encumbrances, claims or restrictions on or
affecting any of the Portfolio Properties and the assets of any Simon
DeBartolo Entity or any Property
14
Partnership which are required to be disclosed in the Prospectus are
disclosed therein. None of the Simon DeBartolo Entities, the Property
Partnerships or any tenant of any of the Portfolio Properties is in
default under any of the ground leases (as lessee) or space leases (as
lessor or lessee, as the case may be) relating to, or any of the
mortgages or other security documents or other agreements encumbering
or otherwise recorded against, the Portfolio Properties, and none of
the Transaction Entities knows of any event which, but for the passage
of time or the giving of notice, or both, would constitute a default
under any of such documents or agreements, in each case, other than
such defaults that would not have a Material Adverse Effect. No tenant
under any of the leases, pursuant to which the Company, either of the
Partnerships or any Property Partnership, as lessor, leases its
Portfolio Property, has an option or right of first refusal to purchase
the premises demised under such lease, the exercise of which would have
a Material Adverse Effect. Each of the Portfolio Properties complies
with all applicable codes, laws and regulations (including, without
limitation, building and zoning codes, laws and regulations and laws
relating to access to the Portfolio Properties), except for such
failures to comply that would not in the aggregate have a Material
Adverse Effect. None of the Transaction Entities has knowledge of any
pending or threatened condemnation proceeding, zoning change, or other
proceeding or action that will in any manner affect the size of, use
of, improvements on, construction on or access to, the Portfolio
Properties, except such proceedings or actions that would not have a
Material Adverse Effect.
(29) ENVIRONMENTAL LAWS. Except as otherwise stated in the
Registration Statement and the Prospectus and except such violations as
would not, singly or in the aggregate, result in a Material Adverse
Effect, (A) neither the Operating Partnership, any of the other Simon
DeBartolo Entities nor any Property Partnership is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law and any judicial or
administrative interpretation thereof including any judicial or
administrative order, consent, decree of judgment, relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (B) the Operating
Partnership, the other Simon DeBartolo Entities and the Property
Partnerships have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance with
their requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against
the Operating Partnership, any of the other Simon DeBartolo Entities or
the Property Partnerships and (D) there are no events or circumstances
that might reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Operating Partnership, any of the other Simon DeBartolo Entities
15
or any Property Partnership relating to any Hazardous Materials or the
violation of any Environmental Laws.
(30) 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.
(31) ENVIRONMENTAL CONSULTANTS. None of the environmental
consultants which prepared environmental and asbestos inspection
reports with respect to certain of the Portfolio Properties was
employed for such purpose on a contingent basis or has any substantial
interest in any Simon DeBartolo Entity or any Property Partnership and
none of them nor any of their directors, officers or employees is
connected with any Simon DeBartolo Entity or any Property Partnership
as a promoter, selling agent, voting trustee, director, officer or
employee.
(32) COMPLIANCE WITH CUBA ACT. The Company and the Operating
Partnership has complied with, and is and will be in compliance with,
the provisions of that certain Florida act relating to disclosure of
doing business with Cuba, codified as Section 517.075 of the Florida
statutes, and the rules and regulations thereunder or is exempt
therefrom.
(33) INVESTMENT GRADE RATING. The Securities will have an
investment grade rating from one or more nationally recognized
statistical rating organizations at each applicable Representation
Date.
(34) PROPERTY INFORMATION. Information in respect of the
Portfolio Properties presented in the Prospectus and any applicable
Prospectus Supplement on a combined basis shall be true and accurate in
all Material respects as of the date of applicable Prospectus
Supplement.
(35) BENEFICIAL OWNERS, DIRECTORS AND OFFICERS OF THE GENERAL
PARTNERS. No person who (a) in the aggregate beneficially owns 5% or
more of the common stock of either of the General Partners (a
"Beneficial Owner"), (b) is a director of either of the General
Partners or (c) is an officer of each of the General Partners is a
member of the NASD, a controlling stockholder of a member, or an
affiliate of a member, or of an underwriter or related person of a
member or underwriter with respect to any proposed offering under this
Underwriting Agreement and any applicable Terms Agreement. No
beneficial owner of either of the General Partners' unregistered
securities acquired within the 12 months prior to the filing of the
Registration Statement, or any amendments thereto, or to the filing of
the Prospectus, or any amendment or supplement thereto, has any direct
or indirect affiliation or association with any NASD member.
16
(b) OFFICERS' CERTIFICATES. Any certificate signed by any officer of
the Operating Partnership or any authorized representative of either of the
Company, SPG, L.P. and SD Property and delivered to any Underwriter or to
counsel for the Underwriters in connection with the offering of the Underwritten
Securities shall be deemed a representation and warranty by such entity or
person, as the case may be, to each Underwriter as to the matters covered
thereby on the date of such certificate and, unless subsequently amended or
supplemented, at each Representation Date subsequent thereto.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) UNDERWRITTEN SECURITIES. The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the applicable
Terms Agreement shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be subject to the
terms and conditions herein set forth.
(b) OPTION UNDERWRITTEN SECURITIES. In addition, subject to the terms
and conditions set forth therein, the Partnerships may grant, if so provided in
the applicable Terms Agreement, an option to the Underwriters, severally and not
jointly, to purchase up to the aggregate principal amount of the Option
Underwritten Securities set forth therein at a price per Option Underwritten
Security equal to the price per Initial Underwritten Security, less an amount
equal to any interest or redemption payments payable by the Operating
Partnership on the Initial Underwritten Securities but not payable on the Option
Underwritten Securities. Such option, if granted, will expire 30 days after the
date of such Terms Agreement, and may be exercised in whole or in part from time
to time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Underwritten
Securities upon notice by Merrill Lynch to the Partnerships setting forth the
aggregate principal amount of Option Underwritten Securities as to which the
several Underwriters are then exercising the option and the time, date and place
of payment and delivery for such Option Underwritten Securities. Any such time
and date of payment and delivery (each, a "Date of Delivery") shall be
determined by Merrill Lynch, but shall not be later than seven full business
days after the exercise of said option, nor in any event prior to the Closing
Time, unless otherwise agreed upon by Merrill Lynch and the Partnerships. If the
option is exercised as to all or any portion of the Option Underwritten
Securities, each of the Underwriters, severally and not jointly, will purchase
that proportion of the total aggregate principal amount of Option Underwritten
Securities then being purchased which the aggregate principal amount of Initial
Underwritten Securities each such Underwriter has severally agreed to purchase
as set forth in such Terms Agreement bears to the total aggregate principal
amount of Initial Underwritten Securities, subject to such adjustments as
Merrill Lynch in its discretion shall make to eliminate any sales or purchases
of a fractional aggregate principal amount of Option Underwritten Securities.
(c) PAYMENT. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the office of Rogers & Wells,
or at such other place as shall be agreed upon by Merrill Lynch and the
Partnerships, at 10:00 A.M. (Eastern time) on the third (fourth, if the pricing
occurs after 4:30 P.M. (Eastern time) on any given day) business day after the
date of the applicable Terms Agreement (unless postponed in accordance with the
17
provisions of Section 10 hereof), or such other time not later than ten business
days after such date as shall be agreed upon by Merrill Lynch and the
Partnerships (such time and date of payment and delivery being herein called
"Closing Time"). In addition, in the event that the Underwriters have exercised
their option, if any, to purchase any or all of the Option Underwritten
Securities, payment of the purchase price for, and delivery of such Option
Underwritten Securities, shall be made at the above-mentioned offices of Rogers
& Wells, or at such other place as shall be agreed upon by Merrill Lynch and the
Operating Partnership, on the relevant Date of Delivery as specified in the
notice from Merrill Lynch to the Partnerships.
Payment shall be made to the Operating Partnership by wire
transfer of same day funds payable to the order of the Operating Partnership,
against delivery to Merrill Lynch for the respective accounts of the
Underwriters of the Underwritten Securities to be purchased by them. It is
understood that each Underwriter has authorized Merrill Lynch, for its account,
to accept delivery of, receipt for, and make payment of the purchase price for,
the Underwritten Securities which it has severally agreed to purchase. Merrill
Lynch, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the
Underwritten Securities to be purchased by any Underwriter whose check has not
been received by the Closing Time or the relevant Date of Delivery, as the case
may be, but such payment shall not relieve such Underwriter from its obligations
hereunder.
(d) DENOMINATIONS; REGISTRATION. The Underwritten Securities shall be
in such denominations and registered in such names as Merrill Lynch may request
in writing at least one full business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be. The Underwritten Securities will
be made available for examination and packaging by Merrill Lynch in The City of
New York not later than 10:00 A.M. (Eastern time) on the business day prior to
the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. COVENANTS OF THE TRANSACTION ENTITIES.
Each of the Transaction Entities covenants with Merrill Lynch and with
each Underwriter participating in the offering of Underwritten Securities, as
follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The
Partnerships, subject to Section 3(b), will comply with the requirements of Rule
430A of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if
and as applicable, and will notify the Representative(s) immediately, and
confirm the notice in writing, of (i) the effectiveness of any post-effective
amendment to the Registration Statement or the filing of any supplement or
amendment to the Prospectus, (ii) the receipt of any comments from the
Commission, (iii) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Underwritten Securities for offering or
sale in any jurisdiction, or of the
18
initiation or threatening of any proceedings for any of such purposes. The
Partnerships will promptly effect the filings necessary pursuant to Rule 424 and
will take such steps as it deems necessary to ascertain promptly whether the
Prospectus transmitted for filing under Rule 424 was received for filing by the
Commission and, in the event that it was not, it will promptly file the
Prospectus. The Partnerships will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. The Partnerships will give Merrill Lynch
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b) of the 1933 Act Regulations),
any Term Sheet or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish Merrill Lynch with copies of any such documents a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not file
or use any such document to which Merrill Lynch or counsel for the Underwriters
shall reasonably object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Partnerships have
furnished or will deliver to Merrill Lynch and counsel for the Underwriters,
without charge, a signed copy of the Registration Statement as originally filed
and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to Merrill Lynch and counsel for
the Underwriters, without charge, conformed copies of the Registration Statement
as originally filed and of each amendment thereto for each of the Underwriters.
If applicable, the copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Partnerships will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter may reasonably request, and the Partnerships hereby consent to
the use of such copies for purposes permitted by the 1933 Act. The Partnerships
will furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus as such Underwriter may reasonably request.
If applicable, the Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Partnerships will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the
1934 Act Regulations so as to permit the completion of the distribution of the
Underwritten Securities as contemplated in this Underwriting Agreement and the
applicable Terms Agreement and in the Registration Statement and the Prospectus.
If at any time when the Prospectus is required by the 1933 Act or the 1934
19
Act to be delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriter or for the Partnerships, to amend the
Registration Statement in order that the Registration Statement will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or to amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Partnerships will promptly prepare and file with the Commission, subject to
Section 3(b), such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the Prospectus
comply with such requirements, and the Partnerships will furnish to the
Underwriters and counsel for the Underwriters, without charge, such number of
copies of such amendment or supplement as the Underwriters may reasonably
request.
(f) BLUE SKY QUALIFICATIONS. The Partnerships will use their best
efforts, in cooperation with the Underwriters, to qualify the Underwritten
Securities and any related Underlying Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions (domestic or
foreign) as Merrill Lynch may designate and to maintain such qualifications in
effect for a period of not less than one year from the date of the applicable
Terms Agreement; provided, however, that neither Partnership shall 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 bylaws that the Board of Directors of SD Property or the
Company, as applicable, reasonably determines to be contrary to the best
interests of the Partnerships, respectively, and their respective 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
Underwritten Securities or any related Underlying Securities have been so
qualified or registered, the Partnerships 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
such Terms Agreement.
(g) EARNINGS STATEMENT. The Partnerships will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its security holders as soon as practicable an earnings statement (in form
complying with Rule 158 of the 1933 Act Regulations) for the purposes of, and to
provide the benefits contemplated by, the last paragraph of Section 11(a) of the
1933 Act.
(h) REPORTING REQUIREMENTS. The Partnerships, during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
20
(i) REIT QUALIFICATION. The Company will use its best efforts to
continue to meet the requirement to qualify as a "real estate investment trust"
under the Code for the taxable year in which in which sales of the Underwritten
Securities are to occur.
(j) USE OF PROCEEDS. The Operating Partnership will use the net
proceeds received by it from the sale of the Underwritten Securities in the
manner specified in the Prospectus under "Use of Proceeds."
(k) EXCHANGE ACT FILINGS. During the period from each Closing Time
until five years after such Closing Time, the Operating Partnership will deliver
to Merrill Lynch, (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 Merrill Lynch may
reasonably request.
(l) SUPPLEMENTAL INDENTURES. In respect of each offering, the
Partnerships will execute a supplemental indenture designating the series of
debt securities to be offered and its related terms and provisions in accordance
with the provisions of the Indenture.
(m) RATINGS. The Partnerships will take all reasonable action
necessary to enable Standard & Poor's Corporation ("S&P"), Moody's Investors
Service, Inc. ("Moody's"), Fitch Investors Services, L.P. or any other
nationally recognizable rating organization to provide their respective credit
ratings of any Underwritten securities, if applicable.
SECTION 4. PAYMENT OF EXPENSES.
(a) EXPENSES. The Operating Partnership will pay all expenses incident
to the performance of its obligations under this Underwriting Agreement and each
applicable Terms Agreement, including (i) the preparation, printing and filing
of the Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Underwriting Agreement, any Terms
Agreement, any Agreement among Underwriters, any Indenture and such other
documents as may be required in connection with the offering, purchase, sale and
delivery of the Underwritten Securities, (iii) the preparation, issuance and
delivery of the Underwritten Securities, or any certificates for the
Underwritten Securities to the Underwriters, (iv) 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, (v) the
qualification of the Underwritten Securities under state securities and real
estate syndication laws in accordance with the provisions of Section 3(f)
hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation, printing and delivery of the Blue Sky Survey, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any Term
Sheet, the Registration Statement (including financial statements
21
and exhibits) as originally filed and of each amendment thereto and the
Prospectus and any amendments or supplements thereto, (vii) the fees charged by
nationally recognized statistical rating organizations for the rating of the
Underwritten Securities, if applicable, (viii) the filing fees incident to, and
the reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review, if any, by the NASD of the terms of the sale of the
Underwritten Securities, (ix) the fees and expenses of any Underwriter acting in
the capacity of a "qualified independent underwriter" (as defined in Section
2(l) of Schedule E of the bylaws of the NASD), if applicable, and (x) any
transfer taxes imposed on the sale of the Underwritten Securities to the several
Underwriters.
(b) TERMINATION OF AGREEMENT. If the applicable Terms Agreement is
terminated by Merrill Lynch in accordance with the provisions of Section 5 or
Section 9(b)(i) or Section 10 hereof, the Operating Partnership shall reimburse
the Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS.
The obligations of the Underwriters to purchase and pay for the
Underwritten Securities pursuant to the applicable Terms Agreement are subject
to the accuracy of the representations and warranties of the Transaction
Entities contained in Section 1 hereof or in certificates of any officer or
authorized representative of the Partnerships or any other Simon DeBartolo
Entity delivered pursuant to the provisions hereof, to the performance by the
Transaction Entities of their covenants and other obligations hereunder, and to
the following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission or the state
securities authority of any jurisdiction, and any request on the part of the
Commission or the state securities authority of any jurisdiction for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing information relating to the
description of the Underwritten Securities and any related Underlying
Securities, the specific method of distribution and similar matters shall have
been filed with the Commission in accordance with Rule 424(b)(1), (2), (3), (4)
or (5), as applicable (or any required post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A), or, if the Partnerships have elected to rely upon
Rule 434 of the 1933 Act Regulations, a Term Sheet including the Rule 434
Information shall have been filed with the Commission in accordance with Rule
424(b)(7).
(b) OPINION OF COUNSEL FOR TRANSACTION ENTITIES. At Closing Time,
Merrill Lynch shall have received the favorable opinions, dated as of Closing
Time, of Paul, Weiss, Rifkind, Wharton, & Garrison, special securities counsel
for the Transaction Entities, Piper & Marbury, LLP, special Maryland counsel for
the Transaction Entities, Vorys, Sater, Seymour and Pease, special Ohio counsel
to the Transaction Entities and James M. Barkley, the General Counsel of
22
the Transaction Entities or such other counsel as is designated by the Operating
Partnership in form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters, such opinion shall address such of the items set forth in Exhibits
B-1, B-2, B-3 and B-4 hereto as may be relevant to the particular offering
contemplated or to such further effect as counsel to the Underwriters may
reasonably request.
(c) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, Merrill Lynch
shall have received the favorable opinion, dated as of Closing Time, of Rogers &
Wells, counsel for the Underwriters, or such other counsel as may be designated
by Merrill Lynch together with signed or reproduced copies of such letter for
each of the other Underwriters, with respect to the matters set forth in (1) of
Exhibit B-1 hereto, (2) (with respect to the first clause only), (3) (with
respect to the first clause only), (4) (with respect to SD Property only and
with respect to the first clause only) and (8) of Exhibit B-2 hereto, (1), (6),
(7), (8) and the last three paragraphs of Exhibit B-3 hereto. In giving such
opinion, such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York, the federal law of
the United States and the General Corporation Law of the State of Delaware, upon
the opinions of counsel satisfactory to Merrill Lynch. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers or authorized
representatives of the Partnerships 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 the applicable Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Partnerships and the other Simon DeBartolo Entities
considered as one enterprise, whether or not arising in the ordinary course of
business, and Merrill Lynch shall have received a certificate of (x) the Chief
Executive Officer, President or a Vice President and of the chief financial
officer or chief accounting officer of the Company for itself, as a general
partner of the Operating Partnership and as the sole general partner of SPG,
L.P. and (y) the Chief Executive Officer, President or a Vice-President of and
the chief financial or accounting officer of SD Property, for itself and as
managing general partner of the Operating Partnership, dated as of Closing Time,
to the effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 are true and correct, in all
material respect, with the same force and effect as though expressly made at and
as of the Closing Time, (iii) the Transaction Entities have complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to the Closing Time, (iv) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission or by the state
securities authority of any jurisdiction and (v) the Registration Statement and
the Prospectus shall contain all statements that are required to be stated
therein in accordance with the 1933 Act and the 1933 Act Regulations and in all
material respects shall conform to the requirements of the 1993 Act and the 1993
Act Regulations; the Registration Statement will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the
23
statements therein not misleading; and the Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(e) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of the
applicable Terms Agreement, Merrill Lynch shall have received from Arthur
Andersen LLP a letter, dated such date, in form and substance satisfactory to
Merrill Lynch and counsel to the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" as set forth in the AICPA's Statement on Auditing Standards 72
to underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(f) BRING-DOWN COMFORT LETTER. At Closing Time, Merrill Lynch shall
have received from Arthur Andersen LLP a letter, dated as of Closing Time, to
the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (e) of this Section 5, except that the specified date
referred to shall be a date not more than three business days prior to the
Closing Time.
(g) RATINGS. At Closing Time and at any relevant Date of Delivery, the
Underwritten Securities shall have the ratings accorded by any "nationally
recognized statistical organization," as defined by the Commission for purposes
of Rule 436(g)(2) of the 1933 Act Regulations, if and as specified in the
applicable Terms Agreement, and the Partnerships shall have delivered to Merrill
Lynch a letter, dated as of such date, from each such rating organization, or
other evidence satisfactory to Merrill Lynch, confirming that the Underwritten
Securities have such ratings. Since the time of execution of such Terms
Agreement, there shall not have occurred a downgrading in the rating assigned to
the Underwritten Securities or any of the Company's, SPG, LP's or the Operating
Partnership's other securities by any such rating organization, and no such
rating organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of the Underwritten
Securities or any of the Company's, SPG, LP's or the Operating Partnership's
other securities.
(h) NO OBJECTION. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD shall
not have raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(i) LOCK-UP AGREEMENTS. On the date of the applicable Terms Agreement,
Merrill Lynch shall have received, in form and substance satisfactory to it,
each lock-up agreement, if any, specified in such Terms Agreement as being
required to be delivered by the persons listed therein.
(j) OVER-ALLOTMENT OPTION. In the event that the Underwriters are
granted an over-allotment option by the Operating Partnership in the applicable
Terms Agreement and the Underwriters exercise their option to purchase all or
any portion of the Option Underwritten Securities, the representations and
warranties of the Transaction Entities contained herein and the
24
statements in any certificates furnished by the Transaction Entities hereunder
shall be true and correct as of each Date of Delivery, and, at the relevant Date
of Delivery, Merrill Lynch shall have received:
(1) A certificate dated such Date of Delivery, of (x) the
Chief Executive Officer, President or a Vice President and the chief
financial officer or chief accounting officer of the Company for
itself, as a general partner of the Operating Partnership and as the
sole general partner of SPG, L.P. and (y) the Chief Executive Officer,
President or a Vice-President and the chief financial or accounting
officer of SD Property, for itself
and as managing general partner of the Operating Partnership,
confirming that the certificate delivered at the Closing Time pursuant
to Section 5(d) hereof remains true and correct as of such Date of
Delivery.
(2) The favorable opinions of Paul, Weiss, Rifkind, Wharton &
Garrison, special securities counsel for the Transaction Entities,
Piper & Marbury, LLP, special Maryland counsel to the Transaction
Entities, Vorys, Sater, Seymour and Pease, special Ohio counsel to the
Transaction Entities and James M. Barkley, General Counsel to the
Transaction Entities, in form and substance satisfactory to counsel for
the Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the opinion
required by Section 5(b) hereof.
(3) The favorable opinion of Rogers & Wells, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(4) A letter from Arthur Andersen LLP, in form and substance
satisfactory to Merrill Lynch and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to
Merrill Lynch pursuant to Section 5(f) hereof, except that the
"specified date" on the letter furnished pursuant to this paragraph
shall be a date not more than three business days prior to such Date of
Delivery.
(k) ADDITIONAL DOCUMENTS. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon the
issuance and sale of the Underwritten Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Partnerships in connection with the issuance and sale of the
Underwritten Securities as herein contemplated shall be satisfactory in form and
substance to Merrill Lynch and counsel for the Underwriters.
(l) TERMINATION OF TERMS AGREEMENT. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement (or, with respect to the Underwriters' exercise
of any applicable over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the obligations of the
Underwriters to purchase the Option Underwritten Securities on such Date of
Delivery) may
25
be terminated by Merrill Lynch by notice to the Operating Partnership at any
time at or prior to the Closing Time (or such Date of Delivery, as applicable),
and such termination shall be without liability of any party to any other party
except as provided in Section 4, and except that Sections 1, 6 and 7 shall
survive any such termination and remain in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Transaction Entities agree,
jointly and severally, to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information deemed to be a part
thereof, if applicable, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the 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;
26
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 Underwriter through Merrill Lynch expressly for use in the
Registration Statement (or any amendment thereto), including the 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) INDEMNIFICATION OF THE TRANSACTION ENTITIES, DIRECTORS AND
OFFICERS. Each Underwriter severally agrees to indemnify and hold harmless the
Transaction Entities, each of the General Partners' directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Transaction Entities within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Operating Partnership by such Underwriter through Merrill Lynch expressly
for use in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Merrill Lynch, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the 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 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation,
27
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel in accordance with the
provisions hereof, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 6(a)(2) effected without
its written consent if (i) such settlement is entered into in good faith by the
indemnified party more than 45 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall have received notice
of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
SECTION 7. CONTRIBUTION.
If the indemnification provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Transaction Entities, on the one
hand, and the Underwriters, on the other hand, from the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Transaction
Entities, on the one hand, and of the Underwriters, on the other hand, in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Transaction Entities, on the one
hand, and the Underwriter, on the other hand, in connection with the offering of
the Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses)
received by the Operating Partnership and the total underwriting discount
received by the Underwriters, in each case as set forth on the cover of the
Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet bear to the aggregate initial public offering price of such Underwritten
Securities as set forth on such cover.
The relative fault of the Transaction Entities, on the one hand, and
the Underwriters, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Transaction Entities or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
28
The Transaction Entities and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation (even if the Underwriter were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the General Partners, each officer of the General Partners who
signed the Registration Statement, and each person, if any, who controls the
Transaction Entities within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Transaction
Entities. The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the number or aggregate principal
amount, as the case may be, of Initial Underwritten Securities set forth
opposite their respective names in the applicable Terms Agreement and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
All representations, warranties and agreements contained in this
Underwriting Agreement or the applicable Terms Agreement or in certificates of
officers of the Partnerships or authorized representatives of each of the
Transaction Entities submitted pursuant hereto or thereto shall remain operative
and in full force and effect, regardless or any investigation made by or on
behalf of any Underwriter or controlling person, or by or on behalf of the
Transaction Entities, and shall survive delivery of and payment for the
Underwritten Securities.
SECTION 9. TERMINATION.
29
(a) UNDERWRITING AGREEMENT. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Partnerships or by Merrill Lynch upon the giving of 30 days' prior written
notice of such termination to the other party hereto.
(b) TERMS AGREEMENT. Merrill Lynch may terminate the applicable Terms
Agreement, by notice to the Partnerships, at any time at or prior to the Closing
Time or any relevant Date of Delivery, if (i) there has been, since the time of
execution of such Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Operating Partnership and the other Simon DeBartolo
Entities considered as one enterprise, whether or not arising in the ordinary
course of business, or (ii) there has occurred any material adverse change in
the financial markets in the United States or internationally or any outbreak of
hostilities or escalation thereof or other calamity or crisis, or any change or
development involving a prospective change in national or international
political, financial, or economic conditions, in each case the effect of which
is such as to make it, in the judgment of Merrill Lynch, impracticable to market
the Underwritten Securities or to enforce contracts for the sale of the
Underwritten Securities, or (iii) trading in any securities of the Company has
been suspended or limited by the Commission or the New York Stock Exchange, or
if trading generally on the New York Stock Exchange or the American Stock
Exchange or in the over-the-counter market has been suspended or limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by either of said exchanges or by such system or by
order of the Commission, the NASD or any other governmental authority, (iv) a
banking moratorium has been declared by either Federal, New York, 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 of the applicable Terms Agreement shall have been
downgraded since such date or if any such rating organization shall have
publicly announced that it has placed any series of 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 Company's,
SPG, LP's or the Operating Partnership's other securities.
(c) LIABILITIES. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 1, 6, 7, 8, 10 and 13 hereof shall
survive such termination and remain in full force and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS.
If one or more of the Underwriters shall fail at the Closing Time or
the relevant Date of Delivery, as the case may be, to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), then Merrill Lynch shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms
30
herein set forth; if, however, Merrill Lynch shall not have completed such
arrangements within such 24-hour period, then:
(a) if the aggregate principal amount, of Defaulted Securities
does not exceed 10% of the aggregate principal amount of Underwritten
Securities to be purchased on such date pursuant to such Terms
Agreement, the non-defaulting Underwriters named in such Terms
Agreement shall be obligated, severally and not jointly, to purchase
the full amount thereof in the proportions that their respective
underwriting obligations under such Terms Agreement bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of Underwritten
Securities to be purchased on such date pursuant to such Terms
Agreement, such Terms Agreement (or, with respect to the Underwriters'
exercise of any applicable over-allotment option for the purchase of
Option Underwritten Securities on a Date of Delivery after the Closing
Time, the obligations of the Underwriters to purchase, and the
Operating Partnership to sell, such Option Underwritten Securities on
such Date of Delivery) shall terminate without liability on the part of
any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Partnerships with respect to the related Option
Underwritten Securities, as the case may be, either Merrill Lynch or the
Partnerships shall have the right to postpone the Closing Time or the relevant
Date of Delivery, as the case may be, for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or the
Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to Merrill
Lynch at World Financial Center, North Tower, New York, New York 10281-1201,
attention of Martin J. Cicco, Managing Director; and notices to the Simon
DeBartolo Entities shall be directed to any of them at National City Center, 115
West Washington Street, Suite 15 East, Indianapolis, Indiana 46204, attention of
Mr. David Simon, with a copy to Paul, Weiss, Rifkind, Wharton & Garrison, 1285
Avenue of the Americas, New York, New York 10019-6064, attention of Edwin S.
Maynard, Esq.
SECTION 12. PARTIES.
31
This Underwriting Agreement and the applicable Terms Agreement shall
each inure to the benefit of and be binding upon the parties hereto and, upon
execution of such Terms Agreement, any other Underwriters and their respective
successors. Nothing expressed or mentioned in this Underwriting Agreement or
such Terms Agreement is intended or shall be construed to give any person, firm
or corporation, other than the Underwriters and the Transaction Entities and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Underwriting Agreement or such Terms Agreement or any provision
herein or therein contained. This Underwriting Agreement and such Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME.
THIS UNDERWRITING AGREEMENT AND ANY APPLICABLE TERMS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. EFFECT OF HEADINGS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
32
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 Underwriting Agreement, along with all counterparts, will
become a binding agreement between Merrill Lynch, the General Partners and each
of the Partnerships in accordance with its terms.
Very truly yours,
SIMON DEBARTOLO GROUP, L.P.
By: SD Property Group, Inc.,
Managing General Partner
By: /s/ David Simon
---------------------------------
Name: David Simon
Title: Chief Executive Officer
SIMON DEBARTOLO GROUP, INC.
By: /s/ David Simon
---------------------------------------
Name: David Simon
Title: Chief Executive Officer
SIMON PROPERTY GROUP, L.P.
By: Simon DeBartolo Group, Inc.,
General Partner
By: /s/ David Simon
---------------------------------
Name: David Simon
Title: Chief Executive Officer
SD PROPERTY GROUP, INC.
By: /s/ David Simon
---------------------------------------
Name: David Simon
Title: Chief Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first
above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Martin J. Cicco
--------------------------------------
Name: Martin J. Cicco
Title: Authorized Signatory
34
Exhibit A
SIMON DEBARTOLO GROUP, L.P.
(a Delaware limited partnership)
Debt Securities
together with
the Guarantee
TERMS AGREEMENT
__________ __, 1996
To: Simon DeBartolo Group, L.P.
Simon Property Group, L.P.
National City Center
115 West Washington Street
Suite 15 East
Indianapolis, Indiana 46204
Ladies and Gentlemen:
We understand that Simon DeBartolo Group, L.P., a Delaware limited
partnership (the "Operating Partnership"), proposes to issue and sell
$___,____,___ aggregate principal amount of debt securities (hereinafter the
"Initial Underwritten Securities") as guaranteed by Simon Property Group, L.P.,
a Delaware limited partnership ("SPG, LP"). Subject to the terms and conditions
set forth or incorporated by reference herein, the underwriters named below (the
"Underwriters") offer to purchase, severally and not jointly, the respective
number of Initial Underwritten Securities as guaranteed by SPG, LP set forth
below opposite their names at the purchase price set forth below, and a
proportionate share of Option Underwritten Securities (as defined in the
Underwriting Agreement referred to below) as guaranteed by SPG, LP, set forth
below, to the extent any are purchased.
Principal Amount of
UNDERWRITER INITIAL UNDERWRITTEN SECURITIES
Merrill Lynch, Pierce, Fenner & Smith
Incorporated............................... $
_______________________________
A-1
Total $
The Underwritten Securities shall have the following terms:
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering:
If Fixed Price Offering, initial public offering price per share: % of the
principal amount, plus accrued interest [amortized original issue discount], if
any, from Purchase price per share: % of principal amount,
plus accrued interest [amortized original issue discount], if any, from
(payable in next day funds).
Form:
Lock-Up Provisions:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I
hereto entitled "SIMON DEBARTOLO GROUP, L.P. AND SIMON PROPERTY GROUP, L.P. Debt
Securities together with the Guarantee--Underwriting Agreement" are hereby
incorporated by reference in their entirety herein and shall be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full herein. Terms defined in such document are used herein as
therein defined.
Please accept this offer no later than o'clock P.M. (New York City
time) on by signing a copy of this Terms Agreement in the space set forth
below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: ________________________________
Name:
Title: Authorized Signatory
Acting on behalf of itself and the other named Underwriters.
Accepted:
SIMON DEBARTOLO GROUP, L.P.
By: SD Property Group, Inc.,
Managing General Partner
By: ___________________________
Name:
Title:
SIMON PROPERTY GROUP, L.P.
By: Simon DeBartolo Group, Inc.
General Partner
By: ____________________________
Name:
Title:
Exhibit B-1
FORM OF OPINION OF THE TRANSACTION ENTITIES'
SPECIAL MARYLAND COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland.
(2) The Company has the corporate power and authority to own, lease and
operate its properties, to conduct its business in which it is engaged or
proposes to engage as described in the Prospectus and to enter into and perform
its obligations under, or as contemplated under, the Underwriting Agreement, the
applicable Terms Agreement and the Indenture.
(3) The issued and outstanding shares of capital stock of the Company
are as set forth on Schedule A attached hereto. The issued and outstanding
shares of capital stock of the Company have been duly authorized and validly
issued by the Company, are fully paid and non-assessable, and have been offered
and sold in compliance with all applicable laws of the State of Maryland and, to
such counsel's knowledge, none of such shares of capital stock were issued in
violation of preemptive or other similar rights. To such counsel's knowledge, no
shares of capital stock of the Company are reserved for any purpose except in
connection with (i) the Stock Option Plans, (ii) the Distribution Reinvestment
Plan, and (iii) the possible issuance of shares of Common Stock upon exchange of
OP Units or upon the conversion of shares of Class B Common Stock, Class C
Common Stock or Series A Preferred Stock. To the knowledge of such counsel,
except for OP Units, shares of Class B Common Stock, Class C Common Stock and
Series A Preferred Stock, and stock options issued under the Stock Option Plans
and except as described in the Prospectus, there are no outstanding securities
convertible into or exchangeable for any shares of capital stock of the Company,
and except for options under the Stock Option Plans, there are no outstanding
options, rights (preemptive or otherwise) or warrants to purchase or to
subscribe for shares of such stock or any other securities of the Company.
(4) The Underwriting Agreement, the applicable Terms Agreement and the
Indenture, were duly and validly authorized by the Company, on behalf of itself
and as general partner of SPG, LP, the proper officers of the Company have been
duly authorized by the Company on behalf of itself and as general partner of
SPG, LP, to execute and deliver the Underwriting Agreement, the applicable Terms
Agreement and the Indenture, and, assuming they have been executed and delivered
by any of such officers, the Underwriting Agreement, the Terms Agreement and the
Indenture are duly and validly executed and delivered by the Company, on behalf
of itself and as general partner of SPG, LP.
B-1-1
(5) The execution, delivery and performance of the Underwriting
Agreement, the applicable Terms Agreement and the Indenture by the Company on
its own behalf or as general partner of SPG, LP, as the case may be, and the
consummation of the transactions contemplated in the Underwriting Agreement,
such Terms Agreement and the Indenture and compliance by the Company with its
obligations thereunder do not and will not, whether with or without the giving
of notice or passage of time or both, conflict with or constitute a breach of,
or default under (i) any provisions of the Charter or by-laws of the Company;
(ii) any applicable law, statute, rule, regulation of Maryland; or (iii) to such
counsel's knowledge, any judgment, order, writ or decree of any Maryland court
or governmental entity binding upon the Company or to which the Company is
subject, except in each case for conflicts, breaches, violations or defaults
that in the aggregate would not have a Material Adverse Effect.
(6) The information in Part II of the Registration Statement under
"Indemnification of Directors and Officers" and in the annual Report on Form
10-K of the Company under "o", and such other information in the Prospectus
Supplement and the 10-K as may be agreed upon from time to time by the
Partnerships and Merrill Lynch to the extent that such information constitutes
matters of Maryland law, descriptions of Maryland statutes, rules or
regulations, summaries of Maryland legal matters, the Company's Charter and
bylaws or Maryland legal proceedings, or legal conclusions of Maryland law, has
been reviewed by them and is correct in all material respects.
(7) The Guarantee by SPG, LP of the obligations of the Operating
Partnership under the Indenture have been duly authorized by the Company, in its
capacity as the general partner of SPG, LP.
B-1-2
Exhibit B-2
FORM OF OPINION OF THE TRANSACTION ENTITIES' GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company is duly qualified or registered as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification or registration is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify or register or be in good standing would not result in a
Material Adverse Effect.
(2) The Operating Partnership has been duly organized and is validly
existing as a limited partnership in good standing under the laws of the State
of Delaware, with partnership power and authority to own, lease and operate its
properties and to conduct the business in which it is engaged or proposes to
engage as described in the Prospectus and to enter into and perform its
obligations under the Underwriting Agreement, the applicable Terms 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 issued and outstanding units of partner's equity of the
Operating Partnership is as set forth under the caption "Capitalization" in the
Prospectus. Except as otherwise stated in the Registration Statement and the
Prospectus, such units of partners' equity has been duly authorized and are
validly issued, fully paid and non-assessable and have been offered and sold or
exchanged in compliance with all applicable laws of the United States and the
Delaware Revised Uniform Limited Partnership Act, and none of such units of
partners' equity was issued in violation of preemptive or other similar rights
of any unitholder of the Operating Partnership. The OP Partnership Agreement has
been duly and validly authorized, executed and delivered by the parties thereto
and is a valid and binding agreement, enforceable against the parties thereto in
accordance with its terms, except as such enforceability may be subject to (1)
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
transfer or similar laws affecting creditors' rights generally and (2) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law), and except as rights to indemnity thereunder
may be limited by applicable law.
(3) SPG, L.P. has been duly organized and is validly existing as a
limited partnership in good standing under the laws of the State of Delaware,
with partnership power and authority to own, lease and operate its properties
and to conduct the business in which it is engaged or proposes to engage as
described in the Prospectus and to enter into and perform its obligations under
the Underwriting Agreement, the applicable Terms 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
B-2-1
the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not result
in a Material Adverse Effect. Except as otherwise stated in the Registration
Statement and the Prospectus, all of the units of SPG partners' equity have been
duly authorized and are validly issued, fully paid and non-assessable and have
been offered and sold or exchanged in compliance with all applicable laws of the
United States and the Delaware Revised Uniform Limited Partnership Act and none
of such units of SPG, LP partners' equity was issued in violation of preemptive
or other similar rights of any unitholder of SPG, LP. The SPG, LP Partnership
Agreement has been duly and validly authorized, executed and delivered by the
parties thereto and is a valid and binding agreement, enforceable against the
parties thereto in accordance with its terms, except as such enforceability may
be subject to (1) bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or transfer or similar laws affecting creditors' rights generally and
(2) general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and except as rights to
indemnity thereunder may be limited by applicable law.
(4) Each Simon DeBartolo Entity other than the Company and the
Partnerships has been duly incorporated or organized and is validly existing as
a corporation, limited partnership or other legal entity, as the case may be, in
good standing under the laws of the jurisdiction of its incorporation or
organization, as the case may be, and has the requisite power and authority to
own, lease and operate its properties and to conduct the business in which it is
engaged or proposes to engage as described in the Prospectus and is duly
qualified or registered as a foreign corporation, limited partnership or other
legal entity, as the case may be, to transact business and is in good standing
in each jurisdiction in which such qualification or registration is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or register or to be in good
standing would not result in a Material Adverse Effect. Except as otherwise
stated in the Registration Statement and the Prospectus, all of the issued and
outstanding capital stock or other equity interests of each Simon DeBartolo
Entity other than the Company and the Partnerships has been duly authorized and
is validly issued, fully paid and non-assessable and has been offered and sold
in compliance with all applicable laws of the United States and the
organizational laws of the jurisdictions of organization of such entity, and is
owned by the Company, the Management Companies or the Partnerships, directly or
through subsidiaries, in each case, free and clear of any Liens. There are no
outstanding securities convertible into or exchangeable for any capital stock or
other equity interests of such entities and no outstanding options, rights
(preemptive or otherwise) or warrants to purchase or to subscribe for shares of
such capital stock or any other securities of such entities. None of the
outstanding shares of capital stock or other equity interests of such entity was
issued in violation of preemptive or other similar rights of any securityholder
of such entity.
(5) Each of the Property Partnerships is duly organized and validly
existing as a limited or general partnership, as the case may be, in good
standing under the laws of its respective jurisdiction of formation, with the
requisite power and authority to own, lease and operate its properties and to
conduct the business in which it is engaged and proposes to engage as described
in the Prospectus. Each Property Partnership is duly qualified or registered as
a foreign partnership and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of ownership or
leasing of property or the conduct of business,
B-2-2
except where the failure to so qualify or register would not have a Material
Adverse Effect. The general or limited partnership agreement of each of the
Property Partnerships has been duly and validly authorized, executed and
delivered by the parties thereto and is a valid and binding agreement,
enforceable against the parties thereto in accordance with its terms, except as
such enforceability may be subject to (1) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or transfer or similar laws
affecting creditors' rights generally and (2) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law), and except as rights to indemnity thereunder may be limited
by applicable law.
(6) The Debt Securities have been duly authorized by SD Property as the
managing general partner of the Operating Partnership for issuance and sale to
the Underwriters pursuant to the Underwriting Agreement, the applicable Terms
Agreement and the Indenture. The Debt Securities, when issued and authenticated
in the manner provided for in the Indenture and delivered by the Operating
Partnership pursuant to the Underwriting Agreement and the applicable Terms
Agreement against payment of the consideration set forth in the applicable Terms
Agreement, 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 Underwritten 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 States. The Debt Securities are in the form contemplated by,
and are entitled to the benefits of, the Indenture.
(7) The Guarantee has been duly authorized by the Company as the sole
general partner of the Guarantor, for issuance and sale pursuant to the
Underwriting Agreement, the Terms Agreement and the Indenture and, when issued
and authenticated in the manner provided for in the Indenture, and delivered by
the Guarantor pursuant to the Underwriting Agreement and the applicable Terms
Agreement, against payment of the consideration for the related Debt Securities
specified in such Terms Agreement, will constitute valid and legally binding
obligations of the Guarantor, enforceable against the Guarantor in accordance
with their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles, and
except further as enforcement thereof may be limited by (A) requirements that a
claim with respect to the Guarantee of any Underwritten 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.
B-2-3
(8) The Indenture has been duly qualified under the 1939 Act and has
been duly authorized, executed and delivered by the Transaction Entities and
(assuming due authorization, execution and delivery thereof by the applicable
Trustee) constitutes a valid and legally binding agreement of the Transaction
Entities, enforceable against the Transaction Entities in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles.
(9) The Debt Securities and the Guarantee being sold pursuant to the
applicable Terms Agreement and the Indenture each conform, in all material
respects to the statements relating thereto contained in the Prospectus and are
in substantially the form contemplated by the Indenture.
(10) The obligations of SPG, LP under the Indenture have been duly
authorized by the Company, in its capacity as the sole general partner of SPG,
LP.
(11) Neither the Operating Partnership nor any of the other Simon
DeBartolo Entities nor any Property Partnership is in violation of its charter,
by-laws, partnership agreement, or other organizational document, as the case
may be, and no default by the Operating Partnership or any other Simon DeBartolo
Entity or any Property Partnership exists in the due performance or observance
of any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement or the 10-K, except in each case for violations or
defaults which in the aggregate are not reasonably expected to result in a
Material Adverse Effect.
(12) The Underwriting Agreement, the applicable Terms Agreement and the
Indenture have been duly authorized, executed and delivered by the Transaction
Entities to the extent they are parties thereto.
(13) The execution, delivery and performance of the Underwriting
Agreement, the applicable Terms Agreement and the Indenture and the consummation
of the transactions contemplated thereby did not and do not, conflict with or
constitute a breach or violation of, or default or Repayment Event under, or
result in the creation or imposition of any Lien upon any Portfolio Property,
pursuant to, any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument, to which the
Transaction Entities or any Property Partnership is a party or by which it of
any of them may be bound, or to which any of the assets, properties or
operations of the Transaction Entities or any Property Partnership is subject,
nor will such action result in any violation of the provisions of the charter,
by-laws, partnership agreement or other organizational document of the Operating
Partnership, any other Simon DeBartolo Entity or any Property Partnership or any
applicable laws, statutes, rules or regulations of the United States or any
jurisdiction of incorporation or formation of any of the Transaction Entities or
any Property Partnership or any judgment, order, writ or decree binding upon the
Operating Partnership, any other Simon DeBartolo Entity or any Property
Partnership,
B-2-4
which judgement, order, writ or decree, is known to such counsel, of any
government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Operating Partnership, any other Simon DeBartolo Entity or
any Property Partnership or any of their assets, properties or operations,
except for such conflicts, breaches, violations, defaults, events or Liens that
would not result in a Material Adverse Effect.
(14) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is required in connection with the offering, issuance or
sale of the Underwritten Securities and the Guarantee to the Underwriters under
the Underwriting Agreement, the applicable Terms Agreement and the Indenture,
except as may be required under the 1933 Act, the 1933 Act Regulations, the 1939
Act and the 1939 Act Regulations, or the by-laws and rules of the NASD (as to
which such counsel expresses no opinion) or state securities laws (as to which
such counsel expresses no opinion), or such as have been obtained.
(15) There is no action, suit, proceeding, inquiry or investigation
before or by any court or governmental agency or body, domestic or foreign, now
pending or threatened, against or affecting the Operating Partnership or any
other Simon DeBartolo Entity or any Property Partnership thereof which is
required to be disclosed in the Registration Statement and the Prospectus (other
than as stated therein), or which might reasonably be expected to result in a
Material Adverse Effect.
(16) All descriptions in the Registration Statement and the Prospectus
of contacts and other documents to which the Operating Partnership or any other
Simon DeBartolo Entity is a party are accurate in all material respects. To the
best knowledge and information of such counsel, there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration Statement or to be
filed as exhibits thereto other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto by the 1933 Act
Regulations, and the descriptions thereof or references thereto are correct in
all material respects.
(17) To the best of such counsel's knowledge and information, there are
no statutes or regulations that are required to be described in the Prospectus
that are not described as required.
(18) To the best knowledge of such counsel, except as described in a
schedule to this opinion or in the Prospectus, there are no persons with
registration or other similar rights to have any securities registered pursuant
to the Registration Statement or otherwise registered by the Partnerships under
the 1933 Act.
If the Prospectus Supplement to which the applicable Terms Agreement
relates is the first Prospectus Supplement (the "First Prospectus Supplement")
distributed under this Agreement, the opinions set forth in this Exhibit B-2
above with respect to the Property Partnerships shall only be required for those
Property Partnerships that have acquired or developed Properties since April 12,
1995. For each Prospectus Supplement, distributed after the First Prospectus
Supplement, such Property Partnership opinions shall only be required for those
Property Partnerships that have
B-2-5
acquired or developed Properties since the date of the Prospectus Supplement
last preceding the Prospectus Supplement as to which the Opinions are being
delivered.
B-2-6
Exhibit B-3
FORM OF OPINION OF THE TRANSACTION ENTITIES'
SPECIAL SECURITIES COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) At the time the Registration Statement became effective, and at
each of the Representation Dates, the Registration Statement and the Prospectus,
excluding (a) the documents incorporated by reference therein, (b) the financial
statements and supporting schedules included and other financial data that are
therein and (c) the Trustee's Statement of Eligibility on Form T-1 (the "T-1"),
complied as to form in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations. In passing upon the compliance as to form of
such documents, such counsel may assume that the statements made or incorporated
by reference therein are complete and correct.
(2) The documents filed pursuant to the 1934 Act and incorporated by
reference in the Prospectus (other than the financial statements and supporting
schedules therein and other financial data, as to which no opinion need be
rendered), when they were filed with the Commission, complied as to form in all
material respects with the requirements of the 1933 Act or the 1934 Act, as
applicable, and the rules and regulations of the Commission thereunder. In
passing upon compliance as to the form of such documents, such counsel may have
assumed that the statements made or incorporated by reference therein are
complete and correct.
(3) The information in the Prospectus Supplement under "Prospectus
Supplement Summary -The Offering," "the Operating Partnership," "Recent
Developments -the Merger and -Financings and Indebtedness" and "Description of
the Notes" and in the Prospectus under "The Operating Partnership," "The Merger"
and "Description of Debt Securities" and any description of the Underwritten
Securities included therein, and such other information in the Prospectus
Supplement or in any Annual Report on Form 10-K of the Company, Operating
Partnership and/or SPG, LP as may be agreed upon from time to time by the
Partnerships and Merrill Lynch, to the extent that it purports to summarize
matters of law, descriptions of statutes, rules or regulations, summaries of
legal matters, the Transaction Entities' organizational documents or legal
proceedings, or legal conclusions, has been reviewed by such counsel, is correct
and presents fairly the information required to be disclosed therein in all
material respects.
confirmed.
(4) The Partnerships satisfy all conditions and requirements for filing
the Registration Statement on Form S-3 under the 1933 Act and 1933 Act
Regulations.
(5) None of the Simon DeBartolo Entities or any Property Partnership is
required to be registered as an investment company under the 1940 Act.
B-3-1
(6) The Debt Securities being sold pursuant to the applicable Terms
Agreement have been duly authorized by SD Property as the managing general
partner of the Operating Partnership for issuance and sale to the Underwriters
pursuant to the Underwriting Agreement, the applicable Terms 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 the
Underwriting Agreement and the applicable Terms Agreement against payment of the
consideration set forth in the applicable Terms Agreement, 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 Debt
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 States. The Debt Securities are in the form contemplated by,
and are entitled to the benefits of, the Indenture.
(7) The Guarantee under the Indenture has been duly authorized by the
Company, as the sole general partner of the Operating Partnership for issuance
and sale pursuant to the Underwriting Agreement and, when the Debt Securities
are issued and authenticated in the manner provided for in the Indenture and
delivered by the Operating Partnership pursuant to the Underwriting Agreement
and the applicable Terms Agreement, against payment of the consideration
therefor specified in such Terms Agreement and the Guarantee is endorsed thereon
in the manner provided for in the Indenture, the Guarantee will constitute a
valid and legally binding obligation of the Guarantor, enforceable against the
Guarantor in accordance with its terms, except as enforcement thereof may be
limited by (a) bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally, (b) by
general equitable principles, and except further as enforcement thereof may be
limited by (A) requirements that a claim with respect to the Guarantee of any
Underwritten Securities denominated other than in U.S. dollars (or a foreign
currency or composite currency judgment in respect of such claim) be converted
into U.S. dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law, (B) governmental authority to limit, delay or prohibit the
making of payments outside the United States, (C) the enforceability of forum
selection clauses in the federal courts, and (D) any provision in the Guarantee
purporting to preserve and maintain the liability of any party thereto despite
the fact that the guaranteed debt is unenforceable due to illegality.
(8) This Agreement, the applicable Terms Agreement and the Indenture
were duly and validly authorized, executed and delivered by the Transaction
Entities, to the extent they are parties thereto.
(9) The obligations of SPG, LP under the Indenture have been duly
authorized by the Company, in its capacity as the sole general partner of SPG,
LP.
B-3-2
(10) Commencing with the Company's taxable year beginning January 1,
1994, the Company has been organized in conformity with the requirements for
qualification and taxation as a "real estate investment trust" under the Code.
At the Underwriters' request, Paul, Weiss, Rifkind, Wharton & Garrison
shall also confirm to the Underwriters that it has been informed by the Staff of
the Commission that the Registration Statement is effective under the 1933 Act
and, to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933 Act
or proceedings therefor initiated or threatened by the Commission.
In connection with the preparation of the Registration Statement and
the Prospectus, such counsel has participated in conferences with officers and
other representatives of the Transaction Entities and the independent public
accountants for the Partnerships and the Company at which the contents of the
Registration Statement and the Prospectus and related matters were discussed. On
the basis of such participation and review, but without independent verification
by such counsel of, and without assuming any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus or any amendments or supplements thereto, no facts
have come to the attention of such counsel that would lead them to believe that
the Registration Statement (except for financial statements and schedules and
other financial data included therein and for the T-1, as to which we make no
statement), at the time the Registration Statement or any post-effective
amendment thereto became effective or at the date of the applicable Terms
Agreement, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or any amendment or
supplement thereto (except for financial statements and the schedules and other
financial data included therein and for the T-1, as to which we make to
statement), at the time the Prospectus was issued, at the time any such amended
or supplemented prospectus was issued or at the Closing Time, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of Maryland and Ohio, upon the opinion of
Piper & Marbury and Vorys, Sater, Seymour and Pease, respectively, special
Maryland and Ohio counsel, respectively, to the Transaction Entities (which
opinion shall be dated and furnished to Merrill Lynch at the Closing Time, shall
be satisfactory in form and substance to counsel for the Underwriters and shall
expressly state that the counsel for the Underwriters may rely on such opinions
as if it were addressed to them), and (B), as to matters of fact (but not as to
legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Partnerships and public officials. 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).
B-3-3
Exhibit B-4
FORM OF OPINION OF THE TRANSACTION ENTITIES'
SPECIAL OHIO COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Underwritten Securities, having the benefit of the Guarantee,
have been duly authorized for issuance and sale pursuant to the Underwriting
Agreement, the Terms Agreement and the Indenture.
(2) Each of the Underwriting Agreement, the applicable Terms Agreement
and the Indenture has been duly and validly authorized by SD Property on behalf
of itself and on behalf of the Operating Partnership in its capacity as the
managing general partner thereof, the proper officers of SD Property have been
duly authorized on behalf of itself and on behalf of the Operating Partnership,
in its capacity as the managing general partner thereof, to execute and deliver
each of the Underwriting Agreement, the applicable Terms Agreement and the
Indenture, and assuming they have been executed and delivered by any of such
officer, each of the Underwriting Agreement, the Terms Agreement and the
Indenture are duly and validly executed and delivered by SD Property on behalf
of itself and on behalf of the Operating Partnership in its capacity as the
managing general partner thereof.
B-4-1
ANNEX I
[FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)]
We are independent public accountants with respect to the Operating Partnership
within the meaning of the 1933 Act and the applicable published 1933 Act
Regulations.
(i) in our opinion, the audited financial statements
and the related financial statement schedules included or incorporated
by reference in the Registration Statement and the Prospectus comply as
to form in all material respects with the applicable accounting
requirements of the 1933 Act and the published rules and regulations
thereunder;
(ii) on the basis of procedures (but not an examination
in accordance with generally accepted auditing standards) consisting of
a reading of the unaudited interim [consolidated] financial statements
of the Operating Partnership for the [three month periods ended
__________, 19__, and __________, 19__, the three and six month periods
ended __________, 19__, and __________, 19__, and the three and nine
month periods ended __________, 19__, and __________, 19__, included or
incorporated by reference in the Registration Statement and the
Prospectus (collectively, the "10-Q Financials")] /1/ [, a reading of
the unaudited interim [consolidated] financial statements of the
Operating Partnership for the _____-month periods ended __________,
19__, and __________, 19__, included in the Registration Statement and
the Prospectus (the "_____-month financials")] /2/ [, a reading of the
latest available unaudited interim [consolidated] financial statements
of the Operating Partnership] /3/, a reading of the minutes of all
meetings of the stockholders and directors of the Operating Partnership
[and its subsidiaries] and the Committees of the Operating
Partnership's Board of Directors [and any subsidiary committees] since
[day after end of last audited period], inquiries of certain officials
of the Operating Partnership [and its subsidiaries] responsible for
financial and accounting matters, a review of interim financial
information in accordance with standards established by the American
Institute of Certified Public Accountants in Statement on Auditing
Standards No. 71, Interim Financial Information ("SAS 71") /4/, with
respect to the
- ----------
/1/ Include the appropriate dates of the 10-Q Financials.
/2/ Include if non-10-Q interim financial statements are included
in the Registration Statement and the Prospectus.
/3/ Include if the most recent unaudited financial statements
are not included in the Registration Statement and the
Prospectus.
/4/ Note that a review in accordance with Statements on Auditing
Standards ("SAS") No. 71
(continued...)
Annex I-1
[description of relevant periods] /5/ and such other inquiries and
procedures as may be specified in such letter, nothing came to our
attention that caused us to believe that:
[(A) the 10-Q Financials incorporated by reference in
the Registration Statement and the Prospectus do not comply as
to form in all material respects with the applicable
accounting requirements of the 1934 Act and the 1934 Act
Regulations applicable to unaudited financial statements
included in Form 10-Q or any material modifications should be
made to the 10-Q Financials incorporated by reference in the
Registration Statement and the Prospectus for them to be in
conformity with generally accepted accounting principles;] /6/
[( ) the _____-month financials included in the
Registration Statement and the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations
applicable to unaudited interim financial statements included
in registration statements or any material modifications
should be made to the _____-month
- ----------
/4/(continued...)
is required for an accountant to give negative assurance on interim
financial information. A review in accordance with SAS No. 71 will only be
performed at the request of the Company and the accountant's report, if any,
related to that review will be addressed only to the Company. Many companies
have a SAS No. 71 review performed in connection with the preparation of their
10-Q financial statements. See CODIFICATION OF STATEMENTS ON AUDITING STANDARDS,
AU ss. 722 for a description of the procedures thaT constitute such a review.
The comfort letter itself should recite that the review was performed and a copy
of the report, if any, should be attached to the comfort letter. Any report
issued pursuant to SAS No. 71 that is mentioned in the Registration Statement
should also be included in the Registration Statement as an exhibit. If a review
in accordance with SAS No. 71 has not and will not be performed by the
accountants, they should be prepared to perform certain agreed-upon procedures
on the interim financial information and to report their findings thereon in the
comfort letter. See CODIFICATION OF STATEMENTS ON AUDITING STANDARDS, AU ss. 622
for a discussion of reports related to the accountant's performance of
agreed-upon procedures. Any question as to whether a review in accordance with
SAS No. 71 will be performed by the accountants should be resolved early.
/5/ The relevant periods include all interim unaudited condensed
consolidation financial statements included or incorporated by
reference in the Registration Statement and the Prospectus.
/6/ Include if the 10-Q Financials are incorporated by reference in the
Registration Statement and the Prospectus.
Annex I-2
financials included in the Registration Statement and the
Prospectus for them to be in conformity with generally
accepted accounting principles;] /7/
( ) at [____________, 19__ and at] /8/ a specified
date not more than five days /9/ prior to the date of the
applicable Terms Agreement, there was any change in the
__________ of the Operating Partnership [and its subsidiaries]
or any decrease in the _________ of the Operating Partnership
[and its subsidiaries] or any increase in the ___________ of
the Operating Partnership [and its subsidiaries,] /10/ in each
case as compared with amounts shown in the latest balance
sheet included in the Registration Statement and the
Prospectus, except in each case for changes, decreases or
increases that the Registration Statement and the Prospectus
disclose have occurred or may occur; or
( ) [for the period from ___________, 19__ to
___________, 19__ and] /11/ for the period from _________,
19__ to a specified date not more than five days prior to the
date of the applicable Terms Agreement, there was any decrease
in __________, ___________ or ___________, /12/ in each case
as compared with
- ----------
/7/ Include if unaudited financial statements, not just selected
unaudited data, are included in the Registration Statement and the
Prospectus.
/8/ Include, and insert the date of most recent balance sheet of the
Company, if those statements are more recent than the unaudited
financial statements included in the Registration Statement and the
Prospectus.
/9/ According to Example A of SAS No. 72, the specified date should be
five calendar days prior to the date of the applicable Terms Agreement.
However, in unusual circumstances, five business days may be used.
/10/ The blanks should be filled in with significant balance sheet items,
selected by the banker and tailored to the issuer's industry in general
and operations in particular. While the ultimate decision of which
items should be included rests with the banker, comfort is routinely
requested for certain balance sheet items, including long-term debt,
stockholders' equity, capital stock and net current assets.
/11/ Include, and insert dates to describe the period from the date of the
most recent financial statements in the Registration Statement and the
Prospectus to the date of the most recent unaudited financial
statements of the Company, if those dates are different. Regardless of
whether this language is inserted or not, the period including five
days prior to the date of the applicable Terms Agreement should run
from the date of the last financial statement included in the
Registration Statement and the Prospectus, not from the later one that
is not included in the Registration Statement and the Prospectus.
/12/ The blanks should be filled in with significant income statements
items, selected by the
(continued...)
Annex I-3
the comparable period in the preceding year, except in each
case for any decreases that the Registration Statement and
the Prospectus discloses have occurred or may occur;
(iii) based upon the procedures set forth in clause (ii)
above and a reading of the [Selected Financial Data] included in the
Registration Statement and the Prospectus [and a reading of the
financial statements from which such data were derived,] /13/ nothing
came to our attention that caused us to believe that the [Selected
Financial Data] included in the Registration Statement and the
Prospectus do not comply as to form in all material respects with the
disclosure requirements of Item 301 of Regulation S-K of the 1933 Act
[, that the amounts included in the [Selected Financial Data] are not
in agreement with the corresponding amounts in the audited
[consolidated] financial statements for the respective periods or that
the financial statements not included in the Registration Statement and
the Prospectus from which certain of such data were derived are not in
conformity with generally accepted accounting principles] /14/;
(iv) we have compared the information in the
Registration Statement and the Prospectus under selected captions with
the disclosure requirements of Regulation S-K of the 1933 Act and on
the basis of limited procedures specified herein. Nothing came to our
attention that caused us to believe that this information does not
comply as to form in all material respects with the disclosure
requirements of Items 302, 402 and 503(d), respectively, of Regulation
S-K;
- ----------
/12/(...continued)
banker and tailored to the issuer's industry in general and operations
in particular. While the ultimate decision of which items should be
included rests with the banker, comfort is routinely requested for
certain income statement items, including net sales, total and per
share amounts of income before extraordinary items and of net income.
/13/ Include only if there are selected financial data that have been
derived from financial statements not included in the Registration
Statement and the Prospectus.
/14/ In unusual circumstances, the accountants may report on "Selected
Financial Data" as described in SAS No. 42, REPORTING ON CONDENSED
FINANCIAL STATEMENTS AND SELECTED FINANCIAL DATA, and include in their
report in the Registration Statement and the Prospectus the paragraph
contemplated by SAS No. 42.9. This situation may arise only if the
Selected Financial Data do not include interim period data and the
five-year selected data are derived entirely from financial statements
audited by the auditors whose report is included in the Registration
Statement and the Prospectus. If the guidelines set forth in SAS No. 42
are followed and the accountant's report as included in the
Registration Statement and the Prospectus includes the additional
language prescribed by SAS No. 42.9, the bracketed language may be
eliminated.
Annex I-4
[(v) based upon the procedures set forth in clause (ii)
above, a reading of the unaudited financial statements of the Operating
Partnership for [the most recent period] that have not been included in
the Registration Statement and the Prospectus and a review of such
financial statements in accordance with SAS 71, nothing came to our
attention that caused us to believe that the unaudited amounts for
__________________ for the [most recent period] do not agree with the
amounts set forth in the unaudited consolidated financial statements
for those periods or that such unaudited amounts were not determined on
a basis substantially consistent with that of the corresponding amounts
in the audited [consolidated] financial statements;] /15/
[(vi)] we are unable to and do not express any opinion on
the [Pro Forma Combining Statement of Operations] (the "Pro Forma
Statement") included in the Registration Statement and the Prospectus
or on the pro forma adjustments applied to the historical amounts
included in the Pro Forma Statement; however, for purposes of this
letter we have:
(A) read the Pro Forma Statement;
(B) performed [an audit] [a review in
accordance with SAS 71] of the financial statements
to which the pro forma adjustments were applied;
(C) made inquiries of certain officials of
the Operating Partnership who have responsibility for
financial and accounting matters about the basis for
their determination of the pro forma adjustments and
whether the Pro Forma Statement complies as to form
in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation
S-X; and
(D) proved the arithmetic accuracy of the
application of the pro forma adjustments to the
historical amounts in the Pro Forma Statement; and
on the basis of such procedures and such other inquiries and
procedures as specified herein, nothing came to our attention
that caused us to believe that the Pro Forma Statement
included in the Registration Statement does not comply as to
form in all material respects with the applicable requirements
of Rule 11-02 of
- ----------
/15/ This language should be included when the Registration Statement and
the Prospectus include earnings or other data for a period after the
date of the latest financial statements in the Registration Statement
and the Prospectus, but the unaudited interim financial statements from
which the earnings or other data is derived is not included in the
Registration Statement and the Prospectus. The blank should be filled
in with a description of the financial statement item(s) included.
Annex I-5
Regulation S-X or that the pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of those statements; and
[(vii)] in addition to the procedures referred to in
clause (ii) above, we have performed other procedures, not constituting
an audit, with respect to certain amounts, percentages, numerical data
and financial information appearing in the Registration Statement and
the Prospectus, which are specified herein, and have compared certain
of such items with, and have found such items to be in agreement with,
the accounting and financial records of the Operating Partnership; /17/
and
[(viii) in addition, we [comfort on a financial
forecast that is included in the Registration Statement and the
Prospectus.] /18/
- --------
/16/ If an audit or a review in accordance with SAS No. 71 has not been
performed by the accountants with respect to the underlying historical
financial statements, or if negative assurance on the Company's pro
forma financial statements is not otherwise available, the accountants
should be requested to perform certain other procedures with respect to
such pro forma financial statements. See Example O of SAS No. 72.
/17/ This language is intended to encompass all other
financial/numerical information appearing in the Registration Statement
and the Prospectus for which comfort may be given, including (but not
limited to) amounts appearing in the Registration Statement and the
Prospectus narrative and other summary financial data appearing in
tabular form (e.g., the capitalization table).
/18/ Accountants' services with respect to a financial forecast may be
in one of three forms: an examination of the forecast, a compilation of
the forecast or the application of agreed-upon procedures to the
forecast. If the accountant is to perform an examination of the
forecast included in the Registration Statement and the Prospectus,
delivery of the related report should be treated separately in Section
5(f) as follows (remember to change subsequent letters accordingly):
(f) At the time that the applicable Terms Agreement
is executed by the Company, you shall have received from
_________________ a report, dated such date, in form and
substance satisfactory to you, together with signed or
reproduced copies of such report for each of the other
Underwriters, stating that, in their opinion, the forecasted
financial statements for the [relevant period or periods]
included in the Registration Statement and the Prospectus are
presented in conformity with guidelines for presentation of a
forecast established by the AICPA, and that the underlying
assumptions provide a reasonable basis for management's
forecast.
If the accountant is to perform a compilation of the forecasted
financial statements included
(continued...)
Annex I-6
- ----------
/18/(...continued)
in the Registration Statement and the Prospectus, delivery of the
related report should be treated separately in Section 5(e) as follows:
(f) At the time that the applicable Terms Agreement
is executed by the Company, you shall have received from
_________________ a report, dated such date, in form and
substance satisfactory to you, together with signed or
reproduced copies of such report of each of the other
Underwriters, stating that they have compiled the forecasted
financial statements for the [relevant period or periods]
included in the Registration Statement and the Prospectus in
accordance with the guidelines established by the AICPA.
Finally, if the accountant is to perform agreed-upon procedures on a
forecast included in the Registration Statement and the Prospectus, SAS
No. 72 requires that the accountant first prepare a compilation report
with respect to the forecast and attach that report to the comfort
letter. The accountant may then report on specific procedures performed
and findings obtained.
Annex I-7
SIMON DEBARTOLO GROUP, L.P.
(a Delaware limited partnership)
Debt Securities
TERMS AGREEMENT
November 21, 1996
To: Simon DeBartolo Group, L.P.
Simon Property Group, L.P.
National City Center
115 West Washington Street
Suite 15 East
Indianapolis, Indiana 46204
Ladies and Gentlemen:
We understand that Simon DeBartolo Group, L.P., a Delaware
limited partnership (the "Operating Partnership"), proposes to issue and sell
$250,000,000 aggregate principal amount of debt securities (hereinafter the
"Initial Underwritten Securities") as guaranteed by Simon Property Group, L.P.,
a Delaware limited partnership ("SPG, LP"). Subject to the terms and conditions
set forth or incorporated by reference herein, the underwriters named below (the
"Underwriters") offer to purchase, severally and not jointly, the respective
number of Initial Underwritten Securities as guaranteed by SPG, LP set forth
below opposite their names at the purchase price set forth below
Principal Amount of
Underwriter Initial Underwritten Securities
Merrill Lynch, Pierce, Fenner & Smith Incorporated.................. $ 50,000,000
J.P. Morgan Securities Inc.......................................... 50,000,000
Morgan Stanley & Co. Incorporated................................... 50,000,000
Salomon Brothers Inc................................................ 50,000,000
UBS Securities LLC.................................................. 50,000,000
Total $ 250,000,000
====================
The Underwritten Securities shall have the following terms:
Title: 67/8% Notes Due November 15, 2006
Rank: The Underwritten Securities will rank pari
passu with each other and with all other
unsecured and unsubordinated indebtedness of
the Operating Partnership except that the
Underwritten Securities will be effectively
subordinated to (i) the prior claims of each
secured mortgage lender to any specific
Portfolio Property which secures such
lender's mortgage and (ii) any claims of
creditors of entities wholly or partly
owned, directly or indirectly, by the
Operating Partnership.
Ratings: Baa1 by Moody's Investor Service
BBB by Standard & Poor's
BBB+ by Fitsch Investors Service, L.P.
Aggregate principal amount: $250,000,000
Currency of payment: U.S. Dollars
Interest rate or formula: 67/8% payable semi-annually in arrears
Interest payment dates: Each May 15 and November 15
Stated maturity date: November 26, 2006
Redemption provisions: The Underwritten Securities 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 Underwritten
Securities being redeemed plus accrued
interest to the redemption date and (ii) the
Make-Whole Amount, if any.
Sinking fund requirements: None
Conversion provisions: None
Listing requirements: None
Black-out provisions: None
Guarantee: SPG, LP will guarantee the due and punctual
payment of the principal of, premium, if
any, interest on, and any other amounts
payable with respect to, the Underwritten
Securities, when and as the same shall
become due and payable, whether at a
maturity date, on redemption, by declaration
of acceleration or otherwise.
Initial public offering price: 99.662% of the principal amount, plus
accrued interest or amortized original
issue discount, if any, from date of
issuance.
Purchase price per share: 99.012% of principal amount, plus
accrued interest or amortized original
issue discount, if any, from date of
issuance (payable in same day funds).
Lock-Up Provisions: None
Other terms and conditions: The Underwritten Securities shall be in the
form of Exhibit A to the First Supplemental
Indenture, dated as of November 26,
1996, between the Partnerships and The
Chase Manhattan Bank.
Closing date and location: November 26, 1996 at the offices of Rogers &
Wells, 200 Park Avenue, New York, New
York 10166.
All of the provisions contained in the document attached as Annex I
hereto entitled "SIMON DEBARTOLO GROUP, L.P. AND SIMON PROPERTY GROUP,
L.P.--Debt Securities together with the Guarantee Underwriting Agreement" are
hereby incorporated by reference in their entirety herein and shall be deemed to
be a part of this Terms Agreement to the same extent as if such provisions had
been set forth in full herein. Terms defined in such document are used herein as
therein defined.
Please accept this offer no later than five o'clock P.M. (New York City
time) on November 21, 1996 by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Martin J. Cicco
-------------------------------
Name: Martin J. Cicco
Title: Authorized Signatory
Acting on behalf of itself and the other
named Underwriters.
Accepted:
SIMON DEBARTOLO GROUP, L.P.
By: SD Property Group, Inc.,
Managing General Partner
By: /s/ David Simon
--------------------------------
Name: David Simon
Title: Chief Executive Officer
SIMON PROPERTY GROUP, L.P.
By: Simon DeBartolo Group, Inc.
General Partner
By: /s/ David Simon
--------------------------------
Name: David Simon
Title: Chief Executive Officer
SIMON DEBARTOLO GROUP, L.P.
Issuer
and
SIMON PROPERTY GROUP, L.P.
Guarantor
and
THE CHASE MANHATTAN BANK
Trustee
Indenture
Dated as of November 26, 1996
Debt Securities
INDENTURE, dated as of November 26, 1996, between Simon DeBartolo
Group, L.P., a Delaware limited partnership (the "Issuer"), having its principal
offices at National City Center, 115 West Washington Street, Suite 15 East,
Indianapolis, Indiana 46204, Simon Property Group, L.P., a Delaware limited
partnership (the "Guarantor"), having its principal offices at National City
Center, 115 West Washington Street, Suite 15 East, Indianapolis, Indiana 46204,
and The Chase Manhattan Bank, a New York banking corporation, as Trustee
hereunder (the "Trustee"), having its Corporate Trust Office at 450 West 33rd
Street, 15th Floor, New York, NY 10001.
RECITALS OF THE ISSUER AND GUARANTOR
The Issuer deems it necessary to issue from time to time for its lawful
purposes debt securities (hereinafter called the "Securities") as to which the
due and punctual payment of the principal of, premium if any, interest on, and
any other amounts payable with respect to, the Securities whether at Maturity,
on redemption, by declaration of acceleration or otherwise in accordance with
this Indenture and the terms of the Securities, is guaranteed by the Guarantor
(the "Guarantee") evidencing its unsecured and unsubordinated indebtedness, and
the Issuer and the Guarantor have duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of the Securities,
unlimited as to principal amount, to bear interest at the rates or formulas, to
mature at such times and to have such other provisions as shall be fixed as
hereinafter provided.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are deemed to be incorporated into this Indenture and
shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Issuer and Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. For all purposes of this
Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as
well as the singular;
(2) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to
them therein, and the terms "cash transaction" and "self-liquidating
paper," as used in TIA Section 311, shall have the meanings assigned to
them in the rules of the Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP;
and
(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts which are required by
a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Issuer pursuant to Section 1012 in respect
of certain taxes, duties, assessments or other governmental charges imposed on
certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
2
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means any Security established pursuant to Section
201 which is payable to bearer.
"Board of Directors" means the board of directors of the General
Partner or any committee of that board duly authorized to act hereunder.
"Board of Directors of the Company" means the board of directors of the
Company, as general partner of the Guarantor, or any committee of that board
duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the General Partner or the Company, as
the case may be, to have been duly adopted by the Board of Directors of the
General Partner, on behalf of the Issuer, or of the Company, on behalf of the
Guarantor, as the case may be, and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which banking institutions in that Place of Payment or
particular location are authorized or required by law, regulation or executive
order to close.
"CEDEL" means Centrale de Livraison de Valeurs
Mobilieres, S.A., or its successor.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the TIA, then the body performing such duties on
such date.
"Common Depositary" has the meaning specified in
Section 304(b).
"Company" means the managing general partner of the Guarantor, which on
the date of execution of this Indenture is Simon DeBartolo Group, Inc., a
Delaware corporation.
"Conversion Event" means the cessation of use of (i) a Foreign 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
3
within the European Communities or (iii) any currency unit (or composite
currency) other than the ECU for the purposes for which it was established.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at 450 West 33rd
Street, 15th Floor, New York, NY 10001.
"corporation" includes corporations, associations,
partnerships, companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer
Security.
"Custodian" has the meaning specified in Section 501.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"DTC" has the meaning specified in Section 304(b).
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear
System.
"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic
Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Date" has the meaning specified in Section 304(b).
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU, issued by the government of
one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
4
"GAAP" means generally accepted accounting principles, as in effect
from time to time, as used in the United States applied on a consistent basis.
"General Partner" means the managing general partner of the
Issuer, which on the date of execution of this Indenture is SD
Property Group, Inc. (formerly DeBartolo Realty Corporation), an
Ohio corporation.
"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 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 government which issued the Foreign
Currency in which the 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 Obligation or a specific payment of interest on
or principal of any such Government Obligation 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.
"Guarantee" means the guarantee by the Guarantor of the
guaranteed obligations referred to in Section 1701.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this Indenture until a successor shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Guarantor" shall
mean such successor.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the case of
a Bearer Security, the bearer thereof and, when used with respect to any Coupon,
shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; PROVIDED, HOWEVER, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture"
shall mean, with respect to any one or more series of Securities
5
for which such Person is Trustee, this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of the or those particular series of Securities for
which such Person is Trustee established as contemplated by Section 301,
exclusive, however, of any provisions or terms which relate solely to other
series of Securities for which such Person is not Trustee, regardless of when
such terms or provisions were adopted, and exclusive of any provisions or terms
adopted by means of one or more indentures supplemental hereto executed and
delivered after such Person had become such Trustee but to which such Person, as
such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 1012,
includes such Additional Amounts.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Issuer" means the Person named as the "Issuer" in the first paragraph
of this Indenture until a successor shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Issuer" shall mean such
successor.
"Issuer Request" and "Issuer Order" mean, respectively, a written
request or order signed in the name of the Issuer by the General Partner by its
Chairman of the Board, the Chief Executive Officer, the President or a Vice
President, and by its Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the General Partner, and delivered to the Trustee.
"Make-Whole Amount" means the amount, if any, in addition to principal,
which is required by a Security, under the terms and conditions specified
therein or as otherwise specified as contemplated by Section 301, to be paid by
the Issuer to the Holder thereof in connection with any optional redemption
and/or accelerated payment of such Security. In any case in which a Make-Whole
Amount is provided for with respect to a Security, such amount shall be treated
as premium for all purposes of this Indenture.
"Maturity," when used with respect to any Security, means the
date on which the principal of such Security or an installment of
6
principal becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by acceleration, notice of redemption, notice of option to
elect repayment or otherwise.
"Merger" means the transaction and other related transactions,
consummated on August 9, 1996, pursuant to the agreement and plan of merger
among Simon Property Group, Inc. ("SPG"), an acquisition subsidiary of SPG and
DeBartolo Realty Corporation ("DRC").
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors, the Chief Executive Officer, the President or a Vice
President and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the General Partner, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Issuer or the Guarantor or who may be an employee of or other
counsel for the Issuer or the Guarantor and who shall be satisfactory to the
Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee
or delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Issuer or the Guarantor) in trust or set aside and segregated in
trust by the Issuer or the Guarantor, as the case may be (if the Issuer or the
Guarantor, as the case may be, shall act as its own Paying Agent), for the
Holders of such Securities and any Coupons appertaining thereto, provided that,
if such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(iii) Securities, except to the extent provided
in Sections 1402 and 1403, with respect to which the Issuer or
the Guarantor has effected defeasance and/or covenant
defeasance as provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of
7
which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Issuer;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon acceleration of the maturity thereof pursuant to Section
502, (ii) the principal amount of any Security denominated in a Foreign Currency
that may be counted in making such determination or calculation and that shall
be deemed Outstanding for such purpose shall be equal to the Dollar equivalent,
determined pursuant to Section 301 as of the date such Security is originally
issued by the Issuer, of the principal amount (or, in the case of an Original
Issue Discount Security, the Dollar equivalent as of such date of original
issuance of the amount determined as provided in clause (i) above) of such
Security, (iii) the principal amount of any Indexed Security that may be counted
in making such determination or calculation and that shall be deemed outstanding
for such purpose shall be equal to the principal face amount of such Indexed
Security at original issuance, unless otherwise provided with respect to such
Security pursuant to Section 301, and (iv) Securities owned by the Issuer, the
Guarantor or any other obligor upon the Securities or any Affiliate of the
Issuer, the Guarantor or such other obligor shall be disregarded and deemed not
to be Outstanding, except that, in determining whether the Trustee shall be
protected in making such calculation or in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which a Responsible Officer of the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Issuer, the Guarantor or any other obligor upon the
Securities or any Affiliate of the Issuer, the Guarantor or of such other
obligor.
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of (and premium, if any) or interest on any Securities or Coupons on
behalf of the Issuer or the Guarantor, as the case may be.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock
8
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment," when used with respect to the Securities of or
within any series, means the place or places where the principal of (and
premium, if any) and interest on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen Coupon
appertains.
"Premium," when used with respect to a Security which provides for the
payment of a Make-Whole Amount pursuant to Section 1004, includes such
Make-Whole Amount.
"Redemption Date," when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" shall mean any Security which is
registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee, means any
officer of the Trustee with direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of such officer's
knowledge and familiarity with the particular subject.
9
"Securities Act" means the Securities Act of 1933, as amended.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities, together
with the Guarantees, authenticated and delivered under this Indenture; PROVIDED,
HOWEVER, that, if at any time there is more than one Person acting as Trustee
under this Indenture, "Securities" with respect to the Indenture as to which
such Person is Trustee shall have the meaning stated in the first recital of
this Indenture and shall more particularly mean Securities authenticated and
delivered under this Indenture, exclusive, however, of Securities of any series
as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X promulgated
under the Securities Act) of the Issuer.
"Special Record Date" shall have the meaning specified in
Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a Coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means a Person, 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 Issuer, the
Guarantor or by one or more other Subsidiaries, as the case may be. For the
purposes of this definition, "voting stock" means stock having voting power for
the election of directors, trustees or managers, 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.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
PROVIDED, HOWEVER, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended and as in force at the date as of which this Indenture was executed,
except as provided in Section 905; PROVIDED; HOWEVER, that, in the event the TIA
is amended after such
10
date, "Trust Indenture Act" or "TIA" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
States thereof and the District of Columbia), its territories, its possessions
and other areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"Yield to Maturity," when used with respect to any Security, means the
yield to maturity of such Security, computed at the time of issuance of such
Security (or, if applicable, at the most recent redetermination of interest on
such Security) and as set forth in such Security in accordance with generally
accepted United States bond yield computation principles.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any application
or request by the Issuer to the Trustee to take any action under any provision
of this Indenture, the Issuer shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
delivered pursuant to Section 1011) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, such individual has made such examination or
investigation as is necessary to enable him to express an
11
informed opinion as to whether or not such condition or covenant has
been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion as to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the General Partner, in the
name of the Issuer, may be based, insofar as it relates to legal matters, upon
an Opinion of Counsel, or a certificate or representations by counsel, unless
such officer knows, or in the exercise of reasonable care should know, that the
opinion, certificate or representations with respect to the matters upon which
his certificate or opinion is based are erroneous. Any such Opinion of Counsel
or certificate or representations may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the General Partner, in the name of the Issuer, stating that the
information as to such factual matters is in the possession of the Issuer,
unless such counsel knows that the certificate or opinion or representations as
to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of the Outstanding Securities of all series or one
or more series, as the case may be, may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in person
or by agents duly appointed in writing. If Securities of a series are issuable
as Bearer Securities in whole or in part, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
12
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Issuer or the Guarantor, as the case may be. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and conclusive in favor of the Trustee, the Issuer or the
Guarantor and any agent of the Trustee, the Issuer and the Guarantor, if made in
the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient.
(c) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall be proved
by the Security Register.
(d) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may be proved
by the production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee, the Issuer and the Guarantor may assume that such
ownership of any Bearer Security continues until (1) another certificate or
affidavit bearing a later date issued in respect of the same Bearer Security is
produced, or (2) such Bearer Security is produced to the Trustee by some other
Person, or (3) such Bearer Security is surrendered in exchange for a Registered
Security, or (4) such Bearer Security is no longer Outstanding. The ownership of
Bearer Securities may also be proved in any other manner which the Trustee deems
sufficient.
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(e) If the Issuer or the Guarantor shall solicit from the Holders of
Registered Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Issuer or Guarantor may, at its option, in or
pursuant to a Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but neither the Issuer nor the
Guarantor shall have any obligation to do so. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not earlier than the date 30 days
prior to the first solicitation of Holders generally in connection therewith and
not later than the date such solicitation is completed. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; PROVIDED that no such authorization, agreement or consent by
the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven
months after the record date.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent or the Issuer or
the Guarantor in reliance thereon, whether or not notation of such action is
made upon such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE, ISSUER AND/OR GUARANTOR. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Issuer or the
Guarantor shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, or
(2) the Issuer or the Guarantor by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed, first
class postage prepaid, to the Issuer or the Guarantor, as the case may
be, addressed to it at the address of its
principal office specified in the first paragraph of this
14
Indenture or at any other address previously furnished in writing to
the Trustee by the Issuer or the Guarantor, as the case may be.
SECTION 106. NOTICE TO HOLDERS; WAIVER. Where this Indenture provides
for notice of any event to Holders of Registered Securities by the Issuer, the
Guarantor or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Holders of Registered Securities is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. Any notice mailed to a
Holder in the manner herein prescribed shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such
notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders of Registered Securities as
shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given if published in an Authorized Newspaper in New York
City and in such other city or cities as may be specified in such Securities on
a Business Day, such publication to be not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. Any
such notice shall be deemed to have been given on the date of such publication
or, if published more than once, on the date of the first such publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above, nor
any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
15
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The
Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 108. SUCCESSORS AND ASSIGNS. All covenants and
agreements in this Indenture by the Issuer or the Guarantor shall
bind its successors and assigns, whether so expressed or not.
SECTION 109. SEPARABILITY CLAUSE. In case any provision in this
Indenture or in any Security or Coupon or Guarantee shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. BENEFITS OF INDENTURE. Nothing in this Indenture or in the
Securities, the Coupons or the Guarantee, express or implied, shall give to any
Person, other than the parties hereto, any Security Registrar, any Paying Agent,
any Authenticating Agent and their successors hereunder and the Holders any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. GOVERNING LAW. This Indenture and the Securities, the
Coupons and the Guarantee shall be governed by and construed in accordance with
the laws of the State of New York. This Indenture is subject to the provisions
of the TIA that are required to be part of this Indenture and shall, to the
extent applicable, be governed by such provisions.
SECTION 112. LEGAL HOLIDAYS. In any case where any Interest Payment
Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or Coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu hereof), payment of
interest or any Additional Amounts or principal (and premium, if any) need not
be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date, Redemption Date, Repayment Date or
sinking fund
16
payment date, or at the Stated Maturity or Maturity, PROVIDED that no interest
shall accrue on the amount so payable for the period from and after such
Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment
date, Stated Maturity or Maturity, as the case may be, to such next succeeding
Business Day.
ARTICLE TWO
FORMS OF SECURITIES AND GUARANTEES
SECTION 201. FORMS OF SECURITIES AND GUARANTEES. The Registered
Securities, if any, of each series and the Guarantee related thereto, and the
Bearer Securities, if any, of each series, related Coupons and the Guarantee
related thereto, shall be in substantially the forms as shall be established in
one or more indentures supplemental hereto or approved from time to time by or
pursuant to a Board Resolution of the General Partner in accordance with Section
301 and 1701, shall have such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture or any
indenture supplemental hereto, and may have such letters, numbers or other marks
of identification or designation and such legends or endorsements placed thereon
as the Issuer or Guarantor may deem appropriate and as are not inconsistent with
the provisions of this Indenture, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Securities may be listed, or to
conform to usage. Any form of Security and Guarantee related thereto approved by
or pursuant to a Board Resolution must be acceptable as to form to the Trustee,
such acceptance to be evidenced by the Trustee's authentication of Securities in
that form or a certificate signed by a Responsible Officer of the Trustee and
delivered to the Issuer and Guarantor.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest Coupons attached.
The definitive Securities and the Guarantee related thereto and
Coupons, if any, shall be typewritten, printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner, all as determined by the officers executing such Securities or Coupons,
as evidenced by their execution of such Securities or Coupons.
17
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
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
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM. If Securities of or
within a series are issuable in global form, as specified as contemplated by
Section 301, then, notwithstanding clause (9) of Section 301 and the provisions
of Section 302, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the Issuer Order to be delivered to the Trustee pursuant to Section 303 or
304. Subject to the provisions of Section 303 and, if applicable, Section 304,
the Trustee shall deliver and redeliver any Security in permanent global form in
the manner and upon instructions given by the Person or Persons specified
therein or in the applicable Issuer Order. If an Issuer Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any instructions
by the Issuer with respect to endorsement or delivery or redelivery of a
Security in global form shall be in writing but need not comply with Section 102
and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Issuer and the Issuer delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of
18
principal of and any premium and interest on any Security in permanent global
form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Issuer, the Guarantor, the Trustee and any agent of
the Issuer, the Guarantor or the Trustee shall treat as the Holder of such
principal amount of Outstanding Securities represented by a permanent global
Security (i) in the case of a permanent global Security in registered form, the
Holder of such permanent global Security in registered form, or (ii) in the case
of a permanent global Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The
aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions of the General Partner or pursuant
to authority granted by one or more Board Resolutions of the General Partner
and, subject to Section 303, set forth, or determined in the manner provided, in
an Officers' Certificate of the General Partner, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series, any or all of the following, as applicable, each of which, if so
provided, may be determined from time to time by the Issuer with respect to
unissued Securities of the series when issued from time to time:
(1) the title of the Securities of the series (which
shall distinguish the Securities of such series from all other
series of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107
or 1305);
(3) the percentage of the principal amount at which the
Securities of the series will be issued and, if other than the
principal amount thereof, the portion of the principal amount thereof
payable upon acceleration of maturity thereof;
(4) the date or dates, or the method by which such date
or dates will be determined, on which the principal of the
Securities of the series shall be payable;
19
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which such interest shall
accrue or the method by which such date or dates shall be determined,
the Interest Payment Dates on which such interest will be payable and
the Regular Record Date, if any, for the interest payable on any
Registered Security on any Interest Payment Date, or the method by
which such date shall be determined, and the basis upon which interest
shall be calculated if other than that of a 360-day year of twelve
30-day months;
(6) the place or places, if any, other than or in addition to
the Borough of Manhattan, New York City, where the principal of (and
premium, if any), interest, if any, on, and Additional Amounts, if any,
payable in respect of, Securities of the series shall be payable, any
Registered Securities of the series may be surrendered for registration
of transfer, exchange or conversion and notices or demands to or upon
the Issuer in respect of the Securities of the series and this
Indenture may be served;
(7) the period or periods within which, the price or prices at
which, the currency or currencies, currency unit or units or composite
currency or currencies in which, and other terms and conditions upon
which Securities of the series may be redeemed, in whole or in part, at
the option of the Issuer, if the Issuer is to have the option;
(8) the obligation, if any, of the Issuer to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the
period or periods within which or the date or dates on which, the price
or prices at which, the currency or currencies, currency unit or units
or composite currency or currencies in which, and other terms and
conditions upon which Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Registered Securities
of the series shall be issuable and, if other than denominations of
$5,000 and any integral multiple thereof, the denomination or
denominations in which any Bearer Securities of the series shall be
issuable;
(10) if other than the Trustee, the identity of each
Security Registrar and/or Paying Agent;
(11) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series
that shall be payable upon acceleration of the Maturity
20
thereof pursuant to Section 502 or the method by which such portion
shall be determined;
(12) if other than Dollars, the Foreign Currency or Currencies
in which payment of the principal of (and premium, if any) or interest
or Additional Amounts, if any, on the Securities of the series shall be
payable or in which the Securities of the series shall be denominated;
(13) whether the amount of payments of principal of (and
premium, if any) or interest, if any, on the Securities of the series
may be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on
one or more currencies, currency units, composite currencies,
commodities, equity indices or other indices), and the manner in which
such amounts shall be determined;
(14) whether the principal of (and premium, if any) or
interest or Additional Amounts, if any, on the Securities of the series
are to be payable, at the election of the Issuer or a Holder thereof,
in a currency or currencies, currency unit or units or composite
currency or currencies other than that in which such Securities are
denominated or stated to be payable, the period or periods within
which, and the terms and conditions upon which, such election may be
made, and the time and manner of, and identity of the exchange rate
agent with responsibility for, determining the exchange rate between
the currency or currencies, currency unit or units or composite
currency or currencies in which such Securities are denominated or
stated to be payable and the currency or currencies, currency unit or
units or composite currency or currencies in which such Securities are
to be so payable;
(15) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of
such events as may be specified;
(16) any deletions from, modifications of or additions to the
Events of Default or covenants of the Issuer with respect to Securities
of the series, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(17) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without Coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities and the terms upon which Bearer Securities of the
series may be exchanged for Registered Securities of the series and
vice versa (if permitted by applicable laws and regulations), whether
any Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series
are to be issuable in permanent global form with or without
21
Coupons and, if so, whether beneficial owners of interests in any such
permanent global Security may exchange such interests for Securities of
such series and of like tenor of any authorized form and denomination
and the circumstances under which any such exchanges may occur, if
other than in the manner provided in Section 305, and, if Registered
Securities of the series are to be issuable as a global Security, the
identity of the depositary for such series;
(18) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding Securities
of the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
(19) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, the manner in which, or the Person to whom, any interest on
any Bearer Security of the series shall be payable, if otherwise than
upon presentation and surrender of the Coupons appertaining thereto as
they severally mature, and the extent to which, or the manner in which,
any interest payable on a temporary global Security on an Interest
Payment Date will be paid if other than in the manner provided in
Section 304;
(20) the applicability, if any, of Sections 1402
and/or 1403 to the Securities of the series and any provisions
in modification of, in addition to or in lieu of any of the
provisions of Article Fourteen;
(21) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and/or terms of such certificates, documents or
conditions;
(22) if the Securities of the series are to be issued
upon the exercise of warrants, the time, manner and place for
such Securities to be authenticated and delivered;
(23) whether and under what circumstances the Issuer will pay
Additional Amounts as contemplated by Section 1012 on the Securities of
the series to any Holder who is not a United States Person (including
any modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the Issuer will
have the option to redeem such Securities rather than pay such
Additional Amounts (and the terms of any such option);
22
(24) whether the Issuer will pay a Make-Whole Amount, in
addition to principal, in connection with any optional redemption
and/or accelerated payment with respect to the Securities of the series
and, if so, the manner of calculation and other terms with respect to
the payment of such Make-Whole Amount;
(25) with respect to any Securities that provide for optional
redemption or prepayment upon the occurrence of certain events (such as
a change of control of the Issuer), (i) the possible effects of such
provisions on the market price of the Issuer's or Simon DeBartolo
Group, Inc.'s securities or in deterring certain mergers, tender offers
or other takeover attempts, and the intention of the Issuer to comply
with the requirements of Rule 14e-1 under the Exchange Act and any
other applicable securities laws in 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
Securities may be effectively subordinated; and (iii) the existence of
any limitation on the Issuer's financial or legal ability to repurchase
such Securities upon the occurrence of such an event (or, 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
(26) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one series and the Coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to Section 303) and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto. All Securities of any 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, for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions of the General Partner, a
copy of an appropriate record of such action(s) shall be certified by the
Secretary or an Assistant Secretary of the General Partner and delivered to the
Trustee at or prior to the delivery of the Officers' Certificate of the General
Partner setting forth the terms of the Securities of such series.
23
SECTION 302. DENOMINATIONS. The Securities of each series shall be
issuable in such denominations as shall be specified as contemplated by Section
301. With respect to Securities of any series denominated in Dollars, in the
absence of any such provisions with respect to the Securities of any series, the
Registered Securities of such series, 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 Bearer
Securities of such series, 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 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The
Securities and any Coupons appertaining thereto shall be executed on behalf of
the Issuer by the General Partner by its Chairman of the Board, its Chief
Executive Officer, President or one of its Vice Presidents, under its corporate
seal reproduced thereon, and attested by the General Partner's Secretary or one
of its Assistant Secretaries. The signature of any of these officers on the
Securities and Coupons, if any, may be manual or facsimile signatures of the
present or any future such authorized officer and may be imprinted or otherwise
reproduced on the Securities.
Securities or Coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the General Partner
shall bind the Issuer notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities or
Coupons.
The Guarantee on any Security shall be executed as provided in Section
1702 of this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver to the Trustee for authentication
Securities of any series, together with any Coupon appertaining thereto and with
any related Guarantee endorsed thereon by the Guarantor, executed on behalf of
the Issuer as set forth above, together with an Issuer Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Issuer Order shall authenticate and deliver such Securities; PROVIDED,
HOWEVER, that, in connection with its original issuance, no Bearer Security
shall be mailed or otherwise delivered to any location in the United States; and
PROVIDED FURTHER that, unless otherwise specified with respect to any series of
Securities pursuant to Section 301, a Bearer Security may be delivered in
connection with its original issuance only if the Person entitled to receive
such Bearer Security shall have furnished a certificate to Euroclear or CEDEL,
as the case may be, in the form set forth in Exhibit A-1 to this Indenture or
such other certificate as may be specified with respect to any series of
Securities pursuant to Section 301, dated no earlier than 15 days prior to the
earlier of the date on which such Bearer Security is delivered and the date on
24
which any temporary Security first becomes exchangeable for such Bearer Security
in accordance with the terms of such temporary Security and this Indenture. If
any Security shall be represented by a permanent global Bearer Security, then,
for purposes of this Section and Section 304, the notation of a beneficial
owner's interest therein upon original issuance of such Security or upon
exchange of a portion of a temporary global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent global Security. Except as permitted by Section 306,
the Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant Coupons for interest then matured have been detached and cancelled.
If all the Securities of any series are not to be issued at one time
and if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Issuer Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate or formula, maturity
date, date of issuance and date from which interest shall accrue. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to TIA Section 315(a) through 315(d)) shall be
fully protected in relying upon the documents required by Section 102.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Officers' Certificate otherwise required
pursuant to Section 301 or an Issuer Order, or an Opinion of Counsel or an
Officers' Certificate otherwise required pursuant to the preceding paragraph or
Section 102 at the time of issuance of each Security of such series, but such
order, opinion and certificates, with appropriate modifications to cover such
future issuances, shall be delivered at or before the time of issuance of the
first Security of such series.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated
by Section 301.
No Security or Coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security or Security to which such Coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual
25
signature of an authorized officer, and such certificate upon any Security shall
be conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Issuer,
and the Issuer shall deliver such Security to the Trustee for cancellation as
provided in Section 309 together with a written statement (which need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel) stating
that such Security has never been issued and sold by the Issuer, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES. (a) Pending the preparation of
definitive Securities of any series, the Issuer may execute, and upon Issuer
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, in registered form, or, if authorized, in
bearer form with one or more Coupons or without Coupons, and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities. In the case of Securities of any series,
such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution of the General Partner), if temporary Securities
of any series are issued, the Issuer will cause definitive Securities of that
series to be prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of such series
shall be exchangeable for definitive Securities of such series upon surrender of
the temporary Securities of such series at the office or agency of the Issuer in
a Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any unmatured Coupons appertaining thereto), the Issuer shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of authorized
denominations; PROVIDED, HOWEVER, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and PROVIDED FURTHER
that a definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section 303.
Until so exchanged, the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
26
(b) Unless otherwise provided in or pursuant to a Board Resolution of
the General Partner, this Section 304(b) shall govern the exchange of temporary
Securities issued in global form other than through the facilities of The
Depository Trust Company ("DTC"). If any such temporary Security is issued in
global form, then such temporary global Security shall, unless otherwise
provided therein, be delivered to the London office of a depositary or common
depositary (the "Common Depositary"), for the benefit of Euroclear and CEDEL,
for credit to the respective accounts of the beneficial owners of such
Securities (or to such other accounts as they may direct).
Without unnecessary delay, but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Issuer shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Issuer. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Issuer's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; PROVIDED,
HOWEVER, that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit A-2 to this Indenture or in such other form as may be established
pursuant to Section 301; and PROVIDED FURTHER that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary global Security only
in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate
27
in the form set forth in Exhibit A-1 to this Indenture (or in such other form as
may be established pursuant to Section 301), dated no earlier than 15 days prior
to the Exchange Date, copies of which certificate shall be available from the
offices of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed
for such series of Securities and each Paying Agent. Unless otherwise specified
in such temporary global Security, any such exchange shall be made free of
charge to the beneficial owners of such temporary global Security, except that a
Person receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive Securities
in bearer form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL on
such Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee
of a certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to the respective accounts of Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of Section 303 of
this Indenture and the interests of the Persons who are the beneficial owners of
the temporary global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like tenor
on the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal or interest owing
with respect to a beneficial interest in a temporary global Security will be
made unless and until such interest in such temporary global Security shall have
been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Issuer.
28
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE. The
Issuer shall cause to be kept at the Corporate Trust Office of the Trustee or in
any office or agency of the Issuer in a Place of Payment a register for each
series of Securities (the registers maintained in such office or in any such
office or agency of the Issuer in a Place of Payment being herein sometimes
referred to collectively as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Issuer shall provide for the
registration of Registered Securities and of transfers of Registered Securities.
The Security Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. Unless otherwise
provided with respect to a series of Registered Securities as contemplated by
Section 301, the Trustee is hereby appointed "Security Registrar" for each
series of Registered Securities until a successor has been appointed by a Board
Resolution of the General Partner or an instrument executed on behalf of the
General Partner by its Chairman of the Board, President or one of its Vice
Presidents and delivered to the Trustee. In the event that the Trustee shall
cease to be Security Registrar, it shall have the right to examine the Security
Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any office
or agency of the Issuer in a Place of Payment for that series, the Issuer shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities
(having the Guarantees duly endorsed thereon) of the same series, of any
authorized denominations and of a like aggregate principal amount, bearing a
number not contemporaneously outstanding, and containing identical terms and
provisions.
Subject to the provisions of this Section 305, at the option of the
Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered Securities
are so surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities (having the Guarantees duly
endorsed thereon) which the Holder making the exchange is entitled to receive.
Unless otherwise specified with respect to any series of Securities as
contemplated by Section 301, Bearer Securities may not be issued in exchange for
Registered Securities.
If (but only if) permitted by the applicable Board Resolution and
(subject to Section 303) set forth in the applicable Officers' Certificate, or
in any indenture supplemental hereto, delivered as contemplated by Section 301,
at the option of the Holder, Bearer Securities of any series may be exchanged
for Registered Securities of the same series of any authorized denominations
and of a like
29
aggregate principal amount and tenor, upon surrender of the Bearer Securities to
be exchanged at any such office or agency, with all unmatured Coupons and all
matured Coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured Coupon or Coupons or matured
Coupon or Coupons in default, any such permitted exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Issuer
in an amount equal to the face amount of such missing Coupon or Coupons, or the
surrender of such missing Coupon or Coupons may be waived by the Issuer and the
Trustee if there is furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to any Paying Agent any such missing
Coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; PROVIDED, HOWEVER,
that, except as otherwise provided in Section 1002, interest represented by
Coupons shall be payable only upon presentation and surrender of those Coupons
at an office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in a permitted exchange for a Registered Security of the same
series and like tenor after the close of business at such office or agency on
(i) any Regular Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the Coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture. Whenever any Securities are so surrendered for exchange, the Issuer
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the depositary for any permanent global
Security is DTC, then, unless the terms of such global Security expressly permit
such global Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole but not in part, only
to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC for
such global Security selected or approved by the Issuer or to a nominee of such
successor to DTC. If at any time DTC notifies the Issuer that it is unwilling or
unable to continue as depositary for the applicable global Security or
Securities or if at any time DTC ceases to be a clearing agency registered under
the Exchange Act, if so required by applicable law
30
or regulation, the Issuer shall appoint a successor depositary with respect to
such global Security or Securities. If (x) a successor depositary for such
global Security or Securities is not appointed by the Issuer within 90 days
after the Issuer receives such notice or becomes aware of such unwillingness,
inability or ineligibility, (y) an Event of Default has occurred and is
continuing and the beneficial owners representing a majority in principal amount
of the applicable series of Securities represented by such global Security or
Securities advise DTC to cease acting as depositary for such global Security or
Securities or (z) the Issuer, in its sole discretion, determines at any time
that all Outstanding Securities (but not less than all) of any series issued or
issuable in the form of one or more global Securities shall no longer be
represented by such global Security or Securities, then the Issuer shall
execute, and the Trustee shall authenticate and deliver definitive Securities
(having the Guarantees duly endorsed thereon) of like series, rank, tenor and
terms in definitive form in an aggregate principal amount equal to the principal
amount of such global Security or Securities. If any beneficial owner of an
interest in a permanent global Security is otherwise entitled to exchange such
interest for Securities of such series and of like tenor and principal amount of
another authorized form and denomination, as specified as contemplated by
Section 301 and provided that any applicable notice provided in the permanent
global Security shall have been given, then without unnecessary delay but in any
event not later than the earliest date on which such interest may be so
exchanged, the Issuer shall execute, and the Trustee shall authenticate and
deliver definitive Securities (having the Guarantees duly endorsed thereon) in
aggregate principal amount equal to the principal amount of such beneficial
owner's interest in such permanent global Security. On or after the earliest
date on which such interests may be so exchanged, such permanent global Security
shall be surrendered for exchange by DTC or such other depositary as shall be
specified in the Issuer Order with respect thereto to the Trustee, as the
Issuer's agent for such purpose; PROVIDED, HOWEVER, that no such exchanges may
occur during a period beginning at the opening of business 15 days before any
selection of Securities to be redeemed and ending on the relevant Redemption
Date if the Security for which exchange is requested may be among those selected
for redemption; and PROVIDED FURTHER that no Bearer Security delivered in
exchange for a portion of a permanent global Security shall be mailed or
otherwise delivered to any location in the United States. If a Registered
Security is issued in exchange for any portion of a permanent global Security
after the close of business at the office or agency where such exchange occurs
on (i) any Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of such Registered Security, but
will be payable on such Interest Payment Date or proposed date for payment, as
the
31
case may be, only to the Person to whom interest in respect of such portion of
such permanent global Security is payable in accordance with the provisions of
this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Issuer or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Issuer and the Security
Registrar duly executed, by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
The Issuer or the Trustee, as applicable, shall not be required (i) to
issue, register the transfer of or exchange any Security if such Security may be
among those selected for redemption during a period beginning at the opening of
business 15 days before selection of the Securities to be redeemed under Section
1103 and ending at the close of business on (A) if such Securities are issuable
only as Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if such Securities are issuable as Bearer Securities, the day
of the first publication of the relevant notice of redemption or, if such
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 Security
which has been surrendered for repayment at the option of the Holder, except the
portion, if any, of such Security not to be so repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN
SECURITIES. If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee or the Issuer, together with,
in proper cases, such security or
32
indemnity as may be required by the Issuer or the Trustee to save each of them
or any agent of either of them harmless, the Issuer shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of
the same series and principal amount, containing identical terms and provisions
and bearing a number not contemporaneously outstanding, with Coupons
corresponding to the Coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Issuer, the Guarantor and the
Trustee (i) evidence to their satisfaction of the destruction, loss or theft of
any Security or Coupon, and (ii) such security or indemnity as may be required
by them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Issuer, the Guarantor or the Trustee that such
Security or Coupon has been acquired by a bona fide purchaser, the Issuer shall
execute and upon its request the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security or in exchange for the Security
to which a destroyed, lost or stolen Coupon appertains (with all appurtenant
Coupons not destroyed, lost or stolen), a new Security (having the Guarantees
duly endorsed thereon) of the same series and principal amount, containing
identical terms and provisions and bearing a number not contemporaneously
outstanding, with Coupons corresponding to the Coupons, if any, appertaining to
such destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen Coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or Coupon has become or
is about to become due and payable, the Issuer in its discretion may, instead of
issuing a new Security, with Coupons corresponding to the Coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen Coupon appertains, pay such Security or
Coupon; PROVIDED, HOWEVER, that payment of principal of (and premium, if any),
any interest on and any Additional Amounts with respect to, Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the Coupons
appertaining thereto.
Upon the issuance of any new Security under this Section (having the
Guarantees duly endorsed thereon), the Issuer may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith.
Every new Security of any series with its Coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a
33
destroyed, lost or stolen Coupon appertains, shall constitute an original
additional contractual obligation of the Issuer, whether or not the destroyed,
lost or stolen Security and its Coupons, if any, or the destroyed, lost or
stolen Coupon shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Securities of that series and their Coupons, if any, duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or Coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. Except as
otherwise specified with respect to a series of Securities in accordance with
the provisions of Section 301, interest on any Registered Security that is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Issuer maintained
for such purpose pursuant to Section 1002; PROVIDED, HOWEVER, that each
installment of interest on any Registered Security may at the Issuer's option be
paid by (i) mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 308, to the address of
such Person as it appears on the Security Register or (ii) wire transfer to an
account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest may be made, in the case of
a Bearer Security, by wire transfer to an account maintained by the payee with a
bank located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case
may be, with respect to that portion of such permanent global Security held for
its account by Cede & Co. or the Common Depositary, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
Coupon relating to such Interest Payment Date and interest will not
34
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such Coupon when due in accordance with the provisions of this
Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Issuer or the Guarantor, at its election
in each case, as provided in clause (1) or (2) below:
(1) The Issuer or the Guarantor may elect to make payment of
any Defaulted Interest to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Issuer or the Guarantor shall notify the Trustee
in writing of the amount of Defaulted Interest proposed to be paid on
each Registered Security of such series and the date of the proposed
payment (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Issuer or the
Guarantor shall deposit with the Trustee an amount of money in the
currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except
as otherwise specified pursuant to Section 301 for the Securities of
such series) equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date of
the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as
provided in this clause. Thereupon the Trustee shall fix a record date
(a "Special Record Date") for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Issuer or the Guarantor of such
Special Record Date and, in the name and at the expense of the Issuer,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of Registered Securities of such series at his
address as it appears in the Security Register not less than 10 days
prior to such Special Record Date. The Trustee may, in its discretion,
in the name and at the expense of the Issuer, cause a similar notice to
be published at least once in an Authorized Newspaper in each
35
place of payment, but such publications shall not be a condition
precedent to the establishment of such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names the Registered Securities
of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (2). In
case a Bearer Security of any series is surrendered at the office or
agency in a Place of Payment for such series in exchange for a
Registered Security of such series after the close of business at such
office or agency on any Special Record Date and before the opening of
business at such office or agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be
surrendered without the Coupon relating to such proposed date of
payment and Defaulted Interest will not be payable on such proposed
date of payment in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the
Holder of such Coupon when due in accordance with the provisions of
this Indenture.
(2) The Issuer or the Guarantor may make payment of any
Defaulted Interest on the Registered Securities of any series in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice given
by the Issuer or the Guarantor to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. PERSONS DEEMED OWNERS. Prior to due presentment of a
Registered Security for registration of transfer, the Issuer, the Guarantor, the
Trustee and any agent of the Issuer, the Guarantor or the Trustee may treat the
Person in whose name such Registered Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any), and (subject to Sections 305 and 307) interest on, such Registered
Security and for all other purposes whatsoever, whether or not such Registered
Security be overdue, and none of the Issuer, the Guarantor or the Trustee nor
any agent of the Issuer, the Guarantor or the Trustee shall be affected by
notice to the contrary.
Title to any Bearer Security and any Coupons appertaining
thereto shall pass by delivery. The Issuer, the Trustee and any
36
agent of the Issuer or the Trustee may treat the Holder of any Bearer Security
and the Holder of any Coupon as the absolute owner of such Security or Coupon
for the purpose of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Security or Coupon be overdue,
and neither the Issuer, the Trustee nor any agent of the Issuer or the Trustee
shall be affected by notice to the contrary.
No owner of any beneficial interest in any global Security held on its
behalf by a depositary shall have any rights under this Indenture with respect
to such global Security, and such depositary may be treated by the Issuer, the
Guarantor and the Trustee, and any agent of the Issuer, the Guarantor or the
Trustee as the owner and Holder of such global Security for all purposes
whatsoever. None of the Issuer, the Guarantor, the Trustee, any Paying Agent or
the Security Registrar will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Issuer, the Guarantor or the Trustee or any
agent of the Issuer, the Guarantor or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by any depositary,
as a Holder, with respect to such global Security or impair, as between such
depositary and owners of beneficial interests in such global Security, the
operation of customary practices governing the exercise of the rights of such
depositary (or its nominee) as Holder of such global Security.
SECTION 309. CANCELLATION. All Securities and Coupons surrendered for
payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and Coupons and Securities and Coupons surrendered
directly to the Trustee for any such purpose shall be promptly cancelled by it;
provided, however, where the Place of Payment is located outside of the United
States, the Paying Agent at such Place of Payment may cancel the Securities
surrendered to it for such purposes prior to delivering the Securities to the
Trustee. The Issuer may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Issuer may
have acquired in any manner whatsoever, and may deliver to the Trustee (or to
any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Issuer has not issued and sold, and
all Securities so delivered shall be promptly cancelled by the Trustee. If the
Issuer shall so acquire any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are surrendered to the Trustee for
37
cancellation. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. Cancelled Securities and Coupons held by the
Trustee shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of such destruction to the Issuer, unless by an Issuer Order the
Issuer directs their return to it.
SECTION 310. COMPUTATION OF INTEREST. Except as otherwise specified as
contemplated by Section 301 with respect to Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall upon Issuer Request cease to be of further effect with respect to any
series of Securities specified in such Issuer Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 1012), and the Trustee, upon receipt of an
Issuer Order, and at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series
when
1. either
(a) all Securities of such series theretofore
authenticated and delivered and all Coupons, if any,
appertaining thereto (other than (i) Coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 305,
(ii) Securities and Coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306, (iii) Coupons appertaining to
Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and Coupons of
such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Issuer and thereafter repaid to the Issuer or discharged from
such trust, as provided in Section 1003) have been delivered
to the Trustee for cancellation; or
(b) all Securities of such series and, in the
case of (i) or (ii) below, any Coupons appertaining thereto
not theretofore delivered to the Trustee for cancellation
38
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) if redeemable at the option of the Issuer, are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Issuer,
and the Issuer or the Guarantor, in the case of (i), (ii) or (iii) above, has
irrevocably (except as provided in the second proviso to Section 403) deposited
or caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable, sufficient to pay and discharge the entire indebtedness on such
Securities and such Coupons not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest, and any
Additional Amounts with respect thereto, to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
2. the Issuer or the Guarantor has paid or caused to be
paid all other sums payable hereunder by the Issuer or the
Guarantor; and
3. the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Issuer to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
Notwithstanding the reference to premium under subclause (B)
of clause (1) of this Section, the Issuer shall not be required to deposit
pursuant thereto any premium that would be payable on the Securities of such
series only upon acceleration of the Maturity thereof pursuant to Section 502.
39
SECTION 402. APPLICATION OF TRUST FUNDS. Subject to the provisions of
the last paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in accordance
with the provisions of the Securities, the Coupons and this Indenture, to the
payment, either directly or through any Paying Agent (including the Issuer
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any), and any interest and
Additional Amounts for whose payment such money has been deposited with or
received by the Trustee, but such money need not be segregated from other funds
except to the extent required by law.
SECTION 403. REINSTATEMENT. If the Trustee or Paying Agent is unable to
apply any money in accordance with Section 402 by reason of any legal proceeding
or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Issuer's
obligations under this Indenture and the Securities of such series shall be
revived and reinstated as though no deposit had occurred pursuant to Section 401
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 402; PROVIDED that, if the Issuer has made any
payment of principal of or interest on any Securities because of the
reinstatement of its obligations, the Issuer shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money held by
the Trustee or Paying Agent; provided further that, if the Issuer's obligations
are revived and reinstated as herein provided, the Trustee or Paying Agent
shall, upon Issuer Request, discharge from trust and pay to the Issuer all funds
(together with the earnings thereon, if any) previously deposited therewith
pursuant to Section 402 and thereupon the Issuer, the Trustee, any Paying Agent
and the Holders of the Securities of such series shall be restored severally and
respectively to their former positions hereunder as if no satisfaction and
discharge had been effected.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT. "Event of Default," wherever used
herein with respect to any particular series of Securities, means any one of the
following events (whatever the reason for such Event of Default and whether or
not it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon or any
Additional Amounts payable in respect of any Security of that series or
of any Coupon appertaining thereto, when such interest, Additional
Amounts or Coupon becomes due and
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payable, and continuance of such default for a period of
30 days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series when it
becomes due and payable at its Maturity; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of any Security of that series;
or
(4) default in the performance, or breach, of any covenant or
warranty of the Issuer or Guarantor in this Indenture with respect to
any Security of that series (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this
Section specifically dealt with), and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Issuer and the Guarantor by the
Trustee or to the Issuer, the Guarantor and the Trustee by the Holders
of at least 25% in principal amount of the Outstanding Securities of
that series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(5) a default under any evidence of recourse indebtedness of
the Issuer or the Guarantor, or under any mortgage, indenture or other
instrument of the Issuer or the Guarantor (including a default with
respect to Securities of any series other than that series) under which
there may be issued or by which there may be secured any recourse
indebtedness of the Issuer or the Guarantor (or of any Subsidiary, the
repayment of which the Issuer or the Guarantor has guaranteed or for
which the Issuer or the Guarantor is directly responsible or liable as
obligor or guarantor), whether such indebtedness now exists or shall
hereafter be created, which default shall constitute a failure to pay
an aggregate principal amount exceeding $30,000,000 of such
indebtedness when due and payable after the expiration of any
applicable grace period with respect thereto and shall have resulted in
such indebtedness in an aggregate principal amount exceeding
$30,000,000 becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable, without
such indebtedness having been discharged, or such acceleration having
been rescinded or annulled, within a period of 10 days after there
shall have been given, by registered or certified mail, to the Issuer
or the Guarantor by the Trustee or to the Issuer, the Guarantor and the
Trustee by the Holders of at least 10% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default and requiring the Issuer or the Guarantor to cause such
indebtedness to be discharged or cause such acceleration to be
rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; or
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(6) the Issuer, the Guarantor or any Significant
Subsidiary pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian
of it or for all or substantially all of its property, or
(D) makes a general assignment for the benefit
of its creditors; or
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Issuer, the
Guarantor or any Significant Subsidiary in an involuntary
case,
(B) appoints a Custodian of the Issuer, the
Guarantor or any Significant Subsidiary or for all or
substantially all of the property of the Issuer, the
Guarantor or any Significant Subsidiary, or
(C) orders the liquidation of the Issuer, the
Guarantor or any Significant Subsidiary,
and the order or decree remains unstayed and in effect for
90 days; or
(8) any other Event of Default provided with respect to
Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means title 11, U.S. Code
or any similar Federal or State law for the relief of debtors and the term
"Custodian" means any receiver, trustee, assignee, liquidator or other similar
official under any Bankruptcy Law.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing (other than an Event of Default specified
in Section 501(6) or (7)), then, and in every such case, the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount (or, if any Securities of that
series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount as may be specified in the terms thereof) of,
and the Make-Whole Amount, if any, on, all of the Securities of that series to
be due and payable immediately, by a notice in writing to the Issuer (and to the
Trustee if given by the Holders), and upon any such declaration
42
such principal or specified portion thereof and Make-Whole Amount, if any, shall
become immediately due and payable. If an Event of Default specified in Section
501(6) or (7) with respect to Securities of any series at the time Outstanding
occurs and is continuing, then, and in every such case, the principal amount
(or, if any Securities of that series are Original Discount Securities or
Indexed Securities, such portion of the principal amount as may be specified in
the terms thereof) of, and the Make-Whole Amount, if any, on, all of the
Securities of that series shall become and be immediately due and payable
without any declaration or other action on the part of the Trustee or any
Holder.
At any time after such acceleration with respect to Securities of any
series has occurred and before a judgment or decree for payment of the money due
has been obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding Securities of that
series, by written notice to the Issuer and the Trustee, may rescind and annul
such acceleration and its consequences if:
(1) the Issuer or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay in the currency or currency unit or
composite currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the
Securities of such series):
(A) all overdue installments of interest on and any
Additional Amounts payable in respect of all Outstanding
Securities of that series and any related Coupons,
(B) the principal of (and premium, if any, on) any
Outstanding Securities of that series which have become due
otherwise than by such acceleration, together with interest
thereon at the rate or rates borne by or provided for in such
Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest and any
Additional Amounts at the rate or rates borne by or provided
for in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and any amounts due the Trustee and any predecessor
Trustee under Section 606; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of, and the
Make-Whole Amount, if any, on, Securities of that series which have
become due solely by reason of such acceleration, have been cured or
waived as provided in Section 513.
43
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE. The Issuer covenants that if:
(1) default is made in the payment of any installment of
interest or Additional Amounts, if any, on any Security of any series
and any related Coupon when such interest or Additional Amount becomes
due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security of any series at its
Maturity,
then the Issuer will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities of such series and Coupons, the whole
amount then due and payable on such Securities and Coupons for principal (and
premium, if any) and interest and Additional Amounts, with interest upon any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installments of interest
or Additional Amounts, if any, at the rate or rates borne by or provided for in
such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and all other amounts due the Trustee and any predecessor
Trustee under Section 606.
If the Issuer fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Issuer or any other obligor upon such Securities of such series and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Issuer or any other obligor upon such Securities
of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related Coupons by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of
the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or
44
other judicial proceeding relative to the Issuer or any other obligor upon the
Securities or the property of the Issuer or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
of any series shall then be due and payable as therein expressed or by
acceleration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Issuer for the payment of overdue principal, premium, if
any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such series,
of principal (and premium, if any) and interest and Additional Amounts,
if any, owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel and all other amounts due the Trustee and any
predecessor Trustee under Section 606) and of the Holders allowed in
such judicial proceeding, and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and Coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or Coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or Coupon in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES OR COUPONS. All rights of action and claims under this Indenture or
any of the Securities or Coupons or the related Guarantees may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or
Coupons or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment
45
shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due the Trustee and any predecessor Trustee under Section 606, be for
the ratable benefit of the Holders of the Securities and Coupons in respect of
which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest and any
Additional Amounts, upon presentation of the Securities or Coupons, or both, as
the case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and
any predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and Coupons for principal (and premium, if any) and
interest and any Additional Amounts payable, in respect of which or for
the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the aggregate amounts
due and payable on such Securities and Coupons for principal (and
premium, if any), interest and Additional Amounts, respectively; and
THIRD: To the payment of the remainder, if any, to the
Issuer.
SECTION 507. LIMITATION ON SUITS. Subject to Section 508, no Holder of
any Security of any series or any related Coupon shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to
the Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with such
request;
46
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Securities of such series, or to obtain or to seek to obtain priority
or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM, IF ANY, INTEREST AND ADDITIONAL AMOUNTS. Notwithstanding any other
provision in this Indenture, the Holder of any Security or Coupon shall have the
right which is absolute and unconditional to receive payment of the principal of
(and premium, if any) and (subject to Sections 305 and 307) interest on, and any
Additional Amounts in respect of, such Security or payment of such Coupon on the
respective due dates expressed in such Security or Coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
Holder of a Security or Coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, the Issuer, the Guarantor, the
Trustee and the Holders of Securities and Coupons shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or Coupons in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders of Securities or Coupons is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy
47
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Trustee or of any Holder of any Security or Coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities or Coupons, as the
case may be.
SECTION 512. CONTROL BY HOLDERS OF SECURITIES. The Holders of not less
than a majority in principal amount of the Outstanding 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 exercising any trust or
power conferred on the Trustee with respect to the Securities of such series,
PROVIDED that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture,
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction,
and
(3) the Trustee need not take any action which might involve
it in personal liability or be unduly prejudicial to the Holders of
Securities not joining therein.
SECTION 513. WAIVER OF PAST DEFAULTS. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series and any related
Coupons waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if
any) or interest on or Additional Amounts payable in respect
of any Security of such series or any related Coupons, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
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SECTION 514. WAIVER OF USURY, STAY OR EXTENSION LAWS. The Issuer and
the Guarantor each covenant (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 515. UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of any undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Issuer or the Trustee, to any suit instituted by any
Holder or group of Holders holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Security on or after the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on or after the
Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS. Within 90 days after the occurrence of
any default hereunder with respect to the Securities of any series, the Trustee
shall transmit in the manner and to the extent provided in TIA Section 313(c),
notice of such default hereunder known to the Trustee, unless such default shall
have been cured or waived; PROVIDED, HOWEVER, that, except in the case of a
default in the payment of the principal of (or premium, if any) or interest on
or any Additional Amounts with respect to any Security of such series, or in the
payment of any sinking fund installment with respect to the Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as a trust committee of Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the Holders
of the Securities and Coupons of such series; and PROVIDED FURTHER that in the
case of any default or breach of the
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character specified in Section 501(4) with respect to the Securities and Coupons
of such series, no such notice to Holders shall be given until at least 60 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to the Securities of such series.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE. Subject to the
provisions of TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, Coupon or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(2) any request or direction of the Issuer mentioned herein
shall be sufficiently evidenced by an Issuer Request or Issuer Order
(other than delivery of any Security, together with any Coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(4) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities of any series or any
related Coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity reasonably
satisfactory to the Trustee against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
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debenture, note, Coupon or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Issuer,
personally or by agent or attorney following reasonable notice to the
Issuer;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture; and
(9) the Trustee shall not be charged with knowledge of any
default (as defined in Section 601) or Event of Default with respect to
the Securities of any series for which it is acting as Trustee unless
either (a) a Responsible Officer shall have actual knowledge of such
default or Event of Default or (b) written notice of such default or
Event of Default shall have been given to the Trustee by the Company or
any other obligor on such Securities or by any Holder of such
Securities.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any Coupons shall be taken as the
statements of the Issuer, and the recitals contained in the Guarantee shall be
taken as the statements of the Guarantor and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture of the Securities, or of the related Guarantee or Coupons. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Issuer of Securities or the proceeds thereof.
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SECTION 604. MAY HOLD SECURITIES. The Trustee, any Paying Agent, the
Security Registrar, any Authenticating Agent or any other agent of the Issuer,
the Guarantor or the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities and Coupons and, subject to TIA
Sections 310(b) and 311, may otherwise deal with the Issuer with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar,
Authenticating Agent or such other agent.
SECTION 605. MONEY HELD IN TRUST. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Issuer.
SECTION 606. COMPENSATION AND REIMBURSEMENT. The Issuer
agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee and any predecessor
Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its own part,
arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Issuer under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium, if any) or interest on
particular Securities or any Coupons.
The provisions of this Section shall survive the resignation or removal
of any Trustee, the discharge of the Issuer's obligations pursuant to Article
Four hereof, and the termination of this Indenture.
52
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(6) or (7), the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING
INTERESTS. There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $50,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or the requirements of
Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Issuer. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee, the
Issuer and the Guarantor.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Issuer, the
Guarantor or by any Holder of a Security who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 607
and shall fail to resign after written request therefor by the Issuer,
the Guarantor or by any Holder of a Security who has been a bona fide
Holder of a Security for at least six months, or
53
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities of one or more series, the Issuer, by or pursuant to a
Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series). If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Issuer and the Guarantor
and the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Issuer. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Issuer or
the Holders of Securities and accepted appointment in the manner hereinafter
provided, any Holder of a Security who has been a bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such series.
(f) The Issuer shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series in the
manner provided for notices to the Holders of Securities in Section 106. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
54
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In case of the
appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee shall execute, acknowledge and deliver to the
Issuer and the Guarantor and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Issuer, the Guarantor
or the successor Trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder, subject nevertheless to its
claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Issuer, the
Guarantor, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto, pursuant to Article Nine hereof, wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustee's co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Issuer or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of
55
that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Issuer and the
Guarantor shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
PROVIDED such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or Coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities or Coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or Coupons. In case any Securities or Coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or Coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT. At any time when any
of the Securities remain Outstanding, the Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption or
repayment thereof, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly furnished to the Issuer
and the Guarantor. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate
of authentication executed on behalf of the Trustee by an
56
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Issuer and the Guarantor and shall at all times be a bank or trust company or
corporation organized and doing business and in good standing under the laws of
the United States of America or of any State or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authorities. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, PROVIDED such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Issuer and the Guarantor. The Trustee for any series of Securities
may at any time terminate the agency of an Authenticating Agent by giving
written notice of termination to such Authenticating Agent and to the Issuer and
the Guarantor. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee for such
series may appoint a successor Authenticating Agent which shall be acceptable to
the Issuer and shall give notice of such appointment to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve in the manner set forth in Section 106. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent herein. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Issuer agrees to pay to each Authenticating Agent from time to time
reasonable compensation including reimbursement of its reasonable expenses for
its services under this Section.
57
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
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: ____________________________,
as Authenticating Agent
By: ____________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS. Every Holder
of Securities or Coupons, by receiving and holding the same, agrees with the
Issuer and the Trustee that neither the Issuer nor the Guarantor nor the Trustee
nor any Authenticating Agent nor any Paying Agent nor any Security Registrar
shall be held accountable by reason of the disclosure of any information as to
the names and addresses of the Holders of Securities in accordance with TIA
Section 312, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under TIA Section 312(b).
SECTION 702. REPORTS BY TRUSTEE. Within 60 days after May 15 of each
year commencing with the first May 15 after the first issuance of Securities
pursuant to this Indenture, the Trustee shall transmit by mail to all Holders of
Securities as provided in TIA Section 313(c) a brief report dated as of such May
15 if required by TIA Section 313(a).
SECTION 703. REPORTS BY ISSUER. The Issuer will:
(1) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Issuer with the
58
conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(2) transmit by mail to the Holders of Securities, within 30
days after the filing thereof with the Trustee, in the manner and to
the extent provided in TIA Section 313(c), such summaries of any
information, documents and reports required to be filed by the Issuer
pursuant to Section 1010 and paragraph (1) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
SECTION 704. ISSUER TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS. The Issuer will furnish or cause to be furnished to the
Trustee:
(a) semiannually, not later than 15 days after the Regular Record Date
for interest for each series of Securities, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of Registered
Securities of such series as of such Regular Record Date, or if there is no
Regular Record Date for interest for such series of Securities, semiannually,
upon such dates as are set forth in the Board Resolution or indenture
supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Issuer of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished,
PROVIDED, HOWEVER, that, so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. CONSOLIDATIONS AND MERGERS OF ISSUER OR GUARANTOR, AND
SALES, LEASES AND CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS. The
Issuer or the Guarantor may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into any other corporation,
PROVIDED that in any such case, (1) the Issuer or the Guarantor, as the case may
be, shall be the continuing corporation, or the successor corporation shall be a
corporation organized and existing under the laws of the United States or a
State thereof and such successor corporation shall expressly assume the
obligations of the Guarantee, in the case of the Guarantor, or the due and
punctual payment of the principal of (and premium, if any) and any interest
(including all Additional Amounts, if any, payable pursuant to Section 1012) on
all of the Securities, according to their tenor, and the due and punctual
performance and observance of all of the
59
covenants and conditions of this Indenture to be performed by the Issuer or the
Guarantor, as the case may be, by supplemental indenture, complying with Article
Nine hereof, satisfactory to the Trustee, executed and delivered to the Trustee
by such corporation and (2) immediately after giving effect to such transaction
and treating any indebtedness which becomes an obligation of the Issuer or the
Guarantor or any Subsidiary as a result thereof as having been incurred by the
Issuer or the Guarantor or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or the lapse of time, or
both, would become an Event of Default, shall have occurred and be continuing.
Notwithstanding anything to the contrary in this Section 801, the Guarantor may
be merged into the Issuer, or sell and/or transfer to the Issuer all or
substantially all of its assets, in each case, without compliance with any of
the requirements set forth in this Article Eight. Promptly following any such
transaction, the Issuer shall give notice to the Trustee of the consummation of
such transaction. Except as provided for in this Section 801, neither the Issuer
nor the Guarantor may consolidate with or sell, lease or convey all or
substantially all of its assets to, or merge with or into any other Person.
SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In case of any
such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Issuer or the Guarantor, as the case may
be, with the same effect as if it had been named herein as the party of the
first part, and the predecessor corporation, except in the event of a lease,
shall be relieved of any further obligation under this Indenture and the
Securities. Such successor corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of the Issuer or the Guarantor, any
or all of the Securities or Guarantees issuable hereunder which theretofore
shall not have been signed by the Issuer or the Guarantor, as the case may be,
and delivered to the Trustee; and, upon the order of such successor corporation,
instead of the Issuer or Guarantor, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities or Guarantees which previously shall have been
signed and delivered by the officers of the Issuer or the Guarantor, as the case
may be, to the Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
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SECTION 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL. Any
consolidation, merger, sale, lease or conveyance permitted under Section 801 or
a transaction contemplated by Section 804 is also subject to the condition that
the Trustee receive an Officers' Certificate and an Opinion of Counsel to the
effect that any such consolidation, merger, sale, lease or conveyance, and the
assumption by any successor corporation, complies with the provisions of this
Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 804. ASSUMPTION BY GUARANTOR. The Guarantor, or a Subsidiary
thereof, may directly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and interest on all the Securities and the
performance of every covenant of this Indenture on the part of the Issuer to be
performed or observed. Upon any such assumption, the Guarantor or such
Subsidiary shall succeed to, and be substituted for and may exercise every right
and power of, the Issuer under this indenture with the same effect as if the
Guarantor or such Subsidiary had been named as the Issuer herein and the Issuer
shall be released from its liability as obligor on Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or Coupons, the Issuer and the
Guarantor, each when authorized by or pursuant to a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another Person to the
Issuer or Guarantor and the assumption by any such successor
of the covenants of the Issuer herein and in the Securities
contained; or
(2) to add to the covenants of the Issuer or Guarantor for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Issuer or Guarantor; or
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such Events of
Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are expressly being
included solely for the benefit of
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such series); PROVIDED, HOWEVER, that in respect of any such additional
Events of Default such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default or may limit the
right of the Holders of a majority in aggregate principal amount of
that or those series of Securities to which such additional Events of
Default apply to waive such default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on or Additional Amounts with
respect to Registered Securities or Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities, to
permit Bearer Securities to be issued in exchange for Bearer Securities
of other authorized denominations, to modify the provisions relating to
global Securities or to permit or facilitate the issuance of Securities
in uncertificated form, PROVIDED that any such action shall not
adversely affect the interests of the Holders of Securities of any
series or any related Coupons in any material respect; or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, PROVIDED
that any such addition, change or elimination not otherwise permitted
under this Section 901 shall either (i) become effective only when
there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the
benefit of such provision or (ii) not apply to any Security then
Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series and any related Coupons as permitted by Sections 201
and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this
Indenture which shall not be inconsistent with the provisions
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of this Indenture, PROVIDED such provisions shall not adversely
affect the interests of the Holders of Securities of any series or
any related Coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Sections 401, 1402 and 1403; PROVIDED that any such action shall not
adversely affect the interests of the Holders of Securities of such
series and any related Coupons or any other series of Securities in any
material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Securities affected by such supplemental indenture, by Act of said
Holders (voting as one class) delivered to the Issuer, the Guarantor and the
Trustee, the Issuer and the Guarantor, each when authorized by or pursuant to a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities and any related
Coupons under this Indenture; PROVIDED, HOWEVER, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby:
(1) change the Stated Maturity of the principal of (or
premium, if any, on) 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 Additional Amounts payable in respect
thereof, or any premium payable upon the redemption or acceleration
thereof, or change any obligation of the Issuer to pay Additional
Amounts pursuant to Section 1012 (except as contemplated by Section
801(1) and permitted by Section 901(1) and (4)), or reduce the amount
of the principal of an Original Issue Discount Security that would be
due and payable upon acceleration of the Maturity thereof pursuant to
Section 502 or the amount thereof provable in bankruptcy pursuant to
Section 504, 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 the interest thereon or any Additional Amounts with respect
thereto is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption or repayment at the option of the
Holder, on or after the Redemption Date or the Repayment Date, as the
case may be), or
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(2) reduce the percentage in principal amount of the
Outstanding Securities the consent of whose Holders is required for any
such supplemental indenture, or reduce the percentage in principal
amount of the Outstanding Securities of any series the consent of whose
Holders is required for any waiver with respect to such series (of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1504 for quorum or
voting, or
(3) modify any of the provisions of this Section, Section 513
or Section 1013, except to increase the required percentage to effect
such action or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, in addition to the documents required by Section 102,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder and of any Coupon appertaining
thereto shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
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SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall, if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. In addition, in the event the
Guarantee terminates pursuant to Section 1706 without the execution of any
supplemental indenture pursuant to this Article, Securities of any Series
authenticated and delivered after such termination may, and shall, if required
by the Trustee, be authenticated and delivered in a form that does not reference
the Guarantor or the Guarantee. If the Issuer shall so determine, new Securities
(having the Guarantees duly endorsed thereon by the Guarantor) of any series so
modified as to conform, in the opinion of the Trustee and the Issuer, to any
such supplemental indenture, or so modified to delete any reference to the
Guarantor or the Guarantee, may be prepared and executed by the Issuer and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, INTEREST AND
ADDITIONAL AMOUNTS. The Issuer covenants and agrees for the benefit of the
Holders of each series of Securities that it will duly and punctually pay the
principal of (and premium, if any) and interest on and any Additional Amounts
payable in respect of the Securities of that series in accordance with the terms
of such series of Securities, any Coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, any interest due on and any Additional
Amounts payable in respect of Bearer Securities on or before Maturity, other
than Additional Amounts, if any, payable as provided in Section 1012 in respect
of principal of (or premium, if any, on) such a Security, shall be payable only
upon presentation and surrender of the several Coupons for such interest
installments as are evidenced thereby as they severally mature. Unless otherwise
specified with respect to Securities of any series pursuant to Section 301, at
the option of the Issuer, all payments of principal may be paid by check to the
registered Holder of the Registered Security or other Person entitled thereto
against surrender of such Security.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. If Securities of a
series are issuable only as Registered Securities, the Issuer shall maintain in
each Place of Payment for that series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment or
conversion, where Securities of that series may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Issuer in
respect of the Securities of that series and this
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Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Issuer will maintain: (A) in the Borough of Manhattan, New York
City, an office or agency where any Registered Securities of that series may be
presented or surrendered for payment or conversion, where any Registered
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange, where notices and
demands to or upon the Issuer in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and
related Coupons may be presented or surrendered for payment or conversion in the
circumstances described in the following paragraph (and not otherwise); (B)
subject to any laws or regulations applicable thereto, in a Place of Payment for
that series which is located outside the United States, an office or agency
where Securities of that series and related Coupons may be presented and
surrendered for payment (including payment of any Additional Amounts payable on
Securities of that series pursuant to Section 1012) or conversion; PROVIDED,
HOWEVER, that if the Securities of that series are listed on the Luxembourg
Stock Exchange or any other stock exchange located outside the United States and
such stock exchange shall so require, the Issuer will maintain a Paying Agent
for the Securities of that series in Luxembourg or any other required city
located outside the United States, as the case may be, so long as the Securities
of that series are listed on such exchange; and (C) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series located
outside the United States, an office or agency where any Registered Securities
of that series may be surrendered for registration of transfer, where Securities
of that series may be surrendered for exchange and where notices and demands to
or upon the Issuer in respect of the Securities of that series and this
Indenture may be served. The Issuer will give prompt written notice to the
Trustee of the location, and any change in the location, of each such office or
agency. If at any time the Issuer shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related Coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Bearer Securities of
that series pursuant to Section 1012) or conversion at the offices specified in
the Security, in London, England.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on or Additional
Amounts in respect of Bearer Securities shall be made at any office or agency of
the Issuer in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the United
States; PROVIDED, HOWEVER, that, if the Securities of a series are payable in
Dollars, payment of principal of and any premium and interest on any Bearer
Security (including any Additional Amounts payable on Securities of such series
pursuant to Section 1012)
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shall be made at the office of the designated agent of the Issuer's Paying Agent
in the Borough of Manhattan, New York City, if (but only if) payment in Dollars
of the full amount of such principal, premium, interest or Additional Amounts,
as the case may be, at all offices or agencies outside the United States
maintained for the purpose by the Issuer in accordance with this Indenture, is
illegal or effectively precluded by exchange controls or other similar
restrictions.
The Issuer may from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes, and may from time to time rescind
such designations; PROVIDED, HOWEVER, that no such designation or rescission
shall in any manner relieve the Issuer of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Issuer will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency. Unless otherwise specified pursuant to
Section 301 with respect to a series of Securities, the Issuer hereby designates
as a Place of Payment for each series of Securities the Borough of Manhattan,
New York City, and initially appoints the Trustee at its Corporate Trust Office
as Paying Agent in such city and as its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of the Indenture, then the Issuer
will maintain with respect to each such series of Securities, or as so required,
at least one exchange rate agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST. If the
Issuer shall at any time act as its own Paying Agent with respect to any series
of Securities and any related Coupons, it will, on or before each due date of
the principal of (and premium, if any), or interest on or Additional Amounts in
respect of, any of the Securities of that series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum in the currency or
currencies, currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the
principal (and premium, if any) or interest or Additional Amounts so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Issuer shall have one or more Paying Agents for any series
of Securities and any related Coupons, it will, before each due date of the
principal of (and premium, if any), or interest on or Additional Amounts in
respect of, any Securities of
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that series, deposit with a Paying Agent a sum (in the currency or currencies,
currency unit or units or composite currency or currencies described in the
preceding paragraph) sufficient to pay the principal (and premium, if any) or
interest or Additional Amounts, so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest
or Additional Amounts and (unless such Paying Agent is the Trustee) the Issuer
will promptly notify the Trustee of its action or failure so to act.
The Issuer will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will
(1) hold all sums held by it for the payment of principal of
(and premium, if any) or interest on Securities or Additional Amounts
in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Issuer (or
any other obligor upon the Securities) in the making of any such
payment of principal (and premium, if any) or interest or Additional
Amounts; and
(3) at any time during the continuance of any such default
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the
satisfaction, discharge or defeasance of this Indenture or for any other
purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Issuer or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums were held by
the Issuer or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such sums.
Except as otherwise provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Issuer, in
trust for the payment of the principal of (and premium, if any) or interest on,
or any Additional Amounts in respect of, any Security of any series and
remaining unclaimed for two years after such principal (and premium, if any),
interest or Additional Amounts has become due and payable shall be paid to the
Issuer upon Issuer Request along with the interest, if any, that has been
accumulated thereon or (if then held by the Issuer) shall be discharged from
such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Issuer for payment of such principal of (and
premium, if any) or interest on, or any Additional Amounts in respect of, any
Security, without interest thereon, and all liability of the
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Trustee or such Paying Agent with respect to such trust money, and all liability
of the Issuer as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Issuer cause to be published once, in an
Authorized Newspaper, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Issuer.
SECTION 1004. MAKE-WHOLE AMOUNT. If any Securities of a series provide
for the payment of a Make-Whole Amount, the Issuer will pay to the Holder of any
Security of such series the Make-Whole Amount specified with respect thereto
under the terms, conditions and circumstances as contemplated by or pursuant to
Section 301. Whenever in this Indenture there is mentioned, in any context, the
payment of premium on or in respect of any Security of any series, such mention
shall be deemed to include mention of the payment of the Make-Whole Amount
provided by the terms of such series established pursuant to Section 301 to the
extent that, in such context, the Make-Whole Amount is or would be payable in
respect thereof pursuant to such terms; and express mention of the payment of
the Make-Whole Amount (if applicable) in any provisions hereof shall not be
construed as excluding the Make-Whole Amount in those provisions hereof where
such express mention is not made.
SECTION 1005. This Section Intentionally Omitted.
SECTION 1006. EXISTENCE. Subject to Article Eight, the Issuer will do
or cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and franchises; PROVIDED,
HOWEVER, that the Issuer shall not be required to preserve any such right or
franchise if the Board of Directors of the General Partner shall determine that
the loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 1007. MAINTENANCE OF PROPERTIES. The Issuer will 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 will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Issuer may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; PROVIDED, HOWEVER, that nothing in this Section shall
prevent the Issuer or any Subsidiary from selling or otherwise disposing for
value its properties in the ordinary course of its business.
SECTION 1008. INSURANCE. The Issuer will, and will 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
69
time to time by the Issuer) with insurers of recognized responsibility and
having a rating of at least A:VIII in Best's Key Rating Guide.
SECTION 1009. PAYMENT OF TAXES AND OTHER CLAIMS. The Issuer will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon it or any Subsidiary or upon the income, profits or property of the
Issuer or any Subsidiary, and (2) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Issuer or any Subsidiary; PROVIDED, HOWEVER, that the Issuer 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 1010. PROVISION OF FINANCIAL INFORMATION. Whether or not the
Issuer is subject to Section 13 or 15(d) of the Exchange Act and for so long as
any Securities are Outstanding, the Issuer will, to the extent permitted under
the Exchange Act, file with the Commission the annual reports, quarterly reports
and other documents which the Issuer would have been required to file with the
Commission pursuant to such Section 13 or 15(d) (the "Financial Statements") if
the Issuer 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 Issuer
would have been required so to file such documents if the Issuer were so
subject.
The Issuer will also in any event (x) within 15 days of each Required
Filing Date (i) transmit by mail to all Holders, 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 Issuer would have been required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
if the Issuer were subject to such Sections, and (ii) file with the Trustee
copies of the annual reports, quarterly reports and other documents which the
Issuer would have been required to file with the Commission pursuant to Section
13 or 15(d) of the Exchange Act if the Issuer were subject to such Sections and
(y) if filing such documents by the Issuer 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 1011. STATEMENT AS TO COMPLIANCE. Each of the Issuer and the
Guarantor will deliver to the Trustee, within 120 days after the end of each
fiscal year, a brief certificate from the principal executive officer, principal
financial officer or principal accounting officer of the General Partner (in the
case of the Issuer) or the Company (in the case of the Guarantor) as to his or
her knowledge of the Issuer's compliance with all conditions and covenants under
this Indenture and, in the event of any noncompliance, specifying such
noncompliance and the nature and
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status thereof. For purposes of this Section 1011, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
SECTION 1012. ADDITIONAL AMOUNTS. If any Securities of a series provide
for the payment of Additional Amounts, the Issuer will pay to the Holder of any
Security of such series or any Coupon appertaining thereto Additional Amounts as
may be specified as contemplated by Section 301. Whenever in this Indenture
there is mentioned, in any context, the payment of the principal of or any
premium or interest on, or in respect of, any Security of any series or payment
of any related Coupon or the net proceeds received on the sale or exchange of
any Security of any series, such mention shall be deemed to include mention of
the payment of Additional Amounts provided by the terms of such series
established pursuant to Section 301 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
such terms; and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Issuer will furnish the
Trustee and the Issuer's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to Holders of
Securities of that series or any related Coupons who are not United States
Persons without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities of that series or related Coupons and the Issuer will pay
to the Trustee or such Paying Agent the Additional Amounts required by the terms
of such Securities. If the Trustee or any Paying Agent, as the case may be,
shall not so receive the above-mentioned certificate, then the Trustee or such
Paying Agent shall be entitled (i) to assume that no such withholding or
deduction is required with respect to any payment of principal or interest with
respect to any Securities of a series or related Coupons until it shall have
received a certificate advising otherwise and (ii) to make all payments of
principal and interest with respect to the Securities of a series or related
Coupons
without withholding or deductions until otherwise advised. The
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Issuer covenants to indemnify the Trustee and any Paying Agent for, and to hold
them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them or in reliance on any Officers'
Certificate furnished pursuant to this Section or in reliance on the Issuer's
not furnishing such an Officers' Certificate.
SECTION 1013. WAIVER OF CERTAIN COVENANTS. The Issuer or the Guarantor
may omit in any particular instance to comply with any term, provision or
condition set forth in Sections 1006 to 1010, inclusive, and any covenant not
currently included in this Indenture but specified as applicable to a series of
Securities as contemplated by Section 301, with respect to the Securities of any
series if before or after the time for such compliance the Holders of at least a
majority in principal amount of all Outstanding Securities of such series, by
Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall
extend to or affect any such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Issuer or the Guarantor and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE. Securities of any series which
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by Section
301 for Securities of any series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of
the Issuer to redeem any Securities shall be evidenced by or pursuant to a Board
Resolution of the General Partner. In case of any redemption at the election of
the Issuer of less than all of the Securities of any series, the Issuer shall,
at least 45 days prior to the giving of the notice of redemption in Section 1104
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Issuer shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE
REDEEMED. If less than all the Securities of any series issued on
the same day with the same terms are to be redeemed, the particular
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Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
issued on such date with the same terms not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Issuer and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION. Notice of redemption shall be given
in the manner provided in Section 106, not less than 30 days nor more than 60
days prior to the Redemption Date, unless a shorter period is specified by the
terms of such series established pursuant to Section 301, to each Holder of
Securities to be redeemed, but failure to give such notice in the manner herein
provided to the Holder of any Security designated for redemption as a whole or
in part, or any defect in the notice to any such Holder, shall not affect the
validity of the proceedings for the redemption of any other such Security or
portion thereof.
Any notice that is mailed to the Holders of Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the
Redemption Date payable as provided in Section 1106, if any,
and Additional Amounts, if any,
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or
Securities to be redeemed,
(4) in case any Security is to be redeemed in part only,
the notice which relates to such Security shall state that on
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and after the Redemption Date, upon surrender of such Security, the
Holder will receive, without a charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed,
(5) that on the Redemption Date the Redemption Price and
accrued interest to the Redemption Date payable as provided in Section
1106, if any, will become due and payable upon each
such Security, or the portion thereof, to be redeemed and, if
applicable, that interest thereon shall cease to accrue on and after
said date,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all Coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price and accrued interest,
if any, or for conversion,
(7) that the redemption is for a sinking fund, if such
is the case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing Coupon or Coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Issuer, the Trustee for such series and any Paying
Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not
subject to redemption on this Redemption Date pursuant to Section 305
or otherwise, the last date, as determined by the Issuer, on which such
exchanges may be made,
(10) the CUSIP number or the Euroclear or the CEDEL reference
numbers (or any other numbers used by a depositary to identify such
Securities), if any, of the Securities to be redeemed, and
(11) if applicable, that a Holder of Securities who desires to
convert Securities for redemption must satisfy the requirements for
conversion contained in such Securities, the then existing conversion
price or rate, and the date and time when the option to convert shall
expire.
Notice of redemption of Securities to be redeemed shall be given by the
Issuer or, at the Issuer's request, by the Trustee in the name and at the
expense of the Issuer.
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SECTION 1105. DEPOSIT OF REDEMPTION PRICE. At least one Business Day
prior to any Redemption Date, the Issuer shall deposit with the Trustee or with
a Paying Agent (or, if the Issuer is acting as its own Paying Agent, which it
may not do in the case of a sinking fund payment under Article Twelve, segregate
and hold in trust as provided in Section 1003) an amount of money in the
currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series)
sufficient to pay on the Redemption Date the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date) accrued interest on, all
the Securities or portions thereof which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Issuer shall default
in the payment of the Redemption Price and accrued interest) such Securities
shall, if the same were interest-bearing, cease to bear interest and the Coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
Coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Issuer at the Redemption Price, together with
accrued interest, if any, to the Redemption Date; PROVIDED, HOWEVER, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of Coupons for such interest; and PROVIDED FURTHER
that installments of interest on Registered Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Issuer and the Trustee if there be
furnished to them such security or indemnity as they may require to save each
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of them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing Coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; PROVIDED,
HOWEVER, that interest represented by Coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those Coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
SECTION 1107. SECURITIES REDEEMED IN PART. Any Registered Security
which is to be redeemed only in part (pursuant to the provisions of this Article
or of Article Twelve) shall be surrendered at a Place of Payment therefor (with,
if the Issuer or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing) and
the Issuer shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge a new Security or Securities
(having the Guarantee or Guarantees attached thereon) of the same series, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of such Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Issuer may, in satisfaction of all or any part of any mandatory sinking
fund payment with respect to the Securities
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of a series, (1) deliver Outstanding Securities of such series (other than any
previously called for redemption) together in the case of any Bearer Securities
of such series with all unmatured Coupons appertaining thereto and (2) apply as
a credit Securities of such series which have been redeemed either at the
election of the Issuer pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, as provided for by the terms of such Securities, or which have
otherwise been acquired by the Issuer; PROVIDED that such Securities so
delivered or applied as a credit have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
applicable Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND. Not less than
60 days prior to each sinking fund payment date for Securities of any series,
the Issuer will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202, and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and will also deliver to the Trustee any
Securities to be so delivered and credited. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Issuer shall thereupon be obligated to pay the amount
therein specified. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Issuer in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE. Repayment of Securities of any
series before their Stated Maturity at the option of Holders thereof shall be
made in accordance with the terms of such Securities, if any, and (except as
otherwise specified by the terms of such series established pursuant to Section
301) in accordance with this Article.
SECTION 1302. REPAYMENT OF SECURITIES. Securities of any series subject
to repayment in whole or in part at the option of the Holders thereof will,
unless otherwise provided in the terms of such Securities, be repaid at a price
equal to the principal amount thereof, together with interest, if any, thereon
accrued to the Repayment Date specified in or pursuant to the terms of such
Securities. The Issuer covenants that at least one Business Day prior to the
Repayment Date it will deposit with the Trustee or with a Paying Agent (or, if
the Issuer is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) sufficient to pay the principal
(or, if so provided by the terms of the Securities of any series, a percentage
of the principal) of, and (except if the Repayment Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions thereof, as
the case may be, to be repaid on such date.
SECTION 1303. EXERCISE OF OPTION. Securities of any series subject to
repayment at the option of the Holders thereof will contain an "Option to Elect
Repayment" form on the reverse of such Securities. In order for any Security to
be repaid at the option of the Holder, the Trustee must receive at the Place of
Payment therefor specified in the terms of such Security (or at such other place
or places of which the Issuer shall from time to time notify the Holders of such
Securities) not earlier than 60 days nor later than 30 days prior to the
Repayment Date (1) the Security so providing for such repayment together with
the "Option to Elect Repayment" form on the reverse thereof duly completed by
the Holder (or by the Holder's attorney duly authorized in writing) or (2) a
telegram, telex, facsimile transmission or a letter from a member of a national
securities exchange, or the National Association of Securities Dealers, Inc., or
a commercial bank or trust company in the United States setting forth the name
of the Holder of the Security, the principal amount of the Security, the
principal amount of the Security to be repaid, the CUSIP number or the Euroclear
or the CEDEL reference number (or any other number used by a depositary to
identify the Security) of the Security, if any, or a description of the tenor
and terms of the Security, a statement that the option to elect repayment is
being exercised thereby and a guarantee that the Security to be repaid,
together
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with the duly completed form entitled "Option to Elect Repayment" on the reverse
of the Security, will be received by the Trustee not later than the fifth
Business Day after the date of such telegram, telex, facsimile transmission or
letter; PROVIDED, HOWEVER, that such telegram, telex, facsimile transmission or
letter shall only be effective if such Security and form duly completed are
received by the Trustee by such fifth Business Day. If less than the entire
principal amount of such Security is to be repaid in accordance with the terms
of such Security, the principal amount of such Security to be repaid, in
increments of the minimum denomination for Securities of such series, and the
denomination or denominations of the Security or Securities to be issued to the
Holder for the portion of the principal amount of such Security surrendered that
is not to be repaid, must be specified. The principal amount of any Security
providing for repayment at the option of the Holder thereof may not be repaid in
part if, following such repayment, the unpaid principal amount of such Security
would be less than the minimum authorized denomination of Securities of the
series of which such Security to be repaid is a part. Except as otherwise may be
provided by the terms of any Security providing for repayment at the option of
the Holder thereof, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Issuer and all questions as to the validity,
form, eligibility (including time of receipt) and acceptance of any Security for
repayment will be determined by the Issuer, whose determination will be final
and binding.
SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND
PAYABLE. If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Issuer on the Repayment Date therein specified,
and on and after such Repayment Date (unless the Issuer shall default in the
payment of such Securities on such Repayment Date) such Securities shall, if the
same were interest-bearing, cease to bear interest and the Coupons for such
interest appertaining to any Bearer Securities so to be repaid, except to the
extent provided below, shall be void. Upon surrender of any such Security for
repayment in accordance with such provisions, together with all Coupons, if any,
appertaining thereto maturing after the Repayment Date, the principal amount of
such Security so to be repaid shall be paid by the Issuer, together with accrued
interest, if any, to the Repayment Date; PROVIDED, HOWEVER, that Coupons whose
Stated Maturity is on or prior to the Repayment Date shall be payable only at an
office or agency located outside the United States (except as otherwise provided
in Section 1002) and, unless otherwise specified pursuant to Section 301, only
upon presentation and surrender of such Coupons; and PROVIDED FURTHER that, in
the case of Registered Securities, installments of interest, if any, whose
Stated Maturity is on or prior to the Repayment Date shall be payable (but
without interest thereon, unless the Issuer shall default in the payment
thereof) to the
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Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant Coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Issuer and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing Coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest represented
by Coupons shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those Coupons.
If the principal amount of any Security surrendered for repayment shall
not be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. SECURITIES REPAID IN PART. Upon surrender of any
Registered Security which is to be repaid in part only, the Issuer shall execute
and the Trustee shall authenticate and deliver to the Holder of such Security,
without service charge and at the expense of the Issuer, a new Registered
Security or Securities (with the Guarantee duly endorsed thereon) of the same
series, of any authorized denomination specified by the Holder, in an aggregate
principal amount equal to and in exchange for the portion of the principal of
such Security so surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. APPLICABILITY OF ARTICLE; OPTION OF THE ISSUER OR THE
GUARANTOR TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE. If, pursuant to Section
301, provision is made for either or both of (a) defeasance of the Securities of
or within a series under Section 1402 or (b) covenant defeasance of the
Securities of or within a series under Section 1403, then the provisions of such
Section or Sections, as the case may be, together with the other
provisions of this Article (with such modifications thereto as may
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be specified pursuant to Section 301 with respect to any Securities), shall be
applicable to such Securities, the related Guarantees, and any Coupons
appertaining thereto, and the Issuer or the Guarantor may at its option by Board
Resolution, at any time, with respect to such Securities and any Coupons
appertaining thereto, elect to have Section 1402 (if applicable) or Section 1403
(if applicable) be applied to such Outstanding Securities and any Coupons
appertaining thereto upon compliance with the conditions set forth below in this
Article.
SECTION 1402. DEFEASANCE AND DISCHARGE. Upon the Issuer's or the
Guarantor's exercise of the above option applicable to this Section with respect
to any Securities of or within a series, the Issuer and the Guarantor shall be
deemed to have been discharged from its obligations with respect to such
Outstanding Securities and any Coupons appertaining thereto on the date the
conditions set forth in Section 1404 are satisfied and the related Guarantee
thereto shall terminate (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Issuer and the Guarantor shall be deemed to have paid
and discharged the entire indebtedness represented by such Outstanding
Securities and any Coupons appertaining thereto, which shall thereafter be
deemed to be "Outstanding" only for the purposes of Section 1405 and the other
Sections of this Indenture referred to in clauses (A) and (B) below, and to have
satisfied all of their other obligations under such Securities and any Coupons
appertaining thereto and this Indenture insofar as such Securities and any
Coupons appertaining thereto are concerned (and the Trustee, at the expense of
the Issuer, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Securities and any
Coupons appertaining thereto to receive, solely from the trust fund described in
Section 1404 and as more fully set forth in such Section, payments in respect of
the principal of (and premium, if any) and interest, if any, on such Securities
and any Coupons appertaining thereto when such payments are due, (B) the
Issuer's obligations with respect to such Securities under Sections 305, 306,
1002 and 1003 and with respect to the payment of Additional Amounts, if any, on
such Securities as contemplated by Section 1012, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article. Subject to
compliance with this Article Fourteen, the Issuer or the Guarantor may exercise
its option under this Section notwithstanding the prior exercise of its option
under Section 1403 with respect to such Securities and any Coupons appertaining
thereto.
SECTION 1403. COVENANT DEFEASANCE. Upon the Issuer's or the
Guarantor's exercise of the above option applicable to this Section with respect
to any Securities of or within a series, the Issuer and the Guarantor shall be
released from its obligations under Sections 1006 to 1010, inclusive, and, if
specified pursuant to Section 301, its obligations under any other covenant,
with
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respect to such Outstanding Securities and any Coupons appertaining thereto on
and after the date the conditions set forth in Section 1404 are satisfied and
the related Guarantee thereto shall terminate (hereinafter, "covenant
defeasance"), and such Securities and any Coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with Sections 1006 to 1010, inclusive, or such other
covenant, but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Outstanding Securities and any Coupons appertaining thereto, the Issuer
and the Guarantor may omit to comply with and shall have no liability in respect
of any term, condition or limitation set forth in any such Section or such other
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such Section or such other covenant or by reason of reference in
any such Section or such other covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a default or an
Event of Default under Section 501(4) or 501(8) or otherwise, as the case may
be, but, except as specified above, the remainder of this Indenture and such
Securities and any Coupons appertaining thereto shall be unaffected thereby.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Securities of or within a series and any Coupons appertaining
thereto:
(a) The Issuer or the Guarantor shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the provisions of
this Article Fourteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities and any
Coupons appertaining thereto, (1) an amount in such currency, currencies or
currency unit in which such Securities and any Coupons appertaining thereto are
then specified as payable at Stated Maturity, or (2) Government Obligations
applicable to such Securities and Coupons appertaining thereto (determined on
the basis of the currency, currencies or currency unit in which such Securities
and Coupons appertaining thereto are then specified as payable at Stated
Maturity) which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than one
day before the due date of any payment of principal of (and premium, if any) and
interest, if any, on such Securities and any Coupons appertaining thereto, money
in an amount, or (3) a combination thereof, in any case, in an amount,
sufficient, without consideration of any reinvestment of such principal and
interest, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and
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discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (i) the principal of (and premium, if any) and
interest, if any, on such Outstanding Securities and any Coupons appertaining
thereto on the Stated Maturity of such principal or installment of principal or
interest and (ii) any mandatory sinking fund payments or analogous payments
applicable to such Outstanding Securities and any Coupons appertaining thereto
on the day on which such payments are due and payable in accordance with the
terms of this Indenture and of such Securities and any Coupons appertaining
thereto. Notwithstanding the references in this Section 1404(a) to "premium",
neither the Issuer nor the Guarantor shall be required to deposit an amount
sufficient to pay any premium that would be due and payable only upon
acceleration of the Maturity of such Securities pursuant to Section 502.
(b) Such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Issuer or the Guarantor, as the
case may be, is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to such Securities and any
Coupons appertaining thereto shall have occurred and be continuing on the date
of such deposit or, insofar as Sections 501(6) and 501(7) are concerned, at any
time during the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under Section 1402, the Issuer or the
Guarantor, as the case may be, shall have delivered to the Trustee an Opinion of
Counsel stating that (i) it has received from, or there has been published by,
the Internal Revenue Service a ruling, or (ii) since the date of execution of
this Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of such Outstanding Securities and any Coupons
appertaining thereto will not recognize income, gain or loss for Federal income
tax purposes as a result of such defeasance and will be subject to 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 had not occurred.
(e) In the case of an election under Section 1403, the Issuer or the
Guarantor, as the case may be, shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Outstanding Securities and any
Coupons appertaining thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not occurred.
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(f) The Issuer or the Guarantor, as the case may be, shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent to the defeasance under Section 1402
or the covenant defeasance under Section 1403 (as the case may be) have been
complied with and an Opinion of Counsel to the effect that either (i) as a
result of a deposit pursuant to subsection (a) above and the related exercise of
the option by the Issuer or the Guarantor, as the case may be, under Section
1402 or Section 1403 (as the case may be), registration is not required under
the Investment Company Act of 1940, as amended, by it, with respect to the trust
funds representing such deposit or by the Trustee for such trust funds or (ii)
all necessary registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed
on the Issuer or the Guarantor, as the case may be, in connection therewith
pursuant to Section 301.
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any Coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any Coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any Coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and
premium, if any) and interest and Additional Amounts, if any, but such money
need not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 1404(a) has been made in respect of such
Security, or (b) a Conversion Event occurs in respect of the currency or
currency unit in which the deposit pursuant to Section 1404(a) has been made,
the indebtedness represented by such Security and any Coupons appertaining
thereto 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, if any, on such Security as the same becomes due out of the proceeds
yielded by converting (from time to time as
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specified below in the case of any such election) the amount or other property
deposited in respect of such Security into the currency or currency unit in
which such Security becomes payable as a result of such election or Conversion
Event based on the applicable market exchange rate for such currency or currency
unit in effect on the second Business Day prior to each payment date, except,
with respect to a Conversion Event, for such currency or currency unit in effect
(as nearly as feasible) at the time of the Conversion Event.
The Issuer shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities and any Coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, subject to
Section 606, the Trustee shall deliver or pay to the Issuer or the Guarantor, as
the case may be, from time to time upon Issuer Request any money or Government
Obligations (or other property and any proceeds therefrom) held by it as
provided in Section 1404 which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect a defeasance or covenant defeasance, as
applicable, in accordance with this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. If Securities
of a series are issuable, in whole or in part, as Bearer Securities, a meeting
of Holders of Securities of such series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS. (a) The Trustee may
at any time call a meeting of Holders of Securities of any series for any
purpose specified in Section 1501, to be held at such time and at such place in
the Borough of Manhattan, New York City, or in London as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
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(b) In case at any time the Issuer, pursuant to a Board Resolution, or
the Holders of at least 10% in principal amount of the Outstanding Securities of
any series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 1501, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Issuer or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, New York City, or in London for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled to
vote at any meeting of Holders of Securities of any series, a Person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders. The
only Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Issuer and its counsel.
SECTION 1504. QUORUM; ACTION. The Persons entitled to vote a majority
in principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such 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
this Indenture expressly provides may be made, given or taken by the Holders of
not less than a specified percentage in principal amount of the Outstanding
Securities of a series, then with respect to such action (and only such action)
the Persons entitled to vote such specified percentage in principal amount of
the Outstanding Securities of such series shall constitute a quorum. In the
absence of a quorum within 30 minutes after the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series, be dissolved. In any other case the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at the
reconvening of any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1502(a), except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be
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reconvened. Notice of the reconvening of any adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting duly convened or an adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted only by the affirmative
vote of the Persons entitled to vote a majority in aggregate principal amount of
the Outstanding Securities of that series; PROVIDED, HOWEVER, that, except as
limited by the proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage in principal amount of the Outstanding
Securities of a series may be adopted at a meeting duly convened or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related Coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
a. there shall be no minimum quorum requirement for such
meeting; and
b. the principal amount of the Outstanding 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 this
Indenture.
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS. (a) Notwithstanding any provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and
87
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the Person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The Trustee shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the Issuer
or by Holders of Securities as provided in Section 1502(b), in which case the
Issuer or the Holders of Securities of the series calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; PROVIDED,
HOWEVER, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The vote
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Securities of such series or of their representatives by proxy
and the principal amounts and serial numbers of the Outstanding Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at least in duplicate, of the proceedings
of each meeting of Holders of Securities of any Series
88
shall be prepared by the secretary of the meeting and there shall be attached to
said record the original reports of the inspectors of votes on any vote by
ballot taken thereat and affidavits by one or more persons having knowledge of
the fact, setting forth a copy of the notice of the meeting and showing that
said notice was given as provided in Section 1502 and, if applicable, Section
1504. Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Issuer and another to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting. Any record so signed
and verified shall be conclusive evidence of the matters therein stated.
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 1601. SECURITIES IN FOREIGN CURRENCIES. Except as otherwise
provided in the definition of "Outstanding" in Section 101, whenever this
Indenture provides for any distribution to Holders of Securities, in the absence
of any provision to the contrary in the form of Security of any particular
series, any amount in respect of any Security denominated in a currency or
currencies other than Dollars shall be treated for any such distribution as that
amount of Dollars that could be obtained for such amount on such reasonable
basis of exchange and as of the record date with respect to Registered
Securities of such series (if any) for such distribution (or, if there shall be
no applicable record date, such other date reasonably proximate to the date of
such distribution) as the Company may specify in a written notice to the Trustee
or, in the absence of such written notice, as the Trustee may determine.
SECTION 1602. LIMITED LIABILITY. Notwithstanding any other provision of
this Indenture to the contrary, no recourse shall be had, whether by levy or
execution or otherwise, for the payment of any sums due under any Security,
including, without limitation, the principal of, premium, if any, or interest
payable under any Security, or for the payment or performance of any obligation
under, or for any claim based on, this Indenture or otherwise in respect hereof,
against any partner of the Issuer, whether limited or general, including the
General Partner, or such partner's assets or against any principal, shareholder,
officer, director, trustee or employee of such partner, under any rule of law,
statute or constitution, or by the enforcement of any assessment or penalty, or
otherwise, nor shall any of such parties be personally liable for any such
amounts, obligations or claims, or liable for any deficiency judgment based
thereon or with respect thereto, it being expressly understood that the sole
remedies hereunder or under any other document with respect to the Securities
against such parties with respect to such amounts, obligations or claims shall
be against the Issuer and that all such liability of such parties is
89
and is to be, by the acceptance hereof, expressly waived and released as a
condition of, and as consideration for, the execution of this Indenture. It is
expressly understood and agreed, however, that nothing contained in this Section
1602 shall (a) in any manner or way constitute or be deemed a release of the
debt evidenced by the Securities or (b) impair, in any manner, any rights,
remedies or recourse any Holder may have against the General Partner for fraud
or misappropriation of any insurance proceeds, condemnation proceeds, rents,
profits or issues in respect of the Issuer in violation of the terms of this
Indenture.
ARTICLE SEVENTEEN
GUARANTEES OF SECURITIES
SECTION 1701. GUARANTEES. (a) The Guarantor hereby guarantees, to each
Holder of a Security now or hereafter authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns, irrespective of the validity
and enforceability of this Indenture, the Securities or the obligations of the
Issuer hereunder or thereunder, (i) the payment of principal of, premium, if
any, interest on (including post-petition interest in any proceeding under any
federal or state law or regulation relating to any Bankruptcy Law whether or not
an allowed claim in such proceeding) and any other amounts payable with respect
to such Security, and (ii) all other monetary obligations payable by the Issuer
under this Indenture and the Securities; when and as the same shall become due
and payable, whether at Maturity, on redemption, by declaration of acceleration
or otherwise (all of the foregoing being hereinafter collectively called the
"Guaranteed Obligations"), in accordance with the terms of any such Security and
of this Indenture.
(b) The Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees) incurred by the Trustee or any Holder in
enforcing any rights under this Article Seventeen.
(c) The Guarantees set forth in this Article Seventeen shall not be
valid or become obligatory for any purpose with respect to a Security until the
certificate of authentication on such Security shall have been signed by or on
behalf of the Trustee.
SECTION 1702. EXECUTION AND DELIVERY OF GUARANTEES. (a) To evidence
the Guarantees contemplated in this Article Seventeen, the Guarantor hereby
agrees to execute Guarantees endorsed on each Security authenticated and
delivered by the Trustee.
(b) The Guarantees endorsed on the Securities shall be executed on
behalf of the Guarantor, by manual or facsimile signature of the Chief Executive
Officer, the President or one of the Executive Vice Presidents of the Company,
as general partner of the Guarantor. If such officer whose signature is on the
Guarantee
90
no longer holds that office at the time the Trustee authenticates the Security
on which the Guarantees are endorsed or at the date of such Guarantees, such
Guarantees shall be valid nevertheless.
(c) The delivery of any Security with Guarantees endorsed thereon by
the Trustee, after the authentication thereof hereunder, shall constitute due
delivery of such Guarantees set forth in this Indenture on behalf of the
Guarantor.
SECTION 1703. GUARANTEES UNCONDITIONAL, ETC. The Guarantor hereby
agrees that its obligations hereunder shall be continuing and absolute and
unconditional, irrespective of: the recovery of any judgment against the Issuer;
any extension, renewal, settlement, compromise, waiver or release in respect of
any obligation of the Issuer under this Indenture or any Security, by operation
of law or otherwise; any modification or amendment of or supplement to this
Indenture or any Security; any change in the partnership existence, structure or
ownership of the Issuer, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting the Issuer or its assets or any resulting release
or discharge of any obligation of the Issuer contained in this Indenture or any
Security; the existence of any claim, set-off or other rights which the
Guarantor may have at any time against the Issuer, the Trustee, any Holder or
any other Person, whether in connection herewith or any unrelated transactions,
PROVIDED, that nothing herein shall prevent the assertion of any such claim by
separate suit or compulsory counterclaim; any invalidity or unenforceability
relating to or against the Issuer for any reason of this Indenture or any
Security, or any provision of applicable law or regulation purporting to
prohibit the payment by the Issuer of the principal of or interest on any
Security or any other Guaranteed Obligation; or any other act or omission to act
or delay of any kind by the Issuer, the Trustee, any Holder or any other Person
or any other circumstance whatsoever which might, but for the provisions of this
Section 1703, constitute a legal or equitable discharge of the Guarantor's
obligations hereunder. The Guarantor hereby waives diligence, presentment,
protest, notice and all demands whatsoever and covenants that the Guarantees
will not be discharged except by the complete performance of the obligations
contained in the Securities, this Indenture and in this Article Seventeen. The
Guarantor's obligations hereunder and under the Guarantees shall remain in full
force and effect until the termination thereof under Section 1706 or the
principal of and interest on the Securities and all other Guaranteed Obligations
shall have been paid in full. If at any time any payment of the principal of or
interest on any Security or any other payment in respect of any Guaranteed
Obligation is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of the Issuer or otherwise, the
Guarantor's obligations hereunder and under the Guarantees with respect to such
payment shall be reinstated as though such payment had been due but not made at
such time, and this Article Seventeen, to the extent theretofore discharged,
shall be reinstated in full force and effect.
91
SECTION 1704. SUBROGATION. The Guarantor shall be subrogated to all
rights of the Holder of any Security against the Issuer in respect of any
amounts paid by the Guarantor pursuant to the provisions of the related
Guarantee; PROVIDED, HOWEVER, that the Guarantor shall not be entitled to
enforce or to receive any payments arising out of, or based upon, such right of
subrogation until the principal of and interest on all Securities shall have
been paid in full.
SECTION 1705. COVENANT OF THE GUARANTOR. The Guarantor covenants and
agrees for the benefit of the Holders of each series of Securities that it shall
take no action which would cause the Issuer to violate any covenant or agreement
under this Indenture.
SECTION 1706. TERMINATION OF THE GUARANTEE. The obligations of the
Guarantor under this Indenture shall terminate at such time the Guarantor merges
or consolidates with the Issuer or at such other time as the Issuer acquires all
of the assets and partnership interests of the Guarantor.
SECTION 1707. LIMITED LIABILITY. Notwithstanding any other provision of
this Indenture to the contrary, no recourse shall be had, whether by levy or
execution or otherwise, for the payment of any sums due under any Security,
including, without limitation, the principal of, premium, if any, or interest
payable under any Security, or for the payment or performance of any obligation
under, or for any claim based on, this Indenture or otherwise in respect hereof,
against any partner of the Guarantor, whether limited or general, including the
Company, or such partner's assets or against any principal, shareholder,
officer, director, trustee or employee of such partner, under any rule of law,
statute or constitution, or by the enforcement of any assessment or penalty, or
otherwise, nor shall any of such parties be personally liable for any such
amounts, obligations or claims, or liable for any deficiency judgment based
thereon or with respect thereto, it being expressly understood that the sole
remedies hereunder or under any other document with respect to the guaranteed
obligations against such parties with respect to such amounts, obligations or
claims shall be against the Guarantor and that all such liability of such
parties is and is to be, by the acceptance hereof, expressly waived and released
as a condition of, and as consideration for, the execution of this Indenture. It
is expressly understood and agreed, however, that nothing contained in this
Section 1707 shall in any manner or way constitute or be deemed a release of the
Guarantee endorsed on any of the Securities.
* * * * *
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
SIMON DEBARTOLO GROUP, L.P.
By: SD Property Group, Inc., its
managing general partner
By: /s/
---------------------------------
Attest:
/s/
- -------------------------------
SIMON PROPERTY GROUP, L.P.
By: Simon DeBartolo Group, Inc.,
its sole general partner
By: /s/
----------------------------------
Attest:
/s/
- --------------------------------
THE CHASE MANHATTAN BANK
as Trustee
By: /s/
-----------------------------------
Attest:
/s/
- ---------------------------------
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
1.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise Simon-DeBartolo Group, L.P. or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the United States Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States thereof and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the
Northern Mariana Islands.
A-1-1
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to U.S. $_______________
of such interest in the above-captioned Securities in respect of which we are
not able to certify and as to which we understand an exchange for an interest in
a Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy hereof to any interested party in such proceedings.
Dated: __________________, 19__
[To be dated no earlier than the 15th day prior
to (i) the Exchange Date or (ii) the relevant
Interest Payment Date occurring prior to the
Exchange Date, as applicable]
[Name of Person Making
Certification]
_______________________________
(Authorized Signatory)
Name:
Title:
A-1-2
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] _______________
principal amount of the above-captioned Securities (i) is owned by person(s)
that are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which is subject to
United States Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such United States financial institution
has agreed, on its own behalf or through its agent, that we may advise
Simon-DeBartolo Group, L.P. or its agent that such financial institution will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the United
States Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to
the further effect, that financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America (including
the States thereof and the District of Columbia); and its "possessions" include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
A-2-1
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy hereof to any interested party in such proceedings.
Dated: _____________ 19__
[To be dated no earlier than the Exchange Date or the relevant Interest Payment
Date occurring prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust Company of
New York, Brussels Office],
as Operator of the Euroclear System
[Cedel S.A.]
By: _______________________________
A-2-2
TABLE OF CONTENTS
ARTICLE AND SECTION NUMBER PAGE
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION........................... 1
SECTION 101. Definitions.............................................................................. 1
SECTION 102. Compliance Certificates and Opinions..................................................... 11
SECTION 103. Form of Documents Delivered to Trustee................................................... 12
SECTION 104. Acts of Holders.......................................................................... 12
SECTION 105. Notices, etc., to Trustee, Issuer and/or
Guarantor..................................................................................... 14
SECTION 106. Notice to Holders; Waiver................................................................ 15
SECTION 107. Effect of Headings and Table of Contents................................................. 16
SECTION 108. Successors and Assigns................................................................... 16
SECTION 109. Separability Clause...................................................................... 16
SECTION 110. Benefits of Indenture.................................................................... 16
SECTION 111. Governing Law............................................................................ 16
SECTION 112. Legal Holidays........................................................................... 16
ARTICLE TWO
FORMS OF SECURITIES AND GUARANTEES...................................... 17
SECTION 201. Forms of Securities and Guarantees....................................................... 17
SECTION 202. Form of Trustee's Certificate of
Authentication................................................................................ 18
SECTION 203. Securities Issuable in Global Form....................................................... 18
ARTICLE THREE
THE SECURITIES................................................ 19
SECTION 301. Amount Unlimited; Issuable in Series..................................................... 19
SECTION 302. Denominations............................................................................ 24
SECTION 303. Execution, Authentication, Delivery and
Dating........................................................................................ 24
SECTION 304. Temporary Securities..................................................................... 26
SECTION 305. Registration, Registration of Transfer
and Exchange.................................................................................. 29
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.................................................................................... 32
SECTION 307. Payment of Interest; Interest Rights
Preserved..................................................................................... 34
SECTION 308. Persons Deemed Owners.................................................................... 36
SECTION 309. Cancellation............................................................................. 37
SECTION 310. Computation of Interest.................................................................. 38
ARTICLE FOUR
SATISFACTION AND DISCHARGE.......................................... 38
SECTION 401. Satisfaction and Discharge of Indenture.................................................. 38
SECTION 402. Application of Trust Funds............................................................... 40
SECTION 403. Reinstatement............................................................................ 40
i
ARTICLE FIVE
REMEDIES................................................... 40
SECTION 501. Events of Default........................................................................ 40
SECTION 502. Acceleration of Maturity; Rescission and
Annulment..................................................................................... 42
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee........................................................................ 44
SECTION 504. Trustee May File Proofs of Claim......................................................... 44
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons........................................................... 45
SECTION 506. Application of Money Collected........................................................... 46
SECTION 507. Limitation on Suits...................................................................... 46
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium, if any, Interest and
Additional Amounts............................................................................ 47
SECTION 509. Restoration of Rights and Remedies....................................................... 47
SECTION 510. Rights and Remedies Cumulative........................................................... 47
SECTION 511. Delay or Omission Not Waiver............................................................. 48
SECTION 512. Control by Holders of Securities......................................................... 48
SECTION 513. Waiver of Past Defaults.................................................................. 48
SECTION 514. Waiver of Usury, Stay or Extension Laws.................................................. 49
SECTION 515. Undertaking for Costs.................................................................... 49
ARTICLE SIX
THE TRUSTEE................................................. 49
SECTION 601. Notice of Defaults....................................................................... 49
SECTION 602. Certain Rights of Trustee................................................................ 50
SECTION 603. Not Responsible for Recitals or Issuance
of Securities................................................................................. 51
SECTION 604. May Hold Securities...................................................................... 52
SECTION 605. Money Held in Trust...................................................................... 52
SECTION 606. Compensation and Reimbursement........................................................... 52
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests......................................................................... 53
SECTION 608. Resignation and Removal; Appointment of
Successor..................................................................................... 53
SECTION 609. Acceptance of Appointment by Successor................................................... 55
SECTION 610. Merger, Conversion, Consolidation or
Succession to Business........................................................................ 56
SECTION 611. Appointment of Authenticating Agent...................................................... 56
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER............................... 58
SECTION 701. Disclosure of Names and Addresses of
Holders....................................................................................... 58
SECTION 702. Reports by Trustee....................................................................... 58
SECTION 703. Reports by Issuer........................................................................ 58
SECTION 704. Issuer to Furnish Trustee Names and
Addresses of Holders.......................................................................... 59
ii
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE............................... 59
SECTION 801. Consolidations and Mergers of Issuer or
Guarantor, and Sales, Leases and Conveyances
Permitted Subject to Certain Conditions....................................................... 59
SECTION 802. Rights and Duties of Successor
Corporation................................................................................... 60
SECTION 803. Officers' Certificate and Opinion of
Counsel....................................................................................... 61
SECTION 804. Assumption by Guarantor.................................................................. 61
ARTICLE NINE
SUPPLEMENTAL INDENTURES........................................... 61
SECTION 901. Supplemental Indentures without Consent
of Holders.................................................................................... 61
SECTION 902. Supplemental Indentures with Consent of
Holders....................................................................................... 63
SECTION 903. Execution of Supplemental Indentures..................................................... 64
SECTION 904. Effect of Supplemental Indentures........................................................ 64
SECTION 905. Conformity with Trust Indenture Act...................................................... 64
SECTION 906. Reference in Securities to Supplemental
Indentures.................................................................................... 65
ARTICLE TEN
COVENANTS.................................................. 65
SECTION 1001. Payment of Principal, Premium, if any,
Interest and Additional Amounts............................................................... 65
SECTION 1002. Maintenance of Office or Agency......................................................... 65
SECTION 1003. Money for Securities Payments to Be Held
in Trust...................................................................................... 67
SECTION 1004. Make-Whole Amount....................................................................... 69
SECTION 1005. This Section Intentionally Omitted...................................................... 69
SECTION 1006. Existence............................................................................... 69
SECTION 1007. Maintenance of Properties............................................................... 69
SECTION 1008. Insurance............................................................................... 69
SECTION 1009. Payment of Taxes and Other Claims....................................................... 70
SECTION 1010. Provision of Financial Information...................................................... 70
SECTION 1011. Statement as to Compliance.............................................................. 70
SECTION 1012. Additional Amounts...................................................................... 71
SECTION 1013. Waiver of Certain Covenants............................................................. 72
ARTICLE ELEVEN
REDEMPTION OF SECURITIES........................................... 72
SECTION 1101. Applicability of Article................................................................ 72
SECTION 1102. Election to Redeem; Notice to Trustee................................................... 72
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed...................................................................................... 72
SECTION 1104. Notice of Redemption.................................................................... 73
SECTION 1105. Deposit of Redemption Price............................................................. 75
SECTION 1106. Securities Payable on Redemption Date................................................... 75
SECTION 1107. Securities Redeemed in Part............................................................. 76
iii
ARTICLE TWELVE
SINKING FUNDS................................................ 76
SECTION 1201. Applicability of Article................................................................ 76
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities............................................................................... 76
SECTION 1203. Redemption of Securities for Sinking
Fund.......................................................................................... 77
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS...................................... 78
SECTION 1301. Applicability of Article................................................................ 78
SECTION 1302. Repayment of Securities................................................................. 78
SECTION 1303. Exercise of Option...................................................................... 78
SECTION 1304. When Securities Presented for Repayment
Become Due and Payable........................................................................ 79
SECTION 1305. Securities Repaid in Part............................................................... 80
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE...................................... 80
SECTION 1401. Applicability of Article; Option of the
Issuer or the Guarantor to Effect Defeasance or
Covenant Defeasance........................................................................... 80
SECTION 1402. Defeasance and Discharge................................................................ 81
SECTION 1403. Covenant Defeasance..................................................................... 81
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance.................................................................................... 82
SECTION 1405. Deposited Money and Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions...................................................................... 84
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES...................................... 85
SECTION 1501. Purposes for Which Meetings May Be
Called........................................................................................ 85
SECTION 1502. Call, Notice and Place of Meetings...................................................... 85
SECTION 1503. Persons Entitled to Vote at Meetings.................................................... 86
SECTION 1504. Quorum; Action.......................................................................... 86
SECTION 1505. Determination of Voting Rights; Conduct
and Adjournment of Meetings................................................................... 87
SECTION 1506. Counting Votes and Recording Action of
Meetings...................................................................................... 88
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS........................................... 89
SECTION 1601. Securities in Foreign Currencies........................................................ 89
SECTION 1602. Limited Liability....................................................................... 89
iv
ARTICLE SEVENTEEN
GUARANTEES OF SECURITIES........................................... 90
SECTION 1701. Guarantees.............................................................................. 90
SECTION 1702. Execution and Delivery of
Guarantees............................................................................................. 90
SECTION 1704. Subrogation............................................................................. 92
SECTION 1705. Covenant of the Guarantor............................................................... 92
SECTION 1706. Termination of the Guarantee............................................................ 92
SECTION 1707. Limited Liability....................................................................... 92
Exhibits
EXHIBIT A-1
EXHIBIT A-2
v
SIMON DEBARTOLO GROUP, L.P.
ISSUER
AND
SIMON PROPERTY GROUP, L.P.
GUARANTOR
TO
THE CHASE MANHATTAN BANK
TRUSTEE
--------------------
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF NOVEMBER 26, 1996
--------------------
$250,000,000 67/8% NOTES DUE NOVEMBER 15, 2006
SUPPLEMENT TO INDENTURE,
DATED AS OF NOVEMBER 26, 1996,
AMONG
SIMON DEBARTOLO GROUP, L.P.
SIMON PROPERTY GROUP, L.P.
AND
THE CHASE MANHATTAN BANK,
AS TRUSTEE
FIRST SUPPLEMENTAL INDENTURE, dated as of November 26, 1996,
among SIMON DEBARTOLO GROUP, L.P., a Delaware limited partnership (the "Issuer"
or the "Operating Partnership"), having its principal offices at National City
Center, 115 West Washington Street, Suite 15 East, Indianapolis, Indiana 46204,
Simon Property Group, L.P., a Delaware limited partnership (the "Guarantor")
having its principal offices at National City Center, 115 West Washington
Street, Suite 15 East, Indianapolis, Indiana 46204 and The Chase Manhattan Bank,
a New York banking corporation, as trustee (the "Trustee"), having its Corporate
Trust Office at 450 West 33rd Street, 15th Floor, New York, New York 10001.
RECITALS
WHEREAS, the Issuer executed and delivered its Indenture (the
"Original Indenture"), dated as of November 26, 1996, to the Trustee to issue
from time to time for its lawful purposes debt securities evidencing its
unsecured and unsubordinated indebtedness issued under the Original Indenture;
WHEREAS, the Guarantor executed and delivered the Original
Indenture to the Trustee to guarantee the due and punctual payment of principal
of, premium, if any, interest on, and any other amounts with respect to, each
series of debt securities evidencing the unsecured and unsubordinated
indebtedness of the Issuer, issued under the Original Indenture, when and as the
same shall become due and payable, whether on an interest payment date, a
maturity date, on redemption, by declaration of acceleration or otherwise;
WHEREAS, the Original Indenture provides that by means of a
supplemental indenture, the Issuer may create one or more series of its debt
securities, which shall be guaranteed by the Guarantor, and establish the form
and terms and conditions thereof;
WHEREAS, the Issuer intends by this Supplemental Indenture (i)
to create a series of debt securities, in an aggregate principal amount of
$250,000,000 entitled "Simon DeBartolo Group, L.P. 67/8% Notes due November 15,
2006 (the "Notes"); and (ii) to establish the form and the terms and conditions
of such Notes;
WHEREAS, the Guarantor intends by this Supplemental Indenture
to guarantee the due and punctual payment of principal of, premium, if any,
interest on, and any other amounts with respect to, the Notes, when and as the
same shall become due and payable, whether on an interest payment date, a
maturity date, on redemption, by declaration of acceleration or otherwise (the
"Guarantee");
WHEREAS, the Board of Directors of SD Property Group, Inc.,
the managing general partner of the Issuer, has approved the creation of the
Notes and the forms, terms and conditions thereof;
2
WHEREAS, the Board of Directors of Simon DeBartolo Group,
Inc., the sole general partner of the Guarantor, has approved the creation of
the Guarantee and the forms, terms and conditions thereof; and
WHEREAS, all actions required to be taken under the Original
Indenture with respect to this Supplemental Indenture have been taken.
NOW, THEREFORE IT IS AGREED:
ARTICLE ONE
DEFINITIONS, CREATION, FORMS AND TERMS AND
CONDITIONS OF THE NOTES
SECTION 1.01 DEFINITIONS. Capitalized terms used in this
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 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:
"GLOBAL NOTE" means a single fully-registered global note in
book-entry form, without Coupons, substantially in the form of Exhibit A
attached hereto.
"INDENTURE" means the Original Indenture as supplemented by
this First Supplemental Indenture.
"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
payment) that would have been payable in respect of each such Dollar if such
redemption or accelerated payment had not been made, 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.
"NOTES" means the Issuer's 67/8% Notes due November 15, 2006,
in an aggregate principal amount of $250,000,000.
"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
3
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.
"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.
SECTION 1.02 CREATION OF THE NOTES. In accordance with Section
301 of the Original Indenture, the Issuer hereby creates the Notes as a separate
series of its Securities issued pursuant to the Indenture. The Notes shall be
issued in an aggregate principal amount of $250,000,000.
SECTION 1.03 FORM OF THE NOTES. The Notes will be issued in
the form of a Global Note which will be deposited with, or on behalf of, DTC and
registered in the name of "Cede & Co" as the nominee of DTC. The Notes shall be
substantially in the form of Exhibit A attached hereto. So long as DTC, or its
nominee, is the registered owner of a Global Note, DTC or its nominee, as the
case may be, will be considered the sole owner or Holder of the Notes
represented by such Global Note for all purposes under the Indenture. Ownership
of beneficial interests in such Global Notes will be shown on, and transfers
thereof will be effected only through, records maintained by DTC (with respect
to beneficial interests of participants) or by participants or Persons that hold
interests through participants (with respect to beneficial interests of
beneficial owners).
SECTION 1.04 TERMS AND CONDITIONS OF THE NOTES. The Notes
shall be governed by all the terms and conditions of the Original Indenture, as
supplemented by this First Supplemental Indenture, and in particular, the
following provisions shall be terms of the Notes:
(a) TITLE AND AGGREGATE PRINCIPAL AMOUNT. The title of the
Notes shall be as specified in the Recitals; and the aggregate
principal amount of the Notes shall be as specified in Section 1.02 of
this First Supplemental Indenture, except as permitted by Section 306
of the Original Indenture.
4
(b) STATED MATURITY. The Notes shall mature, and the unpaid
principal thereon shall be payable, on November 15, 2006.
(c) INTEREST. The rate per annum at which interest shall be
payable on the Notes shall be 67/8%, and such interest shall accrue
beginning November 26, 1996. Interest on the Notes shall be payable
semi-annually in arrears on each May 15 and November 15, commencing May
15, 1997 (each an "Interest Payment Date"), and on the Stated Maturity
as specified in Section 1.04(b) of this First Supplemental Indenture,
to the Persons (the "Holders") in whose names the applicable Notes are
registered in the Security Register applicable to the 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 "Regular
Record Date"). Interest on the Notes will be computed on the basis of a
360-day year of twelve 30-day months.
(d) SINKING FUND, REDEMPTION OR REPAYMENT. No sinking fund
shall be provided for the Notes and the Notes shall not be repayable at
the option of the Holders thereof prior to Stated Maturity. 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 (the "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 Notes called for
redemption shall have been made available on the Redemption Date
referred to in such notice, such Notes will cease to bear interest on
the Redemption Date and the only right of the Holders of the Notes from
and after the Redemption Date will be to receive payment of the
Redemption Price upon surrender of such Notes in accordance with such
notice.
(e) REGISTRATION AND FORM. The Notes shall be issuable as
Registered Securities in permanent global form, and the depositary with
respect to the Notes shall initially be DTC. Principal and interest
payments on interests represented by a Global Note will be made to DTC
or its nominee, as the case may be, as the registered Holder of such
Global Note. All payments of principal and interest in respect of the
Notes will be made by the Issuer in immediately available funds.
(f) 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
Supplemental Indenture) in Section 1403 of the Original Indenture,
shall be applicable to the Notes.
(g) MAKE-WHOLE AMOUNT PAYABLE UPON ACCELERATION. Upon any
acceleration of the Stated Maturity of the Notes in accordance with
Section 502
5
of the Original Indenture, the Make-Whole Amount on the Notes shall
become immediately due and payable, subject to the terms and
conditions of the Indenture.
(h) GUARANTEE. The provisions of Article Seventeen of
the Original Indenture shall be applicable to the Notes.
ARTICLE TWO
COVENANTS FOR BENEFIT OF HOLDERS OF NOTES
The Operating Partnership covenants and agrees, for the
benefit of the Holders of the Notes, as follows:
LIMITATIONS ON INCURRENCE OF DEBT. The Operating Partnership
will not, and will not permit any Subsidiary to, incur any Debt (as defined
below), other than intercompany debt (representing Debt to which the only
parties are the Company, the Operating Partnership and any of their Subsidiaries
(but only so long as such Debt is held solely by any of the Company,
the Operating Partnership and any Subsidiary) that is subordinate in right of
payment to the Notes), if, immediately after giving effect to the incurrence of
such additional Debt, the aggregate principal amount of all outstanding Debt
would be greater than 60% of the sum of (i) the Operating Partnership's Adjusted
Total Assets (as defined below) as of the end of the fiscal quarter prior to the
incurrence of such additional Debt and (ii) any increase in Adjusted Total
Assets from the end of such quarter including, without limitation, any pro forma
increase from the application of the proceeds of such additional Debt.
In addition to the foregoing limitation on the incurrence of
Debt, the Operating Partnership will not, and will not permit any Subsidiary to,
incur any Debt secured by any mortgage, lien, pledge, encumbrance or security
interest of any kind upon any of the property of the Operating Partnership or
any Subsidiary ("Secured Debt"), whether owned at the date of the Indenture or
thereafter acquired, if, immediately after giving effect to the incurrence of
such additional Secured Debt, the aggregate principal amount of all outstanding
Secured Debt is greater than 55% of the sum of (i) the Operating Partnership's
Adjusted Total Assets as of the end of the fiscal quarter prior to the
incurrence of such additional Secured Debt and (ii) any increase in Adjusted
Total Assets from the end of such quarter including, without limitation, any pro
forma increase from the application of the proceeds of such additional Secured
Debt.
In addition to the foregoing limitations on the incurrence of
Debt, the Operating Partnership will not, and will not permit any Subsidiary to,
incur any Debt if the ratio of Annualized EBITDA After Minority Interest to
Interest Expense (in each case as defined below) for the period consisting of
the four consecutive fiscal quarters most recently ended prior to the date on
which such additional Debt is to be incurred shall have been less than 1.75 to 1
on a pro
6
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.
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 the
Company outstanding on the date of the IPO, by $22.25 (the "IPO Price"), (ii)
the principal amount of the outstanding consolidated debt of the Company on the
date of the IPO, less any portion applicable to minority interests, (iii) the
Operating Partnership's allocable portion, based on its ownership interest, of
outstanding indebtedness of unconsolidated joint ventures on the date of the
IPO, (iv) the purchase price or cost of any real estate assets acquired
(including the value, at the time of such acquisition, of any units of the
Operating Partnership or shares of common stock of the Company issued in
connection therewith) or developed after the IPO by the Operating Partnership or
any Subsidiary, less any portion attributable to minority interests, plus the
Operating Partnership's allocable portion, based on its ownership interest, of
the purchase price or cost of any real estate assets acquired or developed after
the IPO by any unconsolidated joint venture, (v) the value of the Merger
compiled as the
7
sum of (a) the purchase price including all related closing costs and (b) the
value of all outstanding indebtedness less any portion attributable to minority
interests, including the Operating Partnership's allocable portion, based on its
ownership interest, of outstanding indebtedness of unconsolidated joint ventures
at the Merger date, and (vi) working capital of the Operating Partnership;
subject, however, to reduction by the amount of the proceeds of any real estate
assets disposed of after the IPO by the Operating Partnership or any Subsidiary,
less any portion applicable to minority interests, and by the Operating
Partnership's allocable portion, based on its ownership interest, of the
proceeds of any real estate assets disposed of after the IPO by unconsolidated
joint ventures.
"ANNUALIZED EBITDA" means earnings before interest, taxes,
depreciation and amortization for all properties with other adjustments as are
necessary to exclude the effect of items classified as extraordinary items in
accordance with generally accepted accounting principles, adjusted to reflect
the assumption that (i) any income earned as a result of any assets having been
placed in service since the end of such period had been earned, on an annualized
basis, during such period, and (ii) in the case of any acquisition or
disposition by the Operating Partnership, any Subsidiary or any unconsolidated
joint venture in which the Operating Partnership or any Subsidiary owns an
interest, of any assets since the first day of such period, such acquisition or
disposition and any related repayment of Debt had occurred as of the first day
of such period with the appropriate adjustments with respect to such acquisition
or disposition.
"ANNUALIZED EBITDA AFTER MINORITY INTEREST" means Annualized
EBITDA after distributions to third party joint venture partners.
"COMPANY" means Simon DeBartolo Group, Inc., a Maryland
corporation and a general partner of the Operating Partnership and the sole
general partner of the Guarantor.
"DEBT" means any indebtedness of the Operating Partnership and
its Subsidiaries on a consolidated basis, less any portion attributable to
minority interests, plus the Operating Partnership's allocable portion, based on
its ownership interest, of indebtedness of unconsolidated joint ventures, in
respect of (i) borrowed money evidenced by bonds, notes, debentures or similar
instruments, as determined in accordance with generally accepted accounting
principles, (ii) indebtedness secured by any mortgage, pledge, lien, charge,
encumbrance or any security interest existing on property owned by the Operating
Partnership or any Subsidiary directly, or indirectly through unconsolidated
joint ventures, as determined in accordance with generally accepted accounting
principles, (iii) reimbursement obligations, contingent or otherwise, in
connection with any letters of credit actually issued or amounts representing
the balance deferred and unpaid of the purchase price of any property, except
any such balance that constitutes an accrued expense or trade payable and (iv)
any lease of property by the Operating Partnership or any Subsidiary as lessee
which is reflected in the Operating Partnership's consolidated balance sheet as
a capitalized lease or any lease of property by an unconsolidated joint venture
as lessee which is reflected in such joint venture's balance sheet as a
capitalized lease, in each case, in accordance with generally accepted
accounting principles; provided, that Debt also includes, to the extent not
otherwise included, any obligation by the Operating Partnership or any
Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise,
items of indebtedness of another Person (other than the Operating Partnership or
any Subsidiary) described in clauses (i) through (iv) above (or, in the case of
any such obligation made jointly with another Person, the Operating
Partnership's or Subsidiary's allocable portion of such obligation based on its
ownership interest in the related real estate assets).
"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
TRUSTEE
SECTION 3.01 TRUSTEE. The Trustee shall not be responsible in
any manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or the due execution thereof by the Issuer. The recitals
of fact contained herein shall be taken as the statements solely of the Issuer
and the Guarantor, and the Trustee assumes no responsibility for the correctness
thereof.
9
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
SECTION 4.01 RATIFICATION OF ORIGINAL INDENTURE. This
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 Supplemental Indenture shall be read, taken and
construed as one and the same instrument.
SECTION 4.02 EFFECT OF HEADINGS. The Article and Section
headings herein are for convenience only and shall not affect the construction
hereof.
SECTION 4.03 SUCCESSORS AND ASSIGNS. All covenants and
agreements in this Supplemental Indenture by the Issuer and Guarantor shall bind
their successors and assigns, whether so expressed or not.
SECTION 4.04 SEPARABILITY CLAUSE. In case any one or more of
the provisions contained in this Supplemental Indenture shall for any reason be
held to be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 4.05 GOVERNING LAW. This Supplemental Indenture shall
be governed by and construed in accordance with the laws of the State of New
York. This Supplemental Indenture is subject to the provisions of the Trust
Indenture Act that are required to be part of this Supplemental Indenture and
shall, to the extent applicable, be governed by such provisions.
SECTION 4.06 COUNTERPARTS. This 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.
10
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this
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: /s/
-------------------------------
Attest:
/s/
- ------------------------------
SIMON PROPERTY GROUP, L.P.
By: Simon DeBartolo Group, Inc.,
its sole general partner
By: /s/
-------------------------------
Attest:
/s/
- ------------------------------
THE CHASE MANHATTAN BANK
as Trustee
By: /s/
--------------------------------------
Attest:
/s/
- ------------------------------
EXHIBIT A
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. 828783AA8 $[ ]
GLOBAL SECURITY
SIMON DEBARTOLO GROUP, L.P.
67/8% NOTE DUE NOVEMBER 15, 2006
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 November 15, 2006 (the
"Maturity Date"), and to pay interest thereon from November 26, 1996,
semi-annually in arrears on May 15 and November 15 of each year (each,
A-1
an "Interest Payment Date"), commencing on May 15, 1997, and on the
Maturity Date, at the rate of 67/8% 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.
The principal of each 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.
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 November 26, 1996, 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.
A-2
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.
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:
Title:
Attest:
- ------------------------------
Name:
Title:
A-3
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
A-4
[REVERSE OF NOTE]
SIMON DEBARTOLO GROUP, L.P.
67/8% NOTE DUE NOVEMBER 15, 2006
This security 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
the Guarantor to The Chase Manhattan Bank, as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture with
respect to the series of Securities of which this Note is a part), to which
Indenture and all indentures supplemental thereto relating to this Note
(including, without limitation, the First Supplemental Indenture, dated November
26, 1996, among the Issuer, the Guarantor and the Trustee) reference is hereby
made for a description of the rights, limitations of rights, obligations, duties
and immunities thereunder of the Trustee, the Issuer, the Guarantor and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. 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 security is one of a series designated as the Simon DeBartolo
Group, L.P. 67/8% Notes due November 15, 2006, limited in aggregate principal
amount to $250,000,000 (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, the
Guarantor and the Trustee, with the consent of the Holders of not less than a
majority of the aggregate principal
A-5
amount of the Securities at the time Outstanding of all series to be affected
(voting as one class), evidenced as provided in the Indenture, to execute
supplemental indentures adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of any supplemental
indenture or modifying in any manner the rights of the Holders of the Securities
of each series; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security so affected, (i)
change the Stated Maturity of the principal of, or premium, (if any) or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate or amount of interest thereon or any
premium payable upon the redemption or acceleration thereof, or adversely affect
any right of repayment at the option of the Holder of any Security, or change
any Place of Payment where, or the currency or currencies, currency unit or
units or composite currency or currencies in which, the principal of any
Security or any premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof, or (ii) reduce the aforesaid percentage of Securities the
Holders of which are required to consent to any such supplemental indenture, or
(iii) reduce the percentage of Securities the Holders of which are required to
consent to any waiver of compliance with certain provisions of the Indenture or
any waiver of certain defaults and consequences thereunder or to reduce the
quorum or voting requirements set forth in the Indenture, or (iv) effect certain
other changes to the Indenture or any supplemental indenture or in the rights of
Holders of the Securities. The Indenture also permits the Holders of a majority
in principal amount of the Outstanding Securities of any series (or, in the case
of certain defaults or Events of Defaults, all series of Securities), on behalf
of the Holders of all the Securities of such series (or all of the Securities,
as the case amy 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 or
the Guarantor, as the case may be, 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 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 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 Guarantor, the Trustee and any authorized
agent of the Issuer, the Guarantor 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 none of the Issuer, the Guarantor nor the Trustee nor any authorized agent
of the Issuer, the Guarantor 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.
Capitalized terms used herein which are not otherwise defined
shall have the respective meanings assigned to them in the Indenture and all
indentures supplemental thereto relating to this Note.
A-7
FORM OF NOTATION ON SECURITY RELATING TO GUARANTEE
GUARANTEE
The undersigned, as Guarantor (the "Guarantor") under the
Indenture, dated as of November 26, 1996, duly executed and delivered by Simon
DeBartolo Group, L.P. (the "Issuer") and the Guarantor, to The Chase Manhattan
Bank, as Trustee (as the same may be amended or supplemented from time to time,
the "Indenture"), and referred to in the Security upon which this notation is
endorsed (the "Security") (i) has unconditionally guaranteed as a primary
obligor and not a surety (the "Guarantee") (a) the payment of principal of,
premium, if any, interest on (including post-petition interest in any proceeding
under any federal or state law or regulation relating to any Bankruptcy Law
whether or not an allowed claim in such proceeding), and any other amounts
payable with respect to the Security, and (b) all other monetary obligations
payable by the Issuer under the Indenture and the Security; when and as the same
shall become due and payable, whether at Maturity, on redemption, by declaration
of acceleration or otherwise (all of the foregoing being hereinafter
collectively called the "Guaranteed Obligations"), in accordance with the terms
of the Security and the Indenture and (ii) has agreed to pay all costs and
expenses (including reasonable attorneys' fees) incurred by the Trustee or any
Holder in enforcing any rights under Article 17 of the Indenture.
The obligations of the Guarantor to the Holders of the
Security pursuant to this Guarantee and the Indenture are expressly set forth in
Article 17 of the Indenture and reference is hereby made to such Indenture for
the precise terms of this Guarantee.
This is a continuing Guarantee and shall remain in full force
and effect until the termination thereof under Section 1706 or until the
principal of and interest on the Security and all other Guaranteed Obligations
shall have been paid in full. If at any time any payment of the principal of, or
interest on, the Security or any other payment in respect of any Guaranteed
Obligation is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of the Issuer or otherwise, the
Guarantor's obligations hereunder and under the Guarantee with respect to such
payment shall be reinstated as though such payment had been due but not made at
such time, and Article 17 of the Indenture, to the extent theretofore
discharged, shall be reinstated in full force and effect.
Pursuant to Section 1706 of the Indenture, the obligations of
the Guarantor under the Indenture shall terminate at such time the Guarantor
merges or consolidates with the Issuer or at such other time as the Issuer
acquires all of the assets and partnership interests of the Guarantor in
accordance with the Indenture.
Notwithstanding any other provision of the Indenture to the
contrary, no recourse shall be had, whether by levy or execution or otherwise,
for the payment of any sums due under the Security, including, without
limitation, the principal of, premium, if any, or interest payable under the
Security, or for the payment or performance of any obligation under, or for any
claim based on, the Indenture or otherwise in respect thereof, against any
partner of the Guarantor, whether limited or general, including Simon DeBartolo
Group, Inc. (the "Company"), or such
A-8
partner's assets or against any principal, shareholder, officer, director,
trustee or employee of such partner. It is expressly understood that the sole
remedies under the Guarantee and the Indenture or under any other document with
respect to the Guaranteed Obligations against such parties with respect to such
amounts, obligations or claims shall be against the Guarantor.
This Guarantee shall not be valid or become obligatory for any
purpose with respect to the Security until the certificate of authentication on
such Security shall have been signed by or on behalf of the Trustee.
THE TERMS OF ARTICLE 17 OF THE INDENTURE ARE INCORPORATED
HEREIN BY REFERENCE.
Capitalized terms used herein have the same meanings given in
the Indenture unless otherwise indicated.
SIMON PROPERTY GROUP, L.P.
as Guarantor
By: Simon DeBartolo Group, Inc.,
its sole general partner
By: ______________________________
Name:
Title:
A-9
