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Exhibit 1(a)
DEVELOPERS DIVERSIFIED REALTY CORPORATION
(an Ohio corporation)
Debt Securities
UNDERWRITING AGREEMENT BASIC PROVISIONS
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_______ , 1997
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
1. INTRODUCTORY. Developers Diversified Realty Corporation, an Ohio
corporation (the "Company"), proposes to issue and sell its senior debt
securities (the "Senior Securities") or its subordinated debt securities (the
"Subordinated Securities"), or both, from time to time, in one or more offerings
on terms to be determined at the time of sale. The Senior Securities will be
issued under an indenture dated as of May 1, 1994 (the "Senior Indenture")
between the Company and National City Bank, as trustee (the "Senior Trustee"),
and the Subordinated Securities will be issued under an indenture dated as of
May 1, 1994 (the "Subordinated Indenture") between the Company and The Chase
Manhattan 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 Securities or Subordinated Securities. The
Senior Indenture and the Subordinated Indenture, each as amended or supplemented
from time to time, are each sometimes referred to as the "Indenture." Each
series of Senior Securities or Subordinated Securities 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, conversion
provisions, sinking fund
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requirements, if any, 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 Securities and the Subordinated Securities as issued from time to
time. The Senior Securities or the Subordinated Securities may be offered either
together or separately. As used herein, "Securities" shall mean the Senior
Securities or the Subordinated Securities or any combination thereof. 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 applicable Terms Agreement (as hereinafter defined) as
additional co-managers with respect to Underwritten Securities (as hereinafter
defined) purchased pursuant thereto.
Whenever the Company determines to make an offering of Securities
through you or through an underwriting syndicate managed by you, the Company
will enter into an agreement (the "Terms Agreement") providing for the sale of
such Securities (the "Underwritten Securities") to, and the purchase and
offering thereof by, you and such other underwriters, if any, selected by you as
have authorized you to enter into such Terms Agreement on their behalf (the
"Underwriters," which term shall include you whether acting alone in the sale of
the Underwritten Securities or as a member of an underwriting syndicate and any
Underwriter substituted pursuant to Section 11 hereof). The Terms Agreement
relating to the offering of Underwritten Securities shall specify the principal
amount of Underwritten Securities to be initially issued (the "Initial
Underwritten Securities"), the names of the Underwriters participating in such
offering (subject to substitution as provided in Section 11 hereof), the
principal amount of Initial Underwritten Securities which each such Underwriter
severally agrees to purchase, the names of such of you or such other
Underwriters acting as co-managers, if any, in connection with such offering,
the price at which the Initial Underwritten Securities are to be purchased by
the Underwriters from the Company, the initial public offering price, the time,
date and place of delivery and payment, any delayed delivery arrangements and
any other variable terms of the Initial Underwritten Securities (including, but
not limited to, current ratings, designations, denominations, interest rates or
formulas, interest payment dates, maturity dates, conversion provisions,
redemption and/or repayment provisions and sinking fund requirements. In
addition, each Terms Agreement shall specify whether the Company has agreed to
grant to the Underwriters an option to purchase additional Underwritten
Securities to cover over-allotments, if any, and the principal amount of
Underwritten Securities subject to such option (the "Option Securities"). As
used herein, the term "Underwritten Securities" shall include the Initial
Underwritten Securities and all or any portion of the Option Securities agreed
to be purchased by the Underwriters as
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provided herein, if any. The Terms Agreement, which shall be substantially in
the form of Exhibit A hereto, may take the form of an exchange of any standard
form of written telecommunication between you and the Company. Each offering of
Underwritten Securities through you or through an underwriting syndicate managed
by you will be governed by this Agreement, as supplemented by the applicable
Terms Agreement.
2. REPRESENTATIONS AND WARRANTIES. (a) The Company represents and
warrants to you, as of the date hereof, and to you and each other Underwriter
named in the applicable Terms Agreement, as of the date thereof (such latter
date being referred to herein as a "Representation Date"), that:
(i) A registration statement on Form S-3 (No. 333- ) for
the registration of the Securities (including the Underwritten
Securities) and certain of the Company's equity securities and warrants
to purchase equity securities, 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"), has heretofore been delivered to you, has been
prepared by the Company in conformity with the requirements of the 1933
Act and the 1933 Act Regulations and has 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 the
applicable Terms Agreement. 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 statement (as amended, if applicable) and the
prospectus constituting a part in each case as supplemented by a
prospectus supplement relating to the offering of Underwritten
Securities provided to the Underwriters for use (whether or not such
prospectus supplement is required to be filed by the Company pursuant
to Rule 424(b) of the 1933 Act Regulations) (the "Prospectus
Supplement") including in each case all documents incorporated therein
by reference, and the information, if any, deemed to be a part thereof
pursuant to Rule 430A(b) or Rule 434 of the 1993 Act Regulations 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; provided, however, that a Prospectus
Supplement shall be deemed to have supplemented the
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Prospectus only with respect to the offering of Underwritten Securities
to which it relates. If the Company elects to reply 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
abbreviated term sheet, taken together, provided to the Underwriters 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 both the
registration statements referred to above (Nos. 333- , 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. If the Company files a registration
statement to register a portion of the Securities and the Warrant
Securities that 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 both the registration statement
referred to above (No. _________) and the Rule 462 Registration
Statement, as each such registration statement may be amended pursuant
to the 1933 Act.
(ii) At the time the Registration Statement became
effective, the Registration Statement and the Prospectus conformed, and
as of the 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, 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
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not misleading. The Prospectus, as of the date hereof does not, and as
of the applicable Representation Date and at Closing Time (as
hereinafter defined) 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
Underwriter, directly or through you, 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, respectively.
(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 Closing Time or during the period
specified in Section 4(f), 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 or operation 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,
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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 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 financial position of DDG as of the dates indicated and 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.
(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.
(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
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prospects of the Company and its subsidiaries 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 capitalization of the Company is as set forth in
the Prospectus under "Capitalization;" the issued and outstanding
capital stock of the Company has been duly authorized and validly
issued and is fully paid and non-assessable and is not subject to
preemptive or other similar rights; and all of the issued and
outstanding capital stock of the Company's subsidiaries have been duly
authorized and validly issued, is fully paid and non-assessable and is
owned directly by the Company, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity. [Nomura?]
(xi) The Underwritten Securities 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 applicable Terms Agreement or any Delayed Delivery Contract (as
hereinafter defined), the Underwritten Securities will constitute valid
and legally binding obligations of the Company, 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
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generally or by general equity principles (regardless or whether
enforcement is considered in a proceeding in equity or at law); the
Underwritten Securities and the Indenture conform in all material
respects to all statements relating thereto contained in the
Prospectus; and the Underwritten Securities will be entitled to the
benefits provided by the Indenture.
(xii) If applicable, the Common Shares issuable upon
conversion of any of the Securities have been duly and validly
authorized and reserved for issuance upon such conversion by all
necessary corporate action and such shares, when issued upon such
conversion, will be duly and validly issued and will be fully paid and
non-assessable, and the issuance of such shares upon such conversion
will not be subject to preemptive or other similar rights; the Common
Shares so issuable will conform in all material respects, as of the
applicable Representation Date, to all statements relating thereto
contained in the Prospectus.
(xiii) 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, the
applicable Terms 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.
(xiv) 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
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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, the
applicable Terms 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 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
applicable Terms Agreement or the Indenture, except such as has been
obtained or as may be required under the 1933 Act, the Securities
Exchange Act of 1934, as amended (the "1934 Act"), state securities or
Blue Sky laws or real estate syndication laws in connection with the
purchase and distribution of the Underwritten Securities by the
Underwriters.
(xv) The Company has full right, power and authority to
enter into this Agreement, the applicable Terms Agreement and the
Delayed Delivery Contracts, if any, and this Agreement has been, and as
of the applicable Representation Date, the applicable Terms Agreement
and the Delayed Delivery Contracts, if any, will have been duly
authorized, executed and delivered by the Company.
(xvi) With respect to its taxable years ended December 31,
1993, December 31, 1994, December 31, 1995 and December 31, 1996 and
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 and
December 31, 1994 and the Company intends to make a timely election to
be
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taxed as a REIT with respect to its taxable year ended December 31,
1997.
(xvii) 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").
(xviii) 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.
(xix) There are no persons with registration or other
similar rights to have any securities registered pursuant to the
Registration Statement.
(xx) If applicable, the Underwritten Securities have been
approved for listing on the New York Stock Exchange.
(xxi) (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 as being owned by the Company or its subsidiaries, conform
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"), conform 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
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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
document incorporated by reference therein), and (iv) such 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, 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.
(xxii) 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
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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.
(xxiii) 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.
(xxiv) 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 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.
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(b) Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company, as the case may be, to each
Underwriter 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.
3. PURCHASE BY, AND SALE AND DELIVERY TO, UNDERWRITERS. (a) The several
commitments of the Underwriters to purchase the Underwritten Securities pursuant
to the applicable Terms Agreement shall be deemed to have been made on the basis
of the representations and warranties herein contained and shall be subject to
the terms and conditions herein set forth.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company may grant, if so provided in the applicable Terms Agreement relating to
the Initial Underwritten Securities, an option to the Underwriters named in such
Terms Agreement, severally and not jointly, to purchase up to the aggregate
principal amount of Option Securities set forth therein at the same price per
Option Security as is applicable to the Initial Underwritten Securities less an
amount equal to any interest paid or payable on the Initial Underwritten
Securities and not payable on the Option Securities. Such option, if granted,
will expire 30 days (or such lesser number of days as may be specified in the
applicable Terms Agreement) after the Representation Date relating to the
Initial Underwritten Securities, and may be exercised in whole or in part from
time to time only for the purpose of covering over-allotments which may be made
in connection with the offering and distribution of the Initial Underwritten
Securities upon notice by you to the Company setting forth the aggregate
principal amount of Option Securities as to which the several Underwriters are
then exercising the option and the time and date of payment and delivery for
such Option Securities. Any such time, date and place of delivery (a "Date of
Delivery") shall be determined by you, but shall not be later than ten full
business days after the closing time and not be earlier than two full business
days after the exercise of said option, nor in any event prior to Closing Time,
unless otherwise agreed upon by you and the Company. If the option is exercised
as to all or any portion of the Option Securities, each of the Underwriters,
acting severally and not jointly, will purchase that proportion of the total
aggregate principal amount of Option Securities then being purchased which the
aggregate principal amount of Initial Underwritten Securities each such
Underwriter has severally agreed to purchase as set forth in the applicable
Terms Agreement bears to the total aggregate principal amount of Initial
Underwritten Securities (except as otherwise provided in the applicable Terms
Agreement).
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(c) Payment of the purchase price for, and delivery of, the
Underwritten Securities to be purchased by the Underwriters shall be made at the
office of ▇▇▇▇▇ & ▇▇▇▇ LLP, 56th Floor, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or at such other place as shall be agreed upon by you and the
Company, at 9:00 A.M., New York City time, on the third business day (unless
postponed in accordance with the provisions of Section 11 hereof) following the
date of the applicable Terms Agreement, or if such Terms Agreement is executed
subsequent to 4:30 P.M. on the date of its execution, on the fourth business
day, or at such other time as shall be agreed upon by you and the Company (each
such time and date of payment and delivery being referred to herein as the
"Closing Time"). In addition, in the event that any or all of the Option
Securities are purchased by the Underwriters, payment of the purchase price for,
and delivery of certificates representing, such Option Securities, shall be made
at the above-mentioned offices of ▇▇▇▇▇ & Wood LLP, or at such other place as
shall be agreed upon by you and the Company on each Date of Delivery as
specified in the notice from you to the Company. Unless otherwise specified in
the applicable Terms Agreement, payment shall be made to the Company by Federal
or other funds immediately available for the respective accounts of the
Underwriters for the Underwritten Securities to be purchased by them. The
Underwritten Securities shall be in such authorized denominations and registered
in such names as you may request in writing at least one business day prior to
the Closing Time or Date of Delivery, as the case may be. The Underwritten
Securities, which may be in temporary form, will be made available for
examination and packaging by you on or before the first business day prior to
the Closing Time or the Date of Delivery, as the case may be.
If authorized by the applicable Terms Agreement, the Underwriters named
therein may solicit offers to purchase Underwritten Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit B hereto with such changes therein as the
Company may approve. As compensation for arranging Delayed Delivery Contracts,
the Company will pay to you at Closing Time, for the respective accounts of the
Underwriters, a fee specified in the applicable Terms Agreement for each of the
Underwritten Securities for which Delayed Delivery Contracts are made at the
Closing Time. Any Delayed Delivery Contracts are to be with institutional
investors of the types described in the Prospectus. At the Closing Time, the
Company will enter into Delayed Delivery Contracts (for not less than the
minimum principal amount of Underwritten Securities per Delayed Delivery
Contract specified in the applicable Terms Agreement) with all purchasers
proposed by the Underwriters and previously approved by the Company as provided
below, but not for an aggregate principal amount of Underwritten Securities in
excess of that specified in the applicable Terms
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Agreement. The Underwriters will not have any responsibility for the validity
or performance of Delayed Delivery Contracts.
You shall submit to the Company, at least two business days prior to
the Closing Time, the names of any institutional investors with which it is
proposed that the Company will enter into Delayed Delivery Contracts and the
principal amount of Underwritten Securities to be purchased by each of them, and
the Company will advise you, at least one business day prior to the Closing
Time, of the names of the institutions with which the making of Delayed Delivery
Contracts is approved by the Company and the principal amount of Underwritten
Securities to be covered by each such Delayed Delivery Contract.
The principal amount of Underwritten Securities agreed to be purchased
by the several Underwriters pursuant to the applicable Terms Agreement shall be
reduced by the principal amount of Underwritten Securities covered by Delayed
Delivery Contracts, as to each Underwriter as set forth in a written notice
delivered by you to the Company; provided, however, that the total principal
amount of Underwritten Securities to be purchased by all Underwriters shall be
the total amount of Underwritten Securities covered by the applicable Terms
Agreement, less the principal amount of Underwritten Securities covered by
Delayed Delivery Contracts.
4. COVENANTS AND AGREEMENTS OF THE COMPANY. The Company covenants with
the several Underwriters participating in the offering of Underwritten
Securities that:
(a) Immediately following the execution of the applicable Terms
Agreement, the Company will prepare a Prospectus Supplement setting forth the
principal amount of Underwritten Securities covered thereby and their terms not
otherwise specified in the Prospectus or the Indenture, as the case may be,
pursuant to which the Underwritten Securities are being issued, the names of the
Underwriters participating in the offering and the principal amount of
Underwritten Securities which each severally has agreed to purchase, the names
of the Underwriters acting as co-managers in connection with the offering, the
price at which the Underwritten Securities are to be purchased by the
Underwriters from the Company, the initial public offering price, if any, the
selling concession and reallowance, if any, any delayed delivery arrangements,
and such other information as you and the Company deem appropriate in connection
with the offering of the Underwritten Securities; and the Company will promptly
transmit copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424(b) of the 1933 Act Regulations.
(b) The Company will advise you promptly of the issuance by the
Commission of any stop order suspending the effectiveness of
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the Registration Statement or of the institution of any proceedings for that
purpose, and will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible the lifting thereof, if issued. The
Company will advise you promptly of the transmittal to the Commission for filing
of any Prospectus Supplement or other supplement or amendment to the Prospectus
or any document to be filed pursuant to the ▇▇▇▇ ▇▇▇. The Company will advise
you promptly of any request by the Commission for any amendment of or supplement
to the Registration Statement or the Prospectus or for additional information.
(c) If the Company elects to rely on Rule 434 under the 1933 Act
Regulations, the Company will prepare an abbreviated term sheet that complies
with the requirements of Rule 434 under the 1933 Act Regulations and the Company
will provide the Underwriters with copies of the form of Rule 434 Prospectus, in
such number as the Underwriters may reasonably request, and file or transmit for
filing with the Commission the form of Prospectus complying with Rule 434(c)(2)
of the 1933 Act in accordance with Rule 424(b) of the 1933 Act by the close of
business in New York on the business day immediately succeeding the date of the
Terms Agreement.
(d) At any time when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, the Company will give you notice of its intention to file any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise, and will
furnish you with copies of any such amendment or supplement a reasonable amount
of time prior to such proposed filing, and will not file any such amendment or
supplement or other documents in a form to which you or counsel for the
Underwriters shall reasonably object in writing or which is not in material
compliance with the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934
Act Regulations as applicable.
(e) The Company will deliver to each Underwriter a signed copy of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith and documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the ▇▇▇▇ ▇▇▇) and will also
deliver to such Underwriter a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (including documents incorporated
by reference but without exhibits).
(f) The Company will furnish to each Underwriter, from time to time
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 Underwritten Securities,
such number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may
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reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act
Regulations, the 1934 Act or the 1934 Act Regulations.
(g) If at any time after the effective date of the Registration
Statement when a prospectus relating to the Underwritten Securities is required
to be delivered under the 1933 Act or the 1934 Act any event relating to or
affecting the Company occurs as a result of which the Prospectus or any other
prospectus as then in effect would include an untrue statement of a material
fact, or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Registration
Statement or the Prospectus to comply with the 1933 Act or the 1934 Act, the
Company will promptly notify you thereof and will amend or supplement the
Registration Statement or the Prospectus to correct such statement or omission
whether by filing documents pursuant to the 1933 Act, the 1934 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.
(h) The Company will cooperate with the Underwriters to enable the
Underwritten Securities and the Common Shares issuable upon conversion of the
Securities, if any, to be qualified for sale under the securities laws and real
estate syndication laws of such jurisdictions as you may designate and at the
request of the Underwriters will make such applications and furnish such
information as may be required of it as the issuer of the Underwritten
Securities and the Common Shares issuable upon conversion of the Securities, if
any, for that purpose; provided, however, that the Company shall not be required
to qualify to do business or to file a general consent to service of process in
any such jurisdiction. The Company will, from time to time, prepare and file
such statements and reports as are or may be required of it as the issuer of the
Underwritten Securities and the Common Shares issuable upon conversion of the
Securities, if any, to continue such qualifications in effect for so long a
period as the Underwriters may reasonably request for the distribution of the
Underwritten Securities; and in each jurisdiction in which the Underwritten
Securities and the Common Shares issuable upon conversion of the Securities, if
any, have been so qualified, the Company will file such statements and reports
as may be required by the laws of such jurisdiction to continue such
qualification in effect for so long as may be required for the distribution of
the Underwritten Securities and the Common Shares issuable upon conversion of
the Securities, if any; provided, however, that the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction where it is
not so qualified.
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(i) With respect to each sale of Underwritten Securities, the Company
will make generally available to its security holders as soon as practicable,
but in any event no later than 60 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) which will be in reasonable detail (but which
need not be audited) and which will comply with Section 11(a) of the 1933 Act
covering a period of at least twelve months beginning not later than the first
day of the Company's fiscal quarter next following the "effective date" (as
defined in said Rule 158) of the Registration Statement.
(j) The Company will furnish to its shareholders annual reports
containing financial statements certified by independent public accountants and
with quarterly summary financial information in reasonable detail which may be
unaudited. During the period of five years from the date hereof, the Company
will deliver to you and, upon request, to each of the other Underwriters, (i)
copies of each annual report of the Company and each other report furnished by
the Company to its shareholders; and will deliver to you, (ii) as soon as they
are available, copies of any other reports (financial or other) which the
Company shall publish or otherwise make available to any of its security holders
as such, and (iii) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any national
securities exchange. In the event the Company has active subsidiaries, such
financial statements will be on a consolidated basis to the extent the accounts
of the Company and its subsidiaries are consolidated in reports furnished to its
shareholders generally. Separate financial statements shall be furnished for all
subsidiaries whose accounts are not consolidated but which at the time are
significant subsidiaries as defined in the 1933 Act Regulations.
(k) The Company will use the net proceeds received by it from the sale
of Underwritten Securities in the manner specified in the Prospectus under "Use
of Proceeds."
(l) The Company will use its best efforts to continue to meet the
requirements to qualify as a "real estate investment trust" under the Code for
the taxable year in which sales of the Underwritten Securities are to occur.
(m) 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
Underwritten Securities, will file promptly all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the
time periods prescribed by the 1934 Act and the 1934 Act Regulations.
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[(n) The Company will not, between the date of the applicable Terms
Agreement and the termination of any trading restrictions or the Closing Time,
whichever is later, with respect to the Underwritten Securities covered thereby,
without your prior written consent, offer or sell, grant any option for the sale
of, or enter into any agreement to sell, any debt securities of the Company with
a maturity of more than one year (other than the Underwritten Securities which
are to be sold pursuant to such Terms Agreement), or if such Terms Agreement
relates to Senior Securities or Subordinated Securities that are convertible
into Common Shares, any Common Shares or any security convertible into Common
Shares (except for Common Shares issued pursuant to reservations, agreements,
employee benefit plans, dividend reinvestment plans, or employee stock option
plans), except as may otherwise be provided in the applicable Terms Agreement.]
(o) If applicable, the Company will reserve and keep available at all
times, free of preemptive rights or other similar rights, a sufficient number of
Common Shares for the purpose of enabling the Company to satisfy any obligations
to issue such shares upon conversion of the Securities.
(p) If applicable, the Company will use its best efforts to list the
Common Shares issuable upon conversion of the Securities on the New York Stock
Exchange or such other national exchange on which the Company's Common Shares
are then listed.
(q) The Company has complied and will comply with all of the
provisions of Florida H.B. 1771, Section 1, Paragraph 17,130 of the Florida
Securities and Investors Act, and all regulations thereunder relating to
issuers doing business with Cuba.
[5. PAYMENT OF EXPENSES. The Company will pay, directly or by
reimbursement, all expenses incident to the performance of its obligations under
this Agreement or the applicable Terms Agreement, including (i) the printing and
filing of the Registration Statement as originally filed and of each amendment
thereto, (ii) the cost of printing, filing and distributing to the Underwriters
copies of this Agreement and the applicable Terms Agreement, (iii) the
preparation, issuance and delivery of the Underwritten Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel and
accountants, of the Trustee and its counsel and of any applicable calculation
agent or exchange rate agent, (v) the qualification of the Underwritten
Securities, and the Common Shares issuable upon conversion of the Securities, if
any, under securities laws and real estate syndication laws in accordance with
the provisions of Section 4(h), including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey, (vi) the printing and
delivery to the Underwriters of copies of the Registration Statement as
originally filed and of
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each amendment thereto including the abbreviated term sheet delivered by the
Company pursuant to Rule 434 of the 1933 Act Regulations, and of the Prospectus
and any amendments or supplements thereto, (vii) the cost of reproducing and
distributing to the Underwriters copies of the Indenture, (viii) the cost of
reproducing and delivering to the Underwriters copies of the Blue Sky Survey,
(ix) any fees charged by nationally recognized statistical rating organizations
for the rating of the Securities, (x) the fees and expenses, if any, incurred
with respect to the listing of the Underwritten Securities or the Common Shares
issuable upon conversion of the Securities, if any, on any national securities
exchange, (xi) the fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc., (xii) the cost
of providing any CUSIP or other identification numbers for the Underwritten
Securities or the Common Shares issuable upon conversion of the Securities, if
applicable, and (xiii) the fees and expenses of any depositary in connection
with the Underwritten Securities.]
6. INDEMNITY AND CONTRIBUTION. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange 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 Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein.
(b) Each Underwriter 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 Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
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(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 6(a) or 6(b), 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, in the case of
parties indemnified pursuant to Section 6(a), and by the Company, in the case of
parties indemnified pursuant to Section 6(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
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party from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in Section 6(a) or
6(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 Underwriters on the
other hand from the offering of the Underwritten Securities or (ii) if the
allocation provided by clause 6(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 6(d)(i) above but also the relative fault of the Company
on the one hand and of the Underwriters 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 Underwriters
on the other hand in connection with the offering of the Underwritten Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of the Underwritten Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus, bear to the aggregate Public Offering Price of the
Underwritten Securities. The relative fault of the Company on the one hand and
the Underwriters 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 Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective number of Underwritten Securities they have purchased hereunder, and
not joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation (even if the Underwriters 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 6(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
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such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6, no
Underwriters shall be required to contribute any amount in excess of the amount
by which the total price at which the Underwritten Securities, underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 6 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
6 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 Underwriter or any person controlling any Underwriter 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
Underwritten Securities.
7. SURVIVAL OF INDEMNITIES, REPRESENTATION, WARRANTIES, ETC. The
respective indemnities, covenants, agreements, representations, warranties and
other statements of the Company, and the several Underwriters, as set forth in
this Agreement or the applicable Terms Agreement or made by them respectively,
pursuant to this Agreement or the applicable Terms Agreement, shall remain in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or the Company or any of their officers or directors or any
controlling person, and shall survive delivery of and payment for the
Underwritten Securities.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective obligations
of the several Underwriters to purchase Underwritten Securities pursuant to the
applicable Terms Agreement are subject to the accuracy, at and (except as
otherwise stated herein) as of the date hereof, the Representation Date, Closing
Time and at each Date of Delivery, 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 pursuant to the provisions
hereof, to compliance at and as of such Closing Time and at each Date of
Delivery by the Company, with its covenants and agreements herein contained and
other provisions hereof to be satisfied at or prior to such Closing Time, or
Date of Delivery, as the case may be, and to the following additional
conditions:
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(a) At Closing Time, (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been initiated or, to the
knowledge of the Company or you, threatened by the Commission, (ii) the
rating assigned by any nationally recognized statistical rating
organization to any long-term debt securities of the Company as of the
date of the applicable Terms Agreement shall not have been lowered
since such date nor shall any such rating organization have publicly
announced that it has placed any long-term debt securities of the
Company on what is commonly termed a "watch list" for possible
downgrading, and (iii) there shall not have come to your attention any
facts that would cause you to believe that the Prospectus, together
with the applicable Prospectus Supplement, at the time it was required
to be delivered to purchasers of the Underwritten Securities, contained
any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances existing at such time, not misleading.
(b) At the time of execution of the applicable Terms
Agreement, you shall have received from Price Waterhouse LLP a letter,
dated the date of such execution, 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 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 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
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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 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 the applicable Terms Agreement,
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
the applicable Terms Agreement, 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
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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.
(c) At Closing Time, you shall have received from Price
Waterhouse LLP a letter, dated Closing Time, to the effect that such
accountants reaffirm, as of Closing Time, and as though made on such
Closing Time, the statements made in the letter furnished by such
accountants pursuant to paragraph (b) of this Section 8, except that
the specified date will be a date not more than three days prior to the
Closing Date.
(d) At Closing Time, you shall have received from ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, an opinion, dated as of Closing
Time, 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 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
26
27
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 number of issued and outstanding shares of
capital stock of the Company is as set forth in the Prospectus
under "Capitalization" and the outstanding shares of capital
stock have been duly authorized, validly issued, fully paid
and non-assessable. All of the issued and outstanding capital
stock of the Company's subsidiaries have been duly authorized
and validly issued, is fully paid and non-assessable and, to
the best of such counsel's knowledge, is owned by the Company
free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity.
(vi) The Underwritten Securities have been duly and
validly authorized by all necessary corporate action and, when
executed, authenticated and delivered pursuant to the
provisions of the Indenture and against payment of the
consideration therefor specified in the applicable Terms
Agreement or the Delayed Delivery Contracts, if any, the
Underwritten Securities 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).
(vii) The issuance of the Underwritten Securities is
not subject to preemptive or other similar rights arising by
operation of law or, to the best of their knowledge,
otherwise.
(viii) If applicable, the Common Shares, Preferred
Shares or Depositary Shares issuable upon conversion of any of
the Senior Securities or the Subordinated Securities have been
duly and validly authorized and reserved for issuance upon
such conversion or exercise by all necessary corporate action
and such shares, when issued upon such conversion or exercise
and the payment of any required consideration in connection
therewith, will be duly and validly issued and will be fully
paid and non-assessable, and the issuance of such shares upon
such conversion or exercise will not be subject to preemptive
or other similar rights arising by
27
28
operation of law or, to the best of such counsel's
knowledge, otherwise.
(ix) Each of this Agreement, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any, has been
duly authorized, executed and delivered by the Company.
(x) 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).
(xi) The Indenture has been duly qualified under the
1939 Act.
(xii) 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.
(xiii) 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. If applicable, the Rule 434 Prospectus
conforms to the requirements of Rule 434 of the 1933 Act
Regulations in all material respects. 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.
(xiv) 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
28
29
complied when so filed as to form in all material respects
with the 1934 Act and the 1934 Act Regulations.
(xv) The Underwritten Securities, the Common Shares
issuable upon conversion of the Senior Securities or
Subordinated Securities, if applicable, and the Indenture
conform in all material respects to the statements relating
thereto contained in the Prospectus.
(xvi) 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 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 Representation Date, contained
an untrue statement of a material fact or omitted 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 Representation Date or at
Closing Time, 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.
(xvii) 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 any of its subsidiaries is a party or of which any
of the property of the Company or any of 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.
(xviii) 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
29
30
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 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.
(xix) 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,
the applicable Terms 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 Terms 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 or bylaws, as the case
may be, of the Company or its subsidiaries or any applicable
law, administrative regulation or administrative or court
order or decree.
(xx) Neither the Company nor any of its subsidiaries
is required to be registered under the ▇▇▇▇ ▇▇▇.
(xxi) The information in the Prospectus, if
applicable, under the captions "Description of Debt
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31
Securities," "Certain Anti-Takeover Provisions of Ohio Law"
and "Federal Income Tax Considerations," and, if applicable,
any similar matters set forth in the Prospectus Supplement
under a caption or captions to be set forth in such opinion,
to the extent that it constitutes matters of law or legal
conclusions, has been reviewed by them and is correct in all
material respects.
(xxii) The Company has qualified as a Real Estate
Investment Trust (a "REIT") for the taxable years ended
December 31, 1993, December 31, 1994, December 31, 1995,
December 31, 1996 and the Company is organized and operates in
a manner that will enable it to qualify to be taxed as a REIT
under the Internal Revenue Code of 1986, as amended (the
"Code") for the taxable year ended December 31, 1997 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.
(e) The Representatives shall have received from ▇▇▇▇▇ & ▇▇▇▇
LLP, counsel for the Underwriters, their opinion or opinions dated
Closing Time with respect to the matters set forth in (i), (vi), (viii)
to (xiii), inclusive, (xiv) and (xv) of subsection (d) of this Section,
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, ▇▇▇▇▇ & Wood LLP may rely as to
matters involving the laws of the State of Ohio upon the opinion of
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP. ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇ & 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.
(f) Subsequent to the execution and delivery of this Agreement
and the Terms Agreement and prior to the Closing 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
31
32
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, impracticable to
market the Underwritten Securities on the terms and in the
manner contemplated in the Prospectus.
(g) You shall have received certificates, dated Closing Time,
of the President and the Chief Financial Officer of the Company to the
effect that the representations and warranties of the Company contained
in Section 2(a) are true and correct with the same force and effect as
though expressly made at and as of Closing Time.
(h) The Company shall have furnished to you such additional
certificates as you may have reasonably requested as to the accuracy,
at and as of Closing Time, of the representations and warranties made
herein by them, as to compliance, at and as of Closing Time, by them
with their covenants and agreements herein contained and other
provisions hereof to be satisfied at or prior to Closing Time, and as
to other conditions to the obligations of the Underwriters hereunder.
(i) In the event the Underwriters exercise their option
provided in a Terms Agreement as set forth in Section 3 hereof to
purchase all or any portion of the Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company hereunder shall
be true and correct as of each Date of Delivery, and you shall have
received:
(i) A letter from Price Waterhouse LLP in form and
substance satisfactory to you and dated such Date of Delivery,
substantially the same in scope and substance as the letter
furnished to the Representatives pursuant to Section 8(b),
except that the specified date in the letter furnished
pursuant to this Section 8(i) shall be a date not more than
three days prior to such Date of Delivery.
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33
(ii) The opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the
Company, in form and substance satisfactory to ▇▇▇▇▇ & Wood
LLP, dated such Date of Delivery, relating to the Option
Securities and otherwise to the same effect as the opinion
required by Section 8(d).
(iii) The opinion of ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the
Options Securities and otherwise to the same effect as the
opinion required by Section 8(e).
(iv) A certificate, dated such Date of Delivery, of the
President and the Chief Financial Officer of the Company
confirming that the certificate or certificates delivered at
Closing Time pursuant to Section 8(f) and Section 8(g) remains
or remain true as of such Date of Delivery.
(v) Such additional certificates, dated such Date of
Delivery, as you may have reasonably requested pursuant to
Section 8(h).
If any of the conditions hereinabove provided for in this Section shall
not have been satisfied when and as required to be satisfied, the applicable
Terms Agreement may be terminated by you by notifying the Company of such
termination in writing or by telegram at or prior to Closing Time, but you shall
be entitled to waive any of such conditions.
9. TERMINATION. (a) This Agreement (excluding the applicable Terms
Agreement) may be terminated for any reason at any time by the Company or by you
upon the giving of 30 days' written notice of such termination to the other
party hereto.
(b) This Agreement and the Terms Agreement shall be subject to
termination by notice given by you to the Company, if (a) after the execution
and delivery of this Agreement and the Terms Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially limited on or
by, as the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in your judgment, is material and
adverse and (b) in the case of any of the events specified in clauses 9(b)(i)
through 9(b)(iv), such event, singly
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34
or together with any other such event, makes it, in your judgment, impracticable
to market the Underwritten Securities on the terms and in the manner
contemplated in the Prospectus.
(c) In the event of any such termination, the covenants set forth in
Section 4 with respect to any offering of Underwritten Securities shall remain
in effect so long as any Underwriter owns any such Underwritten Securities
purchased from the Company pursuant to the applicable Terms Agreement.
10. REIMBURSEMENT OF UNDERWRITERS. Notwithstanding any other provisions
hereof, if this Agreement or the applicable Terms Agreement shall be terminated
by you under Section 8, Section 9 or Section 12, the Company will bear and pay
the expenses specified in Section 5 hereof and, in addition to their obligations
pursuant to Section 6, hereof, except when you terminate this Agreement pursuant
to clause (a), (b)(i) or (b)(ii) of Section 9, the Company will reimburse the
reasonable out-of-pocket expenses of the several Underwriters (including
reasonable fees and disbursements of counsel for the Underwriters) incurred in
connection with this Agreement or the applicable Terms Agreement and the
proposed purchase of the Underwritten Securities, and promptly upon demand the
Company, will pay such amounts to you for and on behalf of such Underwriter. In
addition, the provisions of Section 6 shall survive any such termination.
11. DEFAULT BY UNDERWRITERS. If any Underwriter or Underwriters shall
default in its or their obligations to purchase Underwritten Securities under
the applicable Terms Agreement at the Closing Time and the aggregate principal
amount of Underwritten Securities which such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of Underwritten Securities which the Underwriters are obligated
to purchase at the Closing Time, the other Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the full amount of the Underwritten Securities which such defaulting Underwriter
or Underwriters agreed but failed to purchase. If any Underwriter or
Underwriters shall so default and the aggregate principal amount of Underwritten
Securities with respect to which such default or defaults occur is more than 10%
of the total principal amount of Underwritten Securities and arrangements
satisfactory to you and the Company for the purchase of such Underwritten
Securities by other persons are not made within 48 hours after such default, the
applicable Terms Agreement shall terminate.
If the remaining Underwriters or substituted underwriters are required
hereby or agree to take up all or part of the Underwritten Securities of a
defaulting Underwriter or Underwriters as provided in this Section 11, (i) the
Company shall have the right to postpone the Closing Time for a period of not
more than five full
34
35
business days, in order that the Company may effect whatever changes may thereby
be made necessary in the Registration Statement or the Prospectus, or in any
other documents or arrangements, and the Company agrees promptly to file any
amendments to the Registration Statement or supplements to the Prospectus which
may thereby be made necessary, and (ii) the respective principal amounts of
Underwritten Securities to be purchased by the remaining Underwriters or
substituted underwriters shall be taken as the basis of their underwriting
obligation for all purposes of the applicable Terms Agreement. Nothing herein
contained shall relieve any defaulting Underwriter of its liability to the
Company or the Underwriters for damages occasioned by its default hereunder. Any
termination of the applicable Terms Agreements pursuant to this Section 11 shall
be without liability on the part of any non-defaulting Underwriter or the
Company, except for expenses to be paid or reimbursed pursuant to Section 5 and
except for the provisions of Section 6.
12. DEFAULT BY THE COMPANY. If the Company shall fail at the Closing
Time to sell and deliver the principal amount of Underwritten Securities which
it is obligated to sell pursuant to the applicable Terms Agreement, then such
agreement shall terminate without any liability on the part of any
non-defaulting party, other than obligations under Section 10 hereof. No action
taken pursuant to this Section 12 shall relieve the Company from liability, if
any, in respect of such default.
13. NOTICES. All communications hereunder shall be in writing and, if
sent to the Underwriters shall be mailed, delivered or telecopied and confirmed
to you, ▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇, at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: _______________, _____________ ___________, except that
notices given to an Underwriter pursuant to Section 6 hereof shall be sent to
such Underwriter at the address furnished by you or if sent to the Company shall
be mailed, delivered or telegraphed and confirmed at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President and Chief
Executive Officer.
14. SUCCESSORS. This Agreement and the applicable Terms Agreement shall
inure to the benefit of and be binding upon you and the Company and any
Underwriter who becomes a party to such Terms Agreement, the Company and their
respective successors and legal representatives. Nothing expressed or mentioned
in this Agreement or the applicable Terms 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 or such Terms
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
35
36
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
Underwriter within the meaning of Section 15 of the 1933 Act, and the
indemnities given by the several Underwriters 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 and the applicable Terms 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 and the applicable Terms 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.
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37
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:
Accepted and delivered,
as of the date first above written:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By:
-------------------------------
Name:
Title:
37
38
Exhibit A
DEVELOPERS DIVERSIFIED REALTY CORPORATION
(an Ohio corporation)
[Title of Securities]
TERMS AGREEMENT
Dated: , 199_
To: Developers Diversified Realty Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President and Chief Executive Officer
Dear Sirs:
We (the "Representative") understand that Developers Diversified Realty
Corporation, an Ohio corporation (the "Company"), proposes to issue and sell
$ aggregate principal amount of its [Title of Securities] (the
"Underwritten Securities"). Subject to the terms and conditions set forth or
incorporated by reference herein, the underwriters named below (the
"Underwriters") offer to purchase, severally and not jointly, the respective
amounts of Initial Underwritten Securities (as defined in the Underwriting
Agreement referenced below) set forth below opposite their respective names, and
a proportionate share of Option Securities (as defined in the Underwriting
Agreement referred to below) to the extent any are purchased, at the purchase
price set forth below.
▇-▇
▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ of Debt Securities
----------- ------------------
---------
Total
=========
The Underwritten Securities shall have the following terms:
[SECURITIES]
Title of Securities:
Currency:
Principal amount to be issued:
Current Ratings:
Interest rate or formula:
Interest payment dates:
Stated maturity date:
Redemption and/or repayment provisions:
Sinking fund requirements:
Number of Option Securities, if any, that may be purchased by the Underwriters:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of Delivery:
Minimum Contract:
Maximum aggregate principal amount:
Fee: %]
Initial public offering price: %, plus accrued interest, if any, or
amortized original issue discount, if any, from , 19 .
Purchase price: %, plus accrued interest, if any, or amortized original
issue discount, if any, from , 19 (payable in [same] [next] day
funds).
Conversion provisions:
Form:
Other terms:
Closing time, date and location:
All the provisions contained in the document attached as Annex A hereto
entitled "Developers Diversified Realty Corporation-Debt Securities-Underwriting
Agreement Basic Provisions" are hereby incorporated by reference in their
entirety herein and shall be deemed to be a part of this Terms Agreement to the
same extent as if such provisions had been set forth in full herein. Terms
defined in such document are used herein as therein defined.
A-2
40
Please accept this offer no later than o'clock P.M. (New York City
time) on by signing a copy of this Terms Agreement in the space set
forth below and returning the signed copy to us.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By:
------------------------------
Name:
Title:
Acting on behalf of themselves and
the other named Underwriters.
Accepted:
DEVELOPERS DIVERSIFIED REALTY CORPORATION
By:
-----------------------
Name:
Title:
A-3
41
Exhibit B
DEVELOPERS DIVERSIFIED REALTY CORPORATION
(an Ohio corporation)
[Title of Securities]
DELAYED DELIVERY CONTRACT
-------------------------
, 19
Developers Diversified Realty Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President and Chief Executive Officer
Dear Sirs:
The undersigned hereby agrees to purchase from Developers Diversified
Realty Corporation (the "Company"), and the Company agrees to sell to the
undersigned on __________, 19__ (the "Delivery Date"),
of the Company's [insert title of security] (the "Securities"), offered by the
Company's Prospectus dated __________, 19__, as supplemented by its Prospectus
Supplement dated ___________, 19__, receipt of which is hereby acknowledged at a
purchase price of _____% of the principal amount thereof, plus accrued interest
from __________, 19__,] to the Delivery Date, and on the further terms and
conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to purchase
on the Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of
, on the Delivery Date, upon delivery to
the undersigned of the Securities to be purchased by the undersigned in
definitive form and in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to the Delivery Date.
B-1
42
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date shall be subject only to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before __________, 19__, shall
have sold to the Underwriters of the Securities (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Terms Agreement dated __________, 19__ between the Company and the Underwriters.
The obligation of the undersigned to take delivery of and make payment for
Securities shall not be affected by the failure of any purchaser to take
delivery of and make payments for Securities pursuant to other contracts similar
to this contract. The undersigned represents and warrants to you that its
investment in the Securities is not, as of the date hereof, prohibited under the
laws of any jurisdiction to which the undersigned is subject and which govern
such investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary action for the due execution and delivery of this
contract and the payment for and purchase of the Securities has been taken by it
and no further authorization or approval of any governmental or other regulatory
authority is required for such execution, delivery, payment or purchase, and
that, upon acceptance hereof by the Company and mailing or delivery of a copy as
provided below, this contract will constitute a valid and binding agreement of
the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for an aggregate principal amount of Securities in excess of $________
and that the acceptance of any Delayed Delivery Contract is in the Company's
sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance on a copy hereof
and mail or deliver a signed copy hereof to the undersigned at its address set
forth below. This will become a binding
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contract between the Company and the undersigned when such copy is so mailed or
delivered.
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
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(Name of Purchaser)
By
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(Title)
-----------------------------
-----------------------------
(Address)
Accepted as of the date first above written.
DEVELOPERS DIVERSIFIED REALTY CORPORATION
By
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(Title)
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed are as
follows: (Please print.)
Telephone No.
Name (Including Area Code)
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