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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) November 5, 1996
THE MACERICH COMPANY
--------------------
(Exact name of registrant as specified in charter)
Maryland 1-12504 95-4448705
- ------------------ ----------------- ------------------
(State or Other (Commission File (IRS Employer
Jurisdiction of Number) Identification No.)
Incorporation)
233 Wilshire Boulevard, Suite 700, Santa Monica, CA 90401
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(Address of principal executive of offices) (Zip code)
Registrant's telephone number including area code (310) 394-6911
(Former name or former address, if changed since last report)
- -------------------------------------------------------------
Not applicable.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits
(c) Exhibits
1.1 Underwriting Agreement, dated October 30, 1996
between Lehman Brothers Inc. and the Registrant
regarding the sale of 5,000,000 shares of the
Registrant's common stock (the "Shares").
5.1 Opinion of O'Melveny & Myers LLP as to the
validity of the Shares.
23.1 Consent of O'Melveny & Myers LLP (included in
Exhibit 5.1).
Pursuant to the requirements of the Securities and Exchange
Act of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Santa Monica, State of California.
THE MACERICH COMPANY
By: /s/ RICHARD A. BAYER
-----------------------------
Richard A. Bayer
General Counsel & Secretary
DATED: November 5, 1996
5,000,000 Shares
THE MACERICH COMPANY
Common Stock
UNDERWRITING AGREEMENT
October 30, 1996
LEHMAN BROTHERS INC.
3 World Financial Center
New York, New York 10285
Dear Sirs:
The Macerich Company, a Maryland corporation (the "Com-
pany"), proposes to sell 5,000,000 shares (the "Firm Stock") of
the Company's Common Stock, par value $.01 per share (the "Common
Stock"). In addition, the Company proposes to grant to you (the
"Underwriter") an option to purchase up to an additional 750,000
shares of the Common Stock on the terms and for the purposes set
forth in Section 2 (the "Option Stock"). The Firm Stock and the
Option Stock, if purchased, are hereinafter collectively called
the "Stock." This is to confirm the agreement concerning the
purchase of the Stock from the Company by you.
1. Representations, Warranties and Agreements of the
Company. The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3, an
amendment and a post-effective amendment thereto, with respect to
the Debt Securities, Preferred Stock, Depositary Shares, Common
Stock, Securities Warrants and Rights (the "Shelf Securities") to
be issued from time to time have (i) been prepared by the Company
in conformity in all material respects with the requirements of
the Securities Act of 1933 (the "Securities Act") and the rules
and regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") thereunder, (ii) been
filed with the Commission under the Securities Act and (iii)
become effective under the Securities Act. Copies of such
registration statement and the amendments thereto have been
delivered by the Company to you. As used in this Agreement,
"Effective Time" means the date and the time as of which such
registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commis-
sion; "Effective Date" means the date of the Effective Time. The
registration statement as amended to the date of this Agreement
is hereinafter referred to as the "Registration Statement" and
the related prospectus covering the Shelf Securities in the form
first used to confirm sales of the Stock is hereinafter referred
to as the "Basic Prospectus." The Basic Prospectus as
supplemented by the prospectus supplement specifically relating
to the Stock in the form first filed pursuant to Rule 424 is
hereinafter referred to as the "Prospectus." Any reference in
this Agreement to the Registration Statement, the Basic
Prospectus, any preliminary form of Prospectus (a "Preliminary
Prospectus") previously filed with the Commission pursuant to
Rule 424 or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Securities Act which were filed
under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively,
the "Exchange Act") on or before the date of this Agreement, any
Preliminary Prospectus or the Prospectus, as the case may be; and
any reference to "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include any documents filed under the Exchange Act after
the date of this Agreement, any Preliminary Prospectus or the
Prospectus, as the case may be, which are deemed to be
incorporated by reference therein. The Commission has not issued
any order preventing or suspending the use of any Preliminary
Prospectus. As described in the Prospectus, the Company owns
partnership interests in The Macerich Partnership, L.P., a
Delaware limited partnership (the "Partnership"). The term
"subsidiaries," when used with respect to the Company, includes,
without limitation, the Partnership, Macerich Management Company
and Macerich Property Management Company unless otherwise noted,
and all references to properties or assets of the Company or its
subsidiaries include, without limitation, the Centers (as such
term is defined in the Prospectus) unless otherwise noted.
(b) The documents incorporated by reference in
the Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material
respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an
untrue statement of a material fact or omitted to state a mate-
rial fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so
filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents
become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, no
representation or warranty is made as to any statements or
omissions made in reliance upon and in conformity with written
information furnished to the Company by you specifically for
inclusion therein.
(c) The Registration Statement conforms, and the
Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will, when they become
effective or are filed with the Commission, as the case may be,
conform in all material respects to the requirements of the
Securities Act and the Rules and Regulations and do not and will
not, as of the applicable effective date (as to the Registration
Statement and any amendment thereto) and as of the applicable
filing date (as to the Prospectus and any amendment or supplement
thereto) contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided
that no representation or warranty is made as to information
contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written
information furnished to the Company by you specifically for
inclusion therein.
(d) The Company and each of its subsidiaries (i)
have been duly incorporated or formed, as the case may be, and
are validly existing as corporations or limited partnerships, as
the case may be, in good standing under the laws of their respec-
tive jurisdictions of incorporation or organization, are duly
qualified to do business and are in good standing as foreign
corporations or limited partnerships, as the case may be, in each
jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires
such qualification, except where the failure to so qualify would
not have a material adverse effect on the condition, financial or
otherwise, earnings, business affairs or business prospects of
the Company and its subsidiaries on a consolidated basis and (ii)
have all power and authority necessary to own or hold their
respective properties and to conduct the businesses in which they
are engaged.
(e) The Company has an authorized capitalization
as set forth in the Prospectus, and all of the issued shares of
stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and conform to the
description thereof contained in the Prospectus; and all of the
issued shares of capital stock of each subsidiary of the Company
(other than the Partnership) have been duly and validly autho-
rized and issued and are fully paid and non-assessable and
(except as set forth in the Prospectus) are owned directly or
indirectly by the Company. Such capital stock owned by the
Partnership is owned by the Partnership free and clear of all
liens, encumbrances, equities or claims; all of the partnership
interests of the Partnership have been duly and validly autho-
rized and issued, are fully paid and are owned of record in the
percentage amounts set forth in Exhibit A hereto by the Company
and by the entities or persons described in Exhibit A hereto, and
the partnership interests owned by the Company are owned by the
Company free and clear of all liens, encumbrances, equities or
claims.
(f) The unissued shares of the Stock to be issued
and sold by the Company to you hereunder have been duly and
validly authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued,
fully paid and non-assessable; and the Stock will conform to the
descriptions thereof contained in the Prospectus.
(g) This Agreement has been duly authorized,
executed, and delivered by the Company and constitutes the valid
and binding agreement of the Company, enforceable against the
Company in accordance with its terms except to the extent that
(a) enforcement thereof may be limited by (1) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally
and (2) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in
equity); the execution, delivery and performance of this Agree-
ment by the Company and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary
corporate action; except as disclosed in the Prospectus, and
except as any of the following, either individually or in the
aggregate, would not have a material adverse effect on the
condition, financial or otherwise, earnings, business affairs or
business prospects of the Company and its subsidiaries, taken as
a whole, or would not materially impair the consummation of the
transactions contemplated by this Agreement, the execution,
delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby: (i) did
not and will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the property or assets of the
Company or any of its subsidiaries pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the Company or any
of its subsidiaries is subject, and (ii) did not or will not re-
sult in any violation of the provisions of the charter, by-laws
or partnership agreement of the Company or any of its sub-
sidiaries, as the case may be, or any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any
of their properties or assets; and except for the registration of
the Stock under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be re-
quired under the Exchange Act and applicable state or foreign
securities laws in connection with the purchase and distribution
of the Stock by you or as may heretofore have been obtained, no
consent, approval, authorization or order of, or filing or regis-
tration with, any such court or governmental agency or body was
or is required for the execution, delivery and performance of
this Agreement by the Company or the consummation of the transac-
tions contemplated hereby other than such filings and consents
that will be timely made or obtained prior to or upon the closing
contemplated by Section 2 hereof, provided, however, that the
Company undertakes to make and obtain all such filings and
consents promptly by such closing.
(h) Except as disclosed in the Prospectus or as
delivered to your counsel, there are no contracts, agreements or
understandings between the Company and any person granting such
person the right to require the Company or any subsidiary of the
Company to file a registration statement under the Securities Act
with respect to any securities of the Company or any subsidiary
of the Company owned or to be owned by such person or to require
the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.
(i) Neither the Company nor any of its subsid-
iaries has sustained, since the date of the latest audited
financial statements included in the Prospectus, any material
loss or interference with its business from fire, explosion,
flood, earthquake or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since such date, there has
not been any change in the stock, partnership interests or long-
term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospec-
tive material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries on a
consolidated basis, otherwise than as set forth or contemplated
in the Prospectus.
(j) The financial statements (including the
related notes and supporting schedules) filed as part of the
Registration Statement or included in the Prospectus present
fairly the financial condition and results of operations of the
entities purported to be shown thereby, at the dates and for the
periods indicated, and, except as otherwise stated therein, have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved; the pro forma financial information included in the
Prospectus has been prepared in accordance with the applicable
requirements of the Securities Act, the Rules and Regulations and
AICPA guidelines with respect to pro forma financial information
and includes all adjustments necessary to present fairly the pro
forma financial position of the respective entity or entities
presented therein at the respective dates indicated and the
results of their operations for respective periods specified.
(k) Coopers & Lybrand L.L.P., who have certified
certain financial statements of the Company and whose report is
included in the Prospectus, are independent public accountants as
required by the Securities Act and the Rules and Regulations.
(l) (i) The Company, each of its subsidiaries
and any partnership or joint venture in which such party is a
participant (a "Related Entity") have good fee title to all real
property (other than the real property and buildings described in
subparagraph (ii) below) and good title to all personal property
owned by them, in each case free and clear of all liens, encum-
brances and defects except such as are described in the Prospec-
tus or such as do not materially affect the value of such prop-
erty and do not materially interfere with the use made and
proposed to be made of such property by the Company, its
subsidiaries and Related Entities; (ii) all real property and
buildings held under lease by the Company, its subsidiaries and
Related Entities are held by them under valid, subsisting and
enforceable leases, with such exceptions as do not materially
affect the value of such property and buildings and do not
materially interfere with the use made and proposed to be made of
such property and buildings by the Company, its subsidiaries and
Related Entities, in each case except as set forth in the
Prospectus; (iii) all liens, charges, encumbrances, claims, or
restrictions on or affecting the properties and assets of any of
the Company, its subsidiaries or Related Entities which are re-
quired to be disclosed in the Prospectus are disclosed therein;
(iv) except as set forth in the Prospectus, neither the Company,
nor any of its subsidiaries or Related Entities nor, to the
knowledge of the Company, any lessee of any portion of any such
party's properties is in default under any of the leases pursuant
to which any of the Company or its subsidiaries or Related Enti-
ties leases its properties and neither the Company, nor any of
its subsidiaries or Related Entities knows of any event which,
but for the passage of time or the giving of notice, or both,
would constitute a default under any of such leases other than
such defaults that, individually or in the aggregate, are not
material to the business of the Company and its subsidiaries,
taken as a whole; (v) except as set forth in the Prospectus and
except for J.C. Penney Company, Inc., as the tenant under its
lease in Valley View Center, no tenant under any of the leases
pursuant to which any of the Company or its subsidiaries or
Related Entities leases its properties has an option or right of
first refusal to purchase the premises demised under such lease;
(vi) to the knowledge of the Company, each of the properties of
any of the Company, its subsidiaries or Related Entities complies
with all applicable codes and zoning laws and regulations, except
for such failures to comply which would not individually or in
the aggregate have a material adverse effect on the consolidated
financial position, stockholders' equity, results of operations,
business or prospects of the Company and its subsidiaries; and
(vii) neither the Company nor any of its subsidiaries or Related
Entities has knowledge of any pending or threatened condemnation,
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 properties of any of the Company, its
subsidiaries or Related Entities except such proceedings or
actions that, individually or in the aggregate, would not have a
material adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries.
(m) The Company and each of its subsidiaries
carry, or are covered by, insurance in such amounts and covering
such risks as is adequate for the conduct of their respective
businesses and the value of their respective properties and as is
customary for companies engaged in similar businesses in similar
industries.
(n) The Company and each of its subsidiaries own
or possess adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names, trademark
registrations, service mark registrations, copyrights and
licenses necessary for the conduct of their respective businesses
and have no reason to believe that the conduct of their
respective businesses will conflict with, and have not received
any notice of any claim of conflict with, any such rights of
others.
(o) There are no legal or governmental proceed-
ings pending to which the Company or any of its subsidiaries is a
party or of which any property or assets of the Company or any of
its subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, might have a material
adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries; and to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(p) There are no contracts or other documents
which are required to be described in the Prospectus or filed as
exhibits to the Registration Statement by the Securities Act or
by the Rules and Regulations which have not been described in the
Prospectus or filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules and
Regulations.
(q) No relationship, direct or indirect, exists
between or among the Company on the one hand, and the directors,
officers or stockholders of the Company on the other hand, which
is required to be described in the Prospectus which is not so
described.
(r) No labor disturbance by the employees of the
Company exists or, to the knowledge of the Company, is imminent
which might be expected to have a material adverse effect on the
consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its
subsidiaries.
(s) The Company has filed all federal, state and
local income and franchise tax returns required to be filed
through the date hereof and has paid all taxes due thereon, and
no tax deficiency has been determined adversely to the Company or
any of its subsidiaries, which has had (nor does the Company have
any knowledge of any tax deficiency which, if determined
adversely to the Company or any of its subsidiaries, might have)
a material adverse effect on the consolidated financial
condition, stockholders' equity, results of operations, business
or prospects of the Company and its subsidiaries.
(t) Since the date as of which information is
given in the Prospectus through the date hereof, and except as
may otherwise be disclosed in the Prospectus, the Company has not
(i) issued or granted any securities, (ii) incurred any material
liability or obligation, direct or contingent, other than
liabilities and obligations which were incurred in the ordinary
course of business, (iii) entered into any transaction not in the
ordinary course of business which is material to the business of
the Company and its subsidiaries, taken as a whole or (iv) de-
clared or paid any dividend on its stock.
(u) The Company (i) makes and keeps books and re-
cords which are accurate in all material respects and (ii)
maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as
necessary to permit preparation of its financial statements and
to maintain accountability for its assets, (C) access to its
assets is permitted only in accordance with management's
authorization and (D) the reported accountability for its assets
is compared with existing assets at reasonable intervals.
(v) Neither the Company nor any of its subsid-
iaries (i) is in violation of its charter, by-laws or partnership
agreement, (ii) is in default in any material respect, and no
event has occurred which, with notice or lapse of time or both,
would constitute such a default, in the due performance or
observance of any material term, covenant or condition contained
in any material indenture, mortgage, deed of trust, loan agree-
ment or other agreement or instrument to which it is a party or
by which it is bound or to which any of its properties or assets
is subject or (iii) to its knowledge is in violation in any
material respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets
may be subject or has failed to obtain any material license,
permit, certificate, franchise or other governmental
authorization or permit necessary in all material respects to the
ownership of its property or to the conduct of its business.
(w) Neither the Company nor any of its subsid-
iaries, nor any director, officer, agent, employee or other
person associated with or acting on behalf of the Company or any
of its subsidiaries, has used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; made any direct or
indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; violated or is in
violation of any provision of the Foreign Corrupt Practices Act
of 1977; or made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
(x) Except as disclosed in the Prospectus, there
has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of any
pollutants, contaminants, chemicals, petroleum or petroleum
products, or toxic or hazardous materials, substances, or wastes
by the Company or any of its subsidiaries or any of their prede-
cessors in interest at, upon or from any of the property now or
previously owned or leased by the Company or its subsidiaries or,
to the knowledge of the Company, any of their predecessors in
interest in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would
require remedial action, damages or the modification or cessation
of any activity of the Company or any of its subsidiaries under
any applicable law, common law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation,
remedial action, damages, modification or cessation which would
not have, singly or in the aggregate with all such violations,
remedial actions, damages, modifications or cessations, a materi-
al adverse effect on the general affairs, management, financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole; there has been no
material spill, discharge, leak, emission, injection, escape,
dumping, migration or release of any kind onto such property or
into the environment surrounding such property of any pollutants,
contaminants, chemicals, petroleum or petroleum products, or
toxic or hazardous materials, substances, or wastes except for
any such spill, discharge, leak, emission, injection, escape,
dumping or release which would not have, singly or in the aggre-
gate with all such spills, discharges, leaks, emissions,
injections, escapes, dumpings and releases, a material adverse
effect on the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and
its subsidiaries taken as a whole.
(y) Neither the Company nor any subsidiary is an
"investment company" within the meaning of such term under the
United States Investment Company Act of 1940 and the rules and
regulations of the Commission thereunder.
(z) The Company is organized in conformity with
the requirements for qualification as a real estate investment
trust under the Internal Revenue Code of 1986, as amended (the
"Code"), and its present and contemplated method of operation
does and will enable it to meet the requirements for taxation as
a real estate investment trust ("REIT") under the Code and the
Company has elected to be taxed as a REIT under the Code for the
year ended December 31, 1995.
(aa) Each of the Company, its subsidiaries and
Related Entities has title insurance on all properties and assets
described in the Prospectus as owned by such party.
(ab) Each of the partnership and joint venture
agreements to which the Company or any of its subsidiaries is a
party, and which relates to real property described in the
Prospectus, has been duly authorized, executed and delivered by
such applicable party and constitutes the valid agreement there-
of, enforceable in accordance with its terms except to the extent
that enforcement thereof may be limited by (1) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally
and (2) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity)
and the execution, delivery and performance of any of such
agreements did not and will not, at the time of execution and
delivery, and does not and will not constitute a breach of, or a
default under, the charter, partnership agreement or bylaws of
the Company or any of its subsidiaries or any material contract,
lease or other instrument to which the Company or any of its sub-
sidiaries is a party or to which any of their property may be
bound or any law, administrative regulation or administrative or
court decree.
(ac) The agreements set forth on Exhibit B
hereto constitute all the material contracts and agreements of
the Company and its subsidiaries.
2. Purchase of the Stock by the Underwriter. On the
basis of the representations and warranties contained in, and
subject to the terms and conditions of, this Agreement, the
Company agrees to sell shares of the Firm Stock to you and you
agree to purchase at a price of $21.25 per share 5,000,000 shares
of Firm Stock.
In addition, the Company grants to you an option to
purchase up to 750,000 shares of Option Stock at the purchase
price per share set forth above, less an amount per share equal
to any dividends declared by the Company and payable on the Firm
Stock but not payable on the Option Stock. Such option is grant-
ed solely for the purpose of covering over-allotments in the sale
of Firm Stock and is exercisable as provided in Section 4 hereof.
The Company shall not be obligated to deliver any of
the Stock to be delivered on the Delivery Date or the Second
Delivery Date (as hereinafter defined), as the case may be except
upon payment for all the Stock to be purchased on such Delivery
Date as provided herein.
3. Offering of Stock by the Underwriter. Upon
authorization of the release of the Firm Stock, you propose to
offer the Firm Stock for sale upon the terms and conditions set
forth in the Prospectus.
4. Delivery of and Payment for the Stock. Delivery of
and payment for the Firm Stock shall be made at such place as
shall be determined by agreement between the Company and you at
10:00 A.M., New York City time, on the third full business day
following the date of this Agreement or at such other date as
shall be determined by agreement between the Company and you.
This date and time are sometimes referred to as the "First
Delivery Date." On the First Delivery Date, the Company shall
deliver or cause to be delivered certificates representing the
Firm Stock to you against payment to or upon the order of the
Company of the purchase price by certified or official bank check
payable in New York Clearing House (next-day) funds. Time shall
be of the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of your
obligation hereunder. Upon delivery, the Firm Stock shall be
registered in such names and in such denominations as you shall
request in writing not less than two full business days prior to
the First Delivery Date. For the purpose of expediting the
checking and packaging of the certificates for the Firm Stock,
the Company shall make the certificates representing the Firm
Stock available for inspection by you in New York, New York, not
later than 2:00 P.M., New York City time, on the business day
prior to the First Delivery Date.
At any time on or before the 30th day after the date of
this Agreement (or, if such 30th day shall be a Saturday, Sunday
or holiday, on the next business day) the option granted in Sec-
tion 2 may be exercised by written notice being given to the
Company by you. Such notice shall set forth the aggregate number
of shares of Option Stock as to which the option is being
exercised, the names in which the shares of Option Stock are to
be registered, the denominations in which the shares of Option
Stock are to be issued and the date and time, as determined by
you, when the shares of Option Stock are to be delivered;
provided, however, that this date and time shall not be earlier
than the First Delivery Date nor earlier than the second business
day after the date on which the option shall have been exercised
nor later than the fifth business day after the date on which the
option shall have been exercised. The date and time the shares
of Option Stock are delivered are sometimes referred to as the
"Second Delivery Date" and the First Delivery Date and the Second
Delivery Date are sometimes each referred to as a "Delivery
Date".
Delivery of and payment for the Option Stock shall be
made at such place as shall be determined by agreement between
the Company and you at 10:00 A.M., New York City time, on the
Second Delivery Date. On the Second Delivery Date, the Company
shall deliver or cause to be delivered the certificates repre-
senting the Option Stock to you against payment to or upon the
order of the Company of the purchase price by certified or
official bank check payable in New York Clearing House (next-day)
funds. Time shall be of the essence, and delivery at the time
and place specified pursuant to this Agreement is a further
condition of your obligation hereunder. Upon delivery, the
Option Stock shall be registered in such names and in such
denominations as you shall request in the aforesaid written
notice. For the purpose of expediting the checking and packaging
of the certificates for the Option Stock, the Company shall make
the certificates representing the Option Stock available for
inspection by you in New York, New York, not later than 2:00
P.M., New York City time, on the business day prior to the Second
Delivery Date.
5. Further Agreements of the Company. The Company
agrees:
(a) To prepare the Prospectus in a form approved
by you and to file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the Commission's close of
business on the second business day following the execution and
delivery of this Agreement; to make no further amendment or any
supplement to the Registration Statement or to the Prospectus
except as permitted herein; to advise you, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been
filed and to furnish you with copies thereof; to advise you,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospec-
tus, of the suspension of the qualification of the Stock for
offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of
the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order
or of any order preventing or suspending the use of any Prelimi-
nary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) To furnish promptly to you and to your
counsel a signed copy of the Registration Statement as originally
filed with the Commission, and each amendment thereto filed with
the Commission, including all consents and exhibits filed
therewith;
(c) To deliver promptly to you such number of the
following documents as you shall reasonably request: (i) con-
formed copies of the Registration Statement as originally filed
with the Commission and each amendment thereto (in each case
excluding exhibits other than this Agreement and the computation
of per share earnings) and (ii) each Preliminary Prospectus, the
Prospectus and any amended or supplemented Prospectus; and, if
the delivery of a prospectus is required at any time prior to the
expiration of nine months after the Effective Time in connection
with the offering or sale of the Stock and if at such time any
event shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall
be necessary in the reasonable opinion of your counsel during
such same period to amend or supplement the Prospectus in order
to comply with the Securities Act, to notify you and, upon your
request, to prepare and furnish without charge to you and to any
dealer in securities as many copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to
the Prospectus which will correct such statement or omission or
effect such compliance, and in case you are required to deliver a
prospectus in connection with sales of any of the Stock at any
time nine months or more after the Effective Time, upon your
request but at your expense, to prepare and deliver to you as
many copies as you may reasonably request of an amended or
supplemented Prospectus complying with section 10(a)(3) of the
Securities Act;
(d) To file promptly with the Commission any
amendment to the Registration Statement or the Prospectus or any
supplement to the Prospectus that may, in the reasonable judgment
of the Company or you, be required by the Securities Act or
requested by the Commission;
(e) Prior to filing with the Commission (i) any
amendment to the Registration Statement or supplement to the Pro-
spectus or (ii) any Prospectus pursuant to Rule 424 of the Rules
and Regulations, to furnish a copy thereof to you and your
counsel and obtain your consent to the filing, which consent will
not be unreasonably withheld;
(f) As soon as practicable after the Effective
Date, but in any event not later than 60 days after the end of
its fiscal quarter in which the first anniversary date of the
Effective Date occurs, to make generally available to the
Company's security holders and to deliver to you an earnings
statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Securities Act and
the Rules and Regulations (including, at the option of the
Company, Rule 158);
(g) For a period of five years following the
Effective Date, to furnish to you copies of all materials
furnished by the Company to its shareholders and all public
reports and all reports and financial statements furnished by the
Company to the principal national securities exchange upon which
the Common Stock may be listed pursuant to requirements of or
agreements with such exchange or to the Commission pursuant to
the Exchange Act or any rule or regulation of the Commission
thereunder;
(h) Promptly from time to time to take such
action as you may reasonably request to qualify the Stock for
offering and sale under the securities laws of such jurisdictions
as you may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdic-
tions for as long as may be necessary to complete the
distribution of the Stock; except that in no event shall the
Company be obligated in connection therewith to take any action
that would subject it to income taxation in such jurisdiction, to
qualify as a foreign corporation in such jurisdiction, or to exe-
cute a general consent to service of process;
(i) For a period of 90 days from the date of the
Prospectus, not to offer for sale, sell or otherwise dispose of,
directly or indirectly, any shares of Common Stock (other than
the Stock, or Common Stock issuable pursuant to the Company's
existing employee benefit and director plans or to redeem
Partnership Units), or sell or grant options, rights or warrants
with respect to any shares of Common Stock (other than the grant
of options to purchase up to an aggregate of 2,000,000 shares of
Common Stock pursuant to the Company's existing employee benefit
and director plans or the issuance of Partnership Units in
connection with the acquisition of property, directly or
indirectly by the Partnership), otherwise than in accordance with
this Agreement or as contemplated in the Prospectus or without
your prior written consent;
(j) To file promptly all reports and any
definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the
offering or sale of the Stock.
(k) To apply the net proceeds from the sale of
the Stock being sold by the Company as set forth in the
Prospectus; and
(l) To take such steps as shall be necessary to
ensure that neither the Company nor any subsidiary shall become
an "investment company" within the meaning of such term under the
United States Investment Company Act of 1940 and the rules and
regulations of the Commission thereunder.
6. Expenses. The Company agrees to pay (a) the costs
incident to the authorization, issuance, sale and delivery of the
Stock and any stock transfer taxes, stamp duties and similar
taxes payable in that connection; (b) the costs incident to the
preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto;
(c) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-
effective amendments thereof (including, in each case, exhibits),
any Preliminary Prospectus, the Prospectus and any amendment or
supplement to the Prospectus, all as provided in this Agreement;
(d) the costs of printing, reproducing and distributing this
Agreement (and related agreements) and all other agreements,
memoranda, correspondence and other documents printed, dis-
tributed or delivered in connection with the offering of the
Stock; (e) the filing fees incident to securing any required
review by the National Association of Securities Dealers, Inc. of
the terms of sale of the Stock; (f) any applicable listing or
other fees; (g) the fees and expenses of qualifying the Stock
under the securities laws of the several jurisdictions as
provided in Section 5(h) and of preparing, printing and
distributing a Blue Sky Memorandum (including related fees and
expenses of your counsel); and (h) all other costs and expenses
incident to the performance of the obligations of the Company
under this Agreement; provided that, except as provided in this
Section 6, Section 8 and Section 11, you shall pay your own costs
and expenses, including the costs and expenses of your counsel,
any transfer taxes on the Stock which you may sell and the
expenses of advertising any offering of the Stock made by you.
7. Conditions of Underwriter's Obligations. Your
obligations hereunder are subject to the accuracy, when made and
on each Delivery Date, of the representations and warranties of
the Company contained herein, to the performance by the Company
of its obligations hereunder, and to each of the following
additional terms and conditions:
(a) The Prospectus shall have been timely filed
with the Commission in accordance with Section 5(a); no stop
order suspending the effectiveness of the Registration Statement
or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with.
(b) You shall not have been advised by the Compa-
ny or shall not have discovered and disclosed to the Company that
the Registration Statement or the Prospectus or any amendment or
supplement thereto contains an untrue statement of a fact which,
in your opinion or in the opinion of Skadden, Arps, Slate,
Meagher & Flom, your counsel, is material or omits to state a
fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the state-
ments therein not misleading.
(c) O'Melveny & Myers LLP shall have furnished to
you its written opinion, as counsel to the Company, addressed to
you and dated such Delivery Date, in form and substance satisfac-
tory to you, to the effect that:
(i) The Company and each of Macerich
Management Company, Macerich Property Management
Company and the Partnership have been duly incorporated
or formed, as the case may be, and are existing as cor-
porations or limited partnerships, as the case may be,
in good standing under the laws of their respective
jurisdictions of incorporation or formation, are, to
the best of such counsel's knowledge, duly qualified to
do business and are in good standing as foreign corpo-
rations or limited partnerships, as the case may be, in
each jurisdiction in which their respective ownership
or lease of property or the conduct of their respective
businesses requires such qualification (to the
knowledge of such counsel based solely on a certificate
of an officer of the Company), except where the failure
to so qualify would not have a material adverse effect
on the condition, financial or otherwise, earnings,
business affairs or business prospects of the Company
and its subsidiaries on a consolidated basis, and have
corporate power, in the case of the Company, Macerich
Management Company and Macerich Property Management
Company, and power under its partnership agreement and
the Revised Uniform Limited Partnership Act of the
State of Delaware (the "Delaware Partnership Act"), in
the case of the Partnership necessary to own or hold
their respective current properties and conduct the
businesses in which they are currently engaged,
substantially as described in the Prospectus;
(ii) The Company has an authorized
capitalization as set forth in the Prospectus, and all
of the issued shares of stock of the Company
(including the shares of Stock being delivered on such
Delivery Date) have been duly and validly authorized
and issued, are or, with respect to the Stock, upon
payment of the consideration in the manner set forth in
this Agreement, will be, fully paid and non-assessable
and conform in all material respects to the description
thereof contained in the Prospectus under the captions
"Description of Preferred Stock" and "Description of
Common Stock"; all of the issued shares of capital
stock of each subsidiary of the Company (other than the
Partnership) have been validly authorized and issued
and are fully paid, non-assessable and except as set
forth in the Prospectus are owned of record by the Com-
pany or the Partnership. Such capital stock owned by
the Partnership is, to such counsel's knowledge, owned
by the Partnership free and clear of all liens, charges
or encumbrances; all of the partnership interests of
the Partnership owned by the Company have been validly
issued and the partnership interests owned by the
Company are, to such counsel's knowledge, owned by the
Company free and clear of all liens, charges and encum-
brances;
(iii) Except as contemplated in the
Prospectus, there are no preemptive or, so far as is
known to such counsel, other rights to subscribe for or
to purchase, nor any restriction upon the voting or
transfer of, any shares of the Stock pursuant to the
Company's charter or by-laws or any agreement or other
instrument known to such counsel;
(iv) To such counsel's knowledge, there
are no legal or governmental proceedings pending or
threatened which are required to be disclosed in the
Registration Statement, other than those disclosed
therein, to which the Company or any of its subsidiar-
ies is a party or of which any property or assets of
the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of
its subsidiaries, might have a material adverse effect
on the consolidated financial position, stockholders'
equity, results of operations, business or prospects of
the Company and its subsidiaries;
(v) The Registration Statement was de-
clared effective under the Securities Act as of the
date and time specified in such opinion, the Prospectus
was filed with the Commission pursuant to the
subparagraph of rule 424(b) of the Rules and
Regulations specified in such opinion on the date
specified therein and to the best of such counsel's
knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued and, no
proceeding for that purpose is pending or threatened by
the Commission;
(vi) The Registration Statement and the
Prospectus and any further amendments or supplements
thereto made by the Company prior to such Delivery Date
(other than the financial statements and related
schedules and other financial and statistical data
included therein, as to which such counsel need ex-
press no opinion) as of the effective date of such
Registration Statement or the filing date of such
Prospectus, amendment or supplement appeared on their
face to comply as to form in all material respects with
the requirements of the Securities Act and the Rules
and Regulations;
(vii) The statements contained in the
Prospectus under the captions "Description of Common
Stock", "Restrictions on Transfer" and "Certain Provi-
sions of Maryland Law and the Company's Articles of
Incorporation and Bylaws," in each case insofar as they
constitute summaries of legal matters, documents or
proceedings, constitute a fair summary thereof in all
material respects;
(viii) To such counsel's knowledge, there
are no contracts or other documents which are required
to be described in the Prospectus or filed as exhibits
to the Registration Statement by the Securities Act or
by the Rules and Regulations which have not been
described or filed as exhibits to the Registration
Statement or incorporated therein by reference as
permitted by the Rules and Regulations;
(ix) This Agreement has been duly autho-
rized, executed and delivered by the Company;
(x) The issue and sale of the shares of
Stock being delivered on such Delivery Date by the
Company and the execution and delivery by the Company
of this Agreement, and the consummation by the Company
of the transactions contemplated hereby have been duly
authorized by all necessary corporate action and did
not result in any violation of the provisions of the
charter, by-laws or partnership agreement of the
Company or any of its subsidiaries and, to such
counsel's knowledge, did not and will not conflict with
or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, or
result in the creation or imposition of any lien,
charge or encumbrance upon any of the properties or as-
sets of the Company or any of its subsidiaries pursuant
to, any agreement set forth on Exhibit B hereto (the
"Material Agreements"), except as disclosed in the Pro-
spectus and except for conflicts, breaches, violations,
defaults, liens, charges or encumbrances which,
individually or in the aggregate, would not have a
material adverse effect on the condition, financial or
otherwise, earnings, business affairs or business pros-
pects of the Company and its subsidiaries on a consoli-
dated basis, or which would not materially impair the
consummation of the transactions contemplated by this
Agreement, nor did or will such actions result in any
violation of any statute or any order, rule or
regulation known to such counsel of any court or
governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their
respective properties or assets except as disclosed in
the Prospectus and except for violations which, indi-
vidually or in the aggregate, would not have a material
adverse effect on the condition, financial or other-
wise, earnings, business affairs or business prospects
of the Company and its subsidiaries on a consolidated
basis, or which would not materially impair the
consummation of the transactions contemplated by this
Agreement; except for the registration of the Stock
under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may
be required under the Exchange Act and applicable state
or foreign securities laws in connection with the pur-
chase and distribution of the Stock by you or as may
heretofore have been obtained, no consent, approval,
authorization or order of, or filing or registration
with, any Federal, California or Maryland court or gov-
ernmental agency or body was or is required for the
execution and delivery of this Agreement by the Company
and the consummation of the transactions contemplated
hereby or the sale and delivery of the Stock;
(xi) Except as described in the
Prospectus or as delivered to your counsel, to the best
of such counsel's knowledge, there are no contracts,
agreements or understandings between the Company and
any person granting such person the right to require
the Company to file a registration statement under the
Securities Act with respect to any securities of the
Company owned or to be owned by such person or to
require the Company to include such securities in the
securities registered pursuant to the Registration
Statement or in any securities being registered pursu-
ant to any other registration statement filed by the
Company under the Securities Act;
(xii) Neither the Company nor any subsid-
iary is an "investment company" within the meaning of
such term under the United States Investment Company
Act of 1940 and the rules and regulations of the
Commission thereunder.
In rendering such opinion, such counsel may state that its
opinion is limited to matters governed by Federal securities
laws, the corporate and partnership laws of the States of
Delaware and Maryland, and the laws of the States of California
and New York. Such counsel may rely, as to matters of Maryland
law, upon the opinion of Ballard Spahr Andrews & Ingersoll, which
opinion shall be in form and substance satisfactory to your coun-
sel. In addition, in rendering such opinion, such counsel may
rely upon certificates of public officers and, as to matters of
fact, upon certificates of officers of the Company. Such counsel
shall also have furnished to you a written statement, addressed
to you and dated such Delivery Date, in form and substance
satisfactory to you, to the effect that, on the basis of their
examination and participation in conferences in connection with
the preparation of the Registration Statement, no facts have come
to the attention of such counsel which cause it to believe that
the Registration Statement (other than the financial statements
and related schedules and other financial and statistical data
included therein as to which such counsel need express no opin-
ion), as of the Effective Date, contained any untrue statement of
a material fact or omitted to state a material fact required to
be stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectus (other than the
financial statements and related schedules and other financial
and statistical data included therein as to which such counsel
need express no opinion), as of such Delivery Date and at the
time such Prospectus was issued, contains any untrue statement of
a material fact or omits to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading. The foregoing statement may be qualified
by a statement to the effect that such counsel has not
independently verified the accuracy, completeness, and fairness
of the statements included in the Registration Statement or the
Prospectus, and does not assume responsibility for the accuracy,
completeness or fairness of such statements except to the extent
set forth in paragraph (vii).
(d) Skadden, Arps, Slate, Meagher & Flom LLP
shall have furnished to you its written opinion, as your counsel,
addressed to you and dated such Delivery Date, in form and
substance satisfactory to you.
In giving its opinion, Skadden, Arps, Slate, Meagher & Flom LLP
may rely as to matters of Maryland law on the opinion of Ballard
Spahr Andrews & Ingersoll, which opinion shall be in form and
substance satisfactory to your counsel. Skadden, Arps, Slate,
Meagher & Flom shall also have furnished to you a written state-
ment, addressed to you and dated such Delivery Date, in form and
substance satisfactory to you, to the effect that no facts have
come to the attention of such counsel which lead it to believe
that the Registration Statement, as of the Effective Date and as
of such Delivery Date, contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectus, as of such
Delivery Date and at the time such Prospectus was issued,
contains any untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) The Company shall have furnished to you a
letter (the "bring-down letter") of Coopers & Lybrand L.L.P.,
addressed to you and dated such Delivery Date (i) confirming that
they are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable re-
quirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as
of the date of the bring-down letter (or, with respect to matters
involving changes or developments since the respective dates as
of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the
date of the bring-down letter), the conclusions and findings of
such firm with respect to the financial information and other
matters covered by its letter (the "initial letter") delivered to
you concurrently with the execution of this Agreement and (iii)
confirming in all material respects the conclusions and findings
set forth in the initial letter.
(f) The Company shall have furnished to you a
certificate, dated such Delivery Date, of its Chairman of the
Board, its President or a Vice President and its chief financial
officer stating that:
(i) The representations, warranties and
agreements of the Company in Section 1 are true and
correct as of such Delivery Date; the Company has
complied with all its agreements contained herein; and
the conditions set forth in Sections 7(a) and 7(g) have
been fulfilled;
(ii) No stop order suspending the
effectiveness of the Registration Statement has been
issued and, to the best of each such officer's
knowledge, no proceeding for that purpose is pending or
threatened by the Commission;
(iii) All filings required by Rule 424(b)
of the Rules and Regulations have been made; and
(iv) They have carefully examined the
Registration Statement and the Prospectus and, in their
opinion (A) as of the Effective Date, the Registration
Statement and Prospectus did not include any untrue
statement of a material fact and did not omit to state
a material fact required to be stated therein or neces-
sary to make the statements therein not misleading, and
(B) since the Effective Date no event has occurred
which should have been set forth in a supplement or
amendment to the Registration Statement or the
Prospectus which has not been so set forth.
(g) (i) Neither the Company nor any of its
subsidiaries shall have sustained since the date of the latest
audited financial statements included in the Prospectus any loss
or interference with its business from fire, explosion, flood,
earthquake or other calamity, whether or not covered by insur-
ance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in
the Prospectus or (ii) since such date there shall not have been
any change in the stock, partnership interests or long-term debt
of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders'
equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in
clause (i) or (ii), is, in your judgment, so material and adverse
as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Stock being delivered on
such Delivery Date on the terms and in the manner contemplated in
the Prospectus.
(h) Subsequent to the execution and delivery of
this Agreement there shall not have occurred any of the fol-
lowing: (i) trading in securities generally on the New York
Stock Exchange shall have been suspended or minimum prices shall
have been established on such exchange by the Commission, by
such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall
have been declared by Federal, New York or California
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities
involving the United States or there shall have been a declara-
tion of a national emergency or war by the United States or (iv)
there shall have occurred such a material adverse change in
general economic, political or financial conditions (or the
effect of international conditions on the financial markets in
the United States shall be such) as to make it, in your judgment,
impractical or inadvisable to proceed with the public offering or
delivery of the Stock being delivered on such Delivery Date on
the terms and in the manner contemplated in the Prospectus.
(i) The New York Stock Exchange, Inc. shall have
approved the Stock for listing, subject only to official notice
of issuance and evidence of satisfactory distribution.
All opinions, letters, evidence and certificates mentioned above
or elsewhere in this Agreement shall be deemed to be in
compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to your counsel. The
Company shall furnish to you conformed copies of such opinions,
certificates, letters and other documents in such number as you
shall reasonably request. If any of the conditions specified in
this Section 7 shall not have been fulfilled when and as required
by this Agreement, the Agreement and all your obligations hereun-
der may be cancelled at, or at any time prior to, each Delivery
Date, by you. Any such cancellation shall be without your
liability to the Company. Notice of such cancellation shall be
given the Company in writing, or by telegraph or telephone and
confirmed in writing.
8. Indemnification and Contribution
(a) The Company shall indemnify and hold you
harmless and each person, if any, who controls you within the
meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of Stock), to
which you or that controlling person may become subject, under
the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to
make the statements therein not misleading, and shall reimburse
you and each such controlling person promptly upon demand for any
legal or other expenses reasonably incurred by you or that
controlling person in connection with investigating or defending
or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged
untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Pro-
spectus or in any such amendment or supplement in reliance upon
and in conformity with written information furnished to the
Company by you specifically for inclusion therein; provided,
further, that the foregoing indemnity with respect to any
Preliminary Prospectus shall not inure to your benefit if the
person asserting any such loss, claim, damage or liability did
not receive a copy of the Prospectus (or the Prospectus as
supplemented) at or prior to the confirmation of the sale of such
Stock to such person in any case where such delivery is required
by the Securities Act and the untrue statement or omission of a
material fact contained in such Preliminary Prospectus was
corrected in the Prospectus (or the Prospectus as supplemented).
The foregoing indemnity agreement is in addition to any liability
which the Company may otherwise have to you or to any person who
controls you.
(b) You shall indemnify and hold harmless the
Company, each of its directors (including any person who, with
his or her consent, is named in the Registration Statement as
about to become a director of the Company), each of its officers
who signed the Registration Statement and each person, if any,
who controls the Company within the meaning of the Securities
Act, from and against any loss, claim, damage or liability, joint
or several, or any action in respect thereof, to which the
Company or any such director, officer or controlling person may
become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or
is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in
any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company by you specifically for
inclusion therein, and shall reimburse the Company and any such
director, officer or controlling person for any legal or other
expenses reasonably incurred by the Company or any such director,
officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability
which you may otherwise have to the Company or any such director,
officer or controlling person.
(c) Promptly after receipt by an indemnified
party under this Section 8 of notice of any claim or the
commencement of any action, the indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action;
provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have
under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided, further, that the
failure to notify the indemnifying party shall not relieve it
from any liability which it may have to an indemnified party
otherwise than under this Section 8. If any such claim or action
shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that
it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel satisfactory to
the indemnified party. After notice from the indemnifying party
to the indemnified party of its election to assume the defense of
such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section 8 for any legal or
other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs
of investigation.
(d) If the indemnification provided for in this
Section 8 shall for any reason be unavailable to or insufficient
to hold harmless an indemnified party under Section 8(a) or 8(b)
in respect of any loss, claim, damage or liability, or any action
in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the
Company on the one hand and you on the other from the offering of
the Stock or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law or if the indemnified party
failed to give the notice required under Section 8(c), in such
proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and you on the other with
respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and you
on the other with respect to such offering shall be deemed to be
in the same proportion as the total net proceeds from the offer-
ing of the Stock purchased under this Agreement (before deducting
expenses) received by the Company bear to the total underwriting
discounts and commissions received by you with respect to the
shares of the Stock purchased under this Agreement, in each case
as set forth in the table on the cover page of the Prospectus.
The relative fault shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by the Company or you, the intent of the
parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and you agree that it would not be just and equitable
if contributions pursuant to this Section 8(d) were to be
determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in
this Section 8(d) shall be deemed to include, for purposes of
this Section 8(d), any legal or other expenses reasonably
incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwith-
standing the provisions of this Section 8(d), you shall not be
required to contribute any amount in excess of the amount by
which the total price at which the Stock underwritten by it and
distributed to the public was offered to the public exceeds the
amount of any damages which you have otherwise paid or become
liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) You severally confirm that the statements
with respect to the public offering of the Stock set forth on the
cover page of, and under the caption "Underwriting" (except for
the first sentence of the eighth paragraph thereunder) in the
Prospectus are correct and constitute the only information
furnished in writing to the Company by or on behalf of you spe-
cifically for inclusion in the Registration Statement and the
Prospectus.
9. Termination. Your obligations hereunder may be
terminated by you by notice given to and received by the Company
prior to delivery of and payment for the Firm Stock, if, prior to
that time, any of the events described in Sections 7(g) or 7(h)
shall have occurred or if you shall decline to purchase the Stock
for any reason permitted under this Agreement.
10. Reimbursement of Underwriter's Expenses. If (a)
the Company shall fail to tender the Stock for delivery to you
for any reason permitted under this Agreement or (b) you shall
decline to purchase the Stock for any reason permitted under this
Agreement, including the failure of any of the conditions
described in Section 7 hereof (other than Section 7(h)), the
Company shall reimburse you for the fees and expenses of your
counsel and for such other out-of-pocket expenses as shall have
been incurred by you in connection with this Agreement and the
proposed purchase of the Stock, and upon demand the Company shall
pay the full amount thereof to you. If this Agreement is termi-
nated pursuant to Section 9 by reason of your default, the Compa-
ny shall not be obligated to reimburse you on account of those
expenses.
11. Notices, etc. All statements, requests, notices
and agreements hereunder shall be in writing, and:
(a) if to the Underwriter, shall be delivered or
sent by mail, telex or facsimile transmission to you at 3 World
Financial Center, New York, New York 10285-1100, Attention:
Syndicate Registration Department (Fax: 212-528-8822);
(b) if to the Company shall be delivered or sent
by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention:
Thomas E. O'Hern (Fax: (310) 395-2791);
Any such statements, requests, notices or agreements shall take
effect at the time of receipt thereof.
12. Persons Entitled to Benefit of Agreement. This
Agreement shall inure to the benefit of and be binding upon you,
the Company, and your respective successors. This Agreement and
the terms and provisions hereof are for the sole benefit of only
those persons, except that (A) the representations, warranties,
indemnities and agreements of the Company contained in this
Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who controls you within the meaning of
Section 15 of the Securities Act and (B) the indemnity agreement
contained in Section 8(b) of this Agreement shall be deemed to be
for the benefit of directors of the Company, officers of the
Company who have signed the Registration Statement and any person
controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall
be construed to give any person, other than the persons referred
to in this Section 13, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision con-
tained herein.
13. Survival. The respective indemnities, representa-
tions, warranties and agreements of the Company and you contained
in this Agreement or made by or on behalf on the Company and you,
respectively, pursuant to this Agreement, shall survive the
delivery of and payment for the Stock and shall remain in full
force and effect, regardless of any investigation made by or on
behalf of any of you or any person controlling any of you.
14. Definition of the Terms "Business Day" and
"Subsidiary". For purposes of this Agreement, (a) "business day"
means any day on which the New York Stock Exchange, Inc. is open
for trading and (b) "subsidiary" has the meaning set forth in
Rule 405 of the Rules and Regulations.
15. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of New York.
16. Counterparts. This Agreement may be executed in
one or more counterparts and, if executed in more than one
counterpart, the executed counterparts shall each be deemed to be
an original but all such counterparts shall together constitute
one and the same instrument.
17. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of,
or to affect the meaning or interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement
between the Company and you, please indicate your acceptance in
the space provided for that purpose below.
Very truly yours,
THE MACERICH COMPANY
By: /s/ Ed Coppola
------------------------------
Name: Ed Coppola
Title: Executive Vice President
Accepted:
LEHMAN BROTHERS INC.
/s/ Michael W. Reid
By: -------------------------
Authorized Representative
Exhibit A
Percent Ownership of Partnership
Entity % Ownership
The Macerich Company 62 %
The Northwestern Mutual Life 3%
Insurance Company
The Principals 24%
Others 11%
Exhibit B
Material Agreements
Articles of Amendment and Restatement of the Company
Articles Supplementary of the Company
Bylaws of the Company
Amended and Restated Limited Partnership Agreement for the
Operating Partnership dated as of March 16, 1994
Amendment No. 1 dated August 14, 1995 to Amended and Restated
Limited Partnership Agreement for the Operating Partnership.
Employment Agreement between the Company and Mace Siegel dated as
of March 16, 1994
Employment Agreement between the Company and Dana K. Anderson
dated as of March 16, 1994
Employment Agreement between the Company and Arthur M. Coppola
dated as of March 16, 1994
Employment Agreement between the Company and Edward C. Coppola
dated as of March 16, 1994
Employment Agreement between the Company and Thomas O'Hern dated
as of September 1, 1996.
Employment Agreement between the Company and Richard A. Bayer
dated as of September 1, 1996.
The Macerich Company 1994 Stock Incentive Plan
The Macerich Company 1994 Eligible Directors' Stock Option Plan
The Macerich Company Deferred Compensation Plan
The Macerich Company Annual Incentive Compensation Plan
The Macerich Company Deferred Compensation Plan for Mall
Executives
The Macerich Company Eligible Directors' Deferred Compensation
Plan/Phantom Stock Plan
The Macerich Company Executive Officer Salary Deferral Plan
Macerich Property Management Company Profit Sharing Plan & Trust
dated December 12, 1994.
NML Master Agreement dated as of October 22, 1993 by and among
the Operating Partnership, The Northwestern Mutual Life Insurance
Company (as general partner), The Northwestern Mutual Life
Insurance Company (as lender), each of the property partnerships
and each of the Macerich Partnerships
Partnership Interest Agreement of Purchase and Sale dated as of
October 18, 1993 between Hexalon Real Estate, Inc. and the
Operating Partnership
Third Amendment to Partnership Interest Agreement of Purchase and
Sale dated as of February 9, 1994 by and among Hexalon Real
Estate, Inc. and the Operating Partnership
Purchase and Sale Agreement dated as of June 30, 1993 between the
Operating Partnership and Provident Life and Accident Insurance
Company
Indenture of Lease, dated as of January 26, 1983, by and between
PCA Crossroads, Ltd., as landlord, and Crossroads Shopping Center
Company and Macerich Crossroads Associates, collectively, as
tenant, as amended
Macerich Master Agreement dated as of March 16, 1994 regarding
the transfer of property partnership interests of The Macerich
Group to the Operating Partnership
Registration Rights Agreement dated as of March 16, 1994 between
the Company and The Northwestern Mutual Life Insurance Company
Registration Rights Agreement dated as of March 16, 1994 between
the Company and Mace Siegel, Dana K. Anderson, Arthur M. Coppola
and Edward C. Coppola
Registration Rights Agreement dated as of March 16, 1994 between
the Company, Richard M. Cohen and MRII Associates
Incidental Registration Rights Agreement dated as of March 16,
1994
Indemnification Agreement dated as of March 16, 1994 between the
Company and Mace Siegel
Indemnification Agreement between the Company and Arthur M.
Coppola dated as of March 16, 1994.
Indemnification Agreement between the Company and Dana K.
Anderson dated as of March 16, 1994.
Indemnification Agreement between the Company and Edward C.
Coppola dated as of March 16, 1994.
Indemnification Agreement between the Company and Thomas E.
O'Hern dated as of March 16, 1994.
Indemnification Agreement between the Company and James S. Cownie
dated as of March 16, 1994.
Indemnification Agreement between the Company and Theodore S.
Hochstim dated as of March 16, 1994.
Indemnification Agreement between the Company and Fred S. Hubbell
dated as of March 16, 1994.
Indemnification Agreement between the Company and Stanley A.
Moore dated as of March 16, 1994.
Indemnification Agreement between the Company and Dr. William
Sexton dated as of March 16, 1994.
Indemnification Agreement between the Company and Richard A.
Bayer dated as of March 16, 1994.
Property Management Agreement dated as of March 16, 1994 with
respect to Macerich Bristol Associates
Property Management Agreement with respect to Lakewood Mall.
Property Management Agreement with respect to Chesterfield Towne
Center.
Property Management Agreement with respect to County East Mall.
Property Management Agreement with respect to Crossroads Mall-
Boulder, Colorado.
Property Management Agreement with respect to Greeley Mall.
Property Management Agreement with respect to Green Tree Mall.
Property Management Agreement with respect to Holiday Village
Shopping Center.
Property Management Agreement with respect to Northgate Mall.
Property Management Agreement with respect to Parklane Center.
Property Management Agreement with respect to Marshalls' Boulder
Plaza
Property Management Agreement with respect to Crossroads Mall-
Oklahoma
Property Management Agreement dated as of August 15, 1995 between
Macerich Property Management Company and Macerich Salisbury
Limited Partnership with respect to The Centre at Salisbury
Management and Operating Agreement dated July 1, 1991 by and
between Macerich Management Company and North Valley Plaza
Associates
Management and Operating Agreement dated January 17, 1985 by and
between Macerich Management Company and Macerich Northwestern
Associates, as amended
Management Agreement dated September 1, 1985 by and between
Macerich Management Company and Panorama City Associates
Amended and Restated Partnership Agreement for Macerich Bristol
Associates
Amended and Restated Partnership Agreement for Macerich Greeley
Associates (Greeley Mall).
Amended and Restated Partnership Agreement for Northgate Mall
Associates (Northgate Mall).
Amended and Restated Limited Partnership Agreement for Macerich
SCG Limited Partnership.
Partnership Agreement for Macerich Northwestern Associates, dated
as of January 17, 1985, by and between Macerich Walnut Creek
Associates and The Northwestern Mutual Life Insurance Company
First Amendment to Macerich Northwestern Associates Partnership
Agreement by and between Operating Partnership and The
Northwestern Mutual Life Insurance Company
North Valley Plaza Associates Joint Venture Agreement, dated as
of April 14, 1988, by and between Chico Associates and The
Northwestern Mutual Life Insurance Company
First Amendment to North Valley Plaza Associates Joint Venture
Agreement by and between Operating Partnership and The
Northwestern Mutual Life Insurance Company
Panorama City Associates Partnership Agreement, dated as of
February 2, 1979, by and between Macerich Panorama Associates and
Connecticut General Mortgage and Realty Investments, as amended
Second Amendment to Panorama City Associates Partnership
Agreement by and between Operating Partnership and 745 Property
Investments (formerly Connecticut General Mortgage and Realty
Investments)
Amended and Restated Partnership Agreement dated as of
February 28, 1986 by and between William A. Schlossman, Donald L.
Johnson, Charles R. Nolan, John L. McCormick, M.O. Foss, Jr.,
Mark B. Foss, and Macerich Fargo Associates
Parcel #1 Ground Lease (Bristol), dated as of November 1, 1971,
by and between First Western Bank and Trust Company, as landlord,
and Rinker Development Corp., as tenant
Parcel #2 Ground Lease dated as of November 1, 1971, by and
between First Western Bank and Trust Company, as landlord, and
Rinker Development Corp., as tenant.
Parcel #3 Ground Lease dated as of November 1, 1971, by and
between First Western Bank and Trust Company, as landlord, and
Rinker Development Corp., as tenant.
Parcel #4 Ground Lease dated as of November 1, 1971, by and
between First Western Bank and Trust Company, as landlord, and
Rinker Development Corp., as tenant.
Parcel #5 Ground Lease dated as of November 1, 1971, by and
between First Western Bank and Trust Company, as landlord, and
Rinker Development Corp., as tenant.
Parcel #6 Ground Lease dated as of November 1, 1971, by and
between First Western Bank and Trust Company, as landlord, and
Rinker Development Corp., as tenant.
Parcel #7 Ground Lease dated as of November 1, 1971, by and
between First Western Bank and Trust Company, as landlord, and
Rinker Development Corp., as tenant.
Parcel #8 Ground Lease dated as of November 1, 1971, by and
between First Western Bank and Trust Company, as landlord, and
Rinker Development Corp., as tenant.
Amendment to Lease (Parcel #2 Ground Lease (Bristol) dated
November 1, 1973 by and between First Western Bank and Trust
Company, as landlord, and Century Properties Equity Partnership
72, as tenant
Amendment No. 1 to Ground Leases (Bristol) dated as of June 6,
1973 by and between First Western Bank and Trust Company, as
landlord, and Montgomery Ross Fisher and Joanne M. Fisher,
collectively, as lessee
Ground Lease (Broadway), dated June 30, 1993, by and between City
of Walnut Creek, as lessor, and Macerich Northwestern Associates,
as lessee
Agreement of Lease (Crossroads-Boulder), dated December 31, 1960,
by and between H.R. Hindry, as lessor, and Gerri Von Frellick, as
lessee, with amendments and supplements thereto
Lease (Menke #1), (Parklane), dated December 22, 1959, by and
between Bessie L. Menke, as lessor, and A.J. Flagg, as lessee, as
supplemented
Agreement Supplementing Lease (Menke #1) dated November 1, 1960
by and between Bessie L. Menke, as lessor, and A.J. Flagg, as
lessee
Second Agreement Supplementing Lease (Menke #1) dated
September 1, 1964, by and between Mark W. Menke, as executor of
the estate of Bessie L. Menke, and Edith Menke Gamos and Mark W.
Menke, individually (collectively as lessor), and Parklane
Centre, as lessee
Lease (Menke #2), dated July 30, 1960, by and between Edith Menke
Gamos and Mark W. Menke, collectively, as lessor, and Flaghill,
Inc., as lessee
Amendment to Ground Lease (Menke #2) dated May 1, 1979 by and
between Parklane Shopping Center Company, as ground lessee, and
Mark W. Menke, Diana J. Jones, Edith Menke Gamos and Gary Gamos,
collectively, as ground lessor
Lease (Menke #3), dated October 5, 1960, by and between Bessie L.
Menke, as lessor, and Flaghill, Inc., as lessee
First Agreement Supplementing Lease (Menke #3) dated September 1,
1964 by and between Mark W. Menke, executor of the estate of
Bessie L. Menke, deceased, Edith Menke Gamos and Mark W. Menke,
as lessor, and Parklane Centre, as lessee
Lease (Menke #4), dated October 5, 1960, by and between Bessie L.
Menke, as lessor, and Flaghill, Inc., as lessee, as supplemented
Amendment of Leases (Menke #1 through Menke #4) dated June 9,
1981, by and among Diana J. Jones, Curtis D. Jones, Gary Gamos,
Steward R. Wilson (as Trustee for Menke Trust), Edith Gamos and
Mark W. Menke, collectively, as lessor, and Parklane Shopping
Center Company, as lessee
Agreement dated May 31, 1967 (amending Menke #1 through Menke #4)
by and between Parklane Centre Company (as ground lessee), Mark
W. Menke, Edith Menke Gamos and Mark W. Menke (as the
Administrator of the Estate of Bessie L. Menke, deceased
(collectively, the ground lessors) and The Equitable Life
Assurance Society of the United States
Amended and Restated Partnership Agreement of Macerich Fargo
Associates, dated as of March 16, 1994
Purchase and Sale Agreement, dated as of January 24, 1994, by and
between Crossroads Associates Limited Partnership, as seller, and
the Operating Partnership, as purchaser
Contribution Agreement dated May 13, 1994 between Chesterfield
Mall Associates, a Virginia general partnership and the Operating
Partnership, as amended and supplemented
Contribution Agreement dated May 13, 1995 between Salisbury-
Springhill Limited Partnership, a Maryland limited partnership,
and the Operating Partnership
Contribution Agreement dated as of July 28, 1995 between Capitola
Mall Associates, a California limited partnership, and the
Operating Partnership
Purchase Agreement dated as of September 18, 1995 between PCA
Crossroads Associates, Ltd. and The Macerich Partnership, L.P.
Credit and Guaranty Agreement dated May 31, 1995, as amended by
Amendment No. 1 dated January 18, 1996 and Amendment No. 2 dated
October 16, 1996, between The Macerich Partnership, L.P., The
Macerich Company and Wells Fargo Bank
Purchase and Sale Agreement dated as of November 28, 1995,
between Queens Center Associates, L.P. and Macerich Queens
Limited Partnership, as amended
Purchase and Sale Agreement dated as of November 11, 1995 between
Copley Investors Limited Partnership and Macerich Marina Limited
Partnership
Purchase and Sale Agreement dated as of September 26, 1996
between LaSalle Street Fund Incorporated of Delaware and Macerich
Valley View Limited Partnership.
Purchase and Sale Agreement and Joint Escrow Instructions dated
as of November 20, 1995 between Ashby Associates of Richmond
Limited Partnership, Eaglewood Properties I, Ltd. T/A Eaglewood
Properties and Macerich Sassafras Limited Partnership
Purchase Agreement dated as of May 20, 1996 between State Farm
Mutual Automobile Insurance Company and Macerich Sassafras
Limited Partnership
Partnership Agreement for Macerich Sassafras Limited Partnership
Partnership Agreement for Macerich Valley View Limited
Partnership
Partnership Agreement for Macerich Queens Limited Partnership
Partnership Agreement for Macerich Marina Limited Partnership
Management Agreement with respect to Queens Center
Management Agreement with respect to Villa Marina Center and
Marina Marketplace
Management Agreement with respect to Valley View Center
Management Agreement with respect to Sassafras Square South
Shopping Center
November
5th
1 9 9 6
528,715-063
The Macerich Company
233 Wilshire Boulevard
Suite 700
Santa Monica, CA 90401
Re: Sale of 5,000,000 Shares of Common Stock
of The Macerich Company (the "Company")
Gentlemen:
We have acted as your special counsel in connection
with the issuance and sale of 5,000,000 shares (the "Shares") of
Common Stock, $.01 par value per share, by the Company pursuant
to an Underwriting Agreement dated October 30, 1996 (the
"Underwriting Agreement") between Lehman Brothers Inc. and the
Company. The Shares are registered pursuant to the Registration
Statement on Form S-3, File No. 33-93584, as amended, (the
"Registration Statement"), filed by the Company with the
Securities and Exchange Commission in connection with the
registration of $106,250,000 aggregate offering price of
securities. We are familiar with the proceedings heretofore
taken by the Company in connection with the authorization,
registration, issuance and sale of the Shares.
On the basis of the foregoing and in reliance thereon
and our consideration of such other matters of fact and questions
of law as we have deemed relevant in the circumstances, we are of
the opinion that, subject to the assumptions and limitations set
forth herein, upon payment for and delivery of the Shares in
accordance with the terms of the Underwriting Agreement, and the
countersigning of the certificate or certificates representing
such Shares by a duly authorized officer of the registrar for the
Shares, such Shares will be validly issued, fully paid and
nonassessable.
The law covered by this opinion is limited to the
present Maryland General Corporation Law. We express no opinion
as to the laws of any other jurisdiction and no opinion regarding
statutes, administrative decisions, rules or regulations of any
county, municipality or special political subdivision or other
local authority.
We have, with your approval, assumed that the
certificates for the Shares will conform to the forms thereof
examined by us, that the signatures on all documents examined by
us are genuine, that all items submitted as originals are
authentic, and that all items submitted as copies conform to the
originals, assumptions which we have not independently verified.
We consent to the filing of this opinion as an exhibit
to the Company's Current Report on Form 8-K, event date October 30, 1996,
and the use to the name of our firm therein.
Respectfully submitted,
/s/ O'MELVENY & MYERS LLP