EXHIBIT 1.1
EXECUTION COPY
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PURCHASE AGREEMENT
DATED AS OF JANUARY 11, 2001
AMONG
SIMON PROPERTY GROUP, L.P.
AND
XXXXXXX XXXXX & CO.,
CHASE SECURITIES INC.,
BANC OF AMERICA SECURITIES LLC,
XXXXXXX XXXXX XXXXXX INC. AND
UBS WARBURG LLC
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TABLE OF CONTENTS
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PURCHASE AGREEMENT........................................................ 1
SECTION 1. Representations and Warranties............................... 2
(a) Representations and Warranties by the Operating Partnership.. 2
(1) Similar Offerings...................................... 2
(2) Offering Memorandum.................................... 3
(3) Incorporated Documents................................. 3
(4) Independent Accountants................................ 3
(5) Financial Statements................................... 3
(6) No Material Adverse Change in Business................. 4
(7) Good Standing of the Company........................... 4
(8) Good Standing of the Operating Partnership............. 4
(9) Good Standing of Simon Entities........................ 5
(10) Good Standing of Property Partnerships................. 5
(11) Capitalization......................................... 6
(12) Authorization of Purchase Agreement.................... 6
(13) Authorization of the Registration Rights Agreement..... 6
(14) Authorization of the Indenture......................... 6
(15) Authorization of Notes................................. 7
(16) Descriptions of the Notes and the Indenture............ 7
(17) Absence of Defaults and Conflicts...................... 7
(18) Absence of Labor Dispute............................... 8
(19) Absence of Proceedings................................. 8
(20) REIT Qualification..................................... 8
(21) Investment Company Act................................. 8
(22) Intellectual Property.................................. 9
(23) Absence of Further Requirements........................ 9
(24) Possession of Licenses and Permits..................... 9
(25) Title to Property...................................... 9
(26) Environmental Laws..................................... 10
(27) Tax Returns............................................ 10
(28) Environmental Consultants.............................. 11
(29) Property Information................................... 11
(30) Rule 144A Eligibility.................................. 11
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TABLE OF CONTENTS
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(31) No General Solicitation.......................... 11
(32) No Registration Required......................... 11
(33) Reporting Company................................ 11
(34) No Directed Selling Efforts...................... 11
(35) Investment Grade Rating.......................... 11
(b) Officers' Certificates................................. 12
SECTION 2. Sale and Delivery to the Initial Purchasers; Closing... 12
(a) Notes.................................................. 12
(b) Payment................................................ 12
(c) Qualified Institutional Buyer.......................... 12
(d) Denominations; Registration............................ 12
SECTION 3. Covenants of the Operating Partnership................. 12
(a) Offering Memorandum.................................... 13
(b) Notice and Effect of Material Events................... 13
(c) Amendment to Offering Memorandum and Supplements....... 13
(d) Blue Sky Qualifications................................ 13
(e) Reporting Requirements................................. 14
(f) REIT Qualification..................................... 14
(g) Use of Proceeds........................................ 14
(h) Exchange Act Filings................................... 14
(i) Supplemental Indentures................................ 14
(j) Ratings................................................ 14
(k) DTC.................................................... 14
(l) Registration Rights Agreement.......................... 14
SECTION 4. Payment of Expenses.................................... 14
(a) Expenses............................................... 14
(b) Termination of Agreement............................... 15
SECTION 5. Conditions of Initial Purchaser's Obligations.......... 15
(a) Execution of Registration Rights Agreement............. 15
(b) Opinions of Counsel for Operating Partnership.......... 15
(c) Opinion of Counsel for Initial Purchasers.............. 15
(d) Officers' Certificate.................................. 16
(e) Accountant's Comfort Letter............................ 16
(f) Bring-down Comfort Letter.............................. 16
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TABLE OF CONTENTS
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(g) Maintenance of Rating..................................... 16
(h) Additional Documents...................................... 16
(i) Termination of this Agreement............................. 17
SECTION 6. Subsequent Offers and Resales of the Notes................ 17
(a) Offer and Sale Procedures................................. 17
(b) Covenants of the Operating Partnership.................... 18
(c) Resale Pursuant to Rule 903 of Regulation S or Rule 144A.. 18
(d) Representations and Warranties of Initial Purchasers...... 19
SECTION 7. Indemnification........................................... 19
(a) Indemnification of Initial Purchasers..................... 19
(b) Indemnification of Operating Partnership, General Partners'
Directors and Officers.................................. 20
(c) Actions Against Parties; Notification..................... 20
(d) Settlement Without Consent If Failure to Reimburse........ 20
SECTION 8. Contribution.............................................. 21
SECTION 9. Representations, Warranties and Agreements to Survive
Delivery................................................ 22
SECTION 10. Termination............................................... 22
(a) Termination; General...................................... 22
(b) Liabilities............................................... 22
SECTION 11. Default by One or More of the Initial Purchasers.......... 22
SECTION 12. Notices................................................... 23
SECTION 13. Parties................................................... 23
SECTION 14. GOVERNING LAW AND TIME.................................... 23
SECTION 15. Effect of Headings........................................ 24
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SIMON PROPERTY GROUP, L.P.
(a Delaware limited partnership)
$300,000,000 7 3/8% Notes due 2006
$200,000,000 7 3/4% Notes due 2011
PURCHASE AGREEMENT
January 11, 2001
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Chase Securities Inc.
as Representatives of the several Initial Purchasers
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Simon Property 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 Xxxxx Securities Inc.
("Chase") 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
$300,000,000 aggregate principal amount of its 7 3/8% senior unsecured notes due
2006 (the "2006 Notes") and $200,000,000 aggregate principal amount of its 7
3/4% senior unsecured notes due 2011 (the "2011 Notes" and, together with the
2006 Notes, the "Notes").
The Notes will be issued under an indenture, dated as of November 26,
1996 (the "Original Indenture"), between the Operating Partnership, and The
Chase Manhattan Bank, as trustee (the "Trustee"). The title, aggregate principal
amount, rank, interest rate or formula and timing of payments thereof, stated
maturity date, redemption and/or repayment provisions, sinking fund requirements
and any other variable terms of the Notes shall be established by or pursuant to
an eighth 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)). Notes
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 Notes 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 Notes to purchasers ("Subsequent
Purchasers") at any time after the date of this Agreement. The Notes 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 Notes and the Indenture,
investors that acquire Notes may only resell or otherwise transfer such Notes if
such Notes 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 January 8, 2001 (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
January 11, 2001 (the "Final Offering Memorandum"), each for use by such Initial
Purchaser in connection with its solicitation of purchases of, or offering of,
the Notes. "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 Notes. 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").
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, as amended (the "1934 Act"), which is
incorporated by reference in the Offering Memorandum.
The term "subsidiary" means a corporation or a partnership, a majority of
the outstanding voting stock or partnership interests, as the case may be, of
which is owned or controlled, directly or indirectly, by the Operating
Partnership and/or Simon Property Group, Inc., a Delaware corporation and the
managing general partner of the Operating Partnership (the "Company") or by one
or more other subsidiaries of the Operating Partnership and/or the Company.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE OPERATING PARTNERSHIP. The
Operating Partnership 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:
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(1) SIMILAR OFFERINGS. None of the Company, the Operating
Partnership, 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 Notes in a manner that would
require the Notes 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.
(3) INCORPORATED DOCUMENTS. The Offering Memorandum shall
incorporate by reference the most recent Annual Report of the Company on
Form 10-K filed with the Commission and each Quarterly Report of the
Company on Form 10-Q and each Current Report of the Company on Form 8-K
filed with the Commission since the filing of the end of the fiscal year
to which such Annual Report relates. The documents incorporated or deemed
to be incorporated by reference in the Offering Memorandum 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 time the Offering Memorandum was issued and
at the Closing Time, did not and will not include an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, 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
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Commission's rules and guidelines and the guidelines of the American
Institute of Certified Public Accountants ("AICPA") with respect to pro
forma information and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
(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, 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 Management Company, Inc., an Indiana corporation
("MOA"), XxXxxxxxx Properties Management, Inc., an Ohio corporation ("DRC
Management Company," and together with SPG Management Company, Management
(Indiana) and MOA, the "Management Companies"), and Simon Property Group
(Delaware), Inc., Xxxxxxxxx Xxxxx Property, Inc., SDG Forum Developers,
Inc., XxXxxxxxx Properties, Inc., XxXxxxxxx Properties II, Inc., and
XxXxxxxxx Properties III, Inc. and any other subsidiary of the Company
(collectively, the "Reit Subs") or any subsidiary of the Operating
Partnership (other than any Property Partnership (as defined below)) not
listed among the foregoing entities, (the Company, the Operating
Partnership, the Management Companies, the Reit Subs and such
subsidiaries being sometimes hereinafter collectively referred to as the
"Simon Entities" and individually as a "Simon Entity"), or of any entity
which owns any Portfolio Property (as such term is defined in the
Offering Memorandum) or any direct interest in any Portfolio Property
(the "Property Partnerships") whether or not arising in the ordinary
course of business, which would be material to the Operating Partnership
(anything which would be material to the Operating Partnership, being
hereinafter referred to as "Material;" and such a material adverse
change, a "Material Adverse Effect"), (b) no casualty loss or
condemnation or other adverse event with respect to the Portfolio
Properties has occurred which would be Material, (c) there have been no
transactions or acquisitions entered into by the Simon 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 respective general, limited and/or preferred
partnership interests, and (E) there has been no change in the capital
stock of the corporate Simon Entities or in the partnership interests of
the Operating Partnership or any Property Partnership, or any increase in
the indebtedness of the Simon Entities, the Property Partnerships or the
Portfolio 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 Delaware and has corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Offering Memorandum. 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.
(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
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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. SPG Properties, Inc., a Maryland corporation ("SPG Properties"),
is a non-managing general partner of the Operating Partnership and the
Company is the sole managing 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 filed as an exhibit to the
Operating Partnership's Current Report on Form 8-K filed November 2,
1998, except for subsequent amendments relating to the admission of new
partners to the Operating Partnership and the issuance of preferred units
to the Company.
(9) GOOD STANDING OF SIMON ENTITIES. Each of the Simon Entities
other than 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 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 equity
interests of such entities were issued in violation of preemptive or
other similar rights arising by operation of law, under the charter or
bylaws of such entity or under any agreement to which any Simon 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
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(except for subsequent issuances thereof, if any, contemplated under this
Agreement or referred to in the Offering Memorandum). Such units of
partners' equity have been duly authorized and validly issued by the
Operating Partnership and are fully paid and non-assessable and have been
offered and sold or exchanged in compliance with all applicable laws
(including, without limitation, federal and state securities laws), and
none of such units of partners' equity were issued in violation of
preemptive or other similar rights arising by operation of law, under the
certificate of limited partnership and the OP Partnership Agreement of
the Operating Partnership or under any agreement to which the Operating
Partnership or any of the other Simon 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 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 (a) to the extent that
enforceability thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws
now or hereafter in effect relating to creditors' rights generally and
(ii) general principles of equity (regardless of whether considered at
law or in equity); (b) that rights to indemnity and contribution
contained in the Registration Rights Agreement may be limited by state or
federal securities laws or pubic policy and (c) 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.
(14) AUTHORIZATION OF THE INDENTURE. For the Notes being sold
pursuant to this Agreement, the Indenture has been, or prior to the
issuance of the Notes 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 (a) bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally, (b) general equitable principles (regardless
of whether enforcement is considered in a proceeding in equity or at
law), (c) requirements that a claim with respect to any Notes issued
under the Indenture that are payable in a foreign or composite currency
(or a foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law, or (D) governmental authority to
limit, delay or prohibit the making of payments outside the United
States. The 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.
(15) AUTHORIZATION OF NOTES. The Notes being sold pursuant to
this Agreement have been, duly authorized by the Operating Partnership
for issuance and sale pursuant to this
6
Agreement. Such Notes, when issued and authenticated in the manner
provided for in the applicable Indenture and delivered by the Operating
Partnership pursuant to this Agreement against payment of the
consideration therefor specified in this Agreement, will constitute valid
and legally binding, unsecured obligations of the Operating Partnership,
enforceable against the Operating Partnership, in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to
or affecting creditors' rights generally or by general equitable
principles, and except further as enforcement thereof may be limited by
(a) requirements that a claim with respect to any Notes denominated other
than in U.S. dollars (or a foreign or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or
(b) governmental authority to limit, delay or prohibit the making of
payments outside the United States. Such Notes will be in the form
contemplated by, and each registered holder thereof will be entitled to
the benefits of, the applicable Indenture. Such Notes rank and will rank
equally with all unsecured indebtedness (other than subordinated
indebtedness) of the Operating Partnership that is outstanding on a
Representation Date or that may be incurred thereafter and senior to all
subordinated indebtedness that is outstanding on a Representation Date or
that may be incurred thereafter, except that such Notes will be
effectively subordinate to the prior claims of each secured mortgage
lender to any specific Portfolio Property which secures such lender's
mortgage and any claims of creditors of entities wholly or partly owned,
directly or indirectly, by the Operating Partnership.
(16) DESCRIPTIONS OF THE NOTES AND THE INDENTURE. The Notes
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.
(17) ABSENCE OF DEFAULTS AND CONFLICTS. None of the Simon
Entities or any Property Partnership is in violation of its charter,
by-laws, certificate of limited partnership or partnership agreement or
other organizational document, as the case may be, or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which each entity is a party or by which or any of them may be bound, or
to which any of its property or assets or any Portfolio Property may be
bound or subject (collectively, "Agreements and Instruments"), except for
such violations or defaults that would not result in a Material Adverse
Effect. The execution, delivery and performance of this Agreement, the
Notes, 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 Notes and the use of
the proceeds from the sale of the Notes 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, charge or
encumbrance upon any assets, properties or operations of the Operating
Partnership or any other Simon 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, singly or in the aggregate, would not result in a Material Adverse
Effect, nor will such action result in any violation of the provisions of
the partnership agreement and certificate of limited partnership of the
Operating Partnership or the organizational documents of any other Simon
7
Entity or any applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Operating Partnership,
any other Simon Entity or any Property Partnership or any of their
assets, properties or operations, except for such violations that would
not have a Material Adverse Effect. As used herein, a "Repayment Event"
means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption or
repayment of all or a material portion of such indebtedness by the
Operating Partnership, any other Simon Entity or any Property
Partnership.
(18) ABSENCE OF LABOR DISPUTE. Except as otherwise described in
the Offering Memorandum, no labor dispute with the employees of the
Operating Partnership or any other Simon 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.
(19) ABSENCE OF PROCEEDINGS. There is no action, suit,
proceeding, inquiry or investigation before or by any court or
governmental agency or body, domestic or foreign, now pending, or to the
knowledge of the Operating Partnership threatened against or affecting
the Operating Partnership, any other Simon 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 Indenture or the Registration Rights Agreement or the
transactions contemplated herein or therein. The aggregate of all pending
legal or governmental proceedings to which the Operating Partnership or
any other Simon 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.
(20) REIT QUALIFICATION. At all times since January 1, 1973 the
Company (as Corporate Property Investors, a Massachusetts business trust)
has been, and at all times since January 1, 1994, SPG Properties (as
Simon Property Group, Inc.) has been, and upon the sale of the applicable
Notes, the Company and SPG Properties 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 their respective proposed methods of operation
will enable each of them to continue to meet the requirements for
taxation as a real estate investment trust under the Code.
(21) INVESTMENT COMPANY ACT. Each of the Operating Partnership,
the other Simon Entities and the Property Partnerships is not, and upon
the issuance and sale of the Notes 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").
(22) INTELLECTUAL PROPERTY. To the knowledge of the Operating
Partnership, none of the Simon 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.
8
(23) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
or any other entity or person is necessary or required for the
performance by the Operating Partnership of its obligations under this
Agreement, the Indenture or the Registration Rights Agreement or in
connection with the transactions contemplated under this Agreement, the
Indenture or the Registration Rights Agreement, except such as have been
already obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws or under the by-laws and rules of
the National Association of Securities Dealers, Inc. (the "NASD").
(24) POSSESSION OF LICENSES AND PERMITS. The Operating
Partnership and the other Simon Entities and each Property Partnership
possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them except for
such Governmental Licenses the failure to obtain would not, singly or in
the aggregate, result in a Material Adverse Effect. The Operating
Partnership and the other Simon 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, any of the
other Simon 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.
(25) TITLE TO PROPERTY. The Operating Partnership, the other
Simon Entities and the Property Partnerships have good and marketable
title to the Portfolio Properties free and clear of Liens, except (a) as
otherwise stated in the Offering Memorandum, or referred to in any title
policy for such Portfolio Property, or (b) those which do not, singly or
in the aggregate, Materially (i) affect the value of such property or
(ii) interfere with the use made and proposed to be made of such property
by the Operating Partnership, any other Simon Entity or any Property
Partnership. All leases and subleases under which the Operating
Partnership, any other Simon Entity or any Property Partnerships hold
properties are in full force and effect, except for such which would not
have a Material Adverse Effect. None of the Operating Partnership, the
other Simon Entities or the Property Partnerships has received any notice
of any Material claim of any sort that has been asserted by anyone
adverse to the rights of the Operating Partnership, any other Simon
Entity or the Property Partnerships under any material leases or
subleases, or affecting or questioning the rights of the Operating
Partnership, such other Simon Entity or the Property Partnerships of the
continued possession of the leased or subleased premises under any such
lease or sublease, other than claims that would not have a Material
Adverse Effect. All liens, charges, encumbrances, claims or restrictions
on or affecting any of the Portfolio Properties and the assets of any
Simon Entity or any Property Partnership which are required to be
disclosed in the Offering Memorandum are disclosed therein. None of the
Simon Entities, the Property Partnerships or any tenant of any of the
Portfolio Properties is in default under any of the ground leases (as
lessee) or space leases (as lessor or lessee, as the case may be)
relating to, or any of the mortgages or other security documents or other
agreements encumbering or otherwise recorded against, the Portfolio
Properties, and the Operating Partnership knows of no 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
9
or any Property Partnership, as lessor, leases its Portfolio Property,
has an option or right of first refusal to purchase the premises demised
under such lease, the exercise of which would have a Material Adverse
Effect. Each of the Portfolio Properties complies with all applicable
codes, laws and regulations (including, without limitation, building and
zoning codes, laws and regulations and laws relating to access to the
Portfolio Properties), except for such failures to comply that would not
in the aggregate have a Material Adverse Effect. The Operating
Partnership has no knowledge of any pending or threatened condemnation
proceeding, zoning change, or other proceeding or action that will in any
manner affect the size of, use of, improvements on, construction on or
access to, the Portfolio Properties, except such proceedings or actions
that would not have a Material Adverse Effect.
(26) ENVIRONMENTAL LAWS. Except as otherwise stated in the
Offering Memorandum and except such violations as would not, singly or in
the aggregate, result in a Material Adverse Effect, (a) none of the
Operating Partnership, the other Simon Entities or any Property
Partnership is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of common
law and any judicial or administrative interpretation thereof including
any judicial or administrative order, consent, decree of judgment,
relating to pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water, groundwater,
land surface or subsurface strata) including, without limitation, laws
and regulations relating to the release or threatened release of
chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (b) the Operating
Partnership, the other Simon Entities and the Property Partnerships have
all permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(c) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices
of noncompliance or violation, investigation or proceedings relating to
any Environmental Law against the Operating Partnership, any of the other
Simon Entities or the Property Partnerships and (D) there are no events
or circumstances that might reasonably be expected to form the basis of
an order for clean-up or remediation, or an action, suit or proceeding by
any private party or governmental body or agency, against or affecting
the Operating Partnership, any of the other Simon Entities or any
Property Partnership relating to any Hazardous Materials or the violation
of any Environmental Laws.
(27) TAX RETURNS. Each of the Simon Entities and the Property
Partnerships has filed all federal, state, local and foreign income tax
returns which have been required to be filed (except in any case in which
an extension has been granted or the failure to so file would not have a
Material Adverse Effect) and has paid all taxes required to be paid and
any other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except, in all cases, for
any such tax, assessment, fine or penalty that is being contested in good
faith.
(28) ENVIRONMENTAL CONSULTANTS. None of the environmental
consultants which prepared environmental and asbestos inspection reports
with respect to certain of the Portfolio Properties was employed for such
purpose on a contingent basis or has any substantial interest in any
Simon Entity or any Property Partnership and none of them nor any of
their directors, officers or employees is connected with any Simon Entity
or any Property Partnership as a promoter, selling agent, voting trustee,
director, officer or employee.
10
(29) PROPERTY INFORMATION. Information in respect of the
Portfolio Properties presented in the Offering Memorandum is true and
accurate in all Material respects as of the date of Offering Memorandum.
(30) RULE 144A ELIGIBILITY. The Notes are eligible for resale
pursuant to Rule 144A and will not be, at the Closing Time, of the same
class as any 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.
(31) 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 Operating Partnership makes no
representation) has engaged or will engage, in connection with the
offering of the Notes, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the 1933 Act.
(32) 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 Notes to
the Initial Purchasers and to each Subsequent Purchaser in the manner
contemplated by this Agreement and the Offering Memorandum to register
the Notes under the 1933 Act or to qualify the Indenture under the 1939
Act.
(33) REPORTING COMPANY. The Operating Partnership is subject to
the reporting requirements of Section 13 or Section 15(d) of the 1934
Act.
(34) NO DIRECTED SELLING EFFORTS. With respect to those Notes
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.
(35) INVESTMENT GRADE RATING. The Notes will have an investment
grade rating from one or more nationally recognized statistical rating
organizations at each applicable Representation Date.
(b) OFFICERS' CERTIFICATES. Any certificate signed by any officer of
the Operating Partnership or any authorized representative of the Company
delivered to the Representatives or to counsel for the Initial Purchasers in
connection with the offering of the Notes 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 and, unless
subsequently amended or supplemented, at each Representation Date subsequent
thereto.
SECTION 2. SALE AND DELIVERY TO THE INITIAL PURCHASERS; CLOSING.
(a) NOTES. On the basis of the representations and warranties
contained herein 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 Notes set
11
forth in SCHEDULE 1 opposite the name of such Initial Purchaser, plus any
additional principal amount of Notes 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
Notes shall be made at the office of Xxxxxxxx Chance 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, 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
same day funds payable to the order of the Operating Partnership, against
delivery to the Representatives or their designee for the respective accounts of
the Initial Purchasers of the Notes to be purchased by them. It is understood
that each Initial Purchaser has authorized the Representative, for its account,
to accept delivery of, receipt for, and make payment of the purchase price for,
the Notes which it has severally agreed to purchase. The Representatives,
individually and not as a representative of the Initial Purchasers, may (but
shall not be obligated to) make payment of the purchase price for the Notes to
be purchased by any Initial Purchaser whose check has 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 Notes 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 Notes will
be made available for examination and packaging by the Representatives in The
City of New York not later than 10:00 A.M. (Eastern time) on the business day
prior to the Closing Time.
SECTION 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 and 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 Notes with any securities exchange or any other
regulatory body in the United States or any other jurisdiction, and (y) prior to
the completion of the placement of the Notes by the Initial Purchasers as
evidenced by a notice in writing from the Initial Purchasers to the Operating
Partnership, any material changes in or affecting the condition, financial or
otherwise, or the earnings, business affairs or business prospects of any Simon
Entity or Property Partnership which (i) make any statement in the Final
Offering Memorandum false or misleading or (ii) are not disclosed in the Final
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
12
Partnership, its counsel, the Initial Purchasers or counsel for the Initial
Purchasers, to amend or supplement the 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 Final 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 Notes
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 bylaws that the
Board of Directors of the Company 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 Notes 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.
(e) REPORTING REQUIREMENTS. The Operating Partnership, during the
period when the Notes 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 and SPG Properties will use their
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
Notes 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 Notes in the manner specified in
the Offering Memorandum under "Use of Proceeds."
(h) EXCHANGE ACT FILINGS. During the period from the Closing Time
until one year after the Closing Time, the Operating Partnership will deliver to
the Representatives, (i) promptly upon their becoming available, copies of all
current, regular and periodic reports of the Operating Partnership 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 Representatives may reasonably
request.
13
(i) SUPPLEMENTAL INDENTURES. In respect of the offering of the Notes,
the Operating Partnership will execute a supplemental indenture designating the
series of debt securities to be offered and its related terms and provisions in
accordance with the provisions of the Indenture.
(j) RATINGS. The Operating Partnership will take all reasonable action
necessary to enable Standard & Poor's Ratings Services ("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 Notes.
(k) DTC. The Operating Partnership will cooperate with the
Representatives and use commercially reasonable efforts to permit the Notes 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.
SECTION 4. PAYMENT OF EXPENSES.
(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 Notes, (ii) the preparation, issuance and delivery of the Notes, or any
certificates for the Notes to the Initial Purchasers, including any transfer
taxes, any stamp or other duties payable upon the sale, issuance and delivery of
the Notes to the Initial Purchasers and 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 Notes 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 a blue sky survey,
(v) the printing and delivery to the Initial Purchasers of copies of the
Offering Memorandum (including financial statements and any schedules or
exhibits and any document incorporated by reference) and any amendments or
supplements thereto, (vi) the fees charged by nationally recognized statistical
rating organizations for the rating of the Notes, if applicable; and (vii) fees
and expenses of the Trustee, including the fees and disbursements of counsel for
the Trustee.
(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.
SECTION 5. CONDITIONS OF INITIAL PURCHASER'S OBLIGATIONS.
The obligations of the Initial Purchasers are subject to the accuracy of
the representations and warranties of the Operating Partnership contained in
Section 1 hereof or in certificates of any officer or authorized representative
of the Operating Partnership or any other Simon 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:
14
(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) OPINIONS OF COUNSEL FOR OPERATING PARTNERSHIP. At Closing Time,
the Representative shall have received the favorable opinions, dated as of
Closing Time, of Xxxxx & Xxxxxxx, special counsel for the Operating Partnership
and Xxxxx X. Xxxxxxx, the General Counsel of the Operating Partnership, or such
other counsel as is designated by the Operating Partnership, in form and
substance satisfactory to counsel for the Initial Purchasers, together with
signed or reproduced copies of such opinion for each of the other Initial
Purchasers. Such opinion shall address such of the items set forth in Exhibits
B-1 and B-2.
(c) OPINION OF COUNSEL FOR INITIAL PURCHASERS. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of Xxxxxxxx Chance 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), (8), (9), (11), (12)
and the last two paragraphs of Exhibit B-1 hereto, and (3) (with respect to the
first clause only) of Exhibit B-2 hereto. In giving such opinion, such counsel
may rely, as to all matters governed by the laws of jurisdictions other than the
law of the State of New York, the federal law of the United States and the
General Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representatives. Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers or authorized representatives of the
Operating Partnership and the other Simon Entities and certificates of public
officials.
(d) OFFICERS' CERTIFICATE. At Closing Time, there shall not have been,
since the date of this Agreement or since the respective dates as of which
information is given in the Offering Memorandum, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Operating Partnership and the other Simon Entities
considered as one enterprise, whether or not arising in the ordinary course of
business, and the Representative shall have received a certificate of the Chief
Executive Officer, President or a Vice President and of the chief financial
officer or chief accounting officer of the Company, as the sole 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 Notes 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 Representative shall have received from Xxxxxx Xxxxxxxx LLP a
letter, dated such date, in form and substance satisfactory to the
Representative 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.
15
(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 Notes 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 Notes have such ratings; and since the date
of this Agreement, there shall not have occurred a downgrading in the rating
assigned to the Notes or any of the Operating Partnership's other Notes 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
Notes 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 Notes 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 Notes 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.
SECTION 6. SUBSEQUENT OFFERS AND RESALES OF THE NOTES.
(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 Notes:
(i) OFFERS, SALES AND DELIVERIES. Offers, sales and deliveries
of the Notes 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 Notes 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 Notes 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
Notes in such jurisdictions.
16
(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 Notes.
(iii) PURCHASES BY NON-BANK FIDUCIARIES. In the case of a
non-bank Subsequent Purchaser of a Note 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 Notes
from such Initial Purchaser or affiliate, as the case may be, in the
United States that the Notes (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 Notes 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.
(v) MINIMUM PRINCIPAL AMOUNT. No sale of the Notes to any one
Subsequent Purchaser will be for less than U.S. $1,000 ($100,000 for
Institutional Accredited Investors) principal amount and no Note 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
Notes.
(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 Notes 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 Notes, in connection
with its original distribution of the Notes, 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, directly or indirectly,
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 Notes by the Operating Partnership to the Initial
Purchasers, (ii) the resale of the Notes by the Initial Purchasers to
Subsequent Purchasers or (iii) the resale of the Notes 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.
17
(ii) RULE 144A INFORMATION. The Operating Partnership agrees
that, in order to render the Notes eligible for resale pursuant to Rule
144A under the 1933 Act, while any of the Notes remain outstanding, it
will make available, upon request, to any holder of Notes or prospective
purchasers of Notes 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 Notes, the Operating Partnership
will not, and will cause its Affiliates not to, purchase or agree to
purchase or otherwise acquire any Notes which are "restricted securities"
(as such term is defined under Rule 144(a)(3) under the 1933 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 Notes are promptly retired.
(c) RESALE PURSUANT TO RULE 903 OF REGULATION S OR RULE 144A. Each
Initial Purchaser understands that the Notes 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 Notes and will offer and sell Notes (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 Notes 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 Notes, 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 Notes (other
than a sale of Notes pursuant to Rule 144A) it will have sent to each
distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases Notes from it or through it during the restricted
period a confirmation or notice to substantially the following effect:
"The Notes 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 Notes 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
Notes, except with its affiliates or with the prior written consent of the
Operating Partnership.
18
SECTION 7. INDEMNIFICATION.
(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 the
Representatives), 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 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 the
Representatives, and, in the
19
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.
SECTION 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 Notes
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 Notes pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of such
Notes (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 Notes.
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
20
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.
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 Notes 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 number, or aggregate principal amount, as the case
may be, of Notes set forth opposite their respective names in Schedule 1 hereto
and not joint.
SECTION 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 the
General Partners or authorized representatives of each 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 or the General Partners, and shall
survive delivery of and payment for the Notes.
SECTION 10. TERMINATION.
(a) TERMINATION; GENERAL. The Representatives may terminate this
Agreement, by notice to the Operating Partnership, at any time at or prior to
the Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Offering Memorandum, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Operating Partnership and the other Simon 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 internationally or any outbreak of hostilities or escalation thereof
or other calamity or crisis, or any change or development involving a
prospective change in national or international political, financial, or
economic conditions, in each case the effect of which is such as to make it, in
the judgment of the Representative, impracticable or
21
inadvisable to market the Notes or to enforce contracts for the sale of the
Notes, 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 New York Stock Exchange, the Nasdaq National Market or
the American Stock Exchange or in the over-the-counter market has been suspended
or limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by 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, or Delaware 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.
SECTION 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
Notes which it or they are obligated to purchase under this Agreement (the
"Defaulted Notes"), 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 Notes 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 Notes does not exceed 10% of the
aggregate principal amount of the Notes 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 Notes exceeds 10% of the
aggregate principal amount of the Notes 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.
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.
SECTION 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
Simon
22
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 Xxxxx & Xxxxxxx, 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxxxxxxx, XX 00000, attention of Xxxxx X. Xxxxxxx, Esq.
SECTION 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, the
General Partners, 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 the General Partners,
and for the benefit of no other person, firm or corporation. No purchaser of
Notes from any Initial Purchaser shall be deemed to be a successor by reason
merely of such purchase.
SECTION 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.
SECTION 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.
23
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Operating Partnership a counterpart
hereof, whereupon this Agreement, along with all counterparts, will become a
binding agreement between the Initial Purchasers, and the Operating Partnership
in accordance with its terms.
Very truly yours,
SIMON PROPERTY GROUP, L.P.
By: Simon Property Group, Inc.,
its Managing General Partner
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
SIMON PROPERTY GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
CONFIRMED AND ACCEPTED,
as of the date first
above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
and
CHASE SECURITIES INC.
By: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: /s/ Xxxxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Director and Authorized Signatory
For themselves and as Representatives of the other Initial Purchasers named in
Schedule 1 hereto.
SCHEDULE 1
Principal Principal
Initial Purchaser Amount of 2006 Notes Amount of 2011 Notes
-------------------------------- -------------------- --------------------
Xxxxxxx Lynch, Pierce, $100,500,000 $67,000,000
Xxxxxx & Xxxxx
Incorporated
Chase Securities Inc. $100,500,000 $67,000,000
Banc of America Securities LLC $33,000,000 $22,000,000
Xxxxxxx Xxxxx Xxxxxx Inc. $33,000,000 $22,000,000
UBS Warburg LLC $33,000,000 $22,000,000
----------- -----------
TOTAL............................. $300,000,000 $200,000,000
============ ============
SCHEDULE 2
SIMON PROPERTY GROUP, L.P.
$300,000,000 7 3/8% Notes due 2006
$200,000,000 7 3/4% Notes due 2011
1. The initial public offering price of the 2006 Notes shall be
99.715% of the principal amount of the 2006 Notes. The initial public offering
price of the 2011 Notes shall be 99.118% of the principal amount of the 2011
Notes.
2. The purchase price to be paid by the Initial Purchasers for the
2006 Notes shall be 99.115% of the principal amount of the 2006 Notes. The
purchase price to be paid by the Initial Purchasers for the 2011 Notes shall be
98.468% of the principal amount of the 2011 Notes.
3. The interest rate on the 2006 Notes shall be 7 3/8% per annum. The
interest rate on the 2011 Notes shall be 7 3/4% per annum.
SCHEDULE 3
UNITS OF PARTNER INTERESTS OF THE OPERATING PARTNERSHIP
Preferred Units Outstanding 22,049,570
General Partner Units Outstanding 170,274,816
Limited Partner Units Outstanding 64,966,226
-----------
TOTAL 257,290,612
Exhibit A
FORM OF REGISTRATION RIGHTS AGREEMENT
(Please see copy of Registration Rights Agreement at Exhibit 4.3 of this
Registration Statement.)
Exhibit B-1
FORM OF OPINION OF COMPANY'S SPECIAL 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 Delaware.
(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 each 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
Indenture and the Registration Rights Agreement, the consummation of the
transactions contemplated in this Agreement, and compliance by the Company with
its obligations under this Agreement, the Indenture and the Registration Rights
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 certificate of incorporation or by-laws of the
Company; (ii) any applicable law, statute, rule, regulation of Delaware; or
(iii) to such counsel's knowledge, any Delaware order or Delaware 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.
(5) 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.
(6) The information in the Offering Memorandum under "Description of
Notes," "Certain Federal Income Tax Considerations," and "State and Local Tax
Considerations" and the description of the Notes included therein, to the extent
that it purports to summarize matters of law, descriptions of statutes, rules or
regulations, summaries of legal matters, the Operating Partnership's
organizational documents or legal proceedings, or legal conclusions, has been
reviewed by such counsel, is correct and presents fairly the information
required to be disclosed therein in all material respects.
B-1-1
(7) None of the Operating Partnership, any of the Simon Entities or
any Property Partnership is required to be registered as an investment company
under the 0000 Xxx.
(8) The Notes being sold pursuant to this Agreement have been duly
authorized on behalf of the Operating Partnership by the Company as the managing
general partner of the Operating Partnership 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 Notes will constitute valid and legally binding
obligations of the Operating Partnership enforceable against the Operating
Partnership in accordance with their terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance
or transfer, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles, and except
further as enforcement thereof may be limited by (a) requirements that a claim
with respect to any Notes denominated other than in U.S. dollars (or a foreign
or composite currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law, (b) governmental authority to limit, delay or prohibit the
making of payments outside the United States and (c) the enforceability of forum
selection clauses in the federal courts, and (ii) each holder of the Notes will
be entitled to the benefits of the Indenture. The Notes are in the form
contemplated by the Indenture.
(9) This Agreement, the Indenture and the Original Indenture were duly
and validly authorized, executed and delivered by, or on behalf of, the
Operating Partnership.
(10) The Company has, at all times since the effective date of its
election to be taxed as a "real estate investment trust" under the Code, been
organized in conformity with the requirements for qualification and taxation as
a "real estate investment trust" under the Code and its proposed organization
structure will permit it to remain so qualified.
(11) The Indenture has been duly qualified under the 1939 Act and 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 Notes 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.
(12) Assuming the correctness of the representations and warranties and
the compliance with the agreements of the Operating Partnership and the Initial
Purchasers, the offer and sale of the Notes to the Initial Purchasers and to
each Subsequent Purchaser solely in the manner and under the circumstances
contemplated by this Agreement and the Offering Memorandum are exempt from the
registration requirements of the 1933 Act.
(13) 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 (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or transfer or
similar laws affecting creditors' rights generally and (ii) general principles
of equity (regardless of whether such enforceability
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is considered in a proceeding in equity or at law) and (iii) that rights to
indemnity and contribution contained in the Registration Rights Agreement may be
limited by state or federal securities laws or public policy.
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 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 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).
X-0-0
Xxxxxxx X-0
FORM OF OPINION OF THE OPERATING PARTNERSHIP'S GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly organized and is validly existing as a
corporation in good standing under the State of Delaware and has corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Offering Memorandum.
(2) 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.
(3) 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 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 Partnership Agreement of the Operating Partnership has been duly and validly
authorized, executed and delivered by the parties thereto and is a valid and
binding agreement, enforceable against the parties thereto in accordance with
its terms, except as such enforceability may be subject to (1) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or transfer or
similar laws affecting creditors' rights generally and (2) general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law), and except as rights to indemnity thereunder may be
limited by applicable law.
(4) Each Simon 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 and outstanding
capital stock or other equity interests of each Simon Entity other than 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
B-2-1
of such entities. None of the outstanding shares of capital stock or other
equity interests of such entity was issued in violation of preemptive or other
similar rights of any securityholder of such entity.
(5) Each of the Property Partnerships is duly organized and validly
existing as a limited or general partnership, as the case may be, in good
standing under the laws of its respective jurisdiction of formation, with the
requisite power and authority to own, lease and operate its properties and to
conduct the business in which it is engaged and proposes to engage as described
in the 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.
(6) The Notes being sold pursuant to this Agreement and the Indenture
each 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.
(7) None of the Operating Partnership, any of the other Simon Entities
or any Property Partnership is in violation of its charter, by-laws, partnership
agreement, or other organizational document, as the case may be, and no default
by the Operating Partnership or any other Simon 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.
(8) The execution, delivery and performance of this 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 Portfolio Property,
pursuant to, any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument, to which the
Operating Partnership or any Property Partnership is a party or by which it of
any of them may be bound, or to which any of the assets, properties or
operations of the Operating Partnership or any Property Partnership is subject,
nor will such action result in any violation of the provisions of the charter,
by-laws, partnership agreement or other organizational document of the Operating
Partnership, any other Simon 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 Operating Partnership
or any Property Partnership or any judgement, order, writ or decree binding upon
the Operating Partnership, any other Simon Entity or any Property Partnership,
which judgement, order, writ or decree, is known to such counsel, of any
government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Operating Partnership, any other Simon 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.
(9) 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
B-2-2
required under the applicable securities laws of the various jurisdictions in
which the Notes will be offered or sold, as to which such counsel need express
no opinion) is required in connection with the due authorization, execution and
delivery of this Agreement, the Indenture or the Registration Rights Agreement
by the Operating Partnership or for the offering, issuance, sale or delivery of
the Notes to the Initial Purchasers and to each Subsequent Purchaser in the
manner contemplated by this Agreement.
(10) There is no action, suit, proceeding, inquiry or investigation
before or by any court or governmental agency or body, domestic or foreign, now
pending or threatened, against or affecting the Operating Partnership or any
other Simon 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 Indenture or the Registration Rights Agreement, the performance
by the Operating Partnership of its obligations thereunder or the transactions
contemplated by the Offering Memorandum.
(11) All descriptions in the Offering Memorandum of contracts and other
documents to which the Operating Partnership or any other Simon Entity is a
party are accurate in all material respects. To the best knowledge and
information of such counsel, there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be described or
referred to in the Offering Memorandum other than those described or referred to
therein, and the descriptions thereof or references thereto are correct in all
material respects.
(12) To the best of such counsel's knowledge and information, there are
no statutes or regulations that are required to be described in the Offering
Memorandum that are not described as required.
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