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EXHIBIT 1.1
DEVELOPERS DIVERSIFIED REALTY CORPORATION
(an Ohio corporation); and
DDR PASS-THROUGH ASSET TRUST 1997-1
(a New York trust)
7.125 % Pass-Through Asset Trust Securities Due March 15, 2002
PURCHASE AGREEMENT
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Dated as of March 20, 1997
UBS Securities LLC
c/o Union Bank of Switzerland
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
DDR Pass-Through Asset Trust 1997-1 (the "Trust"), a trust
organized under the laws of the State of New York, confirms its agreement with
UBS Securities LLC (hereinafter, "you" or the "Initial Purchaser") to issue and
sell to you $75,000,000 aggregate principal amount of 7.125% Pass-Through Asset
Trust Securities Due March 15, 2002 (collectively, "PATS" or the
"Certificates"), each such Certificate representing a fractional undivided
beneficial interest in the Trust, and Developers Diversified Realty Corporation
(the "Company") confirms its agreement with you and the Trust with respect to
the issue and sale by the Company and the purchase by the Trust, on the terms
set forth herein, of $75,000,000 aggregate principal amount of 7.125 % Notes due
March 15, 2012 (the "Notes" and, together with the Certificates, the
"Securities") of the Company. The Notes will be the principal asset of the
Trust.
The Certificates will be offered and sold to the Initial
Purchaser without registration under the Securities Act of 1933, as amended (the
"Act"), in reliance upon an exemption from the registration requirements of the
Act. In connection with the sale of the Certificates, the Company has prepared a
final offering circular dated March 20, 1997 (the "Certificates Offering
Circular"), setting forth certain information concerning the Trust, the Company,
the Certificates and the Notes. In connection with the sale of the Notes, the
Company has prepared a final offering circular dated March 20, 1997 (the "Notes
Offering Circular" and, together with the Certificates Offering Circular, the
"Offering Circulars"), setting forth certain information concerning the Company
and the Notes. The Company hereby confirms that it has authorized the use of the
Offering Circulars in connection with the offer and sale of the Securities.
Unless stated to the contrary, all references herein to the Offering Circulars
are to the Offering Circulars as of the date hereof and are not meant to include
any amendment or supplement thereto subsequent to the date hereof.
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The Trust understands that the Initial Purchaser proposes to
make offerings ("Exempt Resales") of the Certificates only on the terms and in
the manner set forth in the Certificates Offering Circular and Section 3 hereof.
as soon as the Initial Purchaser deems advisable after this Agreement has been
executed and delivered only to persons in the United States whom the Initial
Purchaser reasonably believes to be .1 qualified institutional buyers" ("QlBs")
as defined in Rule 144A under the Act, as such rule may be amended from time to
time ("Rule 144A"), in transactions under Rule 144A.
When used herein in reference to the Trust and the Trustee,
the term "Operative Documents" shall refer collectively to this Agreement, the
Certificates, the Confirmation (the "Trust Call Option") to be dated as of March
25, 1997 between the Trust and Union Bank of Switzerland, London branch (the
"Callholder") and the Trust Agreement (the "Trust Agreement") to be dated as of
March 20, 1997 between the Company and National City Bank, as trustee (the
"Trustee"). When used herein in reference to the Company, the term Operative
Documents shall refer to this Agreement, the Notes, the Indenture, dated as of
May 1, 1994, as supplemented by the first supplement to the Indenture dated May
10, 1995, (as supplemented, the "Indenture"), between the Company and National
City Bank, as Trustee (the "Indenture Trustee"), the Trust Agreement, the
Calculation Agency Agreement dated as of March 25, 1997 between the Company and
the Initial Purchaser (the "Calculation Agency Agreement") and the Confirmation
(the "Company Call Option") dated as of March 25, 1997 between the Company and
the Callholder.
1. The Company represents and warrants to, and agrees with the
Trustee and the Initial Purchaser that:
(a) The Offering Circulars have been prepared in connection
with the offering of the Certificates and the Notes. Any reference to
the Offering Circulars shall be deemed to refer to and include all
information incorporated by reference therein and any Additional Issuer
Information (as defined in Section 5(e)) furnished by the Company prior
to the completion of the distribution of the Certificates. The Offering
Circulars and any amendments or supplements thereto did not and will
not, as of their respective dates, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply with regard to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by the Initial
Purchaser, which the parties hereto acknowledge is solely the
information set forth on Schedule A attached hereto;
(b) The consolidated historical financial statements, together
with related schedules and notes, included or incorporated by reference
in the Offering Circulars (and any amendment or supplement thereto),
present fairly the consolidated financial position of the Company and
its subsidiaries at the respective dates indicated and the result-s of
their operations and their cash flows for the respective periods
indicated in accordance with generally accepted accounting principles
consistently applied throughout such periods; and there has been no
material adverse change not in the ordinary course of business in the
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consolidated financial position of the Company since December 31, 1996,
except as disclosed in the Offering Circular;
(c) The Company is a company duly incorporated and validly
existing under the laws of the State of Ohio, and the Company has full
corporate power and authority to conduct its business in each
jurisdiction where it carries on business;
(d) The Trust has been duly created and is validly existing as
a trust under the laws of the State of New York; based on the advice of
counsel, the Trust is not classified for United States federal income
tax purposes as an association taxable as a corporation;
(e) The issue of the Notes and the performance of the
obligations assumed thereunder by the Company and the performance of
the obligations assumed by the Company under the Operative Documents
have been duly authorized by the Company and, upon due execution,
issue, authentication and delivery, the same will constitute legal,
valid and binding obligations of the Company enforceable in accordance
with their respective terms, subject as to enforcement to the laws of
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors rights and to general
equity principles and except that rights to indemnity under this
Agreement may be limited;
(f) The execution and delivery of the Operative Documents to
be executed by the Company and the issue and sale of the Notes and the
performance of the obligations assumed under, and the terms of, such
Operative Documents are not contrary to the provisions of the Articles
of Incorporation or Code of Regulations of the Company and will not
result in any breach of the terms of, or constitute a default under,
any instrument, deed, indenture, mortgage, bond or agreement to which
the Company is a party or by which it or its property is bound and will
not, to the best of the Company's knowledge, infringe or constitute a
default under any laws or regulations of any governmental or regulatory
body having jurisdiction over the Company;
(g) The issue of the Certificates by the Trust and the
performance of the obligations assumed by the Trust under the Operative
Documents have been duly authorized by the Trust and upon due
execution, issue and delivery and payment therefor in accordance with
the terms hereof, the Certificates will constitute valid, fully paid
and non-assessable undivided beneficial interests in the Trust;
(h) Assuming the accuracy of the representations and
warranties and the performance or observance of the covenants of the
Initial Purchaser contained herein, all consents and approvals of any
court, government department or other regulatory body required by the
Company for the execution and delivery of the Operative Documents and
the issue and sale of the Notes and the Certificates
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and the performance of the obligations assumed under the terms of the
Notes, the Certificates and the Operative Documents have been obtained
and are in full force and effect; provided, that this representation
and warranty shall not apply to state securities or Blue Sky laws;
(i) No event has occurred in relation to the Company which
would constitute (after the issue of the Notes) an Event of Default
under the Notes or which with the giving of notice or lapse of time or
other condition would (after the issue of the Notes) constitute such an
Event of Default;
(j) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale
of the Notes or the Certificates) will violate or result in a violation
of Section 7 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or any regulation promulgated thereunder, including,
without limitation, Regulations G, T, U, and X of the Board of
Governors of the Federal Reserve System;
(k) When the Certificates are issued and delivered pursuant to
this Agreement, the Certificates will not be of the same class (within
the meaning of Rule 144A) as securities which are listed on a national
securities exchange registered under Section 6 of the Exchange Act or
quoted in a U.S. automated inter-dealer quotation system;
(l) Neither the Company, nor any affiliate of the Company, nor
any person acting on its or their behalf (other than the Initial
Purchaser, as to which the Company makes no representation) has offered
or sold the Securities by means of any general solicitation or general
advertising within the meaning of Rule 502(c) under the Act.
1A. The Trustee represents and warrants to, and agrees with, the
Company and the Initial Purchaser that:
(a) The execution and delivery of the Operative Documents to
be executed by the Trustee and the performance of its obligations
thereunder have been duly authorized by all necessary corporate action
of the Trustee and each of such Operative Documents has been duly
authorized, executed and delivered by the Trustee;
(b) The Operative Documents executed by the Trustee constitute
valid and binding obligations of the Trustee enforceable against the
Trustee in accordance with their respective terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or other
laws relating to or affecting creditors' rights or general principles
of equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(c) The execution, delivery or performance by the Trustee of
the applicable Operative Documents do not require any consent,
approval or
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authorization of, or any registration or filing with, any Ohio or
United States federal court or governmental agency or body; and
(d) The Trust is not a party to any documents or instruments
other than the Operative Documents and the execution and delivery by
the Trustee and the performance by the Trustee of the obligations
assumed under, and the terms of the Operative Documents will not
infringe or constitute a default under any laws or regulations of any
governmental or regulatory body having jurisdiction over the Trustee.
2. On the basis of the representations, warranties and covenants
contained in this Agreement, and subject to the terms and conditions herein set
forth, (a) the Trust agrees to (i) issue and sell to the Initial Purchaser, and
the Initial Purchaser agrees to purchase from the Trust, at a purchase price of
99.53 % plus accrued interest, if any, $75,000,000 principal amount of
Certificates and (ii) issue and sell to the Callholder, in exchange for the sum
of $1,354,500 to be received from the Callholder, the Trust Call Option in
accordance with the terms thereof and (b) the Company agrees to (i) issue and
sell to the Trust at a purchase price of 101.336% plus accrued interest, if any,
$75,000,000 principal amount of the Notes, (ii) issue and sell to the Callholder
the Company Call Option in exchange for the sum of $75,000 to be received from
the Callholder and (iii) pay to the Initial Purchaser a placement fee of 0.50%
of the aggregate principal amount of the Certificates for placing the
Certificates (the "Placement Fee").
3. (a) The Initial Purchaser hereby represents and warrants to, and
agrees with the Trust and the Company that the Initial Purchaser (i) is
a QIB; (ii) has not and will not, and no affiliate of the Initial
Purchaser or any person acting on its or their behalf has or will,
solicit offers for, or offer or sell, the Certificates by means of any
form of general solicitation or general advertising within the meaning
of Rule 502(c) under the Act, or in any manner involving a public
offering within the meaning of Section 4(2) of the Act and (iii) will
solicit offers for the Certificates only from, and will offer, sell or
deliver the Certificates, as part of their initial offering, only to
persons in the United States whom the Initial Purchaser reasonably
believes to be QlBs or, if any such person is buying for one or more
institutional accounts for which such person is acting as fiduciary or
agent, only when such person has represented to the Initial Purchaser
that each such account is a QIB, to whom notice has been given that
such sale or delivery is being made in reliance on Rule 144A, and, in
each case, in transactions under Rule 144A.
(b) [Reserved]
(c) The Initial Purchaser represents and warrants to and
agrees with the Trust and the Company that it shall, unless prohibited
by applicable law, furnish to each person to whom it offers or sells
Certificates a copy of the Offering Circular and that neither it, its
affiliates nor any person acting on its or their behalf shall give any
information or make any representation not contained in the Offering
Circulars in connection with the offer and sale of the Certificates.
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(d) The Initial Purchaser represents and warrants to and
agrees with the Company and the Trust that neither it, any of its
affiliates nor any person acting on its or their behalf has entered
into nor will enter into any contractual arrangement with respect to
the offer or sale of the Certificates except with a person from whom it
has obtained the representations contained in, and such person's
agreement to comply with, the provisions of Sections 3(a) and 3(c);
4. (a) The Certificates to be purchased by the Initial Purchaser
hereunder will be represented by one or more global Certificates in
book-entry form which will be deposited by or on behalf of the Trust
with The Depository Trust Company ("DTC") or its designated custodian.
The Trust will deliver the Certificates to the Initial Purchaser
against payment by or on behalf of such Initial Purchaser of the
purchase price therefor by electronic transfer to the order of the
Trust in Federal (same day) funds ("Wire Transfer"), by causing DTC to
credit the Certificates to the account of the Initial Purchaser at DTC.
The Company will cause the certificates representing the Certificates
to be made available to the Initial Purchaser for checking at least
twenty-four hours prior to the Time of Delivery at the office of DTC or
its designated custodian (the "Designated Office"). The time and date
of such delivery and payment shall be 9:30 a.m., New York City time, on
March 25, 1997 or such other time and date as the Initial Purchaser,
the Trust and the Company may agree upon in writing. Such time and date
are herein called the "Time of Delivery".
(b) The Notes to be purchased by the Trust hereunder will be
represented by a definitive Note registered in the name of the Trust.
The Company will deliver such Note to the Trust against payment by wire
transfer in Federal (same day) funds of the purchase price therefor.
The Company will cause the certificates' representing the Notes to be
made available to the Trustee for checking at least twenty-four hours
prior to the Time of Delivery. Simultaneously with the purchase by the
Trust of the Notes, the Company will pay to the Initial Purchaser by
wire transfer in Federal (same day) funds the Placement Fee.
(c) The documents to be delivered at the Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7 hereof,
including the Notes and the cross-receipts for the Certificates and the
Notes and any additional documents requested by the Initial Purchaser
pursuant to Section 7(a) hereof, will be delivered at such time and
date at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx, LLP (the
"Closing Location"). The Certificates will be delivered at the
Designated Office at the Time of Delivery.
5. The Company (and, where specified, the Trustee) agrees with
the Initial Purchaser:
(a) To prepare the Offering Circulars in a form approved by
you; before amending or supplementing the Offering Circulars, to
furnish the Initial Purchaser a copy of such proposed amendment or
supplement;
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(b) To cooperate with the Initial Purchaser and counsel to the
Initial Purchaser to qualify the Certificates 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 jurisdictions for as long as may be necessary
to complete the Exempt Resales, provided that in connection therewith
the Company shall not be required to register or qualify as a foreign
corporation, or to take any action that would subject it to taxation or
service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day (as defined below) next succeeding the date of this
Agreement and from time to time, to furnish the Initial Purchaser, in
New York City, with copies of the Offering Circulars in New York City
and each amendment or supplement thereto, together with any independent
accountants' report contained in the Offering Circular, and any
amendment or supplement containing amendments to the financial
statements covered by such report, signed by the accountants, and
additional copies thereof in such quantities as you may from time to
time reasonably request, and if, at any time prior to the consummation
of any Exempt Resale, any event shall have occurred as a result of
which the Offering Circulars 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
Offering Circulars are delivered, not misleading, or, if for any other
reason it shall be necessary, during such same period to amend or
supplement the Offering Circulars, to notify you and upon your request
to prepare and furnish without charge to the Initial Purchaser and to
any dealer in securities as many copies as you may from time to time
reasonably request of the amended Offering Circulars or supplement to
the Offering Circulars which will correct such statement or omission or
effect such compliance. For the purposes of t@is Section 5, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close;
(d) The Company will take reasonable precautions designed to
insure that any offer or sale, direct or indirect, in the United States
or to any U.S. person (as defined in Rule 902 under the Act) of any
Certificates or any substantially similar security issued by the Trust,
within six months subsequent to the date on which the distribution of
the Certificates has been completed (as notified to the Company by the
Initial Purchaser), is made under restrictions and other circumstances
reasonably designed not to affect the status of the offer and sale of
the Certificates in the United States contemplated by this Agreement as
transactions exempt from the registration provisions of the Act;
(e) At any time when the Trust is not subject to Section 13 or
15(d) of the Exchange Act, upon the request of any holder of
Certificates ("Certificateholder"), the Trustee shall promptly furnish
to such Certificateholder or to a prospective purchaser of a
Certificate designated by such Certificateholder,
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as the case may be, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act ("Additional Issuer
Information") in order to permit compliance by such Certificateholder
with Rule 144A in connection with the resale of such Certificate by
such Certificateholder. The Company will provide the Trustee, in a
timely manner, the information required to be delivered by the Trust by
this subsection (e); and
(f) During the period of two years after the Time of Delivery,
the Company will not, and will not permit any of its "affiliates" (as
defined in Rule 144 under the Act) to, resell any of the Certificates
which constitute "restricted securities" under Rule 144 that have been
reacquired by any of them except pursuant to an effective registration
statement under the Act.
6. The Company covenants and agrees with the Initial Purchaser that the
Company will pay or cause to be paid all expenses incident to the performance of
the Trust's and the Company's obligations under this Agreement, including the
following: (i) the fees, disbursements and expenses of the Company's and the
Trust's counsel and accountants in connection with the issue of the Certificates
and the Notes and all other expenses in connection with the preparation,
printing and filing of the Offering Circulars and any amendments and supplements
thereto and the mailing and delivering of copies thereof to the Initial
Purchaser and dealers; (ii) all expenses in connection with the qualification of
the Certificates for offering and sale under state securities laws as provided
in Section 5(b) hereof, including the reasonable fees and disbursements of
counsel for the Initial Purchaser in connection with such qualification, except
as otherwise provided below; (iii) any fees charged by securities rating
services for rating the Certificates or the Notes; (iv) the cost of printing the
Certificates and the Notes; (v) the fees and expenses of the Trustee and the
Indenture Trustee and any agent of the Trustee and the Indenture Trustee and the
reasonable fees and disbursements of counsel for the Trustee and the Indenture
Trustee in connection with the Operative Documents; and (vii) all other costs
and expenses incident to the performance of its obligations hereunder which are
not otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section, and Sections 8 and 11 hereof,
the Initial Purchaser will pay all of their own costs and expenses, including
the fees of their counsel, transfer taxes on resale of any of the Certificates
by them, costs associated with the Blue Sky and legal investment surveys and any
advertising expenses connected with any offers they may make.
7. The obligations of the Initial Purchaser to purchase the
Certificates and the Call Option pursuant to Section 2 hereunder shall be
subject, in its discretion, to the condition that all representations and
warranties and other statements of the Trust and the Company herein are, at and
as of the Time of Delivery, true and correct, the condition that the Trust and
the Company shall have performed all of their respective obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) You shall have received from your counsel, Skadden, Arps,
Slate, Xxxxxxx & Xxxx, LLP, such opinion or opinions, dated the Time of
Delivery, with respect to the issuance and sale of the Certificates and
the Notes and other related matters as you may reasonably require, and
the Company shall have
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furnished to such counsel such documents as they reasonably request for
the purpose of enabling them to pass upon such matters.
(b) There shall have been no material adverse change in the
condition of the Company and its subsidiaries, taken as a whole, from
that set forth in or contemplated by the Offering Circulars; and you
shall have received on the Closing Date a certificate, dated the
Closing Date and signed by an executive officer of the Company, to the
foregoing effect.
(c) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
downgrading of, nor shall any notice have been given of any review with
a negative implication with respect to, the rating accorded any of the
Company's securities by any of Standard & Poor's Corporation or Xxxxx'x
Investors Service, Inc.
(d) You shall have received on the Closing Date the favorable
opinion of Xxxxx & Xxxxxxxxx LLP, counsel for the Company, dated the
Closing Date, to the effect that:
(i) the Company and each of its significant
subsidiaries (as defined in Rule 405 under the Act) has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of its incorporation
or formation, as the case may be, and is duly qualified to
transact business and is in good standing or in full force and
effect, as the case may be, in each jurisdiction in which it
owns real property, except where the failure to qualify and be
in good standing or full force and effect would not have a
material adverse effect on the condition of the Company its
subsidiaries and entities in which they own interests, taken
as, a whole;
(ii) Each of the Operative Documents of the Company
(other than this Agreement and the Notes) have been duly
authorized, executed and delivered by the Company and are
valid and binding instruments enforceable in accordance with
their terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(iii) the Notes, when duly executed by the Company
and authenticated by the Indenture Trustee and delivered to
and paid for by the Trust pursuant to this Agreement, will be
valid and binding obligations of the Company in accordance
with their terms, except as (A) the enforceability thereof may
be limited by bankruptcy, insolvency or similar laws affecting
the enforcement of creditors' rights generally and (B) rights
of acceleration and the availability of equitable remedies may
be limited by equitable principles of general applicability;
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(iv) This Agreement has been duly authorized, executed
and delivered by the Company;
(v) No authorization, consent or approval of, or
registration or filing with, any governmental or public body
or regulatory authority is required on the part of the Company
for the issuance of the Notes in accordance with the Indenture
or the sale of the Notes in accordance with the Purchase
Agreement, other than compliance with the securities or Blue
Sky laws of various jurisdictions; and
(vi) The execution and delivery of the Operative
Documents of the Company, the issuance of the Notes and
Certificates in accordance with the Indenture and Trust
Agreement respectively, and the sale of the Securities in
accordance with the Purchase Agreement will not result in any
violation by the Company of any of the terms or provisions of
the Articles of Incorporation or Code of Regulations of the
Company or of any indenture, mortgage or other agreement or
instrument known to such counsel, by which the Company is
bound (except, with respect to such indentures, mortgages,
agreements and instruments, for violations which would not
have a material adverse effect on the Company, its
subsidiaries and entities in which they own interests, taken
as a whole).
In addition, such counsel shall state that he has
participated in conferences with officers and other
representatives of the Company, representatives of the
independent certified public accountants of the Company, and
representatives of the Initial Purchaser and its counsel at
which conferences the contents of the Offering Circulars and
any amendment thereof or supplement thereto and related
matters were discussed and, although such counsel has not
independently verified and is not passing upon and does not
assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Offering
Circulars, or any amendment thereof or supplement thereto, on
the basis of the foregoing (relying as to materiality to a
large extent upon the opinions of officers and representatives
of the Company), no facts have come to the attention of such
counsel which would lead such counsel to believe that the
Offering Circulars or any amendment or supplement thereto at
any time from the date thereof through the Time of Delivery,
contained any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (it
being understood that such counsel need express no view with
respect to financial, statistical and accounting data included
in the Offering Circulars).
(e) You shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to you, from
Price Waterhouse L.L.P., independent accountants, containing statements
and information of the type
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ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Offering
Circulars.
(f) Counsel to the Trustee shall have furnished to you and the
Company its written opinion, dated the Time of Delivery, in form and
substance satisfactory to you and the Company, to the effect that:
(i) The Trustee is a national banking association
duly organized and validly existing under the laws of the
United States of America.
(ii) The Trustee has the full power and authority to
accept the office of Trustee under the Trust Agreement and to
perform its obligations thereunder.
(iii) The execution and delivery of the Operative
Documents to be executed by the Trustee and the performance of
its obligations thereunder have been duly authorized by all
necessary corporate action of the Trustee and each of such
Operative Documents has been duly authorized, executed and
delivered by the Trustee.
(iv) The Trust Agreement, the Certificates and the
Trust Call Option constitute valid and binding obligations of
the Trustee enforceable against the Trustee in accordance with
their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws relating to or affecting
creditors' rights or general principles of equity, regardless
of whether such enforceability is considered in a proceeding
in equity or at law.
(v) The execution, delivery or performance by the
Trustee of its obligations under the applicable Operative
Documents do not require any consent, approval or
authorization of, or any registration or filing with, any Ohio
or United States governmental agency or body having
jurisdiction over the banking or trust powers of the Trustee.
(vi) Each of the Certificates has been duly
authenticated by the Trustee upon the order of the Company.
As to matters of fact, such counsel listed in subsections (a),
(d) and (f) above may rely to the extent such counsel deems proper, on
certificates of responsible officers and other representatives of the
Company and its subsidiaries, certificates of public officials, and
certificates or other written statements of officers of departments of
various jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company and its
subsidiaries. In addition, the opinion in subsection (d) and (f) above
may be limited to matters of United States federal and Ohio law.
(g) The Trust shall have delivered the Trust Call Option to
the Callholder.
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(h) The Company shall have delivered the Company Call Option
to the Initial Purchaser.
8. The Company agrees to indemnify and hold harmless the Trustee and
the Initial Purchaser and each person, if any, who controls the Trustee and the
Initial Purchaser within the meaning of Section 15 of the Securities Act of 1933
or Section 20 of the Securities Exchange Act of 1934, from and against any and
all losses, claims, damages and liabilities caused by any untrue statement or
alleged untrue statement of a material fact contained in the Offering Circulars
(or any amendment or supplement thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements, in the light of the circumstances under which
they were made, not misleading, except, with respect to the Initial Purchaser,
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by the Initial Purchaser
expressly for use therein.
The Initial Purchaser agrees to indemnify and hold harmless
the Company, its directors and its officers and any person controlling the
Company to the same extent as the foregoing indemnity from the Company to the
Initial Purchaser, but only with reference to information relating to the
Initial Purchaser furnished in writing by such Initial Purchaser expressly for
use in the Offering Circulars which is set forth in Schedule A hereto.
The Initial Purchaser agrees to indemnify and hold harmless the Trustee
and the Company, each director and officer of the Trustee and the Company and
each person, if any, who controls (within the meaning of Section 15 of the
Securities Act) the Trustee or the Company against any and all losses, claims,
damages, liabilities, expenses, actions and demands to which they or any of them
may become subject (including all reasonable costs of investigating, disputing
or defending any such claim, action or demand) under the law of any jurisdiction
or which may be made against them arising out of, or in connection with actions
or omissions of the Initial Purchaser, or any person, if any who controls
(within the meaning of Section 15 of the Securities Act) the Initial Purchaser,
its affiliates or persons acting on their behalf or their respective officers
and directors, which are inconsistent with any applicable restrictions on offers
and sales of the Certificates (including, without limitation, their obligations
hereunder).
In case any claim, demand, action or proceeding (including any
governmental investigation) shall be brought or instituted involving any person
in respect of which indemnity may be sought pursuant to either of the three
preceding paragraphs, such person (the "indemnified party") shall promptly
notify the person against whom such indemnity may be sought (the "indemnifying
party") in writing (but the failure to so notify an indemnifying party shall not
relieve it from any liability which it may have under this Section 8, unless the
indemnifying party is materially prejudiced as a result of such failure to
notify) and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the reasonable fees and disbursements of such counsel
related to such proceeding; provided, however, that in the event the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of any such proceeding, the indemnified party shall then be
entitled
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to retain counsel reasonably satisfactory to itself and the indemnifying party
shall pay the reasonable fees and disbursements of such counsel related to the
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the reasonable fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention OF
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them or (iii) the
indemnifying party shall have failed to employ counsel satisfactory to the
indemnified party pursuant to the next preceding sentence. It is understood that
the indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm (in addition to local counsel) for all
such indemnified parties. Such xxxx shall be designated in writing by the
Initial Purchaser in the case of parties indemnified pursuant to the second
preceding paragraph and by the Company in the case of parties indemnified
pursuant to the first preceding paragraph. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent
but if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify to the extent provided in
this Section 8 the indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
The Company shall not be responsible for the failure of the
Initial Purchaser or any person acting on its behalf to comply with any
applicable restrictions on offers and sales of the Certificates nor shall the
Company have any obligation to indemnify the Initial Purchaser, or any person,
if any, who controls within the meaning of Section 15 of the Securities Act the
Initial Purchaser, and their respective directors and officers, from any losses,
liabilities, costs or claims (or actions in respect thereof) to which any of
them may become subject (including all reasonable costs of investigating,
disputing or defending any such claim or action), arising out of or resulting
from the failure of the Initial Purchaser, such person or such directors and
officers to comply with any applicable restrictions on offers and sales of the
Certificates.
9. (a) This Agreement shall be subject to termination in your absolute
discretion, by notice given to the Company prior to the Time of
Delivery, if (a) prior to the Time of Delivery (i) trading in
securities on the New York Stock Exchange or the American Stock
Exchange shall have been suspended or materially limited, (ii) trading
in any securities of the Company shall have been suspended on any
national securities exchange in the United States or in any
over-the-counter market in the United States, (iii) a general
moratorium on banking activities in New York shall have been declared
by Federal or New York State authorities or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in the
financial markets or other calamity or crisis, any of which is material
and adverse or (v) any material adverse change in the condition,
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financial or otherwise, or in the earnings, business affairs or
business prospects or properties of the Company and its subsidiaries
considered as one enterprise, not arising in the ordinary course of
business and (b) in the case of any of the events specified in clauses
(a)(i) through (iv), such event either singly or together make it, in
your reasonable judgment, impracticable to market the Certificates.
(b) If this Agreement is terminated pursuant to this Section
9, such termination shall be without liability of any party to any
other party except as provided in Section 6 hereof, and provided
further that Sections I and 8 shall survive such termination and remain
in full force and effect.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Trust, the Company and the Initial Purchaser, as set
forth in this Agreement or made by or on behalf of them, respectively, pursuant
to this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of the Initial Purchaser or any controlling person of the Initial Purchaser, or
the Trust, or the Company or any officer or director or controlling person of
the Company and shall survive delivery of and payment for the Certificates.
The parties hereto agree that the Trustee shall have no
personal liability hereunder and the liability of the Trustee shall under all
circumstances be limited to' the Trust Assets (as defined in the Trust
Agreement).
11. If, as a result of a breach by the Company, the Certificates are
not, delivered by or on behalf of the Trust or the Notes are not delivered by or
on behalf of the Company as provided herein, the Company will reimburse the
Initial Purchaser for all out-of-pocket expenses approved in writing by the
Initial Purchaser, including fees and disbursements of counsel, reasonably
incurred by the Initial Purchaser in making preparations for the purchase, sale
and delivery of the Certificates, but the Company shall then be under no further
liability to the Initial Purchaser except as provided in Sections 6 and 9
hereof.
12. All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Initial Purchaser shall be delivered or sent by mail,
telex or facsimile transmission to you at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xx. Xxxxxxx Xxxxxxx; if to the Company shall be delivered or
sent by mail, telex or facsimile transmission to the Company at 00000 Xxxxxxx
Xxxxxxxxx, Xxxxxxxx Xxxxx, Xxxx 00000, Attention: Xxxx X. Xxxxxxx, Vice
President and General Counsel; and if to the Trust, to the Trustee at 000 Xxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxx Trust Division, Xxxxxxxxx, Xxxx 00000, Attention:
Corporate Trust Administration. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Initial Purchaser, the Trust, the Company and, to the extent
provided in Sections 9 and 11 hereof, the officers and directors of the Company
and each person who controls the Company or the Initial Purchaser, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have-any right under or by virtue of this
Agreement. No purchaser of any of the Certificates from the Initial Purchaser
shall be deemed a successor or assign by reason merely of such purchase.
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14. Each of the Trust and the Company irrevocably (i) agrees that any
legal suit, action or proceeding against it brought by the Initial Purchaser or
by any person who controls the Initial Purchaser arising out of or based upon
this Agreement or the transactions contemplated hereby may be instituted in any
New York court, (ii) waives, to the fullest extent it may effectively do so, any
objection which it may now or hereafter have to the laying of venue of any such
proceeding and (iii) submits to the jurisdiction of such courts in any such
suit, action or proceeding.
15. Time shall be of the essence of this Agreement.
16. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without giving effect to choice of law or
conflicts of laws principles.
17. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
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If the foregoing is in accordance with your understanding,
please sign and return to us counterparts hereof, and upon the acceptance hereof
by you, this letter and such acceptance hereof shall constitute a binding
agreement between you, the Trust and the Company as of the date above written.
Very truly yours,
DEVELOPERS DIVERSIFIED REALTY
CORPORATION
By:_______________________________________
Name:
Title:
DDR Pass-Through Asset Trust 1997-1
By: NATIONAL CITY BANK, not in its
individual capacity but solely as
Trustee
By:_______________________________________
Name:
Title:
Accepted as of the date hereof:
UBS SECURITIES LLC
By:_______________________________
Name:
Title:
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