Attached files
file | filename |
---|---|
EX-5.1 - EX-5.1 - SITE Centers Corp. | l42503exv5w1.htm |
EX-1.2 - EX-1.2 - SITE Centers Corp. | l42503exv1w2.htm |
EX-1.1 - EX-1.1 - SITE Centers Corp. | l42503exv1w1.htm |
8-K - FORM 8-K - SITE Centers Corp. | l42503e8vk.htm |
Exhibit 8.1
JONES DAY
77 west wacker chicago, illinois 60601-1692
TELEPHONE: (312) 782-3939 FACSIMILE: (312) 782-8585
TELEPHONE: (312) 782-3939 FACSIMILE: (312) 782-8585
April 28, 2011
Developers Diversified Realty Corporation
3300 Enterprise Parkway
Beachwood, Ohio 44122
3300 Enterprise Parkway
Beachwood, Ohio 44122
Re: | Up to $200,000,000 of Common Shares, $0.10 Par Value Per Share, To Be Offered Pursuant to the Sales Agency Financing Agreements |
Ladies and Gentlemen:
We have acted as special tax counsel for Developers Diversified Realty Corporation, an Ohio
corporation (the Company), in connection with the issuance and sale of up to $200,000,000
of common shares, $0.10 par value per share (the Common Shares), of the Company pursuant
to the Sales Agency Financing Agreement, dated as of April 28, 2011 (the BNYMCM
Agreement), by and between the Company and BNY Mellon Capital Markets, LLC, and the Sales
Agency Financing Agreement, dated as of April 28, 2011, by and between the Company and KeyBanc
Capital Markets Inc. (together with the BNYMCM Agreement, the Sales Agency Financing
Agreements). The Common Shares may be offered and sold from time to time pursuant to Rule 415
under the Securities Act of 1933 (the Act) in accordance with the terms of the Sales
Agency Agreements. The issuance of the Common Shares is discussed in the prospectus supplement
dated April 28, 2011 (the Prospectus Supplement), which supplements the prospectus dated
October 13, 2009 (the Prospectus). The Prospectus was part of the Companys Registration
Statement No. 333-162451 on Form S-3 (the Registration Statement), filed by the Company
on October 13, 2009, with the United States Securities and Exchange Commission (the SEC)
pursuant to the Act.
You have requested our opinion concerning certain federal income tax considerations relating
to the Company, including with respect to its election to be taxed as a real estate investment
trust under the Internal Revenue Code of 1986, as amended (the Code). In connection with
our opinion, we have reviewed and are relying upon (i) the Registration Statement (including the
exhibits thereto), the Prospectus and the Prospectus Supplement, (ii) the Second Amended and
Restated Articles of Incorporation of the Company as in effect on the date hereof, (iii) the
Amended Code of Regulations of the Company as in effect on the date hereof, (iv) the Sales Agency
Financing Agreements, and (v) such other documents, records and instruments that we have deemed
necessary or appropriate for purposes of our opinion, and have assumed their accuracy as of the
date hereof. For purposes of our review, we have also assumed, with your consent, the authenticity
of all documents we have examined as well as the genuineness of signatures and the validity of the
indicated capacity of each party executing a document. In addition, we have relied upon the
factual representations contained in a certificate,
ATLANTA BEIJING BRUSSELS CHICAGO CLEVELAND COLUMBUS DALLAS DUBAI FRANKFURT HONG KONG HOUSTON
IRVINE LONDON LOS ANGELES MADRID MEXICO CITY MILAN MOSCOW MUNICH NEW DELHI NEW YORK PARIS
PITTSBURGH SAN DIEGO SAN FRANCISCO SHANGHAI SILICON VALLEY SINGAPORE SYDNEY TAIPEI TOKYO WASHINGTON
IRVINE LONDON LOS ANGELES MADRID MEXICO CITY MILAN MOSCOW MUNICH NEW DELHI NEW YORK PARIS
PITTSBURGH SAN DIEGO SAN FRANCISCO SHANGHAI SILICON VALLEY SINGAPORE SYDNEY TAIPEI TOKYO WASHINGTON
JONES DAY
Developers Diversified Realty Corporation
April 28, 2011
Page 2
April 28, 2011
Page 2
dated as of the date hereof (the Officers Certificate), executed by a duly
appointed officer of the Company, setting forth certain representations relating to the
organization and operation of the Company.
We have made such investigations of law and fact as we have deemed appropriate as a basis for
our opinion. However, for purposes of our opinion, we have not made an independent investigation
of the facts set forth in the Officers Certificate. Our opinion is conditioned on the accuracy
and completeness of the factual representations made in the Officers Certificate and in the
Registration Statement (including the Prospectus and Prospectus Supplement) and any change or
inaccuracy in the factual representations referred to in the Registration Statement (including the
Prospectus and Prospectus Supplement) or the Officers Certificate may affect our conclusions set
forth herein.
Our opinion is based upon current provisions of the Code, the legislative history thereto, the
existing applicable United States federal income tax regulations promulgated or proposed under the
Code, published judicial authority and currently effective published rulings and administrative
pronouncements of the Internal Revenue Service (the IRS), all of which are subject to
change at any time, possibly with retroactive effect, and subject to differing interpretations.
Based upon and subject to the foregoing and the qualifications set forth below, it is our
opinion that
(1) | During the period commencing with the Companys taxable year ended December 31, 1993 through its taxable year ended December 31, 2010, the Company was organized and has operated in conformity with the requirements for qualification and taxation as a real estate investment trust (a REIT) under the Code, and the Companys current and proposed method of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for its taxable year ending December 31, 2011 and for future taxable years; and | ||
(2) | The statements set forth in the Prospectus Supplement under the caption Certain Federal Income Tax Considerations, to the extent they describe United States federal income tax laws or legal conclusions with respect thereto, are accurate summaries of the matters described therein in all material respects. |
Other than as expressly stated above, we express no opinion on any issue relating to the
Company or to any investment therein. The qualification and taxation of the Company as a REIT
depend upon the ability of the Company to meet on a continuing basis, through actual annual
operating and other results, the various requirements under the Code and the Treasury
JONES DAY
Developers Diversified Realty Corporation
April 28, 2011
Page 3
April 28, 2011
Page 3
Regulations promulgated thereunder and described in the Prospectus Supplement with regard to,
among other things, the sources of its income, the composition of its assets, the level of its
distributions to holders of the Companys shares and the diversity of ownership of the Companys
shares. Jones Day will not review the compliance of the Company with these requirements on a
continuing basis. Accordingly, no assurance can be given that the actual results of the operations
of the Company, the sources of its income, the nature of its assets, the level of the Companys
distributions to shareholders and the diversity of ownership of the Companys shares for 2011 and
subsequent taxable years will satisfy the requirements under the Code and the applicable Treasury
Regulations for qualification and taxation as a REIT.
In rendering our opinion, we are expressing our views only as to the United States federal
income tax laws. We do not undertake to advise you of the effect of changes in matters of law or
fact occurring subsequent to the date hereof. This opinion is not binding upon the IRS or the
courts. There can be no assurance, and none is hereby given, that the IRS will not take a position
contrary to one or more of the positions reflected in the foregoing opinion or that our opinion
will be upheld by the courts if challenged by the IRS.
We hereby consent to the filing of this opinion as Exhibit 8.1 to the Registration Statement
filed by the Company to effect registration of the Common Shares under the Act and to the reference
to us under the caption Certain U.S. Federal Income Tax Considerations in the Prospectus
Supplement constituting a part of such Registration Statement. In giving such consent, we do not
hereby admit that we are included in the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the SEC promulgated thereunder.
Very truly yours,
/s/ Jones Day