1
EXHIBIT 1
PURCHASE AGREEMENT
Dated as of June 16, 1998
among
XXXXX XXXXXXXXX GROUP, L.P.
and
Xxxxxxx Xxxxx & Co.,
Xxxxxx Xxxxxxx & Co. Incorporated,
Chase Securities Inc.,
Xxxxxx Brothers Inc.,
X.X. Xxxxxx Securities Inc.,
NationsBanc Xxxxxxxxxx Securities LLC
and
UBS Securities
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TABLE OF CONTENTS
Page
PURCHASE AGREEMENT.......................................................... 1
SECTION 1. REPRESENTATIONS AND WARRANTIES................................ 3
(a) REPRESENTATIONS AND WARRANTIES BY THE OPERATING PARTNERSHIP... 3
(1) SIMILAR OFFERINGS........................................ 3
(2) OFFERING MEMORANDUM...................................... 3
(3) INCORPORATED DOCUMENTS................................... 3
(4) INDEPENDENT ACCOUNTANTS.................................. 4
(5) FINANCIAL STATEMENTS..................................... 4
(6) NO MATERIAL ADVERSE CHANGE IN BUSINESS................... 4
(7) GOOD STANDING OF THE COMPANY............................. 5
(8) GOOD STANDING OF THE OPERATING PARTNERSHIP............... 5
(9) GOOD STANDING OF XXXXX XXXXXXXXX ENTITIES................ 6
(10) GOOD STANDING OF PROPERTY PARTNERSHIPS................... 6
(11) CAPITALIZATION........................................... 6
(12) AUTHORIZATION OF PURCHASE AGREEMENT...................... 7
(13) AUTHORIZATION OF THE REGISTRATION RIGHTS AGREEMENT....... 7
(14) AUTHORIZATION OF THE INDENTURE........................... 7
(15) AUTHORIZATION OF SECURITIES.............................. 8
(16) DESCRIPTIONS OF THE SECURITIES AND THE INDENTURE......... 8
(17) ABSENCE OF DEFAULTS AND CONFLICTS........................ 8
(18) ABSENCE OF LABOR DISPUTE................................. 9
(19) ABSENCE OF PROCEEDINGS................................... 9
(20) REIT QUALIFICATION....................................... 9
(21) INVESTMENT COMPANY ACT................................... 10
(22) INTELLECTUAL PROPERTY.................................... 10
(23) ABSENCE OF FURTHER REQUIREMENTS.......................... 10
(24) POSSESSION OF LICENSES AND PERMITS....................... 10
(25) TITLE TO PROPERTY........................................ 10
(26) ENVIRONMENTAL LAWS....................................... 11
(27) TAX RETURNS.............................................. 12
(28) ENVIRONMENTAL CONSULTANTS................................ 12
(29) PROPERTY INFORMATION..................................... 12
(30) RULE 144A ELIGIBILITY.................................... 12
(31) NO GENERAL SOLICITATION.................................. 12
(32) NO REGISTRATION REQUIRED................................. 13
(33) REPORTING COMPANY........................................ 13
(34) NO DIRECTED SELLING EFFORTS.............................. 13
(b) OFFICERS' CERTIFICATES........................................ 13
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Page
SECTION 2. Sale and Delivery to the Initial Purchasers; Closing.......... 13
(a) Securities................................................ 13
(b) Payment................................................... 13
(c) Qualified Institutional Buyer............................. 14
(d) Denominations; Registration............................... 14
SECTION 3. Covenants of the Operating Partnership........................ 14
(a) Offering Memorandum....................................... 14
(b) Notice and Effect of Material Events...................... 14
(c) Amendment to Offering Memorandum and Supplements.......... 15
(d) Blue Sky Qualifications................................... 15
(e) Reporting Requirements.................................... 15
(f) REIT Qualification........................................ 15
(g) Use of Proceeds........................................... 15
(h) Exchange Act Filings...................................... 16
(i) Supplemental Indentures................................... 16
(j) Ratings................................................... 16
(k) DTC....................................................... 16
(l) Registration Rights Agreement............................. 16
SECTION 4. Payment of Expenses........................................... 16
(a) Expenses.................................................. 16
(b) Termination of Agreement.................................. 17
SECTION 5. Conditions of Initial Purchaser's Obligations................. 17
(a) Execution of Registration Rights Agreement................ 17
(b) Opinion of Counsel for Operating Partnership.............. 17
(c) Opinion of Counsel for Initial Purchasers................. 17
(d) Officers' Certificate..................................... 18
(e) Accountant's Comfort Letter............................... 18
(f) Bring-down Comfort Letter................................. 18
(g) Maintenance of Rating..................................... 18
(h) Additional Documents...................................... 19
(i) Termination of this Agreement............................. 19
SECTION 6. Subsequent Offers and Resales of the Securities............... 19
(a) Offer and Sale Procedures................................. 19
(b) Covenants of the Operating Partnership.................... 20
(c) Resale Pursuant to Rule 903 of Regulation S or Rule 144A.. 21
(d) Representations and Warranties of Initial Purchasers...... 22
SECTION 7. Indemnification............................................... 22
(a) Indemnification of Initial Purchasers..................... 22
(b) Indemnification of Operating Partnership, General
Partners' Directors and Officers........................ 23
(c) Actions Against Parties; Notification..................... 23
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Page
(d) Settlement Without Consent If Failure to Reimburse........ 23
SECTION 8. Contribution.................................................. 24
SECTION 9. Representations, Warranties and Agreements to Survive
Delivery.................................................... 25
SECTION 10. Termination................................................... 25
(a) Termination; General...................................... 25
(b) Liabilities............................................... 26
SECTION 11. Default by One or More of the Initial Purchasers.............. 26
SECTION 12. Notices....................................................... 27
SECTION 13. Parties....................................................... 27
SECTION 14. GOVERNING LAW AND TIME........................................ 27
SECTION 15. Effect of Headings............................................ 27
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XXXXX XXXXXXXXX GROUP, L.P.
(a Delaware limited partnership)
$375,000,000 6 5/8% Notes due 2003
$300,000,000 6 3/4% Notes due 2005
$200,000,000 7 3/8% Notes due 2018
$200,000,000 7.0% MandatOry Par Put Remarketed
Securities(SM) ("MOPPRS(SM)") due 2028
PURCHASE AGREEMENT
June 16, 1998
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
as Representatives of the several Initial Purchasers
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Xxxxx XxXxxxxxx Group, L.P., a Delaware limited partnership (the
"Operating Partnership"), confirms its agreement with each of the Initial
Purchasers named in Schedule 1 hereto (collectively, the "Initial Purchasers",
which term shall also include any initial purchaser substituted as hereinafter
provided in Section 11 hereof), for whom Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), and Xxxxxx Xxxxxxx & Co.
Incorporated ("Xxxxxx Xxxxxxx") are acting as representatives (in such capacity,
the "Representatives"), with respect to the issue and sale by the Operating
Partnership and the purchase by the Initial Purchasers, acting severally and not
jointly, of the respective principal amounts set forth in said Schedule 1 of
$375,000,000 aggregate principal amount of its 6 5/8% senior unsecured notes due
June 15, 2003 (the "2003 Notes"), $300,000,000 aggregate principal amount of its
6 3/4% senior unsecured notes due 2005 (the ----- "2005 Notes"), $200,000,000
aggregate principal amount of its 7 3/8% senior unsecured notes due 2018 (the
------ "2018 Notes" and, together with the 2003 Notes and the 2005 Notes, the
"Notes") and $200,000,000 aggregate
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principal amount of its 7.0% MandatOry Par Put Remarketed Securities(SM) due
2028 (the "MOPPRS(SM)" and, together with the Notes, the "Securities").
-----------
"MandatOry Par Put Remarketed Securities(SM)" and "MOPPRS(SM)" are service marks
owned by Xxxxxxx Xxxxx & Co. Incorporated.
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The Securities will be issued under an indenture, dated as of November 26, 1996
(the "Original Indenture"), between the Operating Partnership, Simon Property
Group, L.P., a Delaware limited partnership (which, effective December 31, 1997,
was merged into the Operating Partnership) and The Chase Manhattan Bank, as
trustee (the "Trustee"). The title, aggregate principal amount, rank, interest
rate, timing of interest payments, stated maturity date, redemption and/or
repayment provisions and any other variable terms of the Securities shall be
established by or pursuant to a sixth supplemental indenture to the Original
Indenture (as so supplemented, and as the same may be amended or further
supplemented from time to time, the "Indenture") to be entered into between the
Operating Partnership and the Trustee on or prior to the Closing Time (as
defined in Section 2(b)). Securities issued in book-entry form will be issued to
Cede & Co. as nominee of The Depository Trust Company ("DTC") pursuant to a
letter agreement, to be dated as of the Closing Time (the "DTC Agreement"),
among the Operating Partnership, the Trustee and DTC.
The Operating Partnership understands that the Initial Purchasers
propose to make an offering of the Securities on the terms and in the manner set
forth herein and agrees that the Initial Purchasers may resell, subject to the
conditions set forth herein, all or a portion of the Securities to purchasers
("Subsequent Purchasers") at any time after the date of this Agreement. The
Securities are to be offered and sold through the Initial Purchasers without
being registered under the Securities Act of 1933, as amended (the "1933 Act"),
in reliance upon exemptions therefrom. Pursuant to the terms of the Securities
and the Indenture, investors that acquire Securities may only resell or
otherwise transfer such Securities if such Securities are hereafter registered
under the 1933 Act or if an exemption from the registration requirements of the
1933 Act is available (including the exemption afforded by Rule 144A ("Rule
144A") or Regulation S ("Regulation S") of the rules and regulations promulgated
under the 1933 Act by the Securities and Exchange Commission (the
"Commission")).
The Operating Partnership has prepared and delivered to each Initial
Purchaser copies of a preliminary offering memorandum dated June 5, 1998 (the
"Preliminary Offering Memorandum") and has prepared and will deliver to each
Initial Purchaser on the date hereof copies of a final offering memorandum dated
June 16, 1998 (the "Final Offering Memorandum"), each for use by such Initial
Purchaser in connection with its solicitation of purchases of, or offering of,
the Securities. "Offering Memorandum" means, with respect to any date or time
referred to in this Agreement, the most recent offering memorandum (whether the
Preliminary Offering Memorandum or the Final Offering Memorandum, or any
amendment or supplement to either such document), including exhibits thereto and
any documents incorporated therein by reference, which has been prepared and
delivered by the Operating Partnership to the Initial Purchasers in connection
with their solicitation of purchases of, or offering of, the Securities.
Capitalized terms used but not otherwise defined shall have the meanings given
to those terms in the Offering Memorandum.
The Initial Purchasers and their direct and indirect transferees will
be entitled to the benefits of a Registration Rights Agreement, to be dated as
of the Closing Time and to be substantially in the form attached hereto as
Exhibit A (the "Registration Rights Agreement").
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All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Offering Memorandum (or other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information
which are incorporated by reference in the Offering Memorandum; and all
references in this Agreement to amendments or supplements to the Offering
Memorandum shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934 (the "1934 Act") which is incorporated by
reference in the Offering Memorandum.
The term "subsidiary" means a corporation or a partnership, a majority
of the outstanding voting stock or partnership interests, as the case may be, of
which is owned or controlled, directly or indirectly, by the Operating
Partnership and/or Xxxxx XxXxxxxxx Group, Inc., a Maryland corporation and a
general partner of the Operating Partnership (the "Company") or by one or more
other subsidiaries of the Operating Partnership and/or the Company.
PARAGRAPH NUMBERING DEFINITION SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE OPERATING PARTNERSHIP. Each
of the Company, the Operating Partnership, SD Property Group, Inc. (formerly
known as XxXxxxxxx Realty Corporation ("XxXxxxxxx")), an Ohio corporation and
the managing general partner of the Operating Partnership ("SD Property"),
represents and warrants to each Initial Purchaser, as of the date hereof and as
of the Closing Time (as defined below) (in each case, a "Representation Date"),
and agrees with each Initial Purchaser, as follows:
(1) SIMILAR OFFERINGS. None of the Company, the Operating
Partnership, SD Property nor any of their affiliates, as such term is
defined in Rule 501(b) under the 1933 Act (each, an "Affiliate"), has,
directly or indirectly, solicited any offer to buy, sold or offered to
sell or otherwise negotiated in respect of, or will solicit any offer
to buy or offer to sell or otherwise negotiate in respect of, in the
United States or to any United States citizen or resident, any security
which is or would be integrated with the sale of the Securities in a
manner that would require the Securities to be registered under the
0000 Xxx.
(2) OFFERING MEMORANDUM. The Offering Memorandum does not, and at
the Closing Time will not, include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided that this representation, warranty
and agreement shall not apply to statements in or omissions from the
Offering Memorandum made in reliance upon and in conformity with
information furnished to the Operating Partnership in writing by any
Initial Purchaser through the Representatives expressly for use in the
Offering Memorandum.
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(3) Incorporated Documents. The documents incorporated by reference
in the Offering Memorandum which were or hereafter are filed with the
Commission at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read
together with the other information in the Offering Memorandum, at the
date of the Offering Memorandum, and at the Closing Time, do not and
will not include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(4) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included, or incorporated
by reference, in the Offering Memorandum are independent public
accountants with respect to the Operating Partnership and its
subsidiaries within the meaning of Regulation S-X under the 1933 Act.
(5) Financial Statements. The financial statements included, or
incorporated by reference, in the Offering Memorandum, together with
the related schedules and notes, as well as those financial statements,
schedules and notes of any other entity included therein, present
fairly the financial position of the respective entity or entities or
group presented therein at the respective dates indicated and the
statement of operations, stockholders' equity and cash flows of such
entity, as the case may be, for the periods specified. Such financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout
the periods involved. The supporting schedules, if any, included, or
incorporated by reference, in the Offering Memorandum present fairly,
in accordance with GAAP, the information stated therein. The selected
financial data, the summary financial information and other financial
information and data included, or incorporated by reference, in the
Offering Memorandum present fairly the information shown therein and
have been compiled on a basis consistent with that of the audited
financial statements included, or incorporated by reference, in the
Offering Memorandum. In addition, any pro forma financial information
and the related notes thereto, if any, included, or incorporated by
reference, in the Offering Memorandum present fairly the information
shown therein, have been prepared in accordance with the Commission
rules and guidelines and the guidelines of the American Institute of
Certified Public Accountants ("AICPA") with respect to pro forma
information and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
(6) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Offering Memorandum,
except as otherwise stated therein, (A) there has been no material
adverse change in the condition, financial or otherwise, or in the
earnings, assets, business affairs or business prospects of the
Company,
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the Operating Partnership, M.S. Management Associates, Inc., a Delaware
corporation ("SPG Management Company"), M.S. Management Associates
(Indiana), Inc., an Indiana corporation ("Management (Indiana)"), Simon
MOA, Inc., an Indiana corporation ("MOA"), XxXxxxxxx Properties
Management, Inc., an Ohio corporation ("DRC Management," and together
with SPG Management Company, Management (Indiana) and MOA, the
"Management Companies"), The Retail Property Trust ("RPT"), SM
Portfolio Limited Partnership, SDG EQ Developers Limited Partnership,
SD Property, Simon Property Group (Delaware), Inc., Xxxxxxxxx Xxxxx
Property, Inc., SDG Forum Developers, Inc., XxXxxxxxx Properties, Inc.,
XxXxxxxxx Properties II, Inc., XxXxxxxxx Properties III, Inc. and SDG
EQ Associates, Inc. (collectively, the "Qualified Reit Subs") or any
subsidiary of the Operating Partnership (other than any Property
Partnership (as defined below)) not listed among the foregoing
entities, (the Company, the Operating Partnership, the Management
Companies, and the Qualified Reit Subs and such subsidiaries being
sometimes hereinafter collectively referred to as the "Xxxxx XxXxxxxxx
Entities" and individually as a "Xxxxx XxXxxxxxx Entity"), or of any
entity which owns any SDG Property (as such term is defined in the
Offering Memorandum) or any direct interest in any SDG Property (the
"Property Partnerships") whether or not arising in the ordinary course
of business, which would be material to the Company and the Operating
Partnership, taken as a whole (anything which would be material to the
Company and the Operating Partnership, taken as a whole, being
hereinafter referred to as "Material"; and such a material adverse
change, a "Material Adverse Effect"), (B) no casualty loss or
condemnation or other adverse event with respect to the SDG Properties
has occurred which would be Material, (C) there have been no
transactions or acquisitions entered into by the Xxxxx XxXxxxxxx
Entities or the Property Partnerships, other than those in the ordinary
course of business, which would be Material, (D) except for
distributions in amounts per unit that are consistent with past
practices, there has been no distribution of any kind declared, paid or
made by the Operating Partnership on any of its general, limited and/or
preferred partnership interests, and (E) there has been no change in
the capital stock of the corporate Xxxxx XxXxxxxxx Entities or in the
partnership interests of the Operating Partnership or any Property
Partnership, or any increase in the indebtedness of the Xxxxx XxXxxxxxx
Entities, the Property Partnerships or the SDG Properties which would
be Material.
(7) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Maryland and has corporate power and
authority to own, lease and operate its properties and to conduct the
business in which it is engaged and proposes to engage as described in
the Offering Memorandum and to enter into and perform its obligations
under, or as contemplated under, this Agreement. The Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or be
in good standing would not result in a Material Adverse Effect.
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(8) Good Standing of the Operating Partnership. The Operating
Partnership is duly organized and validly existing as a limited
partnership in good standing under the laws of the State of Delaware,
with the requisite power and authority to own, lease and operate its
properties, to conduct the business in which it is engaged and proposes
to engage as described in the Offering Memorandum and to enter into and
perform its obligations under this Agreement. The Operating Partnership
is duly qualified or registered as a foreign partnership and is in good
standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure to so
qualify or register would not have a Material Adverse Effect. SD
Property is the managing general partner of the Operating Partnership
and the Company is a general partner of the Operating Partnership. The
amended and restated agreement of limited partnership of the Operating
Partnership (the "OP Partnership Agreement") is in full force and
effect in the form in which it was incorporated by reference as an
exhibit to the Company's Registration Statement on Form S-3 (No.
333-11431), except for subsequent amendments relating to the admission
of new partners to the Operating Partnership.
(9) Good Standing of Xxxxx XxXxxxxxx Entities. Each of the Xxxxx
XxXxxxxxx Entities other than the Company and the Operating Partnership
has been duly organized and is validly existing as a corporation,
limited partnership, limited liability company or other entity, as the
case may be, in good standing under the laws of the state of its
jurisdiction of incorporation or organization, as the case may be, with
the requisite power and authority to own, lease and operate its
properties, and to conduct the business in which it is engaged or
proposes to engage as described in the Offering Memorandum. Each such
entity is duly qualified or registered as a foreign corporation,
limited partnership or limited liability company or other entity, as
the case may be, to transact business and is in good standing in each
jurisdiction in which such qualification or registration is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or register
would not have a Material Adverse Effect. Except as otherwise stated in
the Offering Memorandum, all of the issued and outstanding capital
stock or other equity interests of each such entity has been duly
authorized and validly issued and is fully paid and non-assessable, has
been offered and sold in compliance with all applicable laws (including
without limitation, federal or state securities laws) and are owned,
directly or indirectly, by the Company, the Management Companies or the
Operating Partnership, in each case free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity
(collectively, "Liens"). No shares of capital stock or other equity
interests of such entities are reserved for any purpose, and there are
no outstanding securities convertible into or exchangeable for any
capital stock or other equity interests of such entities and no
outstanding options, rights (preemptive or otherwise) or warrants to
purchase or to subscribe for shares of such capital stock or any other
securities of such entities, except as disclosed in the Offering
Memorandum. No such shares of capital stock or other
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equity interests of such entities were issued in violation of
preemptive or other similar rights arising by operation of law, under
the charter or bylaws of such entity or under any agreement to which
any Xxxxx XxXxxxxxx Entity is a party.
(10) Good Standing of Property Partnerships. Each of the Property
Partnerships is duly organized and validly existing as a limited or
general partnership, as the case may be, in good standing under the
laws of its respective jurisdiction of formation. Each of the Property
Partnerships has the requisite power and authority to own, lease and
operate its properties, and to conduct the business in which it is
engaged. Each of the partnership agreements of the Property
Partnerships is in full force and effect. Each of the Property
Partnerships is duly qualified or registered as a foreign partnership
to transact business and is in good standing in each jurisdiction in
which such qualification or registration is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or register would not have a
Material Adverse Effect.
(11) Capitalization. The issued and outstanding units of general,
limited and/or preferred partner interests of the Operating Partnership
is as set forth on Schedule 3 hereto (except for subsequent issuances
thereof, if any, contemplated under this Agreement or referred to in
the Offering Memorandum). Such units of partners' equity have been duly
authorized and validly issued by the Operating Partnership and are
fully paid and non-assessable and have been offered and sold or
exchanged in compliance with all applicable laws (including, without
limitation, federal and state securities laws), and none of such units
of partners' equity were issued in violation of preemptive or other
similar rights arising by operation of law, under the certificate of
limited partnership and the OP Partnership Agreement of the Operating
Partnership or under any agreement to which the Operating Partnership
or any of the other Xxxxx XxXxxxxxx Entities is a party or otherwise.
There are no units of partners' equity of the Operating Partnership
reserved for any purpose and there are no outstanding securities
convertible into or exchangeable for any units of partners' equity of
the Operating Partnership and, other than this Agreement, there are no
outstanding options, rights (preemptive or otherwise) or warrants to
purchase from the Operating Partnership or to subscribe for with the
Operating Partnership such units of partners' equity or any other
securities of the Operating Partnership.
(12) Authorization of Purchase Agreement. This Agreement has been
duly authorized, executed and delivered by the Operating Partnership.
(13) Authorization of Remarketing Agreement. The Remarketing
Agreement, dated as of June 16, 1998, between Xxxxxxx Xxxxx, as
Remarketing Dealer, and the Operating Partnership (the "Remarketing
Agreement") has been duly authorized, executed and delivered by the
Operating Partnership and is a valid and legally binding agreement of
the Operating Partnership, enforceable against the Operating
Partnership in accordance with
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its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally or by general
equitable principles.
(14) Authorization of the Registration Rights Agreement. The
Registration Rights Agreement has been duly authorized, executed and
delivered by the Operating Partnership and, assuming the due
authorization, execution and delivery thereof by or on behalf of the
Initial Purchasers, will constitute a valid and legally binding
agreement of the Operating Partnership, enforceable against the
Operating Partnership in accordance with its terms except (1) to the
extent that enforceability thereof may be limited by (A) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (B) general principles of equity (regardless of whether
considered at law or in equity); (2) that rights to indemnity and
contribution contained in the Registration Rights Agreement may be
limited by state or federal Securities laws or public policy and (3)
that rights to receive the Special Interest Premium (as such term is
defined therein) contained therein, to the extent it may be construed
as liquidated damages, may be unenforceable, in whole or in part.
(15) Authorization of the Indenture. For the Securities being sold
pursuant to this Agreement, the Indenture has been, or prior to the
issuance of the Securities thereunder will have been, duly authorized,
executed and delivered by the Operating Partnership and, upon such
authorization, execution and delivery, will constitute a valid and
legally binding agreement of the Operating Partnership, enforceable
against the Operating Partnership in accordance with its terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles. The Original Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act") and conforms,
in all material respects, to the descriptions thereof contained in the
Offering Memorandum.
(16) Authorization of Securities. The Securities have been duly
authorized by the Operating Partnership for issuance and sale pursuant
to this Agreement. Such Securities, when issued and authenticated in
the manner provided for in the Indenture and delivered by the Operating
Partnership pursuant to this Agreement against payment of the
consideration therefor, will constitute valid and legally binding,
unsecured obligations of the Operating Partnership, enforceable against
the Operating Partnership in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles. Such Securities will be in the form contemplated by, and
each registered holder thereof is entitled to the benefits of, the
Indenture. Such Securities rank and will rank on a parity with all
unsecured indebtedness (other than subordinated indebtedness) of the
Operating Partnership that is outstanding on a
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Representation Date and senior to all subordinated indebtedness that is
outstanding on a Representation Date or that may be incurred
thereafter, except that such Securities will be effectively subordinate
to the prior claims of each secured mortgage lender to any specific SDG
Property which secures such lender's mortgage and to any claims of
creditors of Subsidiaries.
(17) Descriptions of the Securities and the Indenture. The
Securities being sold pursuant to this Agreement and the Indenture will
conform in all material respects to the statements relating thereto
contained in the Offering Memorandum and will be in substantially the
respective forms previously delivered to the Initial Purchasers.
(18) Absence of Defaults and Conflicts. None of the Xxxxx XxXxxxxxx
Entities or any Property Partnership is in violation of its charter,
by-laws, certificate of limited partnership or partnership agreement or
other organizational document, as the case may be, or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which any such entity is a party or by which or any of
them may be bound, or to which any of its property or assets or any SDG
Property may be bound or subject (collectively, "Agreements and
Instruments"), except for such violations or defaults that would not
result in a Material Adverse Effect. The execution, delivery and
performance of this Agreement, the Remarketing Agreement, the
Securities, the Indenture, the Registration Rights Agreement and any
other agreement or instrument entered into or issued or to be entered
into or issued by the Operating Partnership in connection with the
transactions contemplated hereby or thereby or in the Offering
Memorandum and the consummation of the transactions contemplated herein
and in the Offering Memorandum (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities
as described under the caption "Use of Proceeds") and compliance by the
Operating Partnership with its obligations hereunder and thereunder
have been duly authorized by all necessary partnership action, and do
not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any Lien upon any assets, properties or
operations of the Operating Partnership or any other Xxxxx XxXxxxxxx
Entity or any Property Partnership pursuant to, any Agreements and
Instruments, except for such conflicts, breaches, defaults, Repayment
Events or liens, charges or encumbrances that would not result in a
Material Adverse Effect, nor will such action result in any violation
of the provisions of the partnership agreement and certificate of
limited partnership of the Operating Partnership or the organizational
documents of any other Xxxxx XxXxxxxxx Entity or any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Operating Partnership, any other Xxxxx
XxXxxxxxx Entity or any Property Partnership or any of their assets,
properties or operations, except for such violations that would not
have a Material
15
Adverse Effect. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or
a material portion of such indebtedness by the Operating Partnership,
any other Xxxxx XxXxxxxxx Entity or any Property Partnership.
(19) Absence of Labor Dispute. Except as otherwise described in the
Offering Memorandum, no labor dispute with the employees of the
Operating Partnership or any other Xxxxx XxXxxxxxx Entity or any
Property Partnership exists or, to the knowledge of the Operating
Partnership, is imminent, and the Operating Partnership is not aware of
any existing or imminent labor disturbance by the employees of any of
its or any subsidiary's principal suppliers, manufacturers, customers
or contractors, which dispute or disturbance, in either case, may
reasonably be expected to result in a Material Adverse Effect.
(20) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or by any court or governmental agency
or body, domestic or foreign, now pending, or to the knowledge of the
Operating Partnership threatened against or affecting the Operating
Partnership, any other Xxxxx XxXxxxxxx Entity, or any Property
Partnership or any officer or director of the Operating Partnership
which might reasonably be expected to result in a Material Adverse
Effect, or which might reasonably be expected to materially and
adversely affect the assets, properties or operations thereof or the
consummation of this Agreement, the Remarketing Agreement, the
Indenture or the Registration Rights Agreement or the transactions
contemplated herein or therein. The aggregate of all pending legal or
governmental proceedings to which the Operating Partnership or any
other Xxxxx XxXxxxxxx Entity, or any Property Partnership is a party or
of which any of their respective assets, properties or operations is
the subject which are not described in the Offering Memorandum
including ordinary routine litigation incidental to the business, could
not reasonably be expected to result in a Material Adverse Effect.
(21) REIT Qualification. Each of the Company, SD Property and RPT
has been, and upon the sale of the Securities will continue to be,
organized and operated in conformity with the requirements for
qualification as a real estate investment trust under the Internal
Revenue Code of 1986, as amended (the "Code"), and its proposed method
of operation will enable it to continue to meet the requirements for
taxation as a real estate investment trust under the Code.
(22) Investment Company Act. Each of the Operating Partnership, the
other Xxxxx XxXxxxxxx Entities and the Property Partnerships is not,
and upon the issuance and sale of the Securities as herein contemplated
and the application of the net proceeds therefrom as described in the
Offering Memorandum will not be, an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the "1940
Act").
16
(23) Intellectual Property. To the knowledge of the Operating
Partnership, none of the Xxxxx XxXxxxxxx Entities or the Property
Partnerships is required to own, possess or obtain the consent of any
holder of any trademarks, service marks, trade names or copyrights not
now lawfully owned, possessed or licensed in order to conduct the
business now operated by such entity.
(24) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency or any other entity or person is necessary or required for the
performance by the Operating Partnership of its obligations under this
Agreement, the Remarketing Agreement, the Indenture or the Registration
Rights Agreement or in connection with the transactions contemplated
under this Agreement, the Remarketing Agreement, the Indenture or the
Registration Rights Agreement, except such as have been already
obtained or as may be required under state securities laws or under the
by-laws and rules of the National Association of Securities Dealers,
Inc. (the "NASD").
(25) Possession of Licenses and Permits. The Operating Partnership
and the other Xxxxx XxXxxxxxx Entities and each Property Partnership
possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them except
for such Governmental Licenses the failure to obtain would not, singly
or in the aggregate, result in a Material Adverse Effect. The Operating
Partnership and the other Xxxxx XxXxxxxxx Entities and each Property
Partnership are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, result in a Material Adverse Effect. All of
the Governmental Licenses are valid and in full force and effect,
except where the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect
would not result in a Material Adverse Effect. None of the Operating
Partnership, the other Xxxxx XxXxxxxxx Entities or any Property
Partnership has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(26) Title to Property. The Operating Partnership, the other Xxxxx
XxXxxxxxx Entities and the Property Partnerships have good and
marketable title to the SDG Properties free and clear of Liens, except
(A) as otherwise stated in the Offering Memorandum, or referred to in
any title policy for such Property, or (B) those which do not, singly
or in the aggregate, Materially (i) affect the value of such property
or (ii) interfere with the use made and proposed to be made of such
property by the Operating Partnership, any other Xxxxx XxXxxxxxx Entity
or any Property Partnership. All leases and subleases under which the
Operating Partnership, any other Xxxxx XxXxxxxxx Entity or any Property
Partnerships hold
17
properties are in full force and effect, except for such which would
not have a Material Adverse Effect. None of the Operating Partnership,
the other Xxxxx XxXxxxxxx Entities or the Property Partnerships has
received any notice of any Material claim of any sort that has been
asserted by anyone adverse to the rights of the Operating Partnership,
any other Xxxxx XxXxxxxxx Entity or the Property Partnerships under any
material leases or subleases, or affecting or questioning the rights of
the Operating Partnership, such other Xxxxx XxXxxxxxx Entity or the
Property Partnerships of the continued possession of the leased or
subleased premises under any such lease or sublease, other than claims
that would not have a Material Adverse Effect. All liens, charges,
encumbrances, claims or restrictions on or affecting any of the SDG
Properties and the assets of any Xxxxx XxXxxxxxx Entity or any Property
Partnership which are required to be disclosed in the Offering
Memorandum are disclosed therein. None of the Xxxxx XxXxxxxxx Entities,
the Property Partnerships or any tenant of any of the SDG Properties is
in default under any of the ground leases (as lessee) or space leases
(as lessor or lessee, as the case may be) relating to, or any of the
mortgages or other security documents or other agreements encumbering
or otherwise recorded against, the SDG Properties, and the Operating
Partnership does not know of any event which, but for the passage of
time or the giving of notice, or both, would constitute a default under
any of such documents or agreements, in each case, other than such
defaults that would not have a Material Adverse Effect. No tenant under
any of the leases, pursuant to which the Operating Partnership or any
Property Partnership, as lessor, leases its Property, has an option or
right of first refusal to purchase the premises demised under such
lease, the exercise of which would have a Material Adverse Effect. Each
of the SDG Properties complies with all applicable codes, laws and
regulations (including, without limitation, building and zoning codes,
laws and regulations and laws relating to access to the SDG
Properties), except for such failures to comply that would not in the
aggregate have a Material Adverse Effect. The Operating Partnership
does not have knowledge of any pending or threatened condemnation
proceeding, zoning change, or other proceeding or action that will in
any manner affect the size of, use of, improvements on, construction on
or access to, the SDG Properties, except such proceedings, changes or
actions that would not have a Material Adverse Effect.
(27) Environmental Laws. Except as otherwise stated in the Offering
Memorandum and except such violations as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the
Operating Partnership, any of the other Xxxxx XxXxxxxxx Entities nor
any Property Partnership is in violation of any federal, state, local
or foreign statute, law, rule, regulation, ordinance, code, policy or
rule of common law and any judicial or administrative interpretation
thereof including any judicial or administrative order, consent, decree
of judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) including, without
limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively,
18
"Hazardous Materials") or to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (B) the Operating
Partnership, the other Xxxxx XxXxxxxxx Entities and the Property
Partnerships have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance with
their requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against
the Operating Partnership, any of the other Xxxxx XxXxxxxxx Entities or
the Property Partnerships and (D) there are no events or circumstances
that might reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Operating Partnership, any of the other Xxxxx XxXxxxxxx Entities or any
Property Partnership relating to any Hazardous Materials or the
violation of any Environmental Laws.
(28) Tax Returns. Each of the Xxxxx XxXxxxxxx Entities and the
Property Partnerships has filed all federal, state, local and foreign
income tax returns which have been required to be filed (except in any
case in which an extension has been granted or the failure to so file
would not have a Material Adverse Effect) and has paid all taxes
required to be paid and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable,
except, in all cases, for any such tax, assessment, fine or penalty
that is being contested in good faith.
(29) Environmental Consultants. None of the environmental
consultants which prepared environmental and asbestos inspection
reports with respect to certain of the SDG Properties was employed for
such purpose on a contingent basis or has any substantial interest in
any Xxxxx XxXxxxxxx Entity or any Property Partnership and none of them
nor any of their directors, officers or employees is connected with any
Xxxxx XxXxxxxxx Entity or any Property Partnership as a promoter,
selling agent, voting trustee, director, officer or employee.
(30) Property Information. Information in respect of the SDG
Properties presented in the Offering Memorandum is true and accurate in
all Material respects as of the date of Offering Memorandum.
(31) Rule 144A Eligibility. The Securities are eligible for resale
pursuant to Rule 144A and will not be, at the Closing Time, of the same
class as securities listed on a national securities exchange registered
under Section 6 of the 1934 Act, or quoted in a U.S. automated
interdealer quotation system.
(32) No General Solicitation. None of the Operating Partnership,
its Affiliates or any person acting on any of their behalf (other than
the Initial Purchasers, as to whom the
19
Operating Partnership makes no representation) has engaged or will
engage, in connection with the offering of the Securities, in any form
of general solicitation or general advertising within the meaning of
Rule 502(c) under the 1933 Act.
(33) No Registration Required. Subject to compliance by the Initial
Purchasers with the representations and warranties set forth in Section
2 and the procedures set forth in Section 6 hereof, it is not necessary
in connection with the offer, sale and delivery of the Securities to
the Initial Purchasers and to each Subsequent Purchaser in the manner
contemplated by this Agreement and the Offering Memorandum to register
the Securities under the 1933 Act or to qualify the Indenture under the
1939 Act.
(34) Reporting Company. The Operating Partnership is subject to the
reporting requirements of Section 13 or Section 15(d) of the 1934 Act.
(35) No Directed Selling Efforts. With respect to those Securities
sold in reliance on Regulation S, (A) none of the Operating
Partnership, its Affiliates or any person acting on any of their behalf
(other than the Initial Purchasers, as to whom the Operating
Partnership makes no representation) has engaged or will engage in any
directed selling efforts within the meaning of Regulation S and (B)
each of the Operating Partnership and its Affiliates and any person
acting on any of their behalf (other than the Initial Purchasers, as to
whom the Operating Partnership makes no representation) has complied
and will comply with the offering restrictions requirement of
Regulation S.
(b) Officers' Certificates. Any certificate signed by any officer of
the Operating Partnership or any authorized representative of the Company and SD
Property and delivered to the Representatives or to counsel for the Initial
Purchasers in connection with the offering of the Securities shall be deemed a
representation and warranty by such entity or person, as the case may be, to
each Initial Purchaser as to the matters covered thereby on the date of such
certificate.
2. Sale and Delivery to the Initial Purchasers; Closing.
(a) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Operating Partnership agrees to sell to each Initial Purchaser, severally and
not jointly, and each Initial Purchaser, severally and not jointly, agrees to
purchase from the Operating Partnership, at the price set forth in Schedule 2,
the aggregate principal amount of Securities set forth in Schedule 1 opposite
the name of such Initial Purchaser, plus any additional principal amount of
Securities which such Initial Purchaser may become obligated to purchase
pursuant to the provisions of Section 11 hereof.
(b) Payment. Payment of the purchase price for, and delivery of, the
Securities shall be made at the office of Xxxxxx & Xxxxx LLP, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000, or at such other place as shall be agreed upon by
the Representatives and the Operating Partnership,
20
at 10:00 A.M. (Eastern time) on the fourth business day after the date hereof
(unless postponed in accordance with the provisions of Section 11), or such
other time not later than ten business days after such date as shall be agreed
upon by the Representatives and the Operating Partnership (such time and date of
payment and delivery being herein called the "Closing Time").
Payment shall be made to the Operating Partnership by wire transfer of
immediately available funds to a bank account designated by the Operating
Partnership, against delivery to the Representatives or their designee for the
respective accounts of the Initial Purchasers of the Securities to be purchased
by them. It is understood that each Initial Purchaser has authorized the
Representatives, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Securities which it has agreed to
purchase. Xxxxxxx Xxxxx, individually and not as representative of the Initial
Purchasers, may (but shall not be obligated to) make payment of the purchase
price for the Securities to be purchased by any Initial Purchaser whose funds
have not been received by the Closing Time, but such payment shall not relieve
such Initial Purchaser from its obligations hereunder.
(c) Qualified Institutional Buyer. Each Initial Purchaser severally and
not jointly represents and warrants to, and agrees with, the Operating
Partnership that it is a "qualified institutional buyer" within the meaning of
Rule 144A under the 1933 Act (a "Qualified Institutional Buyer") and an
"accredited investor" within the meaning of Rule 501(a) under the 1933 Act (an
"Accredited Investor").
(d) Denominations; Registration. The Securities shall be in such
denominations and registered in such names as the Representatives may request in
writing at least one full business day prior to the Closing Time. The Securities
will be made available for examination and packaging by the Initial Purchasers
in The City of New York not later than 10:00 A.M. (Eastern time) on the business
day prior to the Closing Time.
3. Covenants of the Operating Partnership.
The Operating Partnership covenants with each Initial Purchaser as
follows:
(a) Offering Memorandum. The Operating Partnership, as promptly as
possible, will furnish to each Initial Purchaser, without charge, such number of
copies of the Preliminary Offering Memorandum, the Final Offering Memorandum and
any amendments and supplements thereto and documents incorporated by reference
therein as such Initial Purchaser may reasonably request.
(b) Notice and Effect of Material Events. The Operating Partnership
will immediately notify each Initial Purchaser, and confirm such notice in
writing, of (x) any filing made by the Operating Partnership of information
relating to the offering of the Securities with any securities exchange or any
other regulatory body in the United States or any other jurisdiction, and (y)
prior to
21
the completion of the placement of the Securities by the Initial Purchasers as
evidenced by a notice in writing from the Initial Purchasers to the Operating
Partnership, any material changes in or affecting the condition, financial or
otherwise, or the earnings, business affairs or business prospects of any Xxxxx
XxXxxxxxx Entity or Property Partnership which (i) make any statement in the
Offering Memorandum false or misleading or (ii) are not disclosed in the
Offering Memorandum. In such event or if during such time any event shall occur
as a result of which it is necessary, in the reasonable opinion of any of the
Operating Partnership, its counsel, the Initial Purchasers or counsel for the
Initial Purchasers, to amend or supplement the Final Offering Memorandum in
order that the Final Offering Memorandum not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances then
existing, the Operating Partnership will forthwith amend or supplement the Final
Offering Memorandum by preparing and furnishing to each Initial Purchaser an
amendment or amendments of, or a supplement or supplements to, the Final
Offering Memorandum (in form and substance satisfactory in the reasonable
opinion of counsel for the Initial Purchasers) so that, as so amended or
supplemented, the Final Offering Memorandum will not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances existing at the time
it is delivered to a Subsequent Purchaser, not misleading.
(c) Amendment to Offering Memorandum and Supplements. The Operating
Partnership will advise each Initial Purchaser promptly of any proposal to amend
or supplement the Offering Memorandum and will not effect such amendment or
supplement without the consent of the Initial Purchasers. Neither the consent of
the Initial Purchasers, nor the Initial Purchasers' delivery of any such
amendment or supplement, shall constitute a waiver of any of the conditions set
forth in Section 5 hereof.
(d) Blue Sky Qualifications. The Operating Partnership will use its
best efforts, in cooperation with the Initial Purchasers, to qualify the
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions (domestic or foreign) as the Representatives may
designate and to maintain such qualifications in effect for a period of not less
than one year from the date of this Agreement; provided, however, that the
Operating Partnership shall not be obligated to file any general consent to
service of process or to qualify or register as a foreign partnership or as a
dealer in securities in any jurisdiction in which it is not so qualified or
registered, or provide any undertaking or make any change in its charter or
by-laws that the Board of Directors of SD Property reasonably determines to be
contrary to the best interests of the Operating Partnership and its unitholders
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each jurisdiction in
which the Securities have been so qualified or registered, the Operating
Partnership will file such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect for a period of
not less than one year from the date of this Agreement.
22
(e) Reporting Requirements. The Operating Partnership, during the
period when the Securities are outstanding and are "restricted securities"
within the meaning of Rule 144(a)(3) under the 1933 Act, will file all documents
required to be filed with the Commission pursuant to the 1934 Act within the
time periods required by the 1934 Act and the 1934 Act Regulations.
(f) REIT Qualification. The Company will use its best efforts to
continue to meet the requirement to qualify as a "real estate investment trust"
under the Code for the taxable year in which sales of the Securities are to
occur and for its future taxable years.
(g) Use of Proceeds. The Operating Partnership will use the net
proceeds received by it from the sale of the Securities in the manner specified
in the Offering Memorandum under "Use of Proceeds."
(h) Exchange Act Filings. During a period of three years from the
Closing Time, the Operating Partnership will deliver to the Initial Purchasers,
(i) promptly upon their becoming available, copies of all current, regular and
periodic reports of the Operating Partnership mailed to its unitholders or filed
with any securities exchange or with the Commission or any governmental
authority succeeding to any of the Commission's functions, and (ii) such other
information concerning the Operating Partnership as the Initial Purchasers may
reasonably request.
(i) Supplemental Indentures. In respect of the offering of the
Securities, the Operating Partnership will execute one or more supplemental
indentures designating one or more series of debt securities to be offered and
their related terms and provisions in accordance with the provisions of the
Indenture.
(j) Ratings. The Operating Partnership will take all reasonable action
necessary to enable Standard & Poor's Ratings Services, a division of McGraw
Hill, Inc. ("S&P"), Xxxxx'x Investors Service, Inc. ("Moody's") or any other
"nationally recognized statistical rating organization", as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, to provide
their respective credit ratings of the Securities.
(k) DTC. The Operating Partnership will cooperate with the
Representative(s) and use commercially reasonable efforts to permit the
Securities to be eligible for clearance and settlement through the facilities of
DTC.
(l) Registration Rights Agreement. The Operating Partnership will
comply with all of the terms and conditions of the Registration Rights
Agreement.
4. Payment of Expenses.
23
(a) Expenses. The Operating Partnership will pay all expenses incident
to the performance of its obligations under this Agreement and the Registration
Rights Agreement, including (i) the preparation, printing and delivery to the
Initial Purchasers of this Agreement, the Registration Rights Agreement, any
Agreement among Initial Purchasers, any Indenture and such other documents as
may be required in connection with the offering, purchase, sale and delivery of
the Securities, (ii) the preparation, issuance and delivery of the Securities,
or any certificates for the Securities to the Initial Purchasers, including any
charges of DTC in connection herewith, (iii) the fees and disbursements of the
Operating Partnership's counsel, accountants and other advisors or agents
(including transfer agents and registrars), as well as the reasonable fees and
disbursements of any Trustee, and their respective counsel, (iv) the
qualification of the Securities under state securities and real estate
syndication laws in accordance with the provisions of Section 3(d) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Initial Purchasers in connection therewith and in connection with the
preparation, printing and delivery of the Blue Sky Survey, (v) the printing and
delivery to the Initial Purchasers of copies of the Offering Memorandum and any
amendments or supplements thereto, and (vi) the fees charged by nationally
recognized statistical rating organizations for the rating of the Securities, if
applicable.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
10(a)(i), the Operating Partnership shall reimburse the Initial Purchasers for
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Initial Purchasers.
5. Conditions of Initial Purchaser's Obligations.
The obligations of the Initial Purchasers are subject to the accuracy
of the representations and warranties of the Operating Partnership contained in
Section 1 hereof or in certificates of any officer or authorized representative
of the Operating Partnership or any other Xxxxx XxXxxxxxx Entity delivered
pursuant to the provisions hereof, to the performance by the Operating
Partnership of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Execution of Registration Rights Agreement. At Closing Time, the
Operating Partnership shall have executed and delivered the Registration Rights
Agreement, substantially in the form attached hereto as Exhibit A.
(b) Opinion of Counsel for Operating Partnership. At Closing Time, the
Representatives shall have received the favorable opinions, dated as of Closing
Time, of (i) Piper & Marbury L.L.P., special Maryland counsel for the Company,
to the effect set forth in Exhibit B-1, (ii) Xxxxx X. Xxxxxxx, the General
Counsel of the Operating Partnership, to the effect set forth in Exhibit B-2,
(iii) Xxxxxxx Xxxx & Xxxxxxxxx, counsel for the Operating Partnership, to the
effect set forth in Exhibit B-3, (iv) Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP,
special Ohio counsel to SD Property, to the effect set forth in Exhibit B-4, and
(v) Xxxxx & Xxxxxxx, special counsel for the Operating Partnership, to the
effect set forth in Exhibit B-5 or such other counsel as is designated
24
by the Operating Partnership, in form and substance reasonably satisfactory to
counsel for the Initial Purchasers, together with signed or reproduced copies of
such opinion for each of the other Initial Purchasers.
(c) Opinion of Counsel for Initial Purchasers. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Xxxxxx & Xxxxx LLP, counsel for the Initial Purchasers, or such other
counsel as may be designated by the Initial Purchasers, together with signed or
reproduced copies of such letter for each of the other Initial Purchasers, with
respect to the matters set forth in (1) of Exhibit B-1 hereto, (2) (with respect
to the first clause only), (3) (with respect to SD Property only and with
respect to the first clause only) and (7) of Exhibit B-2 hereto, (4), (5) and
the last two paragraphs of Exhibit B-3 hereto. In giving such opinion, such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York, the federal law of the United States and
the General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to the Representatives. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers or authorized
representatives of the Operating Partnership and the other Xxxxx XxXxxxxxx
Entities and certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not have been,
since the date of this Agreement or since the respective dates as of which
information is given in the Offering Memorandum, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Operating Partnership and the other Xxxxx XxXxxxxxx
Entities considered as one enterprise, whether or not arising in the ordinary
course of business, and the Representatives shall have received a certificate of
(x) the Chief Executive Officer, President or a Vice President and of the chief
financial officer or chief accounting officer of the Company, as a general
partner of the Operating Partnership, and (y) the Chief Executive Officer,
President or a Vice President of and the chief financial officer or accounting
officer of SD Property, as managing general partner of the Operating
Partnership, dated as of Closing Time, to the effect that (i) there has been no
such material adverse change, (ii) the representations and warranties in Section
1 are true and correct, in all material respects, with the same force and effect
as though expressly made at and as of the Closing Time, (iii) the Operating
Partnership has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the Closing Time, (iv) no order
suspending the sale of the Securities in any jurisdiction has been issued and no
proceedings for that purpose have been initiated or threatened by the state
securities authority of any jurisdiction, (v) the Offering Memorandum did not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (vi) none of the
events listed in Section 10(a) shall have occurred.
(e) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from Xxxxxx Xxxxxxxx LLP a
letter, dated such date, in form
25
and substance satisfactory to the Representatives and counsel to the Initial
Purchasers, containing statements and information of the type ordinarily
included in accountants' "comfort letters" as set forth in the AICPA's Statement
on Auditing Standards 72 to Initial Purchasers with respect to the financial
statements and certain financial information contained or incorporated by
reference in the Offering Memorandum.
(f) Bring-down Comfort Letter. At Closing Time, the Representatives
shall have received from Xxxxxx Xxxxxxxx LLP a letter, dated as of Closing Time,
to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (e) of this Section 5, except that the specified date
referred to shall be a date not more than three business days prior to the
Closing Time.
(g) Maintenance of Rating. At the Closing Time, the Securities shall be
rated at least BAA1 by Moody's and BBB+ by S&P, and the Operating Partnership
shall have delivered to the Representatives a letter dated the Closing Time,
from each such rating agency, or other evidence satisfactory to the
Representatives, confirming that the Securities have such ratings; and since the
date of this Agreement, there shall not have occurred a downgrading in the
rating assigned to the Securities or any of the Operating Partnership's other
securities by any "nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes for Rule 436(g)(2) under the
1933 Act, and no such securities rating agency shall have publicly announced
that it has under surveillance or review, with possible negative implications,
its rating of the Securities or any of the Operating Partnership's other
securities.
(h) Additional Documents. At Closing Time, counsel for the Initial
Purchasers shall have been furnished with such documents and opinions as they
may require for the purpose of enabling them to pass upon the issuance and sale
of the Securities as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Operating
Partnership in connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the Representatives
and counsel for the Initial Purchasers.
(i) Termination of this Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Representatives by notice to the
Operating Partnership at any time at or prior to the Closing Time, and such
termination shall be without liability of any party to any other party except as
provided in Section 4, and except that Sections 1, 7 and 8 shall survive any
such termination and remain in full force and effect.
6. Subsequent Offers and Resales of the Securities.
26
(a) Offer and Sale Procedures. Each of the Initial Purchasers and the
Operating Partnership hereby establish and agree to observe the following
procedures in connection with the offer and sale of the Securities:
(i) Offers, Sales and Deliveries. Offers, sales and deliveries of
the Securities shall only be made (A) to persons whom the offeror or
seller reasonably believes to be qualified institutional buyers (as
defined in Rule 000X xxxxx xxx 0000 Xxx), (X) to a limited number of
other institutional accredited investors (as such term is defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D) that the offeror or
seller reasonably believes to be and, with respect to sales and
deliveries, that are Accredited Investors ("Institutional Accredited
Investors") or (C) non-U.S. persons outside the United States, as
defined in Regulation S under the 1933 Act, to whom the offeror or
seller reasonably believes offers and sales of the Securities may be
made in reliance upon Regulation S under the 1933 Act. Each Initial
Purchaser agrees that it will not offer, sell or deliver any of the
Securities in any jurisdiction outside the United States except under
circumstances that will result in compliance with the applicable laws
thereof, and that it will take at its own expense whatever action is
required to permit its purchase and resale of the Securities in such
jurisdictions.
(ii) No General Solicitation. No general solicitation or general
advertising (within the meaning of Rule 502(c) under the 0000 Xxx) will
be used in the United States in connection with the offering or sale of
the Securities.
(iii) Purchases by Non-Bank Fiduciaries. In the case of a non-bank
Subsequent Purchaser of a Security acting as a fiduciary for one or
more third parties, each such third party shall, in the judgment of the
applicable Initial Purchaser, be an Institutional Accredited Investor
or a Qualified Institutional Buyer or a non-U.S. person outside the
United States.
(iv) Subsequent Purchaser Notification. Each Initial Purchaser will
take reasonable steps to inform, and cause each of its U.S. Affiliates
to take reasonable steps to inform, persons acquiring Securities from
such Initial Purchaser or affiliate, as the case may be, in the United
States that the Securities (A) have not been and will not be registered
under the 1933 Act, (B) are being sold to them without registration
under the 1933 Act in reliance on Rule 144A or in accordance with
another exemption from registration under the 1933 Act, as the case may
be, and (C) may not be offered, sold or otherwise transferred except
(1) to the Operating Partnership, (2) outside the United States in
accordance with Regulation S, or (3) inside the United States in
accordance with (x) Rule 144A to a person whom the seller reasonably
believes is a Qualified Institutional Buyer that is purchasing such
Securities for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or
transfer is being made in reliance on Rule 144A or (y) pursuant to
another available exemption from registration under the 1933 Act.
27
(v) Minimum Principal Amount. No sale of the Securities to any one
Subsequent Purchaser will be for less than U.S. $100,000 principal
amount and no Security will be issued in a smaller principal amount. If
the Subsequent Purchaser is a non-bank fiduciary acting on behalf of
others, each person for whom it is acting must purchase at least U.S.
$100,000 principal amount of the Securities.
(vi) Restrictions on Transfer. The transfer restrictions and the
other provisions set forth in the Offering Memorandum under the heading
"Notice to Investors", including the legend required thereby, shall
apply to the Securities except as otherwise agreed by the Operating
Partnership and the Initial Purchasers.
(vii) Delivery of Offering Memorandum. Each Initial Purchaser will
deliver to each Subsequent Purchaser of the Securities, in connection
with its original distribution of the Securities, a copy of the
Offering Memorandum, as amended and supplemented at the date of such
delivery, if required by applicable law.
(b) Covenants of the Operating Partnership. The Operating Partnership
covenants with each Initial Purchaser as follows:
(i) Integration. The Operating Partnership agrees that it will not
and will cause its Affiliates not to solicit any offer to buy or make
any offer or sale of, or otherwise negotiate in respect of, securities
of the Operating Partnership of any class if, as a result of the
doctrine of "integration" referred to in Rule 502 under the 1933 Act,
such offer or sale would render invalid (for the purpose of (i) the
sale of the Securities by the Operating Partnership to the Initial
Purchasers, (ii) the resale of the Securities by the Initial Purchasers
to Subsequent Purchasers or (iii) the resale of the Securities by such
Subsequent Purchasers to others) the exemption from the registration
requirements of the 1933 Act provided by Section 4(2) thereof or by
Rule 144A or by Regulation S thereunder or otherwise.
(ii) Rule 144A Information. The Operating Partnership agrees that,
in order to render the Securities eligible for resale pursuant to Rule
144A under the 1933 Act, while any of the Securities remain
outstanding, it will make available, upon request, to any holder of
Securities or prospective purchasers of Securities the information
specified in Rule 144A(d)(4), unless the Operating Partnership
furnishes information to the Commission pursuant to Section 13 or 15(d)
of the 1934 Act (such information, whether made available to holders or
prospective purchasers or furnished to the Commission, is herein
referred to as "Additional Information").
(iii) Restriction on Repurchases. Until the expiration of two years
after the original issuance of the Securities, the Operating
Partnership will not, and will cause its Affiliates not to, purchase or
agree to purchase or otherwise acquire any Securities which are
"restricted securities" (as such term is defined under Rule 144(a)(3)
under the 1933
28
Act), whether as beneficial owner or otherwise (except as agent acting
as a securities broker on behalf of and for the account of customers in
the ordinary course of business in unsolicited broker's transactions),
unless such repurchased Securities are promptly retired.
(c) Resale Pursuant to Rule 903 of Regulation S or Rule 144A. Each
Initial Purchaser understands that the Securities have not been and will not be
registered under the 1933 Act and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons except in
accordance with Regulation S under the 1933 Act or pursuant to an exemption from
the registration requirements of the 1933 Act. Each Initial Purchaser severally
represents and agrees, that, except as permitted by Section 6(a) above, it has
offered and sold Securities and will offer and sell Securities (i) as part of
their distribution at any time and (ii) otherwise until forty days after the
later of the date upon which the offering of the Securities commences and the
Closing Time, only in accordance with Rule 903 of Regulation S, or another
applicable exemption from the registration provisions of the 1933 Act or Rule
144A under the 1993 Act. Accordingly, neither the Initial Purchasers, their
affiliates nor any persons acting on their behalf have engaged or will engage in
any directed selling efforts with respect to Securities, and the Initial
Purchasers, their affiliates and any person acting on their behalf have complied
and will comply with the offering restriction requirements of Regulation S. Each
Initial Purchaser agrees that, at or prior to confirmation of a sale of
Securities (other than a sale of Securities pursuant to Rule 144A) it will have
sent to each distributor, dealer or person receiving a selling concession, fee
or other remuneration that purchases Securities from it or through it during the
restricted period a confirmation or notice to substantially the following
effect:
"The Securities covered hereby have not been registered under
the 1933 Act and may not be offered or sold within the United
States or to or for the Account or benefit of U.S. persons (i)
as part of their distribution at any time and (ii) otherwise
until forty days after the later of the date upon which the
offering of the Securities commenced and the date of closing,
except in either case in accordance with Regulation S, Rule
144A under the 1933 Act or another exemption from the
registration requirements of the 1933 Act. Terms used above
have the meaning given to them by Regulation S."
Terms used in the above paragraph have the meanings given to them by Regulation
S.
(d) Representations and Warranties of Initial Purchasers. Each Initial
Purchaser severally represents and agrees that it has not entered and will not
enter into any contractual arrangements with respect to the distribution of the
Securities, except with its affiliates or with the prior written consent of the
Operating Partnership.
7. Indemnification.
29
(a) Indemnification of Initial Purchasers. The Operating Partnership
agrees to indemnify and hold harmless each Initial Purchaser and each person, if
any, who controls any Initial Purchaser within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Offering
Memorandum or in any amendment or supplement thereto, or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided that (subject to
Section (d) below) any such settlement is effected with the written
consent of the Operating Partnership; and
(3) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Operating
Partnership by any Initial Purchaser through the Representatives expressly for
use in the Offering Memorandum (or any amendment or supplement thereto).
(b) Indemnification of Operating Partnership, General Partners'
Directors and Officers. Each Initial Purchaser severally agrees to indemnify and
hold harmless the Operating Partnership, each general partner of the Operating
Partnership (the "General Partners"), each of the General Partners' directors,
and each person, if any, who controls the Operating Partnership or the General
Partners within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Offering Memorandum (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the
30
Operating Partnership by such Initial Purchaser through the Representatives
expressly for use in the Offering Memorandum (or any amendment or supplement
thereto).
(c) Actions Against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 7(a) above,
counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in
the case of parties indemnified pursuant to Section 7(b) above, counsel to the
indemnified parties shall be selected by the Operating Partnership. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 7 or Section
8 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement Without Consent If Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel in accordance with the
provisions hereof, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 7(a)(2) effected without
its written consent if (i) such settlement is entered into in good faith by the
indemnified party more than 45 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall have received notice
of the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement. Notwithstanding the immediately preceding sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 7(a)(2)
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent it considers
such request to be
31
reasonable and (ii) provides written notice to the indemnified party
substantiating the unpaid balance as unreasonable, in each case prior to the
date of such settlement.
8. Contribution.
If the indemnification provided for in Section 7 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Operating Partnership, on the one
hand, and the Initial Purchasers, on the other hand, from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Operating Partnership, on the one hand,
and of the Initial Purchasers, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Operating Partnership, on the one
hand, and the Initial Purchasers, on the other hand, in connection with the
offering of the Securities pursuant to this Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of
such Securities (before deducting expenses) received by the Operating
Partnership and the total discount received by the Initial Purchasers, bear to
the aggregate initial offering price of the Securities.
The relative fault of the Operating Partnership, on the one hand, and
the Initial Purchasers, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Operating Partnership or by the Initial Purchasers
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Operating Partnership and the Initial Purchasers agree that it
would not be just and equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Initial Purchasers were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to above in this
Section 8. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
8 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
32
Notwithstanding the provisions of this Section 8, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities purchased by it and sold to a Subsequent
Purchaser were sold to such Subsequent Purchaser exceeds the amount of any
damages which such Initial Purchaser has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an
Initial Purchaser within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such Initial
Purchaser, and each director of the General Partners, and each person, if any,
who controls the Operating Partnership or the General Partners within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Operating Partnership. The Initial
Purchasers' respective obligations to contribute pursuant to this Section 8 are
several in proportion to the principal amount of Securities set forth opposite
their respective names in Schedule 1 hereto and not joint.
9. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Operating Partnership or
authorized representatives of the Operating Partnership or the General Partners
submitted pursuant hereto or thereto shall remain operative and in full force
and effect, regardless or any investigation made by or on behalf of any Initial
Purchaser or any controlling person, or by or on behalf of the Operating
Partnership, and shall survive delivery of and payment for the Securities.
10. Termination.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Operating Partnership, at any time at or prior to
the Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Offering Memorandum, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Operating Partnership and the other Xxxxx XxXxxxxxx Entities considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Representatives, impracticable
33
or inadvisable to market the Securities or to enforce contracts for the sale of
the Securities, or (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the American Stock Exchange or the New York
Stock Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, (iv) if a banking moratorium has been
declared by either Federal, New York, Delaware or Maryland authorities, or (v)
if the rating assigned by any nationally recognized statistical rating
organization to any debt securities of the Operating Partnership as of the date
hereof shall have been downgraded since such date or if any such rating
organization shall have publicly announced that it has placed any series of debt
securities of the Operating Partnership under surveillance or review, with
possible negative implications, as to the rating of such debt securities or any
of the Operating Partnership's other securities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section 10, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 7, 8 and 9 hereof shall survive such termination and remain in full
force and effect.
11. Default by One or More of the Initial Purchasers. If one or more of
the Initial Purchasers shall fail at the Closing Time to purchase the Securities
which it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting Initial
Purchasers, or any other Initial Purchasers, to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and upon
the terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the aggregate principal amount of the Securities to be purchased
hereunder, each of the non-defaulting Initial Purchasers shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Initial Purchasers, or
(b) if the number of Defaulted Securities exceeds 10% of the
aggregate principal amount of the Securities to be purchased hereunder,
this Agreement shall terminate without liability on the part of any
non-defaulting Initial Purchaser.
No action taken pursuant to this Section shall relieve any defaulting
Initial Purchaser from liability in respect of its default.
34
In the event of any such default which does not result in a termination
of this Agreement, either the Representatives or the Operating Partnership shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Offering Memorandum or in
any other documents or arrangements. As used herein, the term "Initial
Purchaser" includes any person substituted for an Initial Purchaser under this
Section 11.
12. Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Representatives shall be directed to
Xxxxxxx Xxxxx at World Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, attention of Xxxxxx X. Xxxxx, Managing Director; and notices to the
Xxxxx XxXxxxxxx Entities shall be directed to any of them at National City
Center, 000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxxxxxxxxxxx, Xxxxxxx 00000,
attention of Mr. Xxxxx Xxxxx, with a copy to Xxxxxxx Xxxx & Xxxxxxxxx, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, attention of Xxxx Xxx Xxxxxxx, Esq.
13. Parties.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Initial Purchasers, the Operating Partnership, SD
Property, the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 7 and 8 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the parties hereto and thereto and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any Initial
Purchaser shall be deemed to be a successor by reason merely of such purchase.
14. GOVERNING LAW AND TIME.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED IN SAID STATE. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
15. Effect of Headings.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
35
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Operating Partnership a counterpart
hereof, whereupon this Agreement, along with all counterparts, will become a
binding agreement between the Initial Purchasers, and the Operating Partnership
in accordance with its terms.
Very truly yours,
XXXXX XXXXXXXXX GROUP, L.P.
By: SD Property Group, Inc.,
its Managing General Partner
By:
-------------------------
Name:
Title:
XXXXX XXXXXXXXX GROUP, INC.
By:
------------------------------
Name:
Title:
SD PROPERTY GROUP, INC.
By:
------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
By: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By:
------------------------------
Name:
Title: Authorized Signatory
36
For themselves and as Representatives of the other Initial Purchasers named in
Schedule 1 hereto.
37
SCHEDULE 1
PRINCIPAL PRINCIPAL PRINCIPAL PRINCIPAL
AMOUNT OF AMOUNT OF AMOUNT OF AMOUNT OF
INITIAL PURCHASER 2003 NOTES 2005 NOTES 2018 NOTES MOPPRS
----------------- ------------ ------------ ------------ ------------
Xxxxxxx Lynch, Pierce, $ 93,750,000 $ 75,000,000 $ 40,000,000 $ 40,000,000
Xxxxxx & Xxxxx
Incorporated
Xxxxxx Xxxxxxx & Co. $ 93,750,000 $ 75,000,000 $ 40,000,000 $ 40,000,000
Incorporated
Chase Securities Inc. -- -- $ 40,000,000 $ 40,000,000
Xxxxxx Brothers Inc. $ 93,750,000 $ 75,000,000 -- --
X.X. Xxxxxx Securities Inc. -- -- $ 40,000,000 $ 40,000,000
NationsBanc Xxxxxxxxxx $ 93,750,000 $ 75,000,000 $ 40,000,000 --
Securities LLC
UBS Securities LLC -- -- -- $ 40,000,000
------------ ------------ ------------ ------------
TOTAL ................... $375,000,000 $300,000,000 $200,000,000 $200,000,000
38
SCHEDULE 2
XXXXX XXXXXXXXX GROUP, L.P.
$375,000,000 6 5/8% Notes due ------- 2003
$300,000,000 6 3/4% Notes due ------- 2005
$200,000,000 7 3/8% Notes due ------- 2018
$200,000,000 7.0% MandatOry Par Put Remarketed
Securities(SM) ("MOPPORS(SM)") due ------- 2028
1. The initial public offering price of the Securities shall be
99.768%, 99.405% and 99.311% of the principal amount of the 2003 Notes, the 2005
Notes, and the 2018 Notes respectively, plus, in each case, accrued interest, if
any, from the date of issuance. The MOPPRS will be sold to investors a varying
prices relating to prevailing market prices at the time of each to be determined
by the Initial Purchasers at the time of each sale.
2. The purchase price to be paid by the Initial Purchasers for the
Securities shall be 99.168%, 98.780%, 98.436% and 98.751% of the principal
amount of the 2003 Notes, the 2005 Notes, the 2018 Notes and the MOPPRS,
respectively.
3. The interest rate on the 2003 Notes shall be 6 5/8% per annum; the
interest rate on the 2005 Notes shall be 6 3/4% per annum; the interest rate on
the 2018 Notes shall be 7 3/8% per annum; and the interest rate on the MOPPRS to
June 15, 2008 shall be 7.0% per annum.
39
SCHEDULE 3
40
Exhibit A
FORM OF REGISTRATION RIGHTS AGREEMENT
41
Exhibit B-1
FORM OF OPINION OF COMPANY'S SPECIAL MARYLAND COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland.
(2) The Company has the corporate power and authority to own, lease and
operate its properties, to conduct the business in which it is engaged or
proposes to engage as described below, and to enter into and perform its
obligations under, or as contemplated under, this Agreement. For the purposes of
this opinion, such counsel may assume that the business in which the Company is
engaged or proposes to engage consists of the business of (i) a
self-administered and self-managed real estate investment trust under the
Internal Revenue Code of 1986, as amended, (ii) owning partnership interests and
other equity interests in subsidiary entities, (iii) acting as a general partner
and/or limited partner in subsidiary partnerships, and (iv) providing
management, leasing, accounting, design, and construction expertise through its
own personnel or through outside professionals.
(3) This Agreement has been duly and validly authorized by the Company.
Any one of the Co-Chairmen of the Board, Chief Executive Officer, President, any
Vice President, the Treasurer, any Assistant Treasurer, the Secretary, or any
Assistant Secretary of the Company (hereinafter, collectively, the "Authorized
Officers") has been duly authorized to execute and deliver this Agreement, and,
assuming it has been executed and delivered by any one of the Authorized
Officers, this Agreement is duly and validly executed and delivered by the
Company.
(4) The execution, delivery and performance of this Agreement, the
consummation of the transactions contemplated in this Agreement, and compliance
by the Company with its obligations under this Agreement does not and will not,
whether with or without the giving of notice or the passage of time or both,
conflict with or constitute a breach of, or default under (i) any provisions of
the Charter or by-laws of the Company; (ii) any applicable law, statute, rule,
regulation of Maryland; or (iii) to such counsel's knowledge, any Maryland order
or Maryland administrative or court decree, binding upon the Company or to which
the Company is subject, except in each case for conflicts, breaches, violations
or defaults that in the aggregate would not have a Material Adverse Effect.
42
Exhibit B-2
FORM OF OPINION OF THE OPERATING PARTNERSHIP'S GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(5) The Company is duly qualified or registered as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification or registration is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify or register or be in good standing would not result in a
Material Adverse Effect.
(6) The Operating Partnership has been duly organized and is validly
existing as a limited partnership in good standing under the laws of the State
of Delaware, with partnership power and authority to own, lease and operate its
properties and to conduct the business in which it is engaged or proposes to
engage as described in the Offering Memorandum and to enter into and perform its
obligations under this Agreement, the Remarketing Agreement, the Registration
Rights Agreement and the Indenture and is duly qualified or registered as a
foreign limited partnership to transact business and is in good standing in each
jurisdiction in which such qualification or registration is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not result
in a Material Adverse Effect. The OP Partnership Agreement has been duly and
validly authorized, executed and delivered by the parties thereto and is a valid
and binding agreement, enforceable against the parties thereto in accordance
with its terms, except as such enforceability may be subject to (1) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or transfer or
similar laws affecting creditors' rights generally and (2) general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law), and except as rights to indemnity thereunder may be
limited by applicable law.
(7) Each Xxxxx XxXxxxxxx Entity other than the Company and the
Operating Partnership has been duly incorporated or organized and is validly
existing as a corporation, limited partnership or other legal entity, as the
case may be, in good standing under the laws of the jurisdiction of its
incorporation or organization, as the case may be, and has the requisite power
and authority to own, lease and operate its properties and to conduct the
business in which it is engaged or proposes to engage as described in the
Offering Memorandum and is duly qualified or registered as a foreign
corporation, limited partnership or other legal entity, as the case may be, to
transact business and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to so
qualify or register or to be in good standing would not result in a Material
Adverse Effect. Except as otherwise stated in the Offering Memorandum, all of
the issued
43
and outstanding capital stock or other equity interests of each Xxxxx XxXxxxxxx
Entity other than the Company and the Operating Partnership has been duly
authorized and is validly issued, fully paid and non-assessable and has been
offered and sold in compliance with all applicable laws of the United States and
the organizational laws of the jurisdiction of organization of such entity, and
is owned by the Company, the Management Companies or the Operating Partnership,
directly or through subsidiaries, in each case, free and clear of any Liens.
There are no outstanding securities convertible into or exchangeable for any
capital stock or other equity interests of such entities and no outstanding
options, rights (preemptive or otherwise) or warrants to purchase or to
subscribe for shares of such capital stock or any other securities of such
entities. None of the outstanding shares of capital stock or other equity
interests of such entity was issued in violation of preemptive or other similar
rights of any securityholder of such entity.
(8) Each of the Property Partnerships is duly organized and validly
existing as a limited or general partnership, as the case may be, in good
standing under the laws of its respective jurisdiction of formation, with the
requisite power and authority to own, lease and operate its properties and to
conduct the business in which it is engaged and proposes to engage as described
in the Offering Memorandum. Each Property Partnership is duly qualified or
registered as a foreign partnership and is in good standing in each jurisdiction
in which such qualification or registration is required, whether by reason of
ownership or leasing of property or the conduct of business, except where the
failure to so qualify or register would not have a Material Adverse Effect. The
general or limited partnership agreement of each of the Property Partnerships
has been duly and validly authorized, executed and delivered by the parties
thereto and is a valid and binding agreement, enforceable against the parties
thereto in accordance with its terms, except as such enforceability may be
subject to (1) bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or transfer or similar laws affecting creditors' rights generally and
(2) general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and except as rights to
indemnity thereunder may be limited by applicable law.
(9) The Securities have been duly authorized by SD Property as the
managing general partner of the Operating Partnership for issuance and sale to
the Initial Purchasers pursuant to this Agreement and the Indenture. The
Securities, when issued and authenticated in the manner provided for in the
Indenture and delivered by the Operating Partnership pursuant to this Agreement
against payment of the consideration therefor, will constitute valid and legally
binding obligations of the Operating Partnership enforceable against the
Operating Partnership in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally or by
general equitable principles, and except further as enforcement thereof may be
limited by (A) requirements that a claim with respect to any Securities
denominated other than in U.S. dollars (or a foreign or composite currency
judgment in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or (B)
governmental authority to limit, delay or prohibit the making of payments
outside the United
44
States. The Securities are in the form contemplated by, and are entitled to the
benefits of, the Indenture.
(10) The Indenture has been duly qualified under the 1939 Act and has
been duly authorized, executed and delivered by the Operating Partnership and
(assuming due authorization, execution and delivery thereof by the Trustee)
constitutes a valid and legally binding agreement of the Operating Partnership,
enforceable against the Operating Partnership in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles and except
further as enforcement thereof may be limited by (A) requirements that a claim
with respect to any Securities denominated other than in U.S. Dollars (or a
foreign currency or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental authority to limit,
delay or prohibit the making of payments outside the United States.
(11) The Securities being sold pursuant to this Agreement and the
Indenture conform, in all material respects to the statements relating thereto
contained in the Offering Memorandum and are in substantially the form
contemplated by the Indenture.
(12) Neither the Operating Partnership nor any of the other Xxxxx
XxXxxxxxx Entities nor any Property Partnership is in violation of its charter,
by-laws, partnership agreement, or other organizational document, as the case
may be, and no default by the Operating Partnership or any other Xxxxx XxXxxxxxx
Entity or any Property Partnership exists in the due performance or observance
of any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Offering Memorandum or filed
or incorporated by reference therein, except in each case for violations or
defaults which in the aggregate are not reasonably expected to result in a
Material Adverse Effect.
(13) The execution, delivery and performance of this Agreement, the
Remarketing Agreement, the Indenture and the Registration Rights Agreement and
the consummation of the transactions contemplated thereby did not and do not,
conflict with or constitute a breach or violation of, or default or Repayment
Event under, or result in the creation or imposition of any Lien upon any
Property, pursuant to, any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or any other agreement or instrument, to which the
Operating Partnership or any Property Partnership is a party or by which it of
any of them may be bound, or to which any of the assets, properties or
operations of the Operating Partnership or any Property Partnership is subject,
nor will such action result in any violation of the provisions of the charter,
by-laws, partnership agreement or other organizational document of the Operating
Partnership, any other Xxxxx XxXxxxxxx Entity or any Property Partnership or any
applicable laws, statutes, rules or regulations of the United States or any
jurisdiction of incorporation or formation of any of the
45
Operating Partnership or any Property Partnership or any judgment, order, writ
or decree binding upon the Operating Partnership, any other Xxxxx XxXxxxxxx
Entity or any Property Partnership, which judgment, order, writ or decree, is
known to such counsel, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Operating Partnership, any
other Xxxxx XxXxxxxxx Entity or any Property Partnership or any of their assets,
properties or operations, except for such conflicts, breaches, violations,
defaults, events or Liens that would not result in a Material Adverse Effect.
(14) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency (other than such as may be required under the applicable
securities laws of the various jurisdictions in which the Securities will be
offered or sold, as to which we need express no opinion) is required in
connection with the due authorization, execution and delivery of this Agreement,
the Remarketing Agreement, the Indenture or the Registration Rights Agreement by
the Operating Partnership or for the offering, issuance, sale or delivery of the
Securities to the Initial Purchasers and to each Subsequent Purchaser in the
manner contemplated by this Agreement.
(15) There is no action, suit, proceeding, inquiry or investigation
before or by any court or governmental agency or body, domestic or foreign, now
pending or threatened, against or affecting the Operating Partnership or any
other Xxxxx XxXxxxxxx Entity or any Property Partnership thereof which is
required to be disclosed in the Offering Memorandum (other than as stated or
incorporated by reference therein), or which might reasonably be expected to
result in a Material Adverse Effect or which might reasonably be expected to
materially and adversely affect the consummation of the transactions
contemplated in this Agreement, the Remarketing Agreement, the Indenture or the
Registration Rights Agreement, the performance by the Operating Partnership of
its obligations thereunder or the transactions contemplated by the Offering
Memorandum.
(16) All descriptions in the Offering Memorandum of contacts and other
documents to which the Operating Partnership or any other Xxxxx XxXxxxxxx Entity
is a party are accurate in all material respects.
46
Exhibit B-3
FORM OF OPINION OF THE OPERATING PARTNERSHIP'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(17) The documents filed pursuant to the 1934 Act and incorporated by
reference in the Offering Memorandum (other than the financial statements and
supporting schedules therein and other financial data, as to which no opinion
need be rendered), when they were filed with the Commission, complied as to form
in all material respects with the requirements of the 1933 Act or the 1934 Act,
as applicable, and the rules and regulations of the Commission thereunder. In
passing upon compliance as to the form of such documents, such counsel may have
assumed that the statements made or incorporated by reference therein are
complete and correct.
(18) The information in the Offering Memorandum under "Pending CPI
Merger," "Description of Securities," "Certain Federal Income Tax
Considerations," and "State and Local Tax Considerations" and the description of
the Securities included therein, to the extent that it purports to summarize
matters of law, descriptions of statutes, rules or regulations, summaries of
legal matters governed by law, the Operating Partnership's organizational
documents or legal proceedings, or legal conclusions governed by law, has been
reviewed by such counsel, is correct and presents fairly the information
required to be disclosed therein in all material respects.
(19) None of the Xxxxx XxXxxxxxx Entities or any Property Partnership
is required to be registered as an investment company under the 1940 Act.
(20) The Securities being sold pursuant to this Agreement have been
duly authorized for issuance and sale to the Initial Purchasers pursuant to this
Agreement and the Indenture and, when issued and authenticated in the manner
provided for in the Indenture and delivered by the Operating Partnership
pursuant to this Agreement against payment of the consideration therefor, (i)
the Securities will constitute valid and legally binding obligations of the
Operating Partnership enforceable against the Operating Partnership in
accordance with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles, and (ii) each holder of the
Securities will be entitled to the benefits of the Indenture. The Securities are
in the form contemplated by the Indenture.
(21) This Agreement has been duly and validly authorized, executed and
delivered by the Operating Partnership.
47
(22) The Indenture has been duly and validly authorized, executed and
delivered by the Operating Partnership and (assuming due authorization,
execution and delivery thereof by the Trustee) constitutes a valid and legally
binding agreement of the Operating Partnership, enforceable against the
Operating Partnership in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally or by
general equitable principles and except further as enforcement thereof may be
limited by (A) requirements that a claim with respect to any Securities
denominated other than in U.S. Dollars (or a foreign currency or composite
currency judgment in respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to applicable law or
(B) governmental authority to limit, delay or prohibit the making of payments
outside the United States.
(23) Assuming the correctness of the representations and warranties and
the compliance with the agreements of the Company and the Initial Purchasers,
the offer and sale of the Securities to the Initial Purchasers solely in the
manner and under the circumstances contemplated by this Agreement are exempt
from the registration requirements of the 1933 Act, and no facts have come to
our attention that have led us to believe that the offer, sale and delivery of
the Securities to each Subsequent Purchaser in the manner and under the
circumstances contemplated by this Agreement are not exempt from the
registration requirements of the 1933 Act.
(24) The Registration Rights Agreement has been duly and validly
authorized, executed and delivered by the parties thereto and is a valid and
binding agreement, enforceable against the parties thereto in accordance with
its terms, except as such enforceability may be subject to (1) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or transfer or
similar laws affecting creditors' rights generally and (2) general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law) and (3) that rights to indemnity and contribution contained
in the Registration Rights Agreement may be limited by state or federal
Securities laws or public policy.
(25) The Remarketing Agreement has been duly and validly authorized,
executed and delivered by the Operating Partnership and is a valid and binding
agreement of the Operating Partnership, enforceable against the Operating
Partnership in accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or by general
equitable principles.
In connection with the preparation of the Offering Memorandum, such
counsel has participated in conferences with officers and other representatives
of the Operating Partnership and the independent public accountants for the
Operating Partnership and the Company at which the contents of the Offering
Memorandum and related matters were discussed. On the basis of such
participation and review, but without independent verification by such counsel
of, and without assuming any responsibility for, the accuracy, completeness or
fairness of the statements contained
48
in the Offering Memorandum or any amendments or supplements thereto, no facts
have come to the attention of such counsel that would lead such counsel to
believe that the Offering Memorandum or any amendment or supplement thereto
(except for financial statements, the schedules and other financial data
included therein, as to which such counsel need make no statement), at the time
the Offering Memorandum was issued, at the time any such amended or supplemented
Offering Memorandum was issued or at the Closing Time, contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of Maryland and Ohio, upon the opinion of
Piper & Marbury L.L.P. and Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, respectively,
special Maryland and Ohio counsel, respectively, to SD Property and the Company
(which opinion shall be dated and furnished to the Initial Purchasers at the
Closing Time, shall be satisfactory in form and substance to counsel for the
Initial Purchasers and shall expressly state that the counsel for the Initial
Purchasers may rely on such opinion as if it were addressed to them), and (B),
as to matters of fact (but not as to legal conclusions), to the extent they deem
proper, on certificates of responsible officers of the Operating Partnership and
public officials. Such opinion shall not state that it is to be governed or
qualified by, or that it is otherwise subject to, any treatise, written policy
or other document relating to legal opinions, including, without limitation, the
Legal Opinion Accord of the ABA Section of Business Law (1991).
49
Exhibit B-4
FORM OF OPINION OF SD PROPERTY'S
SPECIAL OHIO COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(26) The Securities have been duly authorized for issuance and sale
pursuant to this Agreement and the Indenture.
(27) Each of this Agreement, the Remarketing Agreement, the
Registration Rights Agreement and the Indenture has been duly and validly
authorized by SD Property in its capacity as the managing general partner of the
Operating Partnership, the proper officers of SD Property have been duly
authorized on behalf of the Operating Partnership, in its capacity as the
managing general partner thereof, to execute and deliver each of this Agreement,
the Remarketing Agreement, the Registration Rights Agreement and the Indenture,
and assuming they have been executed and delivered by any of such officers, each
of this Agreement, the Remarketing Agreement, the Registration Rights Agreement
and the Indenture are duly and validly executed and delivered by SD Property in
its capacity as the managing general partner of the Operating Partnership.
50
Exhibit B-5
FORM OF OPINION OF THE OPERATING PARTNERSHIP'S SPECIAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(28) Each of the Company, SD Property and RPT has been organized and
operated in conformity with the requirements for qualification and taxation as a
"real estate investment trust" under the Code and each of the Company's, SD
Property's and RPT's proposed method of operation will enable it to continue to
qualify for taxation as a "real estate investment trust" under the Code for its
subsequent taxable years.
