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Exhibit 1(C)
DEVELOPERS DIVERSIFIED REALTY CORPORATION
(an Ohio corporation)
Medium-Term Notes
Due 9 Months or More from Date of Issue
DISTRIBUTION AGREEMENT
October __, 1997
XXXXXX XXXXXXX & CO. INCORPORATED
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
CS FIRST BOSTON CORPORATION
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
FIRST CHICAGO CAPITAL MARKETS, INC.
One First National Plaza
Chicago, Illinois 60670
XXXXXXX, XXXXX & CO.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX BROTHERS
XXXXXX BROTHERS INC.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. INTRODUCTORY. Developers Diversified Realty Corporation, an Ohio
corporation (the "Company"), confirms its agreement with Xxxxxx Xxxxxxx & Co.
Incorporated, CS First Boston Corporation, First Chicago Capital Markets, Inc.,
Xxxxxxx, Xxxxx & Co., Xxxxxx Brothers, Xxxxxx Brothers Inc. (each, an "Agent,"
and collectively, the "Agents") and Xxxxx Xxxxxx Inc. with respect to the issue
and sale by the Company of its debt securities denominated "Medium-Term Notes
Due 9 Months or More from Date of Issue" (the "Notes"). The
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Notes will be either Senior Notes (the "Senior Notes") or Subordinated Notes
(the "Subordinated Notes"). The Senior Notes will be issued under an indenture
dated as of May 1, 1994, as amended, supplemented or modified from time to time
(the "Senior Indenture"), between the Company and National City Bank, as trustee
(the "Senior Trustee"), and the Subordinated Notes will be issued under an
indenture dated as of May 1, 1994, as amended, supplemented or modified from
time to time (the "Subordinated Indenture"), between the Company and The Chase
Manhattan Bank (formerly Chemical Bank), as trustee (the "Subordinated
Trustee"). The term "Trustee" as used herein shall refer to either the Senior
Trustee or the Subordinated Trustee, as appropriate, for Senior Notes or
Subordinated Notes. The Senior Indenture and the Subordinated Indenture, each as
amended, supplemented or modified from time to time, are each sometimes referred
to as the "Indenture." Each series of Senior Notes or Subordinated Notes may
vary, as applicable, as to aggregate principal amount, maturity date, interest
rate or formula and timing of payments thereof, redemption and/or repayment
provisions, and any other variable terms which the Senior Indenture or the
Subordinated Indenture, as the case may be, contemplates may be set forth in the
Senior Notes and the Subordinated Notes as issued from time to time. The Senior
Notes or the Subordinated Notes may be offered either together or separately. As
used herein, "Notes" shall mean the Senior Notes or the Subordinated Notes or
any combination thereof.
As of the date hereof, the Company has authorized the issuance and sale
of up to U.S. $___________ aggregate initial offering price (or its equivalent,
based upon the applicable exchange rate at the time of issuance, in such foreign
or composite currencies as the Company shall designate at the time of issuance)
of Notes to or through the Agents pursuant to the terms of this Agreement. It is
understood, however, that the Company may from time to time authorize the
issuance of additional Notes and that such additional Notes may be sold to or
through the Agents pursuant to the terms of this Agreement, all as though the
issuance of such Notes were authorized as of the date hereof. This Agreement
provides both for the sale of Notes by the Company to one or more Agents as
principal for resale to investors and other purchasers and for the sale of Notes
by the Company directly to investors (as may from time to time be agreed to by
the Company and the applicable Agent), in which case such Agent will act as an
agent of the Company in soliciting purchases of the Notes.
As used herein, "you" and "your," unless the context otherwise
requires, shall mean the parties to whom this Agreement is addressed together
with the other parties, if any, identified in the Prospectus (as hereinafter
defined) as additional Agents with respect to the Notes.
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2. APPOINTMENT AS AGENT. (a) Subject to the terms and conditions stated
herein and subject to the reservation by the Company of the right to sell Notes
directly on its own behalf, the Company hereby agrees that Notes will be sold
exclusively to or through the Agents. The Company agrees that it will not
appoint any other agents to act on its behalf, or to assist it, in the placement
of the Notes.
(b) The Company shall not sell or approve the solicitation of purchases
of Notes in excess of the amount which shall be authorized by the Company from
time to time or in excess of the aggregate initial offering price of Notes
registered pursuant to the Registration Statement. The Agents shall have no
responsibility for maintaining records with respect to the aggregate initial
offering price of Notes sold, or of otherwise monitoring the availability of
Notes for sale, under the Registration Statement.
(c) The Agents shall not have any obligation to purchase Notes from the
Company as principal, but one or more Agents may agree from time to time to
purchase Notes as principal for resale to investors and other purchasers
determined by such Agent or Agents. Any such purchase of Notes by an Agent as
principal shall be made in accordance with Section 4(a) hereof.
(d) If agreed upon by an Agent and the Company, such Agent, acting
solely as agent for the Company and not as principal, will solicit purchases of
the Notes. Such Agent will communicate to the Company, orally, each offer to
purchase Notes solicited by it on an agency basis, other than those offers
rejected by such Agent. Such Agent shall have the right, in its discretion
reasonably exercised, to reject any proposed purchase of Notes, as a whole or in
part, and any such rejection shall not be deemed a breach of its agreement
contained herein. The Company may accept or reject any proposed purchase of
Notes, in whole or in part. Such Agent shall make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer to purchase
Notes has been solicited by it and accepted by the Company. Such Agent shall not
have any liability to the Company in the event that any such purchase is not
consummated for any reason. If the Company shall default on its obligation to
deliver Notes to a purchaser whose offer it has accepted, the Company shall (i)
hold such Agent harmless against any loss, claim or damage arising from or as a
result of such default by the Company, and (ii) notwithstanding such default,
pay to such Agent any commission to which it would otherwise be entitled.
(e) The Company and the Agents agree that any Notes purchased by one or
more Agents as principal shall be purchased, and any Notes the placement of
which an Agent arranges as agent shall be
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placed by such Agent, in reliance on the representations, warranties, covenants
and agreements of the Company contained herein and on the terms and conditions
and in the manner provided herein.
3. REPRESENTATIONS AND WARRANTIES. (a) The Company represents and
warrants to you, as of the date hereof, as of the date of each acceptance by the
Company of an offer for the purchase of Notes (whether to one or more Agents as
principal or through an Agent as agent), as of the date of each delivery of
Notes (whether to one or more Agents as principal or through an Agent as agent)
(the date of each such delivery to one or more Agents as principal being
hereinafter referred to as a "Settlement Date"), and as of any time the
Registration Statement (as defined below) or the Prospectus (as defined below)
shall be amended or supplemented or there is filed with the Securities and
Exchange Commission (the "Commission") any document incorporated by reference
into the Prospectus (as defined below) (each of the times referenced above being
referred to herein as a "Representation Date"), that:
(i) Registration Statements on Form S-3 (Nos. 333-_____ and
333-05565) for the registration of the Notes, under the Securities Act
of 1933, as amended (the "1933 Act"), and the offering thereof from
time to time in accordance with Rule 415 of the rules and regulations
of the Securities and Exchange Commission (the "Commission") under the
1933 Act (the "1933 Act Regulations"), have heretofore been delivered
to you, have been prepared by the Company in conformity with the
requirements of the 1933 Act and the 1933 Act Regulations and have been
filed with the Commission under the 1933 Act. One or more amendments to
such registration, as may have been required and copies of which have
heretofore been delivered to you, have been so prepared and filed prior
to the execution of this Agreement. Each such registration statement
(as amended, if applicable) has been declared effective by the
Commission and each of the Senior Indenture and the Subordinated
Indenture has been qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act"). Such registration statements (and any further
registration statements which may be filed by the Company for the
purpose of registering additional Notes and in connection with which
this Agreement is included or incorporated by reference as an exhibit),
on the one hand, and the prospectus constituting a part thereof and any
prospectus supplement and pricing supplement relating to the offering
of Notes, on the other hand, including all documents incorporated
therein by reference, as from time to time amended or supplemented
pursuant to the 1933 Act, the Securities Exchange Act of 1934, as
amended (the "1934 Act") or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus," respectively, except
that if
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any revised prospectus shall be provided to the Agents by the Company
for use in connection with the offering of Notes, whether or not such
revised prospectus is required to be filed by the Company pursuant to
Rule 424(b) of the 1933 Act Regulations, the term "Prospectus" shall
refer to such prospectus from and after the time it is first provided
to the Agents for such use. If the Company elects to rely on Rule 434
under the 1933 Act Regulations, all references to the Prospectus shall
be deemed to include, without limitation, the form of prospectus and
the term sheet, taken together, provided to the Agents by the Company
in reliance on Rule 434 under the 1933 Act (the "Rule 434 Prospectus").
If the Company files a registration statement to register a portion of
the Securities and relies on Rule 462(b) for such registration
statement to become effective upon filing with the Commission (the
"Rule 462 Registration Statement"), then any reference to "Registration
Statement" herein shall be deemed to be to the registration statements
referred to above (Nos. 333-05565, 33-94182 and 33-90182) and the Rule
462 Registration Statement, as each such registration statement may be
amended pursuant to the 1933 Act. All references in this Agreement to
financial statements and schedules and other information which is
"contained," "included" or "stated" in the Registration Statement or
the Prospectus (and all other references of like import) shall be
deemed to mean and include all such financial statements and schedules
and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case
may be; and all references in this Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall be
deemed to mean and include, without limitation, the filing of any
document under the 1934 Act which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case
may be.
(ii) At the time the Registration Statement became effective,
and at each time thereafter at which an Annual Report on Form 10-K was
filed by the Company with the Commission, the Registration Statement
and the Prospectus conformed, and as of each applicable Representation
Date will conform, in all material respects to the requirements of the
1933 Act, the 1933 Act Regulations and the 1939 Act. At the time the
Registration Statement became effective and at each time thereafter at
which an Annual Report on Form 10-K was filed by the Company with the
Commission, the Registration Statement did not, and as of the
applicable Representation Date, 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. The Prospectus, as of the date hereof does not, and as of
each
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applicable Representation Date will not, include an untrue statement of
a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
foregoing representations and warranties shall not apply 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 or on behalf of any Agent,
specifically for use in the preparation thereof or to that part of the
Registration Statement which shall constitute the Statement of
Eligibility under the 1939 Act (Form T-1) (the "Statement of
Eligibility") of the Senior Trustee and the Subordinated Trustee under
the Senior Indenture and the Subordinated Indenture.
(iii) The documents incorporated or deemed to be incorporated
by reference in the Prospectus pursuant to Item 12 of Form S-3 under
the 1933 Act, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission under the 1934 Act (the "1934 Act Regulations"), and, when
read together with the other information in the Prospectus, at the time
the Registration Statement became effective and as of the applicable
Representation Date or during the period specified in Section 5(e), did
not and will not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(iv) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has not occurred any material
adverse change or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) (B) there have been no
transactions entered into by the Company or its subsidiaries which are
material with respect to the Company and its subsidiaries considered as
one enterprise other than those in the ordinary course of business, and
(C) except for regular quarterly dividends on the Company's common
shares, and regular dividends declared, paid or made in accordance with
the terms of any class or series of the Company's preferred shares,
there has been no dividend or distribution
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of any kind declared, paid or made by the Company on any class
of its capital stock.
(v) The consolidated financial statements and supporting
schedules of the Company included in, or incorporated by reference
into, the Registration Statement and the Prospectus present fairly the
financial position of the Company and its consolidated subsidiaries as
of the dates indicated and the results of their operations for the
periods specified and the consolidated financial statements of
Developers Diversified Group ("DDG") included in, or incorporated by
reference into, the Registration Statement and the Prospectus present
fairly the results of its operations for the periods specified; except
as otherwise stated in the Registration Statement and the Prospectus,
said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis;
and the supporting schedules included or incorporated by reference in
the Registration Statement and the Prospectus present fairly in all
material respects the information required to be stated therein. The
historical statements of revenues and certain operating expenses
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the revenues and those operating expenses
included in such statements for the periods specified in conformity
with generally accepted accounting principles; the pro forma condensed
consolidated financial statements included or incorporated by reference
in the Registration Statement and the Prospectus, if any, present
fairly the pro forma financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the pro forma
results of their operations for the periods specified; and the pro
forma condensed consolidated financial statements have been derived
from information prepared in conformity with generally accepted
accounting principles applied on a consistent basis, the assumptions on
which such pro forma financial statements have been prepared are
reasonable and are set forth in the notes thereto, such pro forma
financial statements have been prepared, and the pro forma adjustments
set forth therein have been applied, in accordance with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations,
and such pro forma adjustments have been properly applied to the
historical amounts in the compilation of such statements.
(vi) Price Waterhouse LLP, who have expressed their opinion on
the audited financial statements and related schedules included in, or
incorporated by reference into, the Registration Statement, are
independent public accountants within the meaning of the 1933 Act and
the applicable 1933 Act Regulations.
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(vii) The Company has been duly organized and is validly
existing and in good standing as a corporation under the laws of the
State of Ohio, with power and authority (corporate and other) to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus; the Company
is in possession of and operating in compliance with all material
franchises, grants, authorizations, licenses, permits, easements,
consents, certificates and orders required for the conduct of its
business, all of which are valid and in full force and effect; and the
Company is duly qualified to do business and in good standing as a
foreign corporation in all other jurisdictions where its ownership or
leasing of properties or the conduct of its business requires such
qualification, except where failure to qualify and be in good standing
would not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise.
(viii) Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and to
conduct its business and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as
one enterprise.
(ix) The Indenture has been duly and validly authorized,
executed and delivered by the Company and constitutes the valid and
legally binding agreement of the Company, enforceable in accordance
with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws relating to or affecting
enforcement of creditors' rights generally or by general equity
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(x) The Notes have been duly authorized by the Company for
issuance and sale pursuant to this Agreement and, when issued,
authenticated and delivered pursuant to the provisions of the Indenture
against payment of the consideration therefor specified in the
Prospectus or agreed upon pursuant to the terms of this Agreement, the
Notes will constitute valid and legally binding obligations of the
Company, enforceable in
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accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency or other similar laws relating to or
affecting enforcement of creditors' rights generally or by general
equity principles (regardless or whether enforcement is considered in a
proceeding in equity or at law); the Notes and the Indenture conform in
all material respects to all statements relating thereto contained in
the Prospectus; and the Notes will be entitled to the benefits provided
by the Indenture.
(xi) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened against or affecting
the Company or its subsidiaries, which is required to be disclosed in
the Prospectus (other than as disclosed therein), or which might result
in any material adverse change in the condition, financial or
otherwise, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, or might materially and
adversely affect the properties or assets thereof or which might
materially and adversely affect the consummation of this Agreement, or
the Indenture, or the transactions contemplated herein and therein; all
pending legal or governmental proceedings to which the Company or any
of its subsidiaries is a party or of which any of their respective
property is the subject which are not described in the Prospectus,
including routine litigation incidental to the business, are,
considered in the aggregate, not material; and there are no material
contracts or documents of the Company or its subsidiaries which are
required to be filed as exhibits to the Registration Statement by the
1933 Act or by the 1933 Act Regulations which have not been so filed.
(xii) Neither the Company nor any of its subsidiaries is in
violation of its respective articles of incorporation or other
organizational document, or its Code of Regulations or bylaws, as the
case may be (the "Code of Regulations"), or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which it is a party
or by which it or its properties may be bound, where such defaults in
the aggregate would have a material adverse effect on the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as
one enterprise; and the execution and delivery of this Agreement and
the Indenture, and the consummation of the transactions contemplated
herein and therein have been duly authorized by all necessary corporate
action and compliance by the Company with its obligations hereunder and
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thereunder will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or its
subsidiaries pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any
of its subsidiaries is a party or by which it may be bound or to which
any of the property or assets of the Company or any of its subsidiaries
is subject, nor will such action result in any violation of the
provisions of the Articles of Incorporation or Code of Regulations or,
to the best of its knowledge, any law, administrative regulation or
administrative or court order or decree; and no consent, approval,
authorization or order of any court or governmental authority or agency
is required for the consummation by the Company of the transactions
contemplated by this Agreement or the Indenture, except such as has
been obtained or as may be required under the 1933 Act, the 1934 Act,
state securities or Blue Sky laws or real estate syndication laws in
connection with the purchase and distribution of the Notes by the
Agents.
(xiii) The Company has full right, power and authority to
enter into this Agreement, and this Agreement has been, and as of the
applicable Representation Date will have been duly authorized, executed
and delivered by the Company.
(xiv) With respect to its taxable years ended December 31,
1997 and its taxable years ending thereafter, the Company has operated
and will continue to operate so as to qualify as a Real Estate
Investment Trust ("REIT"), the Company qualified as a REIT for its
taxable years ended December 31, 1993, 1994, 1995 and 1996 and the
Company intends to file a form 1120REIT and be taxed as a REIT with
respect to its taxable year ended December 31, 1997.
(xv) Neither the Company nor any of its subsidiaries is
required to be registered under the Investment Company Act of 1940, as
amended (the "1940 Act").
(xvi) Neither the Company nor any of its subsidiaries is
required to own or possess any trademarks, service marks, trade names
or copyrights in order to conduct the business now operated by them.
(xvii) If applicable, the Notes have been approved for listing
on the New York Stock Exchange.
(xviii) There are no persons with registration or other
similar rights to have any securities registered pursuant to the
Registration Statement.
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(xix) (A) The Company or its subsidiaries have good and
marketable title or leasehold interest, as the case may be, to the
portfolio properties (the "Portfolio Properties") described in the
Prospectus (or documents incorporated by reference therein) as being
owned by the Company or its subsidiaries (except with respect to
properties described in the Prospectus or documents incorporated by
reference therein) as being held by the Company through joint ventures,
in each case free and clear of all liens, encumbrances, claims,
security interests and defects (collectively, the "Defects"), except
such as do not materially adversely affect the value of such property
or interests and do not materially interfere with the use made and
proposed to be made of such property or interests by the Company or
such subsidiaries, as the case may be; (B) the joint venture interest
in each property described in the Prospectus (or documents incorporated
by reference therein) as being held by the Company through a joint
venture, is owned, free and clear of all Defects except for such
Defects that will not have a material adverse effect on the business,
earnings or business prospects of the Company and its subsidiaries
considered as one enterprise; (C) all liens, charges, encumbrances,
claims, or restrictions on or affecting the properties and assets of
the Company or its subsidiaries which are required to be disclosed in
the Prospectus are disclosed therein; (D) none of the Company, its
subsidiaries or, to the best of the Company's knowledge, any lessee of
any of the Portfolio Properties is in default under any of the leases
governing the Portfolio Properties and the Company does not know of any
event which, but for the passage of time or the giving of notice, or
both, would constitute a default under any of such leases, except such
defaults that would not have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as
one enterprise; (E) no tenant under any of the leases pursuant to which
the Company or its subsidiaries leases any of the Portfolio Properties
has an option or right of first refusal to purchase the premises
demised under such lease (except for (i) Kmart Corporation, (ii) the
tenants at the Portfolio Property located in Solon, Ohio, (iii) as
otherwise described in the Prospectus (or documents incorporated by
reference therein) and (iv) such other options or rights of first
refusal that, if exercised, would not have a material adverse effect on
the condition, financial or otherwise, or on the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise); (F) each of the Portfolio Properties
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 condition,
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financial or otherwise, or on the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as
one enterprise; and (G) the Company does not have 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 Portfolio
Properties, except such proceedings or actions that would not have a
material adverse effect on the condition, financial or otherwise, or on
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
(xx) The Company or its subsidiaries have title insurance on
each of the Portfolio Properties (except with respect to each property
described in the Prospectus (or documents incorporated by reference
therein) as held by the Company through a joint venture) in an amount
at least equal to the greater of (A) the cost of acquisition of such
Portfolio Property and (B) the cost of construction of the improvements
located on such Portfolio Property, except, in each case, where the
failure to maintain such title insurance would not have a material
adverse effect on the condition, financial or otherwise, or on the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; the joint venture owning
each property described in the Prospectus (or documents incorporated by
reference therein) as held by the Company through a joint venture has
title insurance on such property in an amount at least equal to the
greater of (A) the cost of acquisition of such Portfolio Property by
such joint venture and (B) the cost of construction of the improvements
located on such Portfolio Property, except, in each case, where the
failure to maintain such title insurance would not have a material
adverse effect on the condition, financial or otherwise, or on the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xxi) The mortgages and deeds of trust encumbering the
Portfolio Properties are not convertible and neither the Company nor
any of its subsidiaries hold a participating interest therein and said
mortgages and deeds of trust are not cross-defaulted or
cross-collateralized to any property not owned by the Company or its
subsidiaries.
(xxii) The Company has no knowledge of (a) the unlawful
presence of any hazardous substances, hazardous materials, toxic
substances or waste materials (collectively, "Hazardous Materials") on
any of the Portfolio Properties or of (b) any unlawful spills, release,
discharges or disposal of Hazardous Materials that have occurred or are
presently occurring from
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the Portfolio Properties as a result of any construction on or
operation and use of the Portfolio Properties, which presence or
occurrence would materially adversely affect the condition, financial
or otherwise, or the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise. In
connection with the construction on or operation and use of the
Portfolio Properties, the Company represents that, as of the date of
this Agreement, the Company has no knowledge of any material failure to
comply with all applicable local, state and federal environmental laws,
regulations, ordinances and administrative and judicial orders relating
to the generation, recycling, reuse, sale, storage, handling, transport
and disposal of any Hazardous Materials that would have a material
adverse effect on the condition, financial or otherwise, or on the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xxiii) The Senior Notes are rated not less than Baa3 by
Xxxxx'x Investors Service, Inc. and BBB by Standard & Poor's
Corporation. The Subordinated Notes are rated not less than Ba1 by
Xxxxx'x Investors Service, Inc. and BBB- by Standard & Poor's
Corporation.
(b) Any certificate signed by any officer of the Company and delivered
to you or to counsel for the Agents shall be deemed a representation and
warranty by the Company, as the case may be, to each Agent participating in such
offering as to the matters covered thereby on the date of such certificate and,
unless subsequently amended or supplemented, at the applicable Representation
Date subsequent thereto.
4. PURCHASES AS PRINCIPAL; SOLICITATIONS AS AGENT. (a) Unless otherwise
agreed by an Agent and the Company, Notes shall be purchased by such Agent as
principal. Such purchases shall be made in accordance with terms agreed upon by
one or more Agents and the Company (which terms, unless otherwise agreed, shall,
to the extent applicable, include those terms specified in Exhibit A hereto and
be agreed upon orally, with written confirmation prepared by such Agent or
Agents and mailed to the Company). An Agent's commitment to purchase Notes as
principal shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Unless the context otherwise requires,
references herein to "this Agreement" shall include the agreement of one or more
Agents to purchase Notes from the Company as principal. Each purchase of Notes,
unless otherwise agreed, shall be at a discount from the principal amount of
each such Note equivalent to the applicable commission set forth in Schedule A
hereto. The Agents may engage the services of any other broker or
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dealer in connection with the resale of the Notes purchased by them as principal
and may allow any portion of the discount received in connection with such
purchases from the Company to such brokers and dealers. At the time of each
purchase of Notes by one or more Agents as principal, such Agent or Agents shall
specify the requirements for the stand-off agreement, officers' certificate,
comfort letter and opinions of counsel pursuant to Sections 5(k), 11(b), 11(c),
and 11(d) hereof.
(b) On the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, when agreed
by the Company and an Agent, such Agent, as an agent of the Company, will use
its reasonable efforts to solicit offers to purchase the Notes upon the terms
and conditions set forth herein and in the Prospectus. The Agents are not
authorized to appoint sub-agents with respect to Notes sold through them as
agent. All Notes sold through an Agent as agent will be sold at 100% of their
principal amount unless otherwise agreed to by the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through an Agent, as agent, commencing at
any time for any period of time or permanently. As soon as practicable after
receipt of instructions from the Company, such Agent will suspend solicitation
of purchases from the Company until such time as the Company has advised such
Agent that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Senior Note sold by the Company as a result of a solicitation made by such Agent
as set forth in Schedule A hereto. The schedule of commissions payable in
connection with sales of Senior Notes will also apply to sales of Subordinated
Notes unless otherwise agreed to by the Company and the applicable Agent.
(c) The purchase price, interest rate or formula, maturity date and
other terms of the Notes (as applicable) specified in Exhibit A hereto shall be
agreed upon by the Company and the applicable Agent or Agents and specified in a
pricing supplement to the Prospectus (each, a "Pricing Supplement") to be
prepared in connection with each sale of Notes. Except as may be otherwise
specified in the applicable Pricing Supplement, the Notes will be issued in
denominations of U.S. $1,000 or any larger amount that is an integral multiple
of U.S. $1,000. Administrative procedures with respect to the sale of Notes
shall be agreed upon from time to time by the Company, the Agents and the
Trustees (the "Procedures"). The Agents and the Company agree to perform, and
the Company agrees to cause the Trustees to agree to perform, their
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respective duties and obligations specifically provided to be performed by them
in the Procedures.
5. COVENANTS AND AGREEMENTS OF THE COMPANY. The Company covenants with
the Agents participating in the offering of Notes that:
(a) The Company will notify the Agents immediately, and confirm such
notice in writing, of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the Commission for filing of any amendment or
supplement to the Prospectus or any document to be filed pursuant to the 1934
Act (other than any amendment, supplement or document relating solely to
securities other than the Notes), (iii) the receipt of any comments from the
Commission with respect to the Registration Statement or the Prospectus, (iv)
any request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for additional information, (v)
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for that purpose
and (vi) any change in the rating assigned by any nationally recognized
statistical rating organization to any debt securities of the Company or the
public announcement by any nationally recognized statistical rating organization
that it has under surveillance or review, with possible negative implications,
its rating of any debt securities of the Company. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will give the Agents advance notice of its intention to
file or prepare any additional registration statement with respect to the
registration of additional Notes, any amendment to the Registration Statement or
any amendment or supplement to the Prospectus (other than an amendment or
supplement providing solely for a change in the interest rate or formula
applicable to the Notes or a change relating solely to securities other than the
Notes), whether by the filing of documents pursuant to the 1934 Act or the 1933
Act or otherwise, and will furnish to the Agents copies of any such amendment or
supplement or other documents proposed to be filed or used a reasonable time in
advance of such proposed filing or use, as the case may be, and will not file
any such amendment or supplement or other documents in a form to which the
Agents or counsel for the Agents shall reasonably object.
(c) The Company will deliver to the Agent as many signed and conformed
copies of the Registration Statement (as originally filed) and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents
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incorporated by reference in the Prospectus) as the Agents reasonably request.
The Company will furnish to the Agents as many copies of the Prospectus (as
amended or supplemented) as the Agents reasonably request so long as the Agents
are required to deliver a Prospectus in connection with sales or solicitations
of offers to purchase the Notes.
(d) The Company will prepare, with respect to any Notes to be sold to
or through one or more Agents pursuant to this Agreement, a Pricing Supplement
with respect to such Notes in a form previously approved by the Agents and will
file such Pricing Supplement pursuant to Rule 424(b) under the 1933 Act not
later than the close of business of the Commission on the first business day
after the date on which such Pricing Supplement is first used.
(e) Except as otherwise provided in subsection (l) of this Section 5,
if at any time during the term of this Agreement any event shall occur or
condition exist as a result of which it is necessary, in the opinion of counsel
for the Agents or counsel for the Company, to amend or supplement the Prospectus
in order that the Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at
the time the Prospectus is delivered to a purchaser, or if it shall be
necessary, in the opinion of either such counsel, to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company shall give
immediate notice, confirmed in writing, to the Agents to cease the solicitation
of offers to purchase the Notes in an Agent's capacity as agent and to cease
sales of any Notes an Agent may then own as principal, and the Company will
promptly amend the Registration Statement and the Prospectus, whether by filing
documents pursuant to the 1934 Act or the 1933 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement and Prospectus comply with such requirements, and the
Company will furnish to the Underwriters a reasonable number of copies of such
amendment or supplement.
(f) Except as otherwise provided in subsection (l) of this Section 5,
on or prior to the date on which there shall be released to the general public
interim financial statement information related to the Company with respect to
each of the first three quarters of any fiscal year or preliminary financial
statement information with respect to any fiscal year, the Company shall furnish
such information to the Agents, confirmed in writing, and shall cause the
Prospectus to be amended or supplemented to include or incorporate by reference
financial information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and
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explanations as shall be necessary for an understanding thereof or as shall be
required by the 1933 Act or the 1933 Act Regulations.
(g) Except as otherwise provided in subsection (l) of this Section 5,
on or prior to the date on which there shall be released to the general public
financial information included in or derived from the audited financial
statements of the Company for the preceding fiscal year, the Company shall
furnish such information to the Agents, confirmed in writing, and shall cause
the Registration Statement and the Prospectus to be amended, whether by the
filing of documents pursuant to the 1934 Act or the 1933 Act or otherwise, to
include or incorporate by reference such audited financial statements and the
report or reports, and consent or consents to such inclusion or incorporation by
reference, of the independent accountants with respect thereto, as well as such
other information and explanations as shall be necessary for an understanding of
such financial statements or as shall be required by the 1933 Act or the 1933
Act Regulations.
(h) The Company will make generally available to its security holders
as soon as practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering each twelve month period
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in such Rule 158) of the
Registration Statement with respect to each sale of Notes.
(i) The Company will endeavor, in cooperation with the Agents, to
qualify the Notes for offering and sale under the applicable securities laws and
real estate syndication laws of such states and other jurisdictions of the
United States as the Agents may designate, and will maintain such qualifications
in effect for as long as may be required for the distribution of the Notes;
PROVIDED, HOWEVER, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. The Company will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Notes have been qualified as above provided. The Company will promptly
advise the Agents of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Notes for sale in any such state
or jurisdiction or the initiating or threatening of any proceeding for such
purpose.
(j) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act in connection with sales of the
Notes, will file all documents required to be filed with the Commission pursuant
to Sections 13,
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14 or 15 of the 1934 Act within the time periods prescribed by the 1934 Act and
the 1934 Act Regulations.
(k) If specified by the applicable Agent or Agents in connection with a
purchase of Notes as principal, between the date of the agreement to purchase
such Notes and the Settlement Date with respect to such purchase, the Company
will not, without the prior written consent of such Agent or Agents, offer or
sell, grant any option for the sale of, or enter into any agreement to sell, any
debt securities of the Company (other than the Notes that are to be sold
pursuant to such agreement and commercial paper in the ordinary course of
business).
(l) The Company shall not be required to comply with the provisions of
subsections (e), (f) or (g) of this Section 5 for any period during which (i)
the Agents have not agreed with the Company to solicit purchases of Notes in
accordance with Section 2(d) or have suspended such solicitation and (ii) no
Agent is holding any Notes purchased as principal pursuant hereto, until the
time the Agents have agreed with the Company to solicit such purchases of the
Notes or have resumed solicitation in accordance with Section 2(d) or an Agent
shall subsequently purchase Notes from the Company as principal.
(m) The Company will use its best efforts to meet the requirements to
qualify as a REIT under the Internal Revenue Code of 1986, as amended (the
"Code") for the taxable year in which sales of the Notes are to occur, unless
otherwise specified in the Prospectus.
6. PAYMENT OF EXPENSES. [The Company will pay, directly or by
reimbursement, all expenses incident to the performance of its obligations under
this Agreement, including (i) the preparation and filing of the Registration
Statement and all amendments thereto and the Prospectus and any amendments or
supplements thereto; (ii) the preparation, filing and reproduction of this
Agreement; (iii) the preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of Notes in book-entry form;
(iv) the fees and disbursements of the Company's accountants and counsel, of the
Trustee and its counsel, and of any calculation agent or exchange rate agent;
(v) the reasonable fees and disbursements of counsel to the Agents incurred in
connection with the establishment of the program relating to the Notes and
incurred from time to time in connection with the transactions contemplated
hereby; (vi) the qualification of the Notes under state securities laws in
accordance with the provisions of Section 5(i) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Agents in connection
therewith and in connection with the preparation of any Blue Sky or Legal
Investment Survey; (vii) the printing and delivery to the Agents in
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quantities as hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or supplements
thereto, and the delivery by the Agents of the Prospectus and any amendments or
supplements thereto in connection with solicitations or confirmations of sales
of the Notes; (viii) the preparation, reproduction and delivery to the Agents of
copies of the Indenture and all supplements and amendments thereto; (ix) any
fees charged by rating agencies for the rating of the Notes; (x) the fees and
expenses incurred in connection with any listing of Notes on a securities
exchange; (xi) the fees and expenses incurred with respect to any filing with
the National Association of Securities Dealers, Inc.; (xii) any advertising and
other out-of-pocket expenses of the Agents incurred with the approval of the
Company; and (xiii) the cost of providing any CUSIP or other identification
numbers for the Notes.]
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Agent and each person, if any, who controls any
Agent within the meaning of either Section 15 of the 1993 Act or Section 20 of
the 1934 Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements 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 therein not misleading,
except 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 relating to any Agent furnished to the Company in writing by
such Agent through you expressly for use therein.
(b) Each Agent agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the 1933 Act or Section 20 of the 1934 Act to the same
extent as the foregoing indemnity from the Company to such Agent, but only with
reference to information relating to such Agent furnished to the Company in
writing by such Agent through you expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 7(a) or 7(b),
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such person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing 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 fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the 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. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated, in the case of
parties indemnified pursuant to Section 7(a), and by the Company, in the case of
parties indemnified pursuant to Section 7(b). 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 the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at anytime an indemnified party shall
have requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel as contemplated by the second and third sentences of
this paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. 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.
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(d) To the extent the indemnification provided for in Section 7(a) or
7(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Agents on the other
hand from the offering of the Notes or (ii) if the allocation provided by clause
7(d)(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
7(d)(i) above but also the relative fault of the Company on the one hand and of
the Agents on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Agents on the other hand in connection with the offering
of the Notes shall be deemed to be in the same respective proportions as the net
proceeds from the offering of the Notes (before deducting expenses) received by
the Company and the total commissions received by the Agents. The relative fault
of the Company on the one hand and the Agents on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the Agents
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Agents'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the respective number of Notes they have purchased hereunder, and
not joint.
(e) The Company and the Agents agree that it would not be just or
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Agents were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in Section 7(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Agents shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes, purchased by it or through
it and distributed to the public were offered to the public exceeds the amount
of any damages that such Agent has otherwise been required to pay by reason of
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such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for in
this Section 7 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section
7 and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Agent or any person controlling any Agent or by or on
behalf of the Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Notes.
8. SURVIVAL OF INDEMNITIES, REPRESENTATION, WARRANTIES, ETC. The
respective indemnities, covenants, agreements, representations, warranties and
other statements of the Company, and the Agents, as set forth in this Agreement
or certificates of officers of the Company submitted pursuant hereto or thereto,
shall remain in full force and effect, regardless of any investigation made by
or on behalf of any Agent or the Company or any of their officers or directors
or any controlling person, and shall survive delivery of and payment for the
Notes.
9. CONDITIONS OF AGENTS' OBLIGATIONS. The respective obligations of the
Agents to purchase Notes as agent of the Company, and the obligations of any
purchasers of the Notes sold through an Agent as agent, are subject to the
accuracy of the representations and warranties made herein by the Company, to
the accuracy of the statements of the Company's officers or directors in any
certificate furnished in connection therewith pursuant to the provisions hereof,
to the performance and observance by the Company of all of its covenants and
agreements herein contained and other provisions hereof to be satisfied in
connection therewith, and to the following additional conditions:
(a) On the date hereof, you shall have received from Price
Waterhouse LLP a letter, dated as of the date hereof and in form and
substance satisfactory to you, to the effect that:
(i) they are independent accountants with respect to
the Company and its subsidiaries and DDG within the meaning of
the 1933 Act and the 1933 Act Regulations; (ii) it is their
opinion that the consolidated financial statements and
supporting schedules of the Company and
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DDG included or incorporated by reference in the Registration
Statement and the Prospectus and covered by their opinions
therein comply in form in all material respects with the
applicable accounting requirements of the 1933 Act and the
1934 Act, and the related published rules and regulations;
(iii) it is their opinion that the financial statements of the
properties acquired or proposed to be acquired by the Company
included in the Company's Forms 8-K dated May 8, 1995 and
November 3, 1995, each of which is incorporated by reference
in the Company's Registration Statement and covered by their
opinions therein comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act
and the 1934 Act with respect to real estate operations
acquired or to be acquired; (iv) they have performed limited
procedures, not constituting an audit, including a reading of
the latest available unaudited interim consolidated financial
statements of the Company and its subsidiaries, a reading of
the minute books of the Company and its subsidiaries,
inquiries of certain officials of the Company and its
subsidiaries who have responsibility for financial and
accounting matters and such other inquiries and procedures as
may be specified in such letter, and on the basis of such
limited review and procedures nothing came to their attention
that caused them to believe that (A) the unaudited interim
consolidated financial statements and financial statement
schedules, if any, of the Company included or incorporated by
reference in the Registration Statement and the Prospectus do
not comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act and the
related published rules and regulations thereunder or that any
material modification should be made to the unaudited
condensed interim financial statements included in or
incorporated by reference in the Registration Statement and
the Prospectus for them to be in conformity with generally
accepted accounting principles, (B) the unaudited pro forma
condensed financial statements included in the Company's
aforementioned Forms 8-K, the Company's Form 8 dated December
1, 1995 and the Company's Form 8-K dated May 31, 1996 do not
comply as to form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X under
the 1933 Act or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation
of such statements, (C) the information included or
incorporated by reference in the Registration Statement and
the applicable Prospectus under the caption "Selected
Consolidated Financial Data" did not conform in all
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material respects with the disclosure requirements of item 301
of Regulation S-K, or (D) at a specified date not more than
three days prior to the date of such letter, there has been
any change in the capital stock of the Company or in the
consolidated long term debt of the Company or any decrease in
the net assets of the Company, as compared with the amounts
shown in the most recent consolidated balance sheet included
or incorporated by reference in the Registration Statement and
the Prospectus or, during the period from the date of the most
recent consolidated statement of operations of the Company
included or incorporated by reference in the Registration
Statement and the Prospectus to a specified date not more than
three days prior to the date of such letter, there were any
decreases, as compared with the corresponding period in the
preceding year, in consolidated revenues, or decrease in
consolidated net income or consolidated net income per share
of the Company, except in all instances for changes, increases
or decreases which the Registration Statement and the
Prospectus disclose have occurred or may occur; and (v) in
addition to the audit referred to in their opinions and the
limited procedures referred to in clause (iv) above, they have
carried out certain specified procedures, not constituting an
audit, with respect to certain amounts, percentages and
financial information which are included or incorporated by
reference in the Registration Statement and the Prospectus and
which are specified by you, and have found such amounts,
percentages and financial information to be in agreement with
the relevant accounting, financial and other records of the
Company and its subsidiaries identified in such letter.
(b) On the date hereof, you shall have received from Xxxxx &
Xxxxxxxxx LLP, counsel for the Company, an opinion, dated as of the
date hereof, to the effect that:
(i) The Company has been duly organized and is
validly existing as a corporation in good standing under the
laws of the State of Ohio.
(ii) The Company has full corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus.
(iii) The Company is duly qualified to transact
business and is in good standing in each jurisdiction in which
it owns real property except where the failure to qualify and
be in good standing would not have a material
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adverse effect on the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
(iv) If the Company has one or more significant
subsidiaries, as defined in Rule 405 of the 1933 Act (each a
"Significant Subsidiary"), each Significant Subsidiary has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to
conduct its business, and is duly qualified to transact
business and is in good standing in each jurisdiction in which
it owns real property, except where the failure to so qualify
and be in good standing would not have a material adverse
effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the
Company and its Subsidiaries considered as one enterprise.
(v) The Notes have been duly and validly authorized
by all necessary corporate action and, when executed,
authenticated and delivered pursuant to the provisions of this
Agreement and the Indenture against payment of the
consideration therefor, the Notes will constitute valid and
legally binding obligations of the Company entitled to the
benefits provided by the Indenture and enforceable in
accordance with their terms except as enforcement thereof may
be limited by bankruptcy, insolvency or other similar laws
relating to or affecting enforcement of creditors' rights
generally or by general equity principles (regardless of
whether enforcement is considered in a proceeding in equity or
at law), and except further as enforcement thereof may be
limited by (1) requirements that a claim with respect to any
Notes denominated other than in U.S. dollars (or a foreign
currency or composite currency judgment in respect of such
claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or
(2) governmental authority to limit, delay or prohibit the
making of payments outside the United States.
(vi) This Agreement has been duly authorized,
executed and delivered by the Company.
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(vii) The Indenture has been duly and validly
authorized, executed and delivered by the Company and
(assuming due authorization, execution and delivery by the
Trustee) constitutes the valid and legally binding agreement
of the Company, enforceable in accordance with its terms
except as enforcement thereof may be limited by bankruptcy,
insolvency or other similar laws relating to or affecting
enforcement of creditors' rights generally or by general
equity principles (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(viii) The Indenture has been duly qualified under
the 1939 Act.
(ix) The Registration Statement is effective under
the 1933 Act and, to the best of their knowledge, no stop
order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(x) The Registration Statement and the Prospectus,
excluding the documents incorporated by reference therein, as
of their respective effective or issue dates, comply as to
form in all material respects with the requirements for
registration statements on Form S-3 under the 1933 Act and the
1933 Act Regulations; it being understood, however, that no
opinion need be rendered with respect to the financial
statements, schedules and other financial and statistical data
included or incorporated by reference in the Registration
Statement or the Prospectus or with respect to the Statement
of Eligibility of the Trustee. If applicable, the Rule 434
Prospectus conforms to the requirements of Rule 434 of the
1933 Act Regulations in all material respects.
(xi) Each document filed pursuant to the 1934 Act
(other than the financial statements, schedules and other
financial and statistical data included therein, as to which
no opinion need be rendered) and incorporated or deemed to be
incorporated by reference in the Prospectus complied when so
filed as to form in all material respects with the 1934 Act
and the 1934 Act Regulations.
(xii) Nothing has come to such counsel's attention
that would lead it to believe that the Registration Statement
or any amendment thereto (excluding the financial statements
and financial schedules included or incorporated by reference
therein, as to which such
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counsel need express no belief), at the time it became
effective or at the time an Annual Report on Form 10-K was
filed by the Company with the Commission (whichever is later),
or at the date hereof (or, if such opinion is being delivered
in connection with the purchase of Notes by one or more Agents
as principal pursuant to Section 11(c) hereof, at the date of
any agreement by such Agent or Agents to purchase Notes as
principal), contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or
any amendment or supplement thereto (excluding the financial
statements and financial schedules included or incorporated by
reference therein, as to which such counsel need express no
belief), at the date hereof (or, if such opinion is being
delivered in connection with the purchase of Notes by one or
more Agents as principal pursuant to Section 11(c) hereof, at
the date of any agreement by such Agent or Agents to purchase
Notes as principal and at the Settlement Date with respect
thereto, as the case may be), included or includes an untrue
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(xiii) To the best of their knowledge, there are no
legal or governmental proceedings pending or threatened which
are required to be disclosed in the Prospectus, other than
those disclosed therein, and, to the best of their knowledge,
all pending legal or governmental proceedings to which the
Company or its subsidiaries is a party or of which any of the
property of the Company or its subsidiaries is the subject
which are not described in the Registration Statement,
including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not material to
the business of the Company and its subsidiaries considered as
one enterprise.
(xiv) To the best of their knowledge, there are no
contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or
referred to in the Registration Statement or to be filed as
exhibits thereto other than those described or referred to
therein or filed as exhibits thereto, the descriptions thereof
or references thereto are correct in all material respects,
and, to the best of their knowledge, no default exists in the
due performance or
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observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument so described,
referred to or filed which would have a material adverse
effect on the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
(xv) No authorization, approval or consent of any
court or governmental authority or agency is required that has
not been obtained in connection with the consummation by the
Company of the transactions contemplated by this Agreement and
the Indenture except such as may be required under the 1933
Act, the 1934 Act, and state securities laws or Blue Sky laws
or real estate syndication laws; to the best of their
knowledge, the execution and delivery of this Agreement and
the consummation of the transactions contemplated herein and
therein and compliance by the Company with its obligations
hereunder and thereunder will not (A) constitute a breach of,
or default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of
the Company or its subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries is
a party or by which they may be bound or to which any of the
property or assets of the Company or any of its subsidiaries
is subject, except where such breach, default, creation or
imposition would not have a material adverse effect on the
condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, (B) nor will such
action result in violation of the provisions of the Articles
of Incorporation or Code of Regulations of the Company or
subsidiaries or any applicable law, administrative regulation
or administrative or court order or decree.
(xvi) Neither the Company nor any of its subsidiaries
is required to be registered under the 1940 Act.
(xvii) The information in the Prospectus, if
applicable, under the captions "Certain Anti-Takeover
Provisions of Ohio Law," "Certain Federal Income Tax
Considerations" and "Federal Income Tax Considerations," to
the extent that it constitutes matters of law or legal
conclusions, has been reviewed by them and is correct in all
material respects.
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(xviii) The Company has qualified as a REIT for its
taxable years ended December 31, 1993 and December 31, 1994,
and the Company is organized and operates in a manner that
will enable it to qualify to be taxed as a REIT under the Code
for the taxable year ended December 31, 1995 and thereafter
provided the Company continues to meet the asset composition,
source of income, shareholder diversification, distributions,
record keeping, and other requirements of the Code which are
necessary for the Company to qualify as a REIT.
(c) On the date hereof, you shall have received from Brown &
Wood LLP, counsel for the Agents, their opinion or opinions dated as of
the date hereof with respect to the matters set forth in (i), (v) to
(x), inclusive, and (xii) of subsection (b) of this Section 9, and the
Company shall have furnished to such counsel such documents as they may
request for the purpose of enabling them to pass upon such matters.
In giving their opinion, Xxxxx & Wood LLP may rely as to
matters involving the laws of the State of Ohio upon the opinion of
Xxxxx & Xxxxxxxxx LLP. Xxxxx & Xxxxxxxxx LLP and Brown & Wood LLP may
rely (i) as to the qualification of the Company or its subsidiaries to
do business in any state or jurisdiction, upon certificates of
appropriate government officials, and (ii) as to matters of fact, upon
certificates and written statements of officers and employees of and
accountants for the Company or its subsidiaries.
[(d) At the date hereof and each settlement date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of
this Agreement) that, in your judgment, is material and
adverse and that makes it, in your judgment,
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impracticable to market the Notes on the terms and in the
manner contemplated in the Prospectus.]
(e) At the date hereof, the Agents shall have received a
certificate of the Chief Executive Officer and President and the Chief
Financial Officer of the Company, dated as of the date hereof, to the
effect that (i) since the respective dates as of which information is
given in the Prospectus or since the date of the applicable agreement
by one or more Agents to purchase Notes as principal, there has not
been any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, (ii) the
representations and warranties of the Company contained in Section 3
hereof are true and correct with the same force and effect as though
expressly made at and as of the date of such certificate and (iii) the
Company has performed or complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
date of such certificate. As used in this Section 9(d), the term
"Prospectus" means the Prospectus in the form first provided to the
applicable Agent or Agents for use in confirming sales of the Notes.
(f) On the date hereof and on each Settlement Date, counsel to
the Agents shall have been furnished with such documents and opinions
as such counsel may reasonably require for the purpose of enabling such
counsel to pass upon the issuance and sale of Notes as herein
contemplated and related proceedings, or in order to evidence the
accuracy and completeness of any of the representations and warranties,
or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of Notes as herein contemplated shall be satisfactory in form and
substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 9 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the applicable Agent or Agents by notice to the Company at any time and any
such termination shall be without liability of any party to any other party,
except that the covenant regarding provision of an earnings statement set forth
in Section 5(h) hereof, the provision concerning payment of expenses under
Section 6 hereof, the indemnity and contribution agreement set forth in Section
7 hereof, the provisions concerning the survival of indemnities,
representations, warranties, etc. of Section 8 hereof, the provision relating to
successors set forth in Section
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14, and the provision relating to applicable law set forth in Section 15 hereof
shall remain in effect.
10. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH AN AGENT. Delivery
of Notes sold through an Agent as agent shall be made by the Company to such
Agent for the account of any purchaser only against payment therefor in
immediately available funds. In the event that a purchaser shall fail either to
accept delivery of or to make payment for a Note on the date fixed for
settlement, such Agent shall promptly notify the Company and deliver such Note
to the Company and, if such Agent has theretofore paid the Company for such
Note, the Company will promptly return such funds to such Agent. If such failure
occurred for any reason other than default by such Agent in the performance of
its obligations hereunder, the Company will reimburse such Agent on an equitable
basis for its loss of the use of the funds for the period such funds were
credited to the Company's account.
11. ADDITIONAL COVENANTS OF THE COMPANY. The Company covenants and
agrees with the Agents that:
(a) Each acceptance by the Company of an offer for the purchase of
Notes (whether to one or more Agents as principal or through an Agent as agent),
and each delivery of Notes (whether to one or more Agents as principal or
through an Agent as agent), shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this Agreement and in
any certificate theretofore delivered to the Agents in connection therewith
pursuant hereto are true and correct at the time of such acceptance or sale, as
the case may be, and an undertaking that such representations and warranties
will be true and correct at the time of delivery to such Agent or Agents or to
the purchaser or its agent, as the case may be, of the Note or Notes relating to
such acceptance or sale, as the case may be, as though made at and as of each
such time (and it is understood that such representations and warranties shall
relate to the Registration Statement and Prospectus as amended and supplemented
to each such time).
(b) Each time that (i) the Registration Statement or the Prospectus
shall be amended or supplemented (other than by an amendment or supplement
providing solely for a change in the interest rate or formula applicable to the
Notes or similar changes, and other than by an amendment or supplement which
relates exclusively to the issuance of securities other than the Notes), (ii)
there is filed with the Commission any document incorporated by reference into
the Prospectus (other than any Current Report on Form 8-K relating exclusively
to the issuance of securities other than the Notes), (iii) (if required in
connection with the purchase of Notes by one or more Agents as principal) the
Company sells Notes to such Agent or Agents as principal or (iv) if the Company
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issues and sells Notes in a form not previously certified to the Agents by the
Company, the Company shall furnish or cause to be furnished to the Agent(s)
forthwith a certificate dated the date of filing with the Commission of such
supplement or document, the date of effectiveness of such amendment, or the date
of such sale, as the case may be, in form satisfactory to the Agent(s) to the
effect that the statements contained in the certificate referred to in Section
9(d) hereof which were last furnished to the Agents are true and correct at the
time of such amendment, supplement, filing or sale, as the case may be, as
though made at and as of such time (except that such statements shall be deemed
to relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred to in Section 9(d) hereof, modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such certificate.
(c) Each time that (i) the Registration Statement or the Prospectus
shall be amended or supplemented (other than by an amendment or supplement
providing solely for a change in the interest rate or formula applicable to the
Notes or similar changes or solely for the inclusion of additional financial
information, and other than by an amendment or supplement which relates
exclusively to the issuance of securities other than the Notes), (ii) there is
filed with the Commission any document incorporated by reference into the
Prospectus (other than any Current Report on Form 8-K, unless the Agents shall
otherwise specify), (iii) (if required in connection with the purchase of Notes
by one or more Agents as principal) the Company sells Notes to such Agent or
Agents as principal or (iv) if the Company issues and sells Notes in a form not
previously certified to the Agents by the Company, the Company shall furnish or
cause to be furnished forthwith to the Agent(s) and to counsel to the Agents the
written opinions of Xxxxx & Xxxxxxxxx LLP, counsel to the Company, dated the
date of filing with the Commission of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the case may be,
in form and substance satisfactory to the Agent(s), of the same tenor as the
opinion referred to in Section 9(b) hereof, but modified, as necessary, to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion or, in lieu of such
opinion, counsel last furnishing such opinion to the Agents shall furnish the
Agent(s) with a letter substantially to the effect that the Agent(s) may rely on
such last opinion to the same extent as though it was dated the date of such
letter authorizing reliance (except that statements in such last opinion shall
be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such letter authorizing reliance);
PROVIDED, HOWEVER, that counsel need not render the
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opinion required under Section 9(b)(xviii) upon the filing of any Quarterly
Report on Form 10-Q which does not include information relating to such tax
matters, unless the Agents shall otherwise specify.
(d) Each time that (i) the Registration Statement or the Prospectus
shall be amended or supplemented to include additional financial information
(other than by an amendment or supplement which relates exclusively to the
issuance of securities other than the Notes), (ii) there is filed with the
Commission any document incorporated by reference into the Prospectus which
contains additional financial information, or (iii) (if required in connection
with the purchase of Notes by one or more Agents as principal) the Company sells
Notes to such Agent or Agents as principal, the Company shall cause Price
Waterhouse LLP to furnish to the Agent(s) a letter, dated the date of
effectiveness of such amendment, supplement or document with the Commission, or
the date of such sale, as the case may be, in form satisfactory to the Agent(s),
of the same tenor as the portions of the letter referred to in clauses (i) and
(ii) of Section 9(a) hereof but modified to relate to the Registration Statement
and Prospectus as amended and supplemented to the date of such letter, and of
the same general tenor as the portions of the letter referred to in clauses (iv)
and (v) of said Section 9(a) with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Company.
12. TERMINATION. (a) This Agreement (excluding any agreement hereunder
by one or more Agents to purchase Notes as principal) may be terminated for any
reason, at any time by either the Company or an Agent, as to itself, upon the
giving of 10 days' written notice of such termination to the other party hereto.
(b) [The applicable Agent or Agents may terminate any agreement
hereunder by such Agent or Agents to purchase Notes as principal, immediately
upon notice to the Company, at any time prior to the Settlement Date relating
thereto (i) if there has been, since the date of such agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there shall have occurred any material
adverse change in the financial markets in the United States or any outbreak or
escalation of hostilities or other national or international calamity or crisis
the effect of which is such as to make it, in the judgment of such Agent or
Agents, impracticable to market the Notes or enforce contracts for the sale of
the Notes, or (iii) if trading in any securities of the Company has been
suspended by the Commission or
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34
a national securities exchange, or if trading generally on either the American
Stock Exchange or the New York Stock Exchange shall have been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said exchanges or by
order of the Commission or any other governmental authority, or if a banking
moratorium shall have been declared by either Federal or New York authorities or
if a banking moratorium shall have been declared by the relevant authorities in
the country or countries of origin of any foreign currency or currencies in
which the Notes are denominated or payable, or (iv) if the rating assigned by
any nationally recognized statistical rating organization to any debt securities
of the Company as of the date of such agreement shall have been lowered since
that date or if any such rating organization shall have publicly announced that
it has under surveillance or review, with possible negative implications, its
rating of any debt securities of the Company, or (v) if there shall have come to
the attention of such Agent or Agents any facts that would cause them to believe
that the Prospectus, at the time it was required to be delivered to a purchaser
of Notes, included an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light of the
circumstances existing at the time of such delivery, not misleading. As used in
this Section 12(b), the term "Prospectus" means the Prospectus in the form first
provided to the applicable Agent or Agents for use in confirming sales of the
related Notes.]
(c) In the event of any such termination, neither party will have any
liability to the other party hereto, except that (i) the Agents shall be
entitled to any commission earned in accordance with the third paragraph of
Section 4(b) hereof, (ii) if at the time of termination (a) any Agent shall own
any Notes purchased by it as principal with the intention of reselling them or
(b) an offer to purchase any of the Notes has been accepted by the Company but
the time of delivery to the purchaser or his agent of the Note or Notes relating
thereto has not occurred, the covenants set forth in Sections 5 and 11 hereof
shall remain in effect until such Notes are so resold or delivered, as the case
may be, and (iii) the covenant set forth in Section 5(h) hereof, the provisions
of Section 6 hereof, the indemnity and contribution agreements set forth in
Section 7 hereof, and the provisions of Sections 8, 14 and 15 hereof shall
remain in effect.
13. NOTICES. All communications hereunder shall be in writing and shall
be mailed, delivered or telecopied and confirmed, and any such notice shall be
effective when received at the address specified below:
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If to the Company:
Developers Diversified Corporation
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
President and Chief Executive Officer
Telecopy No.: 000-000-0000
If to the Agents:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Manager - Continuously Offered Products
Telecopy No.: 000-000-0000
CS First Boston Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Short and Medium Term Finance Department
Telecopy No.: 000-000-0000
First Chicago Capital Markets, Inc.
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Credit Officer
Telecopy No.: 000-000-0000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Credit Department - Medium-Term Notes
Telecopy No.: 000 000-0000
Xxxxxx Brothers
Xxxxxx Brothers Inc.
3 World Financial Center
12th Floor
New York, New York 10285-1200
Attention:
Telecopy No.: 000-000-0000
Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MTN Product Management/Origination
Xxxx X. Xxxxx
Telecopy No.: 000-000-0000
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14. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon you and the Company and their respective successors and legal
representatives. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person other than the persons mentioned in the
preceding sentence any legal or equitable right, remedy or claim under or in
respect of this Agreement, or any provisions herein contained, this Agreement
and all conditions and provisions hereof being intended to be and being for the
sole and exclusive benefit of such persons and for the benefit of no other
person; except that the representations, warranties, covenants, agreements and
indemnities of the Company, contained in this Agreement shall also be for the
benefit of the person or persons, if any, who control any Agent within the
meaning of Section 15 of the 1933 Act, and the indemnities given by the several
Agents shall also be for the benefit of each director of the Company, each of
the Company's officers who has signed the Registration Statement and the person
or persons, if any, who control the Company within the meaning of Section 15 of
the 1933 Act.
15. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to agreements
made and to be performed in said state. Specified times of day refer to New York
City time.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and if executed in more than one counterpart the executed
counterparts shall constitute a single instrument.
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter and your acceptance shall constitute a binding agreement
between us.
Very truly yours,
DEVELOPERS DIVERSIFIED REALTY
CORPORATION
By:
---------------------------
Name:
Title:
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Accepted and delivered,
as of the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
By:
--------------------------------
Name:
Title:
CS FIRST BOSTON CORPORATION
By:
--------------------------------
Name:
Title:
FIRST CHICAGO CAPITAL MARKETS, INC.
By:
--------------------------------
Name:
Title:
XXXXXXX, XXXXX & CO.
By:
--------------------------------
Name:
Title:
XXXXXX BROTHERS INC.
By:
--------------------------------
Name:
Title:
XXXXX XXXXXX INC.
By:
--------------------------------
Name:
Title:
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EXHIBIT A
The following terms, if applicable, shall be agreed to by one or more
Agents and the Company in connection with each sale of Notes:
Principal Amount: $__________
(or principal amount of foreign currency or composite
currency)
Senior or Subordinated Rank:
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate, if any:
Spread and/or Spread Multiplier, if any:
Interest Reset Date(s):
Interest Payment Date(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date:
Fixed Interest Rate:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
If Repayable:
Optional Repayment Date(s):
Stated Maturity Date:
Purchase Price: ____%, plus accrued interest, if any, from
--------------------
Settlement Date and Time:
Specified Currency:
Authorized Denominations:
Additional/Other Terms:
Also, in connection with the purchase of Notes by one or more Agents as
principal, agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 11(b) of the Distribution
Agreement.
A-1
39
Legal Opinions pursuant to Section 11(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 11(d) of the Distribution Agreement.
Stand-off Agreement pursuant to Section 5(k) of the Distribution
Agreement.
A-2
40
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company
shall pay the applicable Agent, on a discount basis, a commission for the sale
of each Senior Note equal to the principal amount of such Senior Note multiplied
by the appropriate percentage set forth below (the commission payable with
respect to sales of Senior Notes will also apply to sales of Subordinated Notes
unless otherwise agreed by the Company and the applicable Agent):
PERCENT OF
PRINCIPAL
MATURITY RANGES AMOUNT
--------------- ------
From 9 months to less than 1 year................... .125%
From 1 year to less than 18 months.................. .150
From 18 months to less than 2 years................. .200
From 2 years to less than 3 years................... .250
From 3 years to less than 4 years................... .350
From 4 years to less than 5 years................... .450
From 5 years to less than 6 years................... .500
From 6 years to less than 7 years................... .550
From 7 years to less than 10 years.................. .600
From 10 years to less than 15 years................. .625
From 15 years to less than 20 years................. .700
From 20 years to 30 years........................... .750
Greater than 30 years............................... *
--------
* As agreed to by the Company and the applicable Agent at the time of sale.
