exv1w1
Exhibit 1.1
SALES AGENCY FINANCING AGREEMENT
Sales Agency Financing Agreement (this “Agreement”), dated as of April 28, 2011, between
DEVELOPERS DIVERSIFIED REALTY CORPORATION, an Ohio corporation (the “Company”), and BNY MELLON
CAPITAL MARKETS, LLC, a registered broker-dealer organized under the laws of Delaware (“BNYMCM”).
W I T N E S S E T H:
WHEREAS, the Company has authorized and proposes to issue and sell in the manner contemplated
by this Agreement Shares with an aggregate Sales Price of up to $200,000,000 upon the terms and
subject to the conditions contained herein;
WHEREAS, BNYMCM has been appointed by the Company as its agent to sell the Shares and agrees
to use its commercially reasonable efforts to sell the Shares offered by the Company upon the terms
and subject to the conditions contained herein; and
WHEREAS, the Company has also entered into a sales agency financing agreement (the
“Alternative Sales Agency Agreement”), dated as of even date herewith, with KeyBanc Capital Markets
Inc. (the “Alternative Sales Agent”), for the issuance and sale from time to time through the
Alternative Sales Agent of Shares on the terms set forth in the Alternative Sales Agency Agreement.
This Agreement and the Alternative Sales Agency Agreement are collectively referred to herein as
the “Sales Agency Agreements.” The aggregate Sales Price of Shares to be issued and sold pursuant
to the Sales Agency Agreements shall not exceed the Maximum Program Amount.
NOW THEREFORE, in consideration of the premises, representations, warranties, covenants and
agreements contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Certain Definitions. For purposes of this Agreement, capitalized terms
used herein and not otherwise defined shall have the following respective meanings:
“Actual Sold Amount” means the number of Issuance Shares that BNYMCM has sold during the
Selling Period.
“Affiliate” of a Person means another Person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with, such first- mentioned
Person. The term “control” (including the terms “controlling,” “controlled by” and “under common
control with”) means the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
“Agreement” has the meaning set forth in the introductory paragraph of this Agreement.
“Alternative Sales Agency Agreement” has the meaning set forth in the recitals to this
Agreement.
“Alternative Sales Agent” has the meaning set forth in the recitals to this Agreement.
“Anti-Money Laundering Laws” has the meaning set forth in Section 3.31.
“Applicable Time” means the time of sale of any Shares pursuant to this Agreement.
“BNYMCM” has the meaning set forth in the introductory paragraph of this Agreement.
“Closing” has the meaning set forth in Section 2.02.
“Closing Date” means the date on which the Closing occurs.
“Code” has the meaning set forth in Section 3.15.
“Code of Regulations” has the meaning set forth in Section 3.13.
“Comfort Letter Trigger Event” has the meaning set forth in Section 4.08.
“Commission” means the United States Securities and Exchange Commission.
“Commitment Period” means the period commencing on the Closing Date and expiring on the
earliest to occur of (x) the date on which BNYMCM and the Alternative Sales Agent in the aggregate
shall have sold the Maximum Program Amount pursuant to the Sales Agency Agreements, (y) the date
this Agreement is terminated pursuant to Article VII and (z) the third anniversary of the Closing
Date.
“Common Shares” shall mean the Company’s Common Shares, $0.10 par value per share.
“Company” has the meaning set forth in the introductory paragraph of this Agreement.
“Controlling Persons” has the meaning set forth in Section 6.01.
“Defects” has the meaning set forth in Section 3.19.
“Delayed Settlement Issuance Price” means, in the context of a Delayed Settlement Date, the
Standard Settlement Issuance Price less, in the event that (x) any day in the applicable Selling
Period has been designated by the Company as a record date for the payment of dividends on the
Common Shares, (y) BNYMCM has sold Issuance Shares in such Selling Period on or prior to such
record date and (z) any such Issuance Shares did not, or are not entitled to, receive such
dividends, an amount equal to any dividends paid or payable to the holders of Common Shares but not
paid or payable to holders of such Issuance Shares.
“Delayed Settlement Date” means a Settlement Date subsequent to the Standard Settlement Date
relating to all sales for the applicable Selling Period that is on or before the third business day
following the last day of such Selling Period, whereon the Company shall deliver to
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BNYMCM the amount of Shares sold during such Selling Period and BNYMCM shall deliver to the
Company the Delayed Settlement Issuance Price received on such sales.
“Effective Date” means the date and time as of which the Original Registration Statement and
each amendment thereto (including amendments filed for the purpose of complying with Section
10(a)(3) of the Securities Act) became or become effective, including each deemed effective date
with respect to BNYMCM pursuant to Rule 430B(f)(2) under the Securities Act.
“EDGAR” has the meaning set forth in Section 4.05.
“Entity” has the meaning set forth in Section 3.32.
“Environmental Laws” has the meaning set forth in Section 3.22.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“FINRA” has the meaning set forth in Section 5.01(f).
“Floor Price” means the minimum price set by the Company in the Issuance Notice below which
BNYMCM shall not sell Shares during the applicable Selling Period, which may be adjusted by the
Company at any time during the Selling Period and which in no event shall be less than $2.00
without the prior written consent of BNYMCM, which may be withheld in BNYMCM’s sole discretion.
“Free Writing Prospectus” has the meaning set forth in Section 2.05.
“GAAP” has the meaning set forth in Section 3.06.
“Hazardous Materials” has the meaning set forth in Section 3.22.
“Indemnified Party” has the meaning set forth in Section 6.03.
“Indemnifying Party” has the meaning set forth in Section 6.03.
“Initial Authorized Amount” means an Issuance Amount of $50,000,000 approved by the Board of
Directors of the Company for issuance under this Agreement or the Alternative Sales Agency
Agreement, which amount may be increased from time to time by the Company’s Board of Directors (in
which case the term “Initial Authorized Amount” shall refer to such increased amount).
“Issuance” means each occasion the Company elects to exercise its right to deliver an Issuance
Notice requiring BNYMCM to use its commercially reasonable efforts to sell the Common Shares as
specified in such Issuance Notice, subject to the terms and conditions of this Agreement.
“Issuance Amount” means the aggregate Sales Price of the Issuance Shares to be sold by BNYMCM
with respect to any Issuance, which may not exceed $100,000,000 without the prior written consent
of BNYMCM, which may be withheld in BNYMCM’s sole discretion.
“Issuance Date” means any Trading Day during the Commitment Period that an Issuance Notice is
delivered or deemed to be delivered pursuant to Section 2.03(b).
“Issuance Notice” means a written notice to BNYMCM delivered in accordance with this Agreement
in the form attached hereto as Exhibit A.
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“Issuance Price” means either the Standard Settlement Issuance Price or the Delayed Settlement
Issuance Price, as the case may be.
“Issuance Shares” means all Common Shares issued or issuable pursuant to an Issuance that has
occurred or may occur in accordance with the terms and conditions of this Agreement.
“Issuance Supplement” has the meaning set forth in Section 3.01.
“Material Adverse Effect” has the meaning set forth in Section 3.05.
“Maximum Program Amount” means Common Shares with an aggregate Sales Price of $200,000,000
(or, if less, the aggregate amount of Shares registered under the Registration Statement).
“OFAC” has the meaning set forth in Section 3.32.
“Officers’ Certificate Trigger Event” has the meaning set forth in Section 4.09.
“Opinion Trigger Event” has the meaning set forth in Section 4.07.
“Original Registration Statement” has the meaning set forth in Section 3.01.
“Person” means an individual or a corporation, partnership, limited liability company, trust,
incorporated or unincorporated association, joint venture, joint stock company, governmental
authority or other entity of any kind.
“Portfolio Properties” has the meaning set forth in Section 3.19.
“preliminary prospectus” has the meaning set forth in Section 3.01.
“Principal Market” means the New York Stock Exchange.
“Prospectus” has the meaning set forth in Section 3.01.
“Prospectus Supplement” has the meaning set forth in Section 5.01(k).
“Registration Statement” has the meaning set forth in Section 3.01.
“REIT” has the meaning set forth in Section 3.15.
“Representation Date” has the meaning set forth in the introductory paragraph of Article III.
“Sales Agency Agreements” has the meaning set forth in the recitals to this Agreement.
“Sales Price” means the actual sale execution price of each Share sold by BNYMCM (or, in the
case of the Alternative Sales Agency Agreement, the Alternative Sales Agent) on the Principal
Market hereunder in the case of ordinary brokers’ transactions, or as otherwise agreed by the
parties in other methods of sale.
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“Sanctions” has the meaning set forth in Section 3.32.
“Securities Act” means the Securities Act of 1933, as amended.
“Selling Commission” means 1.0% of the Sales Price of Shares sold during a Selling Period.
“Selling Period” means the period of one to twenty consecutive Trading Days (as determined by
the Company in the Company’s sole discretion and specified in the applicable Issuance Notice)
following the Trading Day on which an Issuance Notice is delivered or deemed to be delivered
pursuant to Section 2.03(b).
“Settlement Date” means either a Standard Settlement Date or a Delayed Settlement Date; it
being understood that the Company shall determine, in its sole discretion, whether the Settlement
Date(s) in any Selling Period shall be a Standard Settlement Date or a Delayed Settlement Date.
“Shares” shall mean the Company’s Common Shares issued or issuable pursuant to the Sales
Agency Agreements.
“Significant Subsidiary” has the meaning set forth in Section 3.09.
“Standard Settlement Date” means the third business day following each Trading Day during the
applicable Selling Period, when the Company shall deliver to BNYMCM the amount of Shares sold on
such Trading Day and BNYMCM shall deliver to the Company the Standard Settlement Issuance Price
received on such sales.
“Standard Settlement Issuance Price” means, in the context of a Standard Settlement Date, the
Sales Price less the Selling Commission.
“Stand Off Period” has the meaning set forth in Section 4.10.
“Trading Day” means any day which is a trading day on the Principal Market, other than a day
on which trading is scheduled to close prior to its regular weekday closing time.
“Voting Stock” of any Person as of any date means the capital stock or other equity interests
of such Person that is at the time entitled to vote in the election of the board of directors or
other similar governing body of such Person.
ARTICLE II
ISSUANCE AND SALE OF COMMON SHARES
Section 2.01 (a) Issuance. Upon the terms and subject to the conditions of this
Agreement, the Company may issue Shares through BNYMCM and BNYMCM shall use its commercially
reasonable efforts to sell Shares, with an aggregate Sales Price of up to the Maximum Program
Amount, based on and in accordance with such number of Issuance Notices as the Company in its sole
discretion shall choose to deliver, during the Commitment Period until the aggregate Sales Price of
the Shares sold under the Sales Agency Agreements equals the
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Maximum Program Amount or this Agreement is otherwise terminated. Subject to the foregoing
and the other terms and conditions of this Agreement, upon the delivery of an Issuance Notice, and
unless the sale of the Issuance Shares described therein has been suspended, cancelled or otherwise
terminated in accordance with the terms of this Agreement, BNYMCM will use its commercially
reasonable efforts consistent with its normal trading and sales practices to sell such Issuance
Shares up to the amount specified in such Issuance Notice into the Principal Market, and otherwise
in accordance with the terms of such Issuance Notice. BNYMCM will provide written confirmation to
the Company no later than the opening of the Trading Day next following the Trading Day on which it
has made sales of Issuance Shares hereunder setting forth the portion of the Actual Sold Amount for
such Trading Day, the corresponding Sales Price and the Issuance Price payable to the Company in
respect thereof. BNYMCM may sell Issuance Shares in the manner described in Section 2.01(b). The
Company acknowledges and agrees that (i) there can be no assurance that BNYMCM will be successful
in selling Issuance Shares and (ii) BNYMCM will incur no liability or obligation to the Company or
any other Person if it does not sell Issuance Shares for any reason other than a failure by BNYMCM
to use its commercially reasonable efforts consistent with its normal trading and sales practices
to sell such Issuance Shares as required under this Section 2.01. In acting hereunder, BNYMCM will
be acting as agent for the Company and not as principal.
(a) Method of Offer and Sale. The Shares may be offered and sold (i) in privately
negotiated transactions (if and only if the parties hereto have so agreed in writing) or (ii) by
any other method or payment permitted by law deemed to be an “at the market” offering as defined in
Rule 415 under the Securities Act, including sales made directly on the Principal Market or sales
made to or through a market maker or through an electronic communications network. Nothing in this
Agreement shall be deemed to require either party to agree to the method of offer and sale
specified in clause (i) above, and either party may withhold its consent thereto in such party’s
sole discretion.
(b) Issuances. Upon the terms and subject to the conditions set forth herein, on any
Trading Day as provided in Section 2.03(b) during the Commitment Period on which the conditions set
forth in Sections 5.01 and 5.02 have been satisfied, the Company may exercise its right to call for
an Issuance by the delivery of an Issuance Notice, executed by the Chief Executive Officer, the
President, the Chief Financial Officer or the Chief Investment Officer of the Company, to BNYMCM.
The number of Issuance Shares that BNYMCM shall use its commercially reasonable efforts to sell
pursuant to such Issuance shall have an aggregate Sales Price equal to the Issuance Amount. Each
Issuance will be settled on the applicable Settlement Date following the Issuance Date.
Section 2.02 Effectiveness. The effectiveness of this Agreement (the “Closing”) shall
be deemed to take place concurrently with the execution and delivery of this Agreement by the
parties hereto and the completion of the closing transactions set forth in the immediately
following sentence. At the Closing, the following closing transactions shall take place, each of
which shall be deemed to occur simultaneously with the Closing: (i) the Company shall deliver to
BNYMCM a certificate executed by the Secretary of the Company, signing in such capacity, dated the
Closing Date and (A) certifying that attached thereto are true and complete copies of the
resolutions duly adopted by the Board of Directors of the Company authorizing the execution and
delivery of this Agreement and the consummation of the transactions contemplated hereby
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(including, without limitation, the issuance of the Shares pursuant to this Agreement), which
authorization shall be in full force and effect on and as of the date of such certificate, and (B)
certifying and attesting to the office, incumbency, due authority and specimen signatures of each
Person who executed this Agreement for or on behalf of the Company; (ii) the Company shall deliver
to BNYMCM a certificate executed by the President and Chief Executive Officer or any Executive or
Senior Vice President of the Company and by the Chief Financial Officer or the Chief Accounting
Officer of the Company, signing in such respective capacities, dated the Closing Date, confirming
that the representations and warranties of the Company contained in this Agreement are true and
correct and that the Company has performed, in all material respects, all of it obligations
hereunder to be performed on or prior to the Closing Date and as to the matters set forth in
Section 5.01(a) hereof; (iii) Jones Day, counsel to the Company, shall deliver to BNYMCM an
opinion, dated the Closing Date and addressed to BNYMCM, substantially in the form of Exhibit B;
(iv) Sidley Austin llp, counsel to BNYMCM and the Alternative Sales Agent, shall deliver
to BNYMCM an opinion, dated the Closing Date and addressed to BNYMCM, in form and substance
satisfactory to BNYMCM (and the Company shall have furnished to such counsel such documents as it
may request for the purpose of enabling such counsel to pass upon such matters, and, in giving its
opinion, such counsel may rely as to matters involving the laws of the State of Ohio upon the
opinion of even date of Jones Day); (v) PricewaterhouseCoopers LLP shall deliver to BNYMCM a
letter, dated the Closing Date, in form and substance reasonably satisfactory to BNYMCM; and (vi)
the Company shall pay the expenses set forth in Section 9.02(ii) by wire transfer to the account
designated by BNYMCM in writing prior to the Closing.
Section 2.03 Mechanics of Issuances.
(a) Issuance Notice. On any Trading Day during the Commitment Period, the Company may
deliver an Issuance Notice to BNYMCM, subject to the satisfaction of the conditions set forth in
Sections 5.01 and 5.02; provided, however, that (i) the Issuance Amount for each
Issuance as designated by the Company in the applicable Issuance Notice shall in no event exceed
$100,000,000 without the prior written consent of BNYMCM, which may be withheld in BNYMCM’s sole
discretion and (ii) notwithstanding anything in this Agreement to the contrary, BNYMCM shall have
no further obligations with respect to any Issuance Notice if and to the extent the aggregate Sales
Price of the Issuance Shares sold pursuant thereto, together with the aggregate Sales Price of the
Shares previously sold under the Sales Agency Agreements, shall exceed the Maximum Program Amount.
The Company shall have the right, in its sole discretion, to amend at any time and from time to
time any Issuance Notice; provided, however, that the Company may not amend the Issuance Amount if
such amended Issuance Amount is less than the Actual Sold Amount as of the date of such amendment.
(b) Delivery of Issuance Notice. An Issuance Notice or any amendment thereto shall be
deemed delivered on the Trading Day that it is received by facsimile or e-mail (and the Company
confirms such delivery by telephone (including voicemail message)) by BNYMCM. No Issuance Notice or
any amendment thereto may be delivered other than on a Trading Day during the Commitment Period.
(c) Floor Price. BNYMCM shall not sell Shares below the Floor Price during the
applicable Selling Period and such Floor Price may be adjusted by the Company at any time
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during the applicable Selling Period upon notice to BNYMCM and confirmation by BNYMCM to the
Company.
(d) Determination of Issuance Shares to be Sold. The number of Issuance Shares to be
sold by BNYMCM with respect to any Issuance shall be the Actual Sold Amount during the Selling
Period.
(e) Trading Guidelines. BNYMCM may, to the extent permitted under the Securities Act
and the Exchange Act, purchase and sell Common Shares for its own account while this Agreement is
in effect provided that (i) no such purchase or sale shall take place while an Issuance Notice
under this Agreement is in effect (except to the extent BNYMCM may engage in sales of Issuance
Shares purchased or deemed purchased from the Company as a “riskless principal” or in a similar
capacity), (ii) in no circumstances shall BNYMCM have a short position in the Common Shares for its
own account and (iii) the Company shall not be deemed to have authorized or consented to any such
purchases or sales by BNYMCM. In addition, the Company hereby acknowledges and agrees that BNYMCM’s
Affiliates, subject to compliance with Regulation M under the Exchange Act, may make markets in the
Common Shares or other securities of the Company, in connection with which they may buy and sell,
as agent or principal, for long or short account, Common Shares or other securities of the Company,
at the same time BNYMCM is acting as agent pursuant to this Agreement; provided,
however, that the Company shall not be deemed to have authorized or consented to any such
purchases or sales by BNYMCM’s Affiliates.
Section 2.04 Settlements. Subject to the provisions of Article V, on or before each
Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer the
Issuance Shares being sold by crediting BNYMCM or its designee’s account at The Depository Trust
Company through its Deposit/Withdrawal At Custodian (DWAC) System, or by such other means of
delivery as may be mutually agreed upon by the parties hereto and, upon receipt of such Issuance
Shares, which in all cases shall be freely tradeable, transferable, registered shares in good
deliverable form, BNYMCM will deliver the related Issuance Price in same day funds delivered to an
account designated by the Company prior to the Settlement Date. If the Company defaults in its
obligation to deliver Issuance Shares on a Settlement Date, the Company agrees that it will (i)
hold BNYMCM harmless against any loss, claim, damage or expense (including, without limitation,
penalties, interest and reasonable legal fees and expenses), as incurred, arising out of or in
connection with such default by the Company, and (ii) pay to BNYMCM any Selling Commission to which
it would otherwise have been entitled absent such default. The parties hereto acknowledge and agree
that, in performing its obligations under this Agreement, BNYMCM may borrow Common Shares from
stock lenders, and may use the Issuance Shares to settle or close out such borrowings.
Section 2.05 Use of Free Writing Prospectus. Neither the Company nor BNYMCM has
prepared, used, referred to or distributed, or will prepare, use, refer to or distribute, without
the other party’s prior written consent, any “written communication” that constitutes a “free
writing prospectus” as such terms are defined in Rule 405 under the Securities Act with respect to
the offering contemplated by this Agreement (any such free writing prospectus being referred to
herein as a “Free Writing Prospectus”).
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Section 2.06 Alternative Sales Agent. The Company agrees that any offer to sell, any
solicitation of an offer to buy or any sales of Shares by the Company shall be effected by or
through only one of BNYMCM and the Alternative Sales Agent on any single given day, but in no event
more than one of BNYMCM and the Alternative Sales Agent, and the Company shall in no event request
that BNYMCM and the Alternative Sales Agent sell Shares on the same day.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to, and agrees with, BNYMCM that as of the Closing Date,
as of each Issuance Date, as of each Settlement Date and as of any time that the Registration
Statement or the Prospectus shall be amended or supplemented (each of the times referenced above is
referred to herein as a “Representation Date”), except as may be disclosed in the Prospectus
(including any documents incorporated by reference therein and any supplements thereto) on or
before a Representation Date:
Section 3.01 Listing, Filing and Effectiveness of Registration Statement. The Common
Shares are registered pursuant to Section 12(b) of the Exchange Act and are currently listed and
quoted on the Principal Market under the trading symbol “DDR”, and the Shares have been or will
have been listed on the Principal Market prior to delivery of the first Issuance Notice hereunder,
subject to notice of issuance. The Company (i) meets the requirements for the use of Form S-3
under the Securities Act and the rules and regulations thereunder for the registration of the
transactions contemplated by this Agreement and (ii) has been subject to the requirements of
Section 12 of the Exchange Act and has timely filed all the material required to be filed pursuant
to Sections 13 and 14 of the Exchange Act for a period of more than 12 calendar months (other than
a report that is required solely pursuant to Item 1.01, 1.02, 2.03, 2.04, 2.05, 2.06 or 4.02(a) of
Form 8-K).
The Company has filed with the Commission an automatic shelf registration statement on Form
S-3 (No. 333-162451), including the related preliminary prospectus or prospectuses. Such
registration statement registers the issuance and sale by the Company of the Shares under the
Securities Act. Such registration statement (and any further registration statements that may be
filed by the Company for the purpose of registering additional Shares to be sold pursuant to this
Agreement or for the purpose of complying with Rule 415(a)(5) under the Securities Act with respect
to the registration of the Shares under the Securities Act), including any information deemed to be
a part thereof pursuant to Rule 430B under the Securities Act, including all documents incorporated
or deemed to be incorporated therein by reference pursuant to Item 12 of Form S-3 under the
Securities Act as from time to time amended or supplemented, is herein referred to as the
“Registration Statement,” and the prospectus constituting a part of such registration statement,
together with the Prospectus Supplement and any pricing supplement filed with the Commission
pursuant to Rule 424(b) under the Securities Act relating to a particular issuance of the Issuance
Shares (each, an “Issuance Supplement”), including all documents incorporated or deemed to be
incorporated therein by reference pursuant to Item 12 of Form S-3 under the Securities Act, in each
case, as from time to time amended or supplemented, is referred to herein as the “Prospectus,”
except that if any revised prospectus is provided to BNYMCM by the Company for use in connection
with the offering of the Shares that is not required to be filed by the Company pursuant to Rule
424(b) under the Securities Act, the term “Prospectus” shall
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refer to such revised prospectus from and after the time it is first provided to BNYMCM for
such use. The Registration Statement at the time it originally became effective is herein called
the “Original Registration Statement.” The term “preliminary prospectus” means any preliminary
form of the Prospectus. As used in this Agreement, the terms “amendment” or “supplement” when
applied to the Registration Statement or the Prospectus shall be deemed to include the filing by
the Company with the Commission of any document under the Exchange Act after the date hereof that
is or is deemed to be incorporated therein by reference.
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” in the Registration Statement, any preliminary
prospectus 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 or otherwise deemed by the Securities Act to be a part of or
included in the Registration Statement, any preliminary prospectus or the Prospectus, as the case
may be, as of any specified date; and all references in this Agreement to amendments or supplements
to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to mean
and include, without limitation, the filing of any document under the Exchange Act which is or is
deemed to be incorporated by reference in or otherwise deemed by the rules and regulations under
the Securities Act to be a part of or included in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be, as of any specified date.
Section 3.02 WKSI; Ineligible Issuer Status and Automatic Shelf Registration
Statement. (i) At the time of filing the Original Registration Statement, (ii) at the time of
the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the
Securities Act (whether such amendment was by post-effective amendment, incorporated report filed
pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the
Company or any person acting on its behalf (within the meaning, for this clause only, of Rule
163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption
of Rule 163 under the Securities Act, and (iv) at the date hereof, the Company was and is a
“well-known seasoned issuer” as defined in Rule 405 under the Securities Act. The Registration
Statement is an “automatic shelf registration statement,” as defined in Rule 405, that initially
became effective within three years of the date hereof, and the Shares, since their registration on
the Registration Statement, have been and remain eligible for registration by the Company on a Rule
405 “automatic shelf registration statement.” The Company has not received from the Commission any
notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic
shelf registration statement form.
At the time of filing the Original Registration Statement, at the earliest time thereafter
that the Company or another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) under the Securities Act) of the Shares, and at the date hereof, the Company was not and
is not an “ineligible issuer,” as defined in Rule 405 under the Securities Act.
Section 3.03 Compliance with Securities Act Regulations. The Original Registration
Statement became effective upon filing under Rule 462(e) under the Securities Act on October 13,
2009, and any post-effective amendment thereto also became effective upon filing under Rule 462(e).
No stop order suspending the effectiveness of the Registration Statement has been
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issued under the Securities Act and no proceedings for that purpose have been instituted, are
pending or, to the knowledge of the Company, have been threatened.
At each deemed effective date with respect to BNYMCM pursuant to Rule 430B(f)(2) under the
Securities Act, at the Closing Date, at each Applicable Time within the applicable Selling Period,
at the Issuance Date with respect to the applicable Selling Period and at each Settlement Date with
respect to the applicable Selling Period, the Registration Statement, as amended as of such date,
complied, complies and will comply in all material respects with the requirements of the Securities
Act and the rules and regulations thereunder, and the Registration Statement, as amended as of such
date, did not, does not and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not
misleading (except that the foregoing shall not apply to those parts of the Registration Statement
that constitute the Statements of Eligibility (Forms T-1) under the Trust Indenture Act of 1939).
As of the Closing Date, as of the date of any filing of an Issuance Supplement pursuant to Rule
424(b) under the Securities Act and as of each Applicable Time within the applicable Selling
Period, the Prospectus, as amended as of such date, conformed, conforms and will conform in all
material respects to the requirements of the Securities Act and the rules and regulations
thereunder and, as of such respective dates, did not, does not and will not contain an untrue
statement of a material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
The representations and warranties in this Section 3.03 shall not apply to statements in or
omissions from the Registration Statement or any post-effective amendment thereto or the Prospectus
or any amendments or supplements thereto made in reliance upon and in conformity with information
furnished to the Company in writing by BNYMCM expressly for use in the Registration Statement or
any post-effective amendment thereto or the Prospectus or any amendment or supplement thereto.
Section 3.04 Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus, 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 Exchange Act and the rules and regulations thereunder, as applicable, and
none of such documents contained or will contain at such time an untrue statement of a material
fact or omitted or will omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which they were made, not
misleading.
Section 3.05 No Material Adverse Change in Business. Since the respective dates as of
which information is given in the Registration Statement and the Prospectus, except as otherwise
provided therein, (i) there has not occurred any material adverse change or any development that is
reasonably likely to have a material adverse effect on the financial condition or in the earnings
or business of the Company and its subsidiaries considered as one enterprise (a “Material Adverse
Effect”), (ii) 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 (iii) except for regular quarterly
distributions on the Common Shares, and regular distributions declared, paid or made
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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 shares.
Section 3.06 Financial Statements. The consolidated financial statements and
supporting schedules of the Company included in, or incorporated by reference into, the
Registration Statement and the Prospectus (in each case, other than any pro forma financial
information and projections) present fairly, in all material respects, 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; except as otherwise stated in the Registration Statement and
the Prospectus, said financial statements have been prepared in conformity with generally accepted
accounting principles in the United States (“GAAP”) applied on a consistent basis; and the
supporting schedules, if any, included in, or incorporated by reference into, the Registration
Statement and the Prospectus present fairly in all material respects the information required to be
stated therein. The selected financial data and the summary financial information included in, or
incorporated by reference into, the Registration Statement and the Prospectus (in each case, other
than any pro forma financial information and projections) present fairly, in all material respects,
the information shown therein and have been compiled on a basis consistent with that of the audited
financial statements included in, or incorporated by reference into, the Registration Statement and
the Prospectus. The statements of certain revenues and expenses of the properties acquired or
proposed to be acquired, if any, included in, or incorporated by reference into, the Registration
Statement and the Prospectus present fairly in all material respects the information set forth
therein and have been prepared, in all material respects, in accordance with the applicable
financial statement requirements of Rule 3-14 under the Exchange Act with respect to real estate
operations acquired or to be acquired. The pro forma financial statements and the other pro forma
financial information (including the notes thereto), included in, or incorporated by reference
into, the Registration Statement and the Prospectus present fairly, in all material respects, the
information set forth therein, have been prepared, in all material respects, in accordance with the
Commission’s rules and guidelines with respect to pro forma financial statements and have been
properly compiled on the basis described therein and the assumptions used in the preparation of
such pro forma financial statements and other pro forma financial information (including the notes
thereto) are reasonable and the adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein. All disclosures contained in the Registration
Statement and the Prospectus regarding “non-GAAP financial measures” (as such term is defined by
the rules and regulations of the Commission), if any, comply with Regulation G under the Exchange
Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable.
Section 3.07 Independent Accountants. PricewaterhouseCoopers LLP, who has expressed
its opinion on the audited financial statements and related schedules included in, or incorporated
by reference into, the Registration Statement and the Prospectus, is an independent registered
public accounting firm within the meaning of the Securities Act and the applicable rules and
regulations thereunder.
Section 3.08 Good Standing of the Company. 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
12
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, except where the
failure to so possess or comply would not have a Material Adverse 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.
Section 3.09 Subsidiaries. Each significant subsidiary, as defined in Rule 405 under
the Securities Act (each, a “Significant Subsidiary”), has been duly incorporated or formed and is
validly existing as a corporation, partnership or limited liability company in good standing under
the laws of the jurisdiction of its incorporation or formation, has corporate, partnership or
limited liability company power and authority to own, lease and operate its properties and to
conduct its business and is duly qualified as a foreign corporation, partnership or limited
liability company 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 be duly incorporated or formed, validly existing, have
such power or authority or be so qualified would not have a Material Adverse Effect.
Section 3.10 Capitalization. The issued and outstanding capital shares of the Company
have been duly authorized and validly issued and are fully paid and non-assessable and are not
subject to preemptive or other similar rights; and all of the issued and outstanding capital stock
of the Company’s Significant Subsidiaries have been duly authorized and validly issued, are fully
paid and non-assessable and are owned directly by the Company, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity, except for such security interests,
mortgages, pledges, liens, encumbrances, claims or equities that would not have a Material Adverse
Effect.
Section 3.11 Shares. The Shares (in an amount up to the Maximum Program Amount) have
been, or will have been at the time such Shares are issued, duly authorized by the Company for issuance and sale pursuant to this Agreement or the
Alternative Sales Agency Agreement, as the case may be, and, when issued and delivered pursuant to
this Agreement against payment of the consideration therefor specified herein, will be validly
issued, fully paid and non-assessable. The Shares conform in all material respects to all
statements relating thereto contained in the Prospectus. The issuance of the Shares is not subject
to preemptive or other similar rights.
Section 3.12 Litigation. 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 the Company or its subsidiaries, which is required to be disclosed in
the Prospectus (other than as disclosed therein), or which would have a Material Adverse Effect or
would materially and adversely affect the consummation of this Agreement or the transactions
contemplated herein.
Section 3.13 No Conflicts. Neither the Company nor any of its Significant
Subsidiaries is (i) in violation of its respective Articles of Incorporation or other
organizational document, or
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its Code of Regulations or bylaws, as the case may be (the “Code of Regulations”), or (ii) in
default in the performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it or its properties may be bound, where such
defaults in the aggregate would have a Material Adverse Effect; and the execution and delivery of
this Agreement and the consummation of the transactions contemplated herein have been duly
authorized by all necessary corporate action, and compliance by the Company with its obligations
hereunder 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 properties or assets of the
Company or its Significant Subsidiaries pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any of its Significant
Subsidiaries is a party or by which it may be bound or to which any of the properties or assets of
the Company or any of its Significant 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 the Company’s 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, except such as has been obtained or as may be required under the Securities Act, the
Exchange Act, state securities or blue sky laws or real estate syndication laws in connection with
the transactions contemplated hereby.
Section 3.14 Authorization. The Company has the full right, power and authority to
execute and deliver this Agreement and to perform its obligations hereunder; and all corporate
action required to be taken for the due and proper authorization, execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby has been duly and validly
taken.
Section 3.15 REIT Status. Starting with its taxable year ended December 31, 1993, the
Company has elected under Section 856(c) of the Internal Revenue Code of 1986, as amended (the
“Code”), to be taxed as a real estate investment trust (“REIT”), and such election has not been
revoked or terminated. The Company has qualified as a REIT for its taxable years ended December
31, 1993 through December 31 of its most recently completed taxable year and the Company has
operated and intends to continue to operate so as to qualify as a REIT thereafter.
Section 3.16 Investment Company Act. Neither the Company nor any of its subsidiaries
is, or will be immediately after the consummation of the transactions contemplated by this
Agreement, required to be registered as an investment company under the Investment Company Act of
1940, as amended.
Section 3.17 Registration Rights. Except as set forth in the Prospectus, there are no
persons with registration or other similar rights to have any securities registered pursuant to the
Registration Statement.
Section 3.18 No Stabilization or Manipulation. None of the Company or any of its
wholly-owned subsidiaries or, to the Company’s knowledge, any of the officers and directors thereof
acting on the Company’s or such subsidiaries’ behalf has taken, directly or indirectly, any action
resulting in a violation of Regulation M under the Exchange Act or designed to cause or
14
result in, or which has constituted or which reasonably might be expected to constitute, the
stabilization or manipulation of the price of the Common Shares.
Section 3.19 Title to Property. (i) Except as described in the Registration Statement
and the Prospectus, the Company or its subsidiaries have good and marketable title or leasehold
interest, as the case may be, to the portfolio properties, including, without limitation, shopping
centers and business centers (including, without limitation, centers owned through unconsolidated
joint ventures and others that are otherwise consolidated by the Company) and undeveloped land (the
“Portfolio Properties”) described in the Registration Statement and the Prospectus as being owned
by the Company or its subsidiaries (except with respect to properties described in the Registration
Statement and the Prospectus 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,
“Defects”), except where such Defects would not have a Material Adverse Effect; (ii) the joint
venture interest in each property described in the Registration Statement and the Prospectus, as
being held by the Company through a joint venture, is owned free and clear of all Defects except
for such Defects that would not have a Material Adverse Effect; (iii) all liens, charges,
encumbrances, claims or restrictions on or affecting the properties and assets of the Company or
its subsidiaries are disclosed in the Registration Statement and the Prospectus, except for any
such interests that would not have a Material Adverse Effect; and (iv) none of the Company, its
wholly-owned subsidiaries or, to the knowledge of the Company, any lessee of any of the Portfolio
Properties is in default under any of the leases governing the Portfolio Properties, except such
defaults that would not have a Material Adverse Effect, 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.
Section 3.20 Title Insurance. The Company or its subsidiaries have title insurance on
each of the Portfolio Properties (except with respect to each property described in the Prospectus
as held by the Company through a joint venture) in an amount at least equal to the greater of (i)
the cost of acquisition of such Portfolio Property and (ii) 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; the joint venture owning each
property described in the Prospectus 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 (i) the cost of
acquisition of such Portfolio Property by such joint venture and (ii) 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.
Section 3.21 Mortgages and Deeds of Trust. The notes secured by the mortgages and
deeds of trust encumbering the Portfolio Properties (except with respect to each property described
in the Prospectus as held by the Company through a joint venture) are not convertible, except where
the conversion of such notes would not have a Material Adverse Effect, and said mortgages and deeds
of trust are not cross-defaulted or cross-collateralized to any property that is not a Portfolio
Property, except where such cross-default or cross-collateralization, if triggered, would not have
a Material Adverse Effect.
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Section 3.22 Environmental Laws. The Company has no knowledge of (i) the unlawful
presence of any regulated hazardous substances, hazardous materials, toxic substances or waste
materials (collectively, “Hazardous Materials”) in violation of Environmental Laws (as hereinafter
defined) on any of the Portfolio Properties or (ii) any spills, releases, discharges or disposals
of Hazardous Materials in violation of Environmental Laws 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 have a Material Adverse Effect. In
connection with the construction on or operation and use of the Portfolio Properties, the Company
represents that, as of the Closing Date, the Company has no knowledge of any material failure to
comply with all applicable local, state and federal environmental laws, regulations, ordinances and
binding administrative and judicial orders relating to the generation, storage, handling, transport
and disposal of any Hazardous Materials (“Environmental Laws”) that would have a Material Adverse
Effect.
Section 3.23 Internal Accounting and Other Controls. The Company and its subsidiaries
maintain a system of internal accounting and other controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with management’s general or specific
authorizations, (ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain accountability for assets, (iii) access to
assets is permitted only in accordance with management’s general or specific authorization and (iv)
the recorded accounting for assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The Company has no knowledge of any
material weaknesses in its internal control over financial reporting and, except as described in
the Prospectus, since the end of the Company’s most recent audited fiscal year, there has been no
change in the Company’s internal control over financial reporting that has materially affected, or
is reasonably likely to materially affect, the Company’s internal control over financial reporting.
Section 3.24 Disclosure Controls. The Company has established and maintains
disclosure controls and procedures (as such term is defined in Rules 13a-15 and 15d-15 under the
Exchange Act) in accordance with the rules and regulations under the Sarbanes-Oxley Act of 2002,
the Securities Act and the Exchange Act.
Section 3.25 Absence of Labor Dispute. No labor problem or dispute with the employees
of the Company or the subsidiaries exists or, to the knowledge of the Company, is threatened or
imminent, that would have a Material Adverse Effect, except as set forth in or contemplated in the
Registration Statement and the Prospectus.
Section 3.26 Use of Proceeds. The Company will use the net proceeds from the offering
of Shares in the manner specified in the Prospectus under “Use of Proceeds.”
Section 3.27 No Finder’s Fees. Except as provided for in the Sales Agency Agreements,
the Company has not incurred (directly or indirectly) nor will it incur, directly or indirectly,
any liability for any broker’s, finder’s, financial advisor’s or other similar fee, charge or
commission in connection with this Agreement or the Alternative Sales Agency Agreement or the
transactions contemplated hereby or thereby.
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Section 3.28 Insurance. Each of the Company and its subsidiaries is insured by
insurers of recognized financial responsibility against such material losses and risks and in such
amounts as management of the Company believes to be prudent.
Section 3.29 Aggregate Market Value. As of the later of (i) the date that the
Registration Statement or the most recent post-effective amendment thereto became effective under
the Securities Act and (ii) the date that the Company’s Annual Report on Form 10-K for its most
recently completed fiscal year is filed with the Commission under the Exchange Act, the aggregate
market value of the voting shares held by non-Affiliates of the Company (computed using the price
at which the Common Shares were last sold as of a date within 60 days prior to such date) exceeds
$150 million.
Section 3.30 Anti-Corruption Laws. Neither the Company, nor any of its subsidiaries
nor any director or officer, nor to the knowledge of the Company, any agent or employee of the
Company or any of its subsidiaries has taken or will take any action in furtherance of an offer,
payment, promise to pay, or authorization or approval of the payment or giving of money, property,
gifts or anything else of value, directly or indirectly, to any “government official” (including
any officer or employee of a government or government-owned or controlled entity or of a public
international organization, or any person acting in an official capacity for or on behalf of any of
the foregoing, or any political party or party official or candidate for political office) to
unlawfully influence official action or secure an unlawful advantage; and the Company and its
wholly-owned subsidiaries have conducted their businesses in compliance with applicable
anti-corruption laws and have instituted and maintain and will continue to maintain policies and
procedures designed to promote and achieve compliance with such laws and with the representation
and warranty contained herein.
Section 3.31 Anti-Money Laundering Laws. The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance in all material respects with
all applicable financial recordkeeping and reporting requirements, including those of the Bank
Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and
the applicable anti-money laundering statutes of jurisdictions where the Company and its
subsidiaries conduct business, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator involving the Company or any
of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best
knowledge of the Company, threatened.
Section 3.32 OFAC. (A) Neither the Company nor any of its subsidiaries (collectively,
the “Entity”) or, to the knowledge of the Company, any director, officer, employee, agent,
affiliate or representative of the Entity, is a Person that is, or is owned or controlled by a
Person that is: (i) the subject of any sanctions (“Sanctions”) administered or enforced by the
U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), nor (ii) located,
organized or resident in a country or territory that is the subject of Sanctions (including,
without limitation, Burma/Myanmar, Cuba, Iran, North Korea, Sudan and Syria).
17
(B) The Company will not, directly or indirectly, use the proceeds of any offering of Shares,
or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture
partner or other Person: (i) to fund or facilitate any activities or business of or with any
Person or in any country or territory that, at the time of such funding or facilitation, is the
subject of Sanctions; or (ii) in any other manner that will result in a violation of Sanctions by
any Person (including any Person participating in any offering of Shares, whether as sales agent,
advisor, investor or otherwise).
(C) For the past five years, the Company has not knowingly engaged in and is not now knowingly
engaged in any dealings or transactions with any Person, or in any country or territory, that at
the time of the dealing or transaction is or was the subject of Sanctions.
ARTICLE IV
COVENANTS
The Company covenants and agrees during the term of this Agreement with BNYMCM as follows:
Section 4.01 Registration Statement and Prospectus. (i) To make no amendment or
supplement to the Registration Statement or the Prospectus (other than (x) an amendment or
supplement relating solely to the issuance or offering of securities other than the Shares and (y)
by means of a Current Report on Form 8-K filed with the Commission under the Exchange Act and
incorporated or deemed to be incorporated by reference in the Registration Statement or the
Prospectus; provided, that the Company will give prior written notice to BNYMCM of the
intention to file such report and describing the subject matter to be included in such report as
soon as reasonably practicable prior to the filing of such report) after the date of delivery of an
Issuance Notice and prior to the related Settlement Date at any time prior to having afforded
BNYMCM a reasonable opportunity to review and comment thereon; (ii) to prepare, with respect to any
Issuance Shares to be sold pursuant to this Agreement, an Issuance Supplement with respect to such
Shares in a form previously approved by BNYMCM and to file such Issuance Supplement pursuant to
Rule 424(b) under the Securities Act within the time period required thereby and to deliver such
number of copies of each Issuance Supplement to each exchange or market on which such sales were
effected, in each case unless delivery and filing of such an Issuance Supplement is not required by
applicable law or by the rules and regulations of the Commission; (iii) to make no amendment or
supplement to the Registration Statement or the Prospectus (other than (x) an amendment or
supplement relating solely to the issuance or offering of securities other than the Shares and (y)
by means of an Annual Report on Form 10-K, a Quarterly Report on Form 10-Q, a Current Report on
Form 8-K or a Registration Statement on Form 8-A or any amendments thereto filed with the
Commission under the Exchange Act and incorporated or deemed to be incorporated by reference into
the Registration Statement or the Prospectus except to the extent required by Section 4.01(i)) at
any time prior to having afforded BNYMCM a reasonable opportunity to review and comment thereon and
to advise BNYMCM promptly when any such amendment to the Registration Statement has been filed or
has become effective or any such amendment or supplement to the Prospectus has been filed with the
Commission; (iv) to file within the time periods required by the Exchange Act all reports and any
definitive proxy or information statements required to be filed by the Company with the
18
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is required under the Securities Act or under the blue sky or
securities laws of any jurisdiction in connection with the offering or sale of the Shares, and
during such same period to advise BNYMCM, promptly after the Company receives notice thereof, of
the issuance by the Commission of any stop order or of any order preventing or suspending the use
of any prospectus relating to the Shares, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, of any request by the Commission for the amendment or supplement of the Registration
Statement or the Prospectus or for additional information relating thereto, or the receipt of any
comments from the Commission with respect to the Registration Statement or the Prospectus; (v) in
the event of the issuance of any such stop order or of any such order preventing or suspending the
use of any such prospectus or suspending any such qualification during a Selling Period, to use
promptly its commercially reasonable efforts to obtain its withdrawal; in the event any such stop
order or such other order is issued outside a Selling Period, the Company will promptly advise
BNYMCM as to the issuance thereof and as to whether it intends to seek to obtain its withdrawal;
and (vi) to pay the required Commission filing fees relating to the Shares within the time required
by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise
in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by
updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either
in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus
Supplement or any Issuance Supplement filed pursuant to Rule 424(b)).
If, immediately prior to the third anniversary of the filing of the Original Registration
Statement, any of the Shares remain unsold under the Sales Agency Agreements, the Company will,
prior to such third anniversary and subject to this Section 4.01, file, if it has not already done
so, a new automatic shelf registration statement or shelf registration statement, as applicable,
relating to the Shares, and, if such registration statement is not an automatic shelf registration
statement, will use its reasonable best efforts to cause such registration statement to be declared
effective as soon as practicable, and will take all other reasonable actions necessary or
appropriate to permit the offering and sale of Shares to continue as contemplated in the expired
registration statement relating to such Shares and the Sales Agency Agreements. References herein
to the “Registration Statement” shall include such new automatic shelf registration statement or
shelf registration statement, as applicable.
Section 4.02 Blue Sky. To use its commercially reasonable efforts to cause the Shares
to be listed on the Principal Market and promptly from time to time to take such action as BNYMCM
may reasonably request to cooperate with BNYMCM in the qualification of the Shares for offering and
sale under the blue sky or securities laws of such jurisdictions within the United States of
America and its territories as BNYMCM may reasonably request and to use its commercially reasonable
efforts to comply with such laws so as to permit the continuance of sales and dealings therein for
as long as may be necessary to complete the sale of the Shares; provided, however,
that in connection therewith the Company shall not be required to qualify as a foreign corporation,
to file a general consent to service of process or to subject itself to taxation in respect of
doing business in any jurisdiction.
19
Section 4.03 Copies of Registration Statement and Prospectus. To furnish BNYMCM with
copies (which may be electronic copies) of the Registration Statement and each amendment
thereto, and with copies of the Prospectus and each amendment or supplement thereto in the
form in which it is filed with the Commission pursuant to the Securities Act or Rule 424(b) under
the Securities Act, both in such quantities as BNYMCM may reasonably request from time to time;
and, if the delivery of a prospectus is required under the Securities Act or under the blue sky or
securities laws of any jurisdiction at any time on or prior to the applicable Settlement Date for
any Selling Period in connection with the offering or sale of the Shares and if at such time any
event has occurred as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made
when such Prospectus is delivered, not misleading, or, if for any other reason it is necessary
during such same period to amend or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply with the Securities Act or
the Exchange Act, to notify BNYMCM and to request that BNYMCM suspend offers to sell Shares (and,
if so notified, BNYMCM shall cease such offers as soon as practicable); and if the Company decides
to amend or supplement the Registration Statement or the Prospectus as then amended or
supplemented, to advise BNYMCM promptly by telephone (with confirmation in writing or e-mail) and
to prepare and cause to be filed promptly with the Commission an amendment or supplement to the
Registration Statement or the Prospectus as then amended or supplemented that will correct such
statement or omission or effect such compliance; provided, however, that if during
such same period BNYMCM is required to deliver a prospectus in respect of transactions in the
Shares, the Company shall promptly prepare and file with the Commission such an amendment or
supplement.
Section 4.04 Rule 158. To make generally available to its holders of the Shares as
soon as practicable, but in any event not later than 18 months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Securities Act), an earnings statement
of the Company and its consolidated subsidiaries (which need not be audited) complying with Section
11(a) of the Securities Act and the rules and regulations of the Commission promulgated thereunder
(including the option of the Company to file periodic reports in order to make generally available
such earnings statement, to the extent that it is required to file such reports under Section 13 or
Section 15(d) of the Exchange Act, pursuant to Rule 158 under the Securities Act).
Section 4.05 Information. Except where such reports, communications, financial
statements or other information is available on the Commission’s Electronic Data Gathering Analysis
and Retrieval (“EDGAR”) system, to furnish to BNYMCM (in paper or electronic format) copies of all
publicly available reports or other communications (financial or other) furnished generally to
shareholders and filed with the Commission pursuant to the Exchange Act, and deliver to BNYMCM (in
paper or electronic format) (i) promptly after they are available, copies of any publicly available
reports and financial statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is listed; and (ii) such
additional publicly available information concerning the business and financial condition of the
Company as BNYMCM may from time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the
20
Company and its subsidiaries are consolidated
in reports furnished to its shareholders generally or to the Commission).
Section 4.06 Representations and Warranties. That each delivery of an Issuance Notice
and each delivery of Shares on a Settlement Date shall be deemed to be (i) an affirmation to BNYMCM
that the representations and warranties of the Company contained in or made pursuant to this
Agreement are true and correct as of the date of such Issuance Notice or of such Settlement Date,
as the case may be, as though made at and as of each such date, except as may be disclosed in the
Prospectus, and (ii) an undertaking that the Company will advise BNYMCM if any of such
representations and warranties will not be true and correct as of the Settlement Date for the
Shares relating to such Issuance Notice, as though made at and as of each such date (except that
such representations and warranties shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented relating to such Shares).
Section 4.07 Opinions of Counsel. That each time the Registration Statement or the
Prospectus is amended or supplemented (other than by means of (x) an amendment or supplement
relating solely to the offering of securities other than the Shares, (y) an Issuance Supplement or
(z) a Current Report on Form 8-K, unless, in the case of (y) or (z) filed during a Selling Period,
reasonably requested by BNYMCM within five days of the filing thereof with the Commission;
provided, that, notwithstanding the foregoing, such request must be made prior to the final
Settlement Date of the applicable Selling Period), including by means of an Annual Report on Form
10-K or a Quarterly Report on Form 10-Q filed with the Commission under the Exchange Act and
incorporated or deemed to be incorporated by reference into the Prospectus (each such amendment or
supplement, an “Opinion Trigger Event”), the Company shall at any time selected by the Company on
or following the date of such Opinion Trigger Event (except that during a Selling Period or any
other period in which a prospectus relating to the Issuance Shares is required to be delivered to
BNYMCM under the Securities Act, such time shall be as soon as practicable after each Opinion
Trigger Event that occurs during such Selling Period) furnish or cause to be furnished to BNYMCM a
written opinion of Jones Day, counsel to the Company, dated the date of delivery and in form
reasonably satisfactory to BNYMCM, (i) if such counsel has previously furnished an opinion to the
effect set forth in Exhibit B, to the effect that BNYMCM may rely on such previously furnished
opinion of such counsel to the same extent as though it were dated the date of such letter
authorizing reliance (except that the statements in such last opinion shall be deemed to relate to
the Registration Statement and the Prospectus as amended and supplemented to such date) or (ii) if
such counsel has not previously furnished an opinion to the effect set forth in Exhibit B, of the
same tenor as such an opinion of such counsel but modified to relate to the Registration Statement
and the Prospectus as amended and supplemented to such date; provided, however,
that the Company shall not be obligated to deliver any such opinion unless and until such time as
the Company delivers an Issuance Notice or the Opinion Trigger Event occurs during a Selling
Period.
Section 4.08 Comfort Letters. That each time the Registration Statement or the
Prospectus is amended or supplemented, including by means of an Annual Report on Form 10-K, a
Quarterly Report on Form 10-Q or a Current Report on Form 8-K (but only a Current Report on Form
8-K that contains financial statements filed with the Commission under the Exchange Act and
incorporated or deemed to be incorporated by reference into the Prospectus), other than an
amendment or supplement relating solely to the issuance or offering of securities other than
21
the
Shares, in any case to set forth financial information included in or derived from the Company’s
financial statements or accounting records (each such amendment or supplement, a “Comfort Letter
Trigger Event”), the Company shall at any time selected by the Company on or
following the date of such Comfort Letter Trigger Event (except that during a Selling Period
or any other period in which a prospectus relating to the Issuance Shares is required to be
delivered by BNYMCM under the Securities Act, such time shall be as soon as practicable after each
Comfort Letter Trigger Event that occurs during such Selling Period) cause the independent
registered public accounting firm who has audited the financial statements so included or
incorporated by reference in the Registration Statement to furnish to BNYMCM a letter, dated the
date of delivery, in form reasonably satisfactory to BNYMCM, of the same tenor as the letter
referred to in Section 5.01(g) but modified to relate to the Registration Statement and the
Prospectus as amended or supplemented to the date of such letter, with such changes as may be
necessary to reflect changes in the financial statements and other information derived from the
accounting records of the Company, to the extent such financial statements and other information
are available as of a date not more than five business days prior to the date of such letter;
provided, however, that, with respect to any financial information or other
matters, such letter may reconfirm as true and correct at such date as though made at and as of
such date, rather than repeat, statements with respect to such financial information or other
matters made in the letter referred to in Section 5.01(g) that was last furnished to BNYMCM;
provided, however, that the Company shall not be obligated to deliver any such
comfort letter unless and until such time as the Company delivers an Issuance Notice or the Comfort
Letter Trigger Event occurs during a Selling Period.
Section 4.09 Officers’ Certificate. That each time the Registration Statement or the
Prospectus is amended or supplemented (other than by means of (x) an amendment or supplement
relating solely to the offering of securities other than the Shares, (y) an Issuance Supplement or
(z) a Current Report on Form 8-K, unless, in the case of (y) or (z) filed during a Selling Period,
reasonably requested by BNYMCM within five days of the filing thereof with the Commission;
provided, that, notwithstanding the foregoing, such request must be made prior to the final
Settlement Date of the applicable Selling Period), including by means of an Annual Report on Form
10-K or a Quarterly Report on Form 10-Q filed with the Commission under the Exchange Act and
incorporated or deemed to be incorporated by reference into the Prospectus (each such amendment or
supplement, an “Officers’ Certificate Trigger Event”), the Company shall at any time selected by
the Company on or following the date of such Officers’ Certificate Trigger Event (except that
during a Selling Period or any other period in which a prospectus relating to the Issuance Shares
is required to be delivered by BNYMCM under the Securities Act, such time shall be as soon as
practicable after each Officers’ Certificate Trigger Event that occurs during such period) furnish
or cause to be furnished forthwith to BNYMCM a certificate, dated the date of delivery, in such
form and executed by such officers of the Company as is reasonably satisfactory to BNYMCM, of the
same tenor as the certificate referred to in Section 2.02(ii) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to such date;
provided, however, that the Company shall not be obligated to deliver any such
officers’ certificate unless and until such time as the Company delivers an Issuance Notice or the
Officers’ Certificate Trigger Event occurs during a Selling Period.
Section 4.10 Stand Off Agreement. Without the written consent of BNYMCM, the Company
will not, directly or indirectly, offer to sell, sell, contract to sell, grant any option to
22
sell
or otherwise dispose of any Common Shares or securities convertible into or exchangeable for Common
Shares (other than Shares hereunder), warrants or any rights to purchase or acquire Common Shares
during the period beginning on the first Trading Day immediately prior to the
date on which any Issuance Notice is delivered to BNYMCM hereunder and ending on the first
Trading Day immediately following the Settlement Date with respect to Shares sold pursuant to such
Issuance Notice (the “Stand Off Period”); provided, however, that such restriction
will not be required in connection with the Company’s issuance or sale of (i) Common Shares,
options to purchase Common Shares or Common Shares issuable upon the exercise of options or other
equity awards pursuant to any employee or director share option, incentive or benefit plan, share
purchase or ownership plan, long-term incentive plan, distribution reinvestment plan or other
compensation plan of the Company or its subsidiaries, whether currently existing or adopted
hereafter, (ii) Common Shares issuable upon conversion of securities or the exercise of warrants,
options or other rights disclosed in the Company’s Commission filings and (iii) Common Shares
issuable as consideration in connection with acquisitions of business, assets or securities of
other Persons.
Section 4.11 Market Activities. The Company will not, directly or indirectly, (i)
take any action designed to cause or result in, or that constitutes or might reasonably be expected
to constitute, the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares or (ii) during the Stand Off Period, sell, bid for or
purchase the Shares, or pay anyone any compensation for soliciting purchases of the Shares other
than BNYMCM.
Section 4.12 Maximum Program Amount. The Company will promptly notify BNYMCM and the
Alternative Sales Agent when the Maximum Program Amount has been sold pursuant to the Sales Agency
Agreements.
ARTICLE V
CONDITIONS TO DELIVERY OF ISSUANCE
NOTICES AND TO SETTLEMENT
Section 5.01 Conditions Precedent to the Right of the Company to Deliver an Issuance
Notice and the Obligation of BNYMCM to Sell Shares During the Selling Period(s). The right of
the Company to deliver an Issuance Notice hereunder is subject to the satisfaction, on the date of
delivery of such Issuance Notice, and the obligation of BNYMCM to sell Shares during the applicable
Selling Period is subject to the satisfaction, on the applicable Settlement Date, of each of the
following conditions:
(a) Effective Registration Statement and Authorizations. The Registration Statement
shall remain effective and sales of all of the Shares (including all of the Issuance Shares issued
with respect to all prior Issuances and all of the Issuance Shares expected to be issued in
connection with the Issuance specified by the current Issuance Notice) may be made by BNYMCM or the
Alternative Sales Agent thereunder, and (i) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that purpose shall have been
initiated or, to the Company’s knowledge, threatened by the Commission; (ii) no other suspension of
the use or withdrawal of the effectiveness of the Registration Statement or Prospectus shall exist;
(iii) all requests for additional information on
23
the part of the Commission shall have been
complied with to the reasonable satisfaction of BNYMCM; and (iv) no event specified in Section 4.03
shall have occurred and be continuing without the Company amending or supplementing the
Registration Statement or the Prospectus,
as the case may be, as provided in Section 4.03. The authorizations referred to in this
Agreement shall have been issued and shall be in full force and effect, and such authorizations
shall not be the subject of any pending or, to the Company’s knowledge, threatened application for
rehearing or petition for modification, and are sufficient to authorize the issuance and sale of
the Shares.
(b) Accuracy of the Company’s Representations and Warranties. The representations and
warranties of the Company shall be true and correct as of the Closing Date, as of the applicable
date referred to in Section 4.09 that is prior to such Issuance Date or Settlement Date, as the
case may be, and as of such Issuance Date and Settlement Date as though made at such time.
(c) Performance by the Company. The Company shall have performed, satisfied and
complied, in all material respects, with all covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by the Company at or prior to such date.
(d) No Injunction. No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental
authority of competent jurisdiction or any self-regulatory organization having authority over the
matters contemplated hereby that prohibits or directly and materially adversely affects any of the
transactions contemplated by this Agreement, and no proceeding shall have been commenced that may
have the effect of prohibiting or materially adversely affecting any of the transactions
contemplated by this Agreement.
(e) Material Adverse Changes. Since the Closing Date, no event that had or would
reasonably be expected to have a Material Adverse Effect shall have occurred that has not been
disclosed in the Registration Statement or the Prospectus (including the documents incorporated by
reference therein and any supplements thereto).
(f) No Suspension of Trading In or Delisting of Common Shares; Other Events. The
trading of the Common Shares (including without limitation the Issuance Shares) shall not have been
suspended by the Commission, the Principal Market or the Financial Industry Regulatory Authority
(“FINRA”) since the immediately preceding Settlement Date or, if there has been no Settlement Date,
the Closing Date, and the Shares (including without limitation the Issuance Shares) shall have been
approved for listing or quotation on and shall not have been delisted from the Principal Market.
There shall not have occurred (and be continuing in the case of occurrences under clauses (i) and
(ii) below) any of the following: (i) if trading generally on the Principal Market or The Nasdaq
Stock Market has been suspended or materially limited, or minimum and maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by either of such exchanges or by
such system or by order of the Commission, FINRA or any other governmental authority, or a material
disruption has occurred in commercial banking or securities settlement or clearance services in the
United States; (ii) a general moratorium on commercial banking activities in New York declared by
either federal or New York state authorities; or (iii) any material adverse change in the financial
markets in the United States or in the international financial markets, any outbreak or escalation
of hostilities or other
24
calamity or crisis involving the United States or the declaration by the
United States of a national emergency or war or any change or development involving a prospective
change in national or international political, financial or economic conditions, if the effect of
any such event specified
in this clause (iii) in the sole judgment of BNYMCM makes it impracticable or inadvisable to
proceed with the sale of Shares of the Company.
(g) Comfort Letter. The independent registered public accounting firm who has audited
the financial statements included or incorporated by reference in the Registration Statement shall
have furnished to BNYMCM a letter required to be delivered pursuant to Section 4.08 on or before
the date on which satisfaction of this condition is determined.
(h) No Defaults. The execution and delivery of this Agreement and the issuance and
sale of the Shares and the compliance by the Company with all of the provisions of this Agreement
will not result in the Company or any of the Significant Subsidiaries being in default of (whether
upon the passage of time, the giving of notice or both) its organizational and other governing
documents, or any provision of any security issued by the Company or any of its Significant
Subsidiaries, or of any agreement, instrument or other undertaking to which the Company or any of
its Significant Subsidiaries is a party or by which it or any of its properties or assets is bound,
or the applicable provisions of any law, statute, rule, regulation, order, writ, injunction,
judgment or decree of any court or governmental authority to or by which the Company, any of its
Significant Subsidiaries or any of their property or assets is bound, in each case which default,
either individually or in the aggregate, would reasonably be expected to have a Material Adverse
Effect.
(i) Trading Cushion. The Selling Period for any previous Issuance Notice delivered
under this Agreement or under the Alternative Sales Agency Agreement (as such terms are defined
therein) shall have expired.
(j) Maximum Issuance Amount. In no event may the Company issue an Issuance Notice to
sell an Issuance Amount to the extent that (I) the sum of (x) the Sales Price of the requested
Issuance Amount, plus (y) the aggregate Sales Price of all Shares issued under all previous
Issuances effected pursuant to this Agreement, together with the aggregate Sales Price of all
Shares issued under the Alternative Sales Agency Agreement, would exceed the Maximum Program Amount
or (II) the requested Issuance Amount exceeds $100,000,000 without the prior written consent of
BNYMCM.
(k) Prospectus Supplement and Issuance Supplement. (i) A supplement to the
prospectus included in the Registration Statement related to the offering and sale of Shares
pursuant to this Agreement (a “Prospectus Supplement”), in form and substance to be agreed upon by
the parties, setting forth information regarding this Agreement including, without limitation, the
Maximum Program Amount, shall have been filed with the Commission pursuant to Rule 424(b) under the
Securities Act within the time period required thereby and sufficient copies thereof delivered to
BNYMCM on or prior to the Issuance Date.
(ii) To the extent required by Section 4.01(ii), an Issuance Supplement, in form and
substance to be agreed upon by the parties hereto, shall have been filed with the Commission
25
pursuant to Rule 424(b) under the Securities Act within the time period required thereby and
sufficient copies thereof delivered to BNYMCM on or prior to the Issuance Date.
(l) Counsel Opinions. The counsel specified in Section 4.07, or other counsel
selected by the Company and reasonably satisfactory to BNYMCM, shall have furnished to BNYMCM their
written opinion required to be delivered pursuant to Section 4.07 on or before the date on which
satisfaction of this condition is determined. Notwithstanding the foregoing, in the event the Issuance Amount with respect to any Issuance Notice
exceeds, individually or in the aggregate with all prior Issuance Amounts under this Agreement
and/or the Alternative Sales Agency Agreement, the Initial Authorized Amount, then the Company
shall be obligated to furnish or cause to be furnished to BNYMCM, on the date of delivery of such
Issuance Notice, the written opinion of such counsel to the effect set forth in paragraph 4 of
Exhibit B. In addition, Sidley Austin llp, counsel for
BNYMCM and the Alternative Sales Agent, or other counsel selected by BNYMCM, shall have furnished
to BNYMCM its written opinion, dated on or before the date of the opinion(s) delivered pursuant to
Section 4.07, in form and substance satisfactory to BNYMCM and of the same tenor as the opinion
referred to in Section 2.02(iv) but modified as necessary to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of delivery of such opinion;
provided, that if such counsel has previously furnished an opinion of the same tenor as the
opinion referred to in Section 2.02(iv), such counsel shall have furnished to BNYMCM a letter or
letters to the effect that BNYMCM may rely on such previously furnished opinion of such counsel to
the same extent as though it were dated the date of such letter authorizing reliance (except that
the statements in such last opinion shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date). In connection with the foregoing, 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, and Sidley Austin llp may rely as to matters
involving the laws of the State of Ohio upon the opinion of even date of Jones Day.
(m) Officers’ Certificate. The Company shall have furnished or caused to be furnished
to BNYMCM an officers’ certificate executed by the President and Chief Executive Officer or any
Executive or Senior Vice President of the Company and by the Chief Financial Officer or the Chief
Accounting Officer of the Company, signing in such respective capacities, required to be delivered
pursuant to Section 4.09 on or before the date on which satisfaction of this condition is
determined, as to the matters specified in Section 2.02(ii). Notwithstanding the foregoing, in the event the Issuance Amount with respect to any Issuance Notice
exceeds, individually or in the aggregate with all prior Issuance Amounts under this Agreement
and/or the Alternative Sales Agency Agreement, the Initial Authorized Amount, then the Company
shall be obligated to furnish or cause to be furnished to BNYMCM, on the date of delivery of such
Issuance Notice, an officers’ certificate of the same tenor as the certificate referred to in
Section 2.02(ii).
(n) Other Documents. On the Closing Date and prior to each Issuance Date and
Settlement Date, BNYMCM and its counsel shall have been furnished with such documents as they may
reasonably request in order to evidence the accuracy and completeness of any of the representations
or warranties, or the fulfillment of the conditions, herein contained; and all proceedings taken by
the Company in connection with the issuance and sale of the Shares as herein contemplated shall be
satisfactory in form and substance to BNYMCM and its counsel.
Section 5.02 Documents Required to be Delivered on each Issuance Date. BNYMCM’s
obligation to sell Shares pursuant to an Issuance hereunder shall additionally be conditioned upon
the delivery to BNYMCM on or before the Issuance Date of a certificate in form and substance
reasonably satisfactory to BNYMCM, executed by the Chief Executive Officer, the President, the
Chief Financial Officer or the Chief Investment Officer of the Company, to the effect that all
conditions to the delivery of such Issuance Notice shall have been satisfied as at the date of such
certificate (which certificate shall not be required if the foregoing representations shall be set
forth in the Issuance Notice).
26
Section 5.03 Suspension of Sales. The Company or BNYMCM may, upon notice to the other
party hereto in writing, including by e-mail, or by telephone (confirmed immediately by verifiable
facsimile transmission), suspend any sale of Issuance Shares, and the Selling Period shall
immediately terminate; provided, however, that such suspension and termination
shall not
affect or impair either party’s obligations with respect to any Issuance Shares sold hereunder
prior to the receipt of such notice. The Company agrees that no such notice shall be effective
against BNYMCM unless it is made to one of the individuals named on Schedule 1 annexed hereto, as
such Schedule may be amended from time to time. BNYMCM agrees that no such notice shall be
effective against the Company unless it is made to one of the individuals named on Schedule 1
annexed hereto, as such Schedule 1 may be amended from time to time.
ARTICLE VI
INDEMNIFICATION AND CONTRIBUTION
Section 6.01 Indemnification by the Company. The Company agrees to indemnify and hold
harmless BNYMCM, its officers, directors, employees and agents, and each Person, if any, who
controls BNYMCM within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, together with each such Person’s respective officers, directors, employees and agents
(collectively, the “Controlling Persons”), from and against any and all losses, claims, damages or
liabilities, and any action or proceeding in respect thereof, to which BNYMCM, its officers,
directors, employees and agents, and any such Controlling Person may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or are based upon, any
untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement, the Prospectus, any Free Writing Prospectus or any other prospectus relating to the
Shares, or any amendment or supplement thereto, or any preliminary prospectus, or arise out of, or
are based upon, any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of the Prospectus or any
amendment or supplement thereto or any Free Writing Prospectus or preliminary prospectus, in light
of the circumstances in which they were made) not misleading, except insofar as the same are made
in reliance upon and in conformity with information related to BNYMCM or its plan of distribution
furnished in writing to the Company by or on behalf of BNYMCM expressly for use therein, and the
Company shall reimburse BNYMCM, its officers, directors, employees and agents, and each
Controlling Person for any reasonable legal and other expenses incurred thereby in investigating or
defending or preparing to defend against any such losses, claims, damages or liabilities, or
actions or proceedings in respect thereof, as such expenses are incurred.
Section 6.02 Indemnification by BNYMCM. BNYMCM agrees to indemnify and hold harmless
the Company, its officers, directors, employees and agents and each Person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, together with each such Person’s respective officers, directors, employees and agents, from
and against any losses, claims, damages or liabilities, and any action or proceeding in respect
thereof, to which the Company, its officers, directors, employees or agents, any such controlling
Person and any officer, director, employee or agent of such controlling Person may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as losses, claims, damages or
liabilities (or action or proceeding in respect thereof) arise out of, or are based upon, any
untrue statement or alleged untrue statement of a material fact contained in
27
the Registration
Statement, the Prospectus, any Free Writing Prospectus or any other prospectus relating to the
Shares, or any amendment or supplement thereto, or any preliminary prospectus, or arise out of, or
are based upon, any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of the
Prospectus, any Free Writing Prospectus or any other prospectus relating to the Shares, or any
amendment or supplement thereto or any preliminary prospectus, in light of the circumstances in
which they were made) not misleading in each case to the extent, but only to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission was made therein in
reliance upon and in conformity with written information related to BNYMCM or its plan of
distribution furnished to the Company by or on behalf of BNYMCM expressly for use therein and
BNYMCM shall reimburse the Company, its officers, directors, employees and agents and each
Controlling Person of the Company for any reasonable legal and other expenses incurred thereby in
investigating or defending or preparing to defend against any such losses, claims, damages or
liabilities, or actions or proceedings in respect thereof, as such expenses are incurred.
Section 6.03 Conduct of Indemnification Proceedings. Promptly after receipt by any
Person (an “Indemnified Party”) of notice of any claim or the commencement of any action in respect
of which indemnity may be sought pursuant to Section 6.01 or 6.02, the Indemnified Party shall, if
a claim in respect thereof is to be made against the Person against whom such indemnity may be
sought (an “Indemnifying Party”), notify the Indemnifying Party in writing of the claim or the
commencement of such action. In the event an Indemnified Party shall fail to give such notice as
provided in this Section 6.03 and the Indemnifying Party to whom notice was not given was unaware
of the proceeding to which such notice would have related and was materially prejudiced by the
failure to give such notice, the indemnification provided for in Section 6.01 or 6.02 shall be
reduced to the extent of any actual prejudice resulting from such failure to so notify the
Indemnifying Party; provided, that the failure to notify the Indemnifying Party shall not
relieve it from any liability that it may have to an Indemnified Party otherwise than under Section
6.01 or 6.02. If any such claim or action shall be brought against an Indemnified Party, the
Indemnifying Party shall be entitled to participate therein, and, to the extent that it wishes,
jointly with any other similarly notified Indemnifying Party, to assume the defense thereof with
counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party
to the Indemnified Party of its election to assume the defense of such claim or action, the
Indemnifying Party shall not be liable to the Indemnified Party for any legal or other expenses
subsequently incurred by the Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation; provided, that the Indemnified Party shall have the
right to employ separate counsel to represent the Indemnified Party, but the fees and expenses of
such counsel shall be for the account 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) such
Indemnified Party reasonably concludes that representation of both parties by the same counsel
would be inappropriate due to actual or potential conflicts of interest with the Company, it being
understood, however, that the Indemnifying Party shall not, in connection with any one such claim
or action or separate but substantially similar or related claims or actions in the same
jurisdiction arising out of the same general allegations or circumstances, be liable for the fees
and expenses of more than one separate firm of attorneys (together with appropriate local counsel)
at any time for all Indemnified Parties or for fees and expenses that are not reasonable. No
Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any
settlement of any claim or pending or threatened proceeding in
28
respect of which the Indemnified
Party is or could have been a party and indemnification could have been sought hereunder by such
Indemnified Party unless such settlement includes an unconditional release of each such Indemnified
Party from all losses, claims, damages or liabilities arising out of such claim or proceeding and
such settlement does not admit or
constitute an admission of fault, guilt, failure to act or culpability on the part of any such
Indemnified Party. Whether or not the defense of any claim or action is assumed by an Indemnifying
Party, such Indemnifying Party will not be subject to any liability for any settlement made without
its prior written consent, which consent will not be unreasonably withheld.
Section 6.04 Contribution. If for any reason the indemnification provided for in this
Article VI is unavailable to the Indemnified Parties in respect of any losses, claims, damages or
liabilities referred to herein, then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a
result of such losses, claims, damages or liabilities as between the Company, on the one hand, and
BNYMCM, on the other hand, in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and BNYMCM on the other hand from the offering of the
Shares to which such losses, claims, damages or liabilities relate. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable law, then each
Indemnifying Party shall contribute to such amount paid or payable by such Indemnifying Party in
such proportion as is appropriate to reflect not only such relative benefits but also the relative
fault of the Company and of BNYMCM in connection with such statements or omissions, as well as any
other relevant equitable considerations. The relative benefits received by the Company, on the one
hand, and by BNYMCM, on the other, shall be deemed to be in the same proportion as the total net
proceeds from the sale of Shares (before deducting expenses) received by the Company bear to the
total commissions received by BNYMCM in respect thereof. The relative fault of the Company, on the
one hand, and of BNYMCM, 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 on one
hand or by BNYMCM on the other hand, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and BNYMCM agree that it would not be just and equitable if contribution pursuant
to this Section 6.04 were determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of the losses, claims,
damages or liabilities referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any reasonable legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 6.04, BNYMCM shall in no
event be required to contribute any amount in excess of the commissions received by it under this
Agreement. 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. For purposes of this Section 6.04, each officer, director, employee
and agent of BNYMCM, and each Controlling Person, shall have the same rights to contribution as
BNYMCM, and each director of
29
the Company, each officer of the Company who signed the Registration
Statement, and each Person, if any, who controls the Company within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as
the Company.
The obligations of the Company and BNYMCM under this Article VI shall be in addition to any
liability that the Company and BNYMCM may otherwise have.
ARTICLE VII
TERMINATION
Section 7.01 Term. Subject to the provisions of this Article VII, the term of this
Agreement shall run until the end of the Commitment Period.
Section 7.02 Termination by BNYMCM. BNYMCM may terminate the right of the Company to
effect any Issuances under this Agreement upon one Trading Day’s notice if any of the following
events shall occur:
| |
(a) |
|
The Company or any Significant Subsidiary shall make an assignment for the
benefit of creditors, or apply for or consent to the appointment of a receiver or
trustee for it or for all or substantially all of its properties or business; or such a
receiver or trustee shall otherwise be appointed; |
| |
| |
(b) |
|
Bankruptcy, insolvency, reorganization or liquidation proceedings or other
proceedings for relief under any bankruptcy law or any law for the relief of debtors
shall be instituted by or against the Company or any of its Significant Subsidiaries; |
| |
| |
(c) |
|
The Company shall fail to maintain the listing of the Common Shares on the
Principal Market; |
| |
| |
(d) |
|
Since the Effective Date, there shall have occurred any event, development or
state of circumstances or facts that has had or would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect; or |
| |
| |
(e) |
|
BNYMCM shall have given ten days’ notice of its election to terminate this
Agreement, in its sole discretion, at any time. |
Section 7.03 Termination by the Company. The Company shall have the right, by giving
one Trading Day’s notice as hereinafter specified, to terminate this Agreement in its sole
discretion at any time; provided, however, that termination in no event shall be
effective prior to settlement of all outstanding sales of Issuance Shares under this Agreement.
After delivery of such notice, the Company shall no longer have any right to deliver any Issuance
Notices hereunder.
Section 7.04 Liability; Provisions that Survive Termination. If this Agreement is
terminated pursuant to this Article VII, such termination shall be without liability of any party
hereto to any other party hereto except as provided in Section 9.02 and for the Company’s
obligations in respect of all prior Issuance Notices; and provided, further, that
in any case the provisions of Article VI, Article VIII and Article IX shall survive termination of
this Agreement without limitation.
30
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES TO SURVIVE DELIVERY
All representations and warranties of the Company herein or in certificates delivered pursuant
hereto shall remain operative and in full force and effect regardless of (i) any investigation made
by or on behalf of BNYMCM and its officers, directors, employees and agents and any Controlling
Persons, (ii) delivery and acceptance of the Shares and payment therefor or (iii) any termination
of this Agreement.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Press Releases and Disclosure. The Company may issue a press release
describing the material terms of the transactions contemplated hereby as soon as practicable
following the Closing Date, and may file with the Commission a Current Report on Form 8-K
describing the material terms of the transactions contemplated hereby, and the Company shall
consult with BNYMCM prior to making such disclosures, and the parties hereto shall use all
commercially reasonable efforts, acting in good faith, to agree upon a text for such disclosures
that is reasonably satisfactory to all parties hereto. No party hereto shall issue thereafter any
press release or like public statement (including, without limitation, any disclosure required in
reports filed with the Commission pursuant to the Exchange Act) related to this Agreement or any of
the transactions contemplated hereby that includes information related to this Agreement or
transactions contemplated hereby that has not been previously disclosed without the prior written
approval of the other party hereto, except as may be necessary or appropriate in the opinion of the
party seeking to make disclosure to comply with the requirements of applicable law or stock
exchange rules. If any such press release or like public statement is so required, the party making
such disclosure shall consult with the other party prior to making such disclosure, and the parties
shall use all commercially reasonable efforts, acting in good faith, to agree upon a text for such
disclosure that is reasonably satisfactory to all parties hereto.
Section 9.02 Expenses. The Company covenants and agrees with BNYMCM that the Company
shall pay or cause to be paid the following: (i) the fees, disbursements and expenses of the
Company’s counsel and accountants in connection with the preparation, printing and filing of the
Registration Statement, the Prospectus and any Issuance Supplements and all other amendments and
supplements thereto and the mailing and delivery of copies thereof to BNYMCM and the Principal
Market; (ii) BNYMCM’s reasonable documented out-of-pocket expenses (up to, together with the
Alternative Sales Agent’s reasonable documented out-of-pocket expenses incurred in connection with
the Alternative Sales Agency Agreement, $40,000 in the aggregate) including the reasonable fees,
disbursements and expenses of counsel for BNYMCM (including in connection with the qualification of
the Shares for offering and sale under state securities laws as provided in Section 4.02 and in
connection with preparing any blue sky survey), incurred in connection with this Agreement and the
Registration Statement and any Issuances hereunder and ongoing services in connection with the
transactions contemplated hereunder; (iii) the cost (other than those expenses described in clause
(ii) above) of printing, preparing or reproducing this Agreement and any other documents in
connection with the offering, purchase, sale and delivery of the Shares; (iv) all filing fees and
expenses (other than those expenses described in clause (ii) above) in connection with the
qualification of the Shares
31
for offering and sale under state securities laws as provided in Section 4.02; (v) the cost of
preparing the Shares; (vi) the fees and expenses of any transfer agent of the Company; (vii) the
cost of providing any CUSIP or other identification numbers for the Shares; (viii) the fees and
expenses incurred in connection with the listing or qualification of the Shares on the Principal
Market and any filing fees incident to any required review by FINRA of the terms of the sale of the
Shares in connection with this Agreement and the Registration Statement; and (ix) all other costs
and expenses incident to the performance of the Company’s obligations hereunder that are not
otherwise specifically provided for in this Section. During the term of this Agreement, the
Company shall pay BNYMCM’s attorneys’ fees for its quarterly or other periodic due diligence review
in connection with the delivery by the Company of an Issuance Notice and review of the opinions,
letters and certificates delivered pursuant to Sections 4.07, 4.08 and 4.09 and related matters
(amount not to exceed, together with the Alternative Sales Agent’s attorneys’ fees for its
quarterly or other periodic reviews pursuant to the Alternative Sales Agency Agreement, $15,000 in
the aggregate for any fiscal quarter, unless otherwise agreed by the parties hereto).
Section 9.03 Notices. All notices, demands, requests, consents, approvals or other
communications required or permitted to be given hereunder or that are given with respect to this
Agreement shall be in writing and shall be personally served or deposited in the mail, registered
or certified, return receipt requested, postage prepaid or delivered by reputable air courier
service with charges prepaid, or transmitted by hand delivery, telegram, telex or facsimile,
addressed as set forth below, or to such other address as such party shall have specified most
recently by written notice: (i) if to the Company to: Developers Diversified Realty Corporation at
3300 Enterprise Parkway, Beachwood, Ohio 44122, Attention: David J. Oakes, Senior Executive Vice
President and Chief Financial Officer, Facsimile No.: 216-755-3453, E-mail: doakes@ddrc.com, with
a copy (which shall not constitute notice) to: Developers Diversified Realty Corporation at 3300
Enterprise Parkway, Beachwood, Ohio 44122, Attention: David E. Weiss, Senior Vice President and
General Counsel, Facsimile No.: 216-755-1650, E-mail: dweiss@ddrc.com, and to: Jones Day, North
Point, 901 Lakeside Avenue, Cleveland, Ohio 44114, Attention: Michael J. Solecki, Facsimile No.:
216-579-0212, E-mail: mjsolecki@jonesday.com; and (ii) if to BNYMCM, BNY Mellon Capital Markets,
LLC, 32 Old Slip, 15th Floor, New York, New York 10286, Attention: Daniel C. de Menocal, Jr.,
Facsimile No.: 212-804-5832, E-mail: daniel.de.menocal@bnymellon.com, with a copy (which
shall not constitute notice) to: Sidley Austin llp, 787 Seventh Avenue, New York, New
York 10019, Attention J. Gerard Cummins, Facsimile No.: 212-839-5599, E-mail:
jcummins@sidley.com. Except as set forth in Sections 2.03, 4.03 and 5.03, notice shall be deemed
given on the date of service or transmission if personally served or transmitted by telegram, telex
or confirmed facsimile. Notice otherwise sent as provided herein shall be deemed given on the third
business day following the date mailed or on the next business day following delivery of such
notice to a reputable air courier service for next day delivery.
Section 9.04 Entire Agreement. This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements, representations, understandings, negotiations and discussions between
the parties hereto, whether oral or written, with respect to the subject matter hereof.
Section 9.05 Amendment and Waiver. This Agreement may not be amended, modified,
supplemented, restated or waived except by a writing executed by the party against which such
32
amendment, modification, supplement, restatement or waiver is sought to be enforced. Waivers
may be made in advance or after the right waived has arisen or the breach or default waived has
occurred. Any waiver may be conditional. No waiver of any breach of any agreement or provision
herein contained shall be deemed a waiver of any preceding or succeeding breach thereof nor of any
other agreement or provision herein contained. No waiver or extension of time for performance of
any obligations or acts shall be deemed a waiver or extension of the time for performance of any
other obligations or acts.
Section 9.06 No Assignment; No Third Party Beneficiaries. This Agreement and the
rights, duties and obligations hereunder may not be assigned or delegated by the Company or BNYMCM.
Any purported assignment or delegation of rights, duties or obligations hereunder shall be void and
of no effect. This Agreement and the provisions hereof shall be binding upon and shall inure to the
benefit of each of the parties hereto and their respective successors and, to the extent provided
in Article VI, the Controlling Persons, officers, directors, employees and agents referred to in
Article VI. This Agreement is not intended to confer any rights or benefits on any Persons other
than as set forth in Article VI or elsewhere in this Agreement.
Section 9.07 Severability. This Agreement shall be deemed severable, and the
invalidity or unenforceability of any term or provision hereof shall not affect the validity or
enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of
any such invalid or unenforceable term or provision, the parties hereto intend that there shall be
added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable
provision as may be possible and be valid and enforceable.
Section 9.08 Further Assurances. Each party hereto, upon the request of any other
party hereto, shall do all such further acts and execute, acknowledge and deliver all such further
instruments and documents as may be necessary or desirable to carry out the transactions
contemplated by this Agreement.
Section 9.09 Titles and Headings. Titles, captions and headings of the articles and
sections of this Agreement are for convenience of reference only and shall not affect the
construction of any provision of this Agreement. Unless indicated otherwise, references to
articles, sections, subsections and exhibits throughout this Agreement are to the corresponding
articles, sections, subsections and exhibits of this Agreement.
Section 9.10 Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY,
INTERPRETED UNDER AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS THEREOF. Any action, suit or proceeding to enforce any
provision of, or based on any matter arising out of or in connection with, this Agreement or the
transactions contemplated hereby shall be brought in any federal court located in the Southern
District of the State of New York or any New York state court located in the Borough of Manhattan,
and the Company agrees to the exclusive jurisdiction of such courts (and of the appropriate
appellate courts therefrom) and each party hereto waives (to the full extent permitted by law) any
objection it may have to the laying of venue of any such
33
suit, action or proceeding in any such court or that any such suit, action or proceeding has
been brought in an inconvenient forum.
Section 9.11 Waiver of Jury Trial. The Company and BNYMCM each hereby irrevocably
waives any right it may have to a trial by jury in respect of any claim based upon or arising out
of this Agreement or any transaction contemplated hereby.
Section 9.12 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which taken together shall
constitute one and the same instrument. Delivery of an executed Agreement by one party to the
other may be made by facsimile transmission.
Section 9.13 Adjustments for Share Splits, etc. The parties hereto acknowledge and
agree that share related numbers contained in this Agreement (including the minimum Floor Price)
shall be equitably adjusted to reflect share splits, share dividends, reverse share splits,
combinations and similar events.
Section 9.14 No Fiduciary Duty. The Company acknowledges and agrees that BNYMCM is
acting solely in the capacity of an arm’s length contractual counterparty to the Company with
respect to the offering of Shares contemplated hereby (including in connection with determining the
terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the
Company or any other Person and will not claim that BNYMCM is acting in such capacity in connection
with the offering of the Shares contemplated hereby. Additionally, BNYMCM is not advising the
Company or any other person as to any legal, tax, investment, accounting or regulatory matters in
any jurisdiction with respect to the offering of Shares contemplated hereby. The Company shall
consult with its own advisors concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions contemplated hereby, and BNYMCM shall
have no responsibility or liability to the Company with respect thereto. Any review by BNYMCM of
the Company, the transactions contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of BNYMCM and shall not be on behalf of the Company.
34
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by the
undersigned, thereunto duly authorized, as of the date first set forth above.
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DEVELOPERS DIVERSIFIED REALTY CORPORATION
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By: |
/s/ David J. Oakes |
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Name: |
David J. Oakes, CFA |
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Title: |
Senior Executive Vice President & Chief Financial Officer |
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BNY MELLON CAPITAL
MARKETS, LLC
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By: |
/s/ Daniel C. de Menocal, Jr. |
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Name: |
Daniel C. de Menocal, Jr. |
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Title: |
Managing Director |
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35
EXHIBIT A
ISSUANCE NOTICE
[Date]
BNY Mellon Capital Markets, LLC
32 Old Slip, 15th Floor
New York, New York 10286
Attn: Daniel C. de Menocal, Jr.
Reference is made to the Sales Agency Financing Agreement between Developers Diversified Realty
Corporation (the “Company”) and BNY Mellon Capital Markets, LLC dated as of April 28, 2011. The
Company confirms that all conditions to the delivery of this Issuance Notice are satisfied as of
the date hereof.
Effective Date of Delivery of Issuance Notice (determined pursuant to Section 2.03(b)):
_______________________
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Number of Days in Selling Period:
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First Date of Selling Period:
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Last Date of Selling Period:
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Settlement Date(s):
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Issuance Amount:
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$ |
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Floor Price Limitation (Adjustable by Company during the Selling Period, and in no event less than
$1.00 without the prior written consent of BNYMCM, which consent may be withheld in BNYMCM’s sole
discretion): $ ____ per share
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DEVELOPERS DIVERSIFIED REALTY CORPORATION
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By: |
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A-1
EXHIBIT B
Form of Opinion of Jones Day, Counsel for the Company
B-1
SCHEDULE 1
BNYMCM
Daniel C. de Menocal, Jr.
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Telephone:
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(212) 804-5094 |
Facsimile:
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(212) 804-5832 |
E-mail:
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daniel.de.menocal@bnymellon.com |
Address:
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32 Old Slip, 15th Floor |
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New York, New York 10286 |
Harry Skirlis
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Telephone:
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(201) 680-4494 |
Facsimile:
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(201) 680-4654 |
E-mail:
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harold.skirlis@bnymellon.com |
DEVELOPERS DIVERSIFIED REALTY CORPORATION
David J. Oakes
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Telephone:
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(216) 755-6453 |
Facsimile:
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(216) 755-3453 |
E-mail:
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doakes@ddrc.com |
Address:
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3300 Enterprise Parkway |
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Beachwood, Ohio 44122 |
Tammy Battler
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Telephone:
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(216) 755-5770 |
Facsimile:
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(216) 755-1700 |
E-mail:
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tbattler@ddrc.com |
Address:
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3300 Enterprise Parkway |
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Beachwood, Ohio 44122 |
S-1