As filed with the Securities and Exchange Commission on August 11, 2010
Registration Statement No. 333-165999
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment
No. 7
to
FORM S-11
FOR REGISTRATION
UNDER
THE SECURITIES ACT OF 1933
OF CERTAIN REAL ESTATE COMPANIES
DLC Realty
Trust, Inc.
(
Exact name of registrant as specified in its governing instruments
)
580 White Plains Road
Tarrytown, New York 10591
(914) 631-3131
(Address, including Zip Code, and Telephone Number, including Area Code, of Registrants Principal Executive Offices)
Adam Ifshin
Chief Executive Officer and President
c/o DLC Realty Trust, Inc.
580 White Plains Road
Tarrytown, New York 10591
(914) 631-3131
(Name, Address, including Zip Code, and Telephone Number, including Area Code, of Agent for Service)
Copies to:
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Larry P. Medvinsky, Esq.
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Ettore A. Santucci, Esq.
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Jason D. Myers, Esq.
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Daniel P. Adams, Esq.
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Clifford Chance US LLP
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Goodwin Procter LLP
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31 West 52
nd
Street
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Exchange Place, 53 State Street
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New York, New York 10019
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Boston, Massachusetts 02109
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Tel: (212) 878-8000
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Tel: (617) 570-1000
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Fax: (212) 878-8375
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Fax: (617) 523-1231
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Approximate
date of commencement of proposed sale to the public
: As soon as practicable after the effective date of this registration statement.
If any of the Securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act, check the following box:
¨
If this Form is filed to
register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering.
¨
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering.
¨
If this Form is a post-effective amendment filed
pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering.
¨
If delivery of the prospectus is expected to be made
pursuant to Rule 434, check the following box.
¨
Indicate by check
mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller
reporting company in Rule 12b-2 of the Exchange Act. (Check One):
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
x
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Smaller Reporting Company
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(Do not check if a smaller reporting company)
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The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until
the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration
Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
Explanatory Note
This Amendment No. 7 is being filed solely to refile Exhibit 10.8 hereto. No changes have been made
to the preliminary prospectus constituting Part I of the Registration Statement. Accordingly, such
preliminary prospectus has not been included herein.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 31.
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Other Expenses of Issuance and Distribution.
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The following table shows the fees and expenses, other than underwriting discounts and commissions, to be paid by us in connection with
the sale and distribution of the securities being registered hereby. All amounts except the Securities and Exchange Commission, or the SEC, registration fee are estimated.
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Securities and Exchange Commission registration fee
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$
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42,637
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Financial Industry Regulatory Authority, Inc. filing fee
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58,000
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New York Stock Exchange listing fee
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250,000
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Legal fees and expenses (including Blue Sky fees)
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4,790,000
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Accounting fees and expenses
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6,668,000
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Printing and engraving expenses
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500,000
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Transfer agent fees and expenses
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50,000
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Miscellaneous
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485,960
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Total
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$
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12,844,597
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Item 32.
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Sales to Special Parties.
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None.
Item 33.
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Recent Sales of Unregistered Securities.
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On March 8, 2010, Adam Ifshin, purchased 1,000 shares of our common stock for a purchase price of $1,000 in a private offering.
We will repurchase these shares at cost upon completion of this offering. Such issuance was exempt from the registration requirements of the Securities Act pursuant to Section 4(2) thereof.
Prior to or concurrently with the completion of this offering, certain holders of interests in our predecessor will exchange, through a
series of mergers and other transactions, their equity interests in our predecessor for 18,713,015 operating partnership units and 2,375,000 shares of our common stock. All of such persons had a substantive, pre-existing relationship with us and
irrevocably committed to the transfer of such interests prior to the initial filing of this registration statement, and no more than 35 of such persons are not accredited investors as defined under Regulation D of the Securities Act.
Each such person is a holder of an interest in our predecessor and we have dealt with such persons throughout the tenure of such persons ownership of interests in our predecessor. The issuance of such operating partnership units and common
stock was effected in reliance upon an exemption from registration provided by Section 4(2) under the Securities Act in which no general solicitation was undertaken. All such persons were provided with and had access to information about the
issuers of these securities including business objectives and historical property and financial information.
Item 34.
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Indemnification of Directors and Officers.
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Maryland law permits a Maryland corporation to include in its charter a provision limiting the liability of its directors and officers to
the corporation and its stockholders for money damages except for liability resulting from actual receipt of an improper benefit or profit in money, property or services or active and deliberate dishonesty established by a final judgment as being
material to the cause of action. Our charter contains such a provision that eliminates the liability of our directors and officers to the maximum extent permitted by Maryland law.
The MGCL requires us (unless our charter provides otherwise, which our charter does not) to indemnify a director or officer who has been
successful, on the merits or otherwise, in the defense of any proceeding to which
II-1
he or she is made or threatened to be made a party by reason of his or her service in that capacity. The MGCL permits us to indemnify our present and former directors and officers, among others,
against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made or threatened to be made a party by reason of their service in those or other capacities
unless it is established that:
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the act or omission of the director or officer was material to the matter giving rise to the proceeding and (1) was committed in bad faith or
(2) was the result of active and deliberate dishonesty;
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the director or officer actually received an improper personal benefit in money, property or services; or
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in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful.
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Under the MGCL, we may not indemnify a director or officer in a suit by or in the right of the corporation
or in any proceeding charging improper personal benefit in which the director or officer was adjudged liable on the basis that personal benefit was improperly received. A court may order indemnification if it determines that the director or officer
is fairly and reasonably entitled to indemnification, even though the director or officer did not meet the prescribed standard of conduct, was adjudged liable on the basis that personal benefit was improperly received. However, indemnification for
an adverse judgment in a suit by us or in our right, or for a judgment of liability on the basis that personal benefit was improperly received, is limited to expenses.
In addition, the MGCL permits us to advance reasonable expenses to a director or officer upon our receipt of:
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a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for
indemnification by the corporation; and
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a written undertaking by the director or officer or on the directors or officers behalf to repay the amount paid or reimbursed by the
corporation if it is ultimately determined that the director or officer did not meet the standard of conduct.
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Our charter authorizes us to obligate ourselves and our bylaws obligate us, to the maximum extent permitted by Maryland law in effect
from time to time, to indemnify and, without requiring a preliminary determination of the ultimate entitlement to indemnification, pay or reimburse reasonable expenses in advance of final disposition of a proceeding to:
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any present or former director or officer who is made or threatened to be made a party to the proceeding by reason of his or her service in that
capacity; or
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any individual who, while a director or officer of our company and at our request, serves or has served another corporation, real estate investment
trust, limited liability company, partnership, joint venture, trust, employee benefit plan or any other enterprise as a director, officer, partner, trustee, member or manager of such corporation, real estate investment trust, limited liability
company, partnership, joint venture, trust, employee benefit plan or other enterprise and who is made or threatened to be made a party to the proceeding by reason of his or her service in that capacity.
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Our charter and bylaws also permit us to indemnify and advance expenses to any person who served a Predecessor of ours in any of the
capacities described above and any personnel or agent of our company or a Predecessor of our company. In addition, our 2010 equity incentive plan requires us to indemnify our directors and members of our compensation committee in connection with the
performance of their duties, responsibilities and obligations under our 2010 equity incentive plan, to the maximum extent permitted by Maryland law.
Following completion of this offering, we intend to enter into indemnification agreements with each of our directors and executive
officers that would provide for indemnification to the maximum extent permitted by Maryland law. In addition, our operating partnerships partnership agreement provides that we, as general
II-2
partner, and our officers and directors are indemnified to the maximum extent permitted by law. Furthermore, following completion of this offering, we intend to purchase and maintain insurance on
behalf of all of our directors and executive officers against or incurred by them in their official capacities, whether or not we are required or have the power to indemnify them against the same liability and, pursuant to the indemnification
agreements, we will be required to maintain a comparable tail directors and officers liability insurance policy for six years after each director or executive officer ceases to serve in such capacity.
Insofar as the foregoing provisions permit indemnification of directors, officers or persons controlling us for liability arising under
the Securities Act, we have been informed that, in the opinion of the SEC, this indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 35.
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Treatment of Proceeds from Stock Being Registered.
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None of the proceeds will be credited to an account other than the appropriate capital share account.
Item 36.
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Financial Statements and Exhibits.
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(a)
Financial Statements
. See page F-1 for an index to the financial statements included in the registration statement.
(b)
Exhibits
. The following is a complete list of exhibits filed as part of the registration statement, which
are incorporated herein:
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Exhibit
Number
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Exhibit Description
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1.1**
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Underwriting Agreement among DLC Realty Trust, Inc. and the underwriters named therein
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3.1**
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Form of Articles of Amendment and Restatement of DLC Realty Trust, Inc.
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3.2**
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Form of Amended and Restated Bylaws of DLC Realty Trust, Inc.
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3.3**
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Form of Amended and Restated Agreement of Limited Partnership of DLC Realty, L.P.
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4.1**
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Form of Specimen Common Stock Certificate of DLC Realty Trust, Inc.
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5.1**
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Opinion of Clifford Chance US LLP (including consent of such firm)
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8.1**
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Tax Opinion of Clifford Chance US LLP (including consent of such firm)
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10.1**
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Form of Registration Rights Agreement among DLC Realty Trust, Inc. and the persons named therein
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10.2**
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DLC Realty Trust, Inc. 2010 Equity Incentive Plan
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10.3**
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Form of Restricted Stock Agreement
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10.4**
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Form of LTIP Agreement
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10.5**
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Form of Tax Protection Agreement among DLC Realty Trust, Inc., DLC Realty, L.P., Adam Ifshin and Stephen Ifshin
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10.6**
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Form of Tax Protection Agreement among DLC Realty Trust, Inc., DLC Realty, L.P. and each of the persons listed on Schedule 2.1 thereto
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10.7**
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Form of Indemnification Agreement among DLC Realty Trust, Inc. and its directors and officers
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10.8
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Revolving Secured Credit Facility among DLC Realty Trust, Inc. and affiliates of certain of our underwriters
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10.9**
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Irrevocable Exchange and Subscription Agreement among DLC Realty Trust, Inc., DLC Realty, L.P., Adam Ifshin, Stephen Ifshin and the persons named on the signature page
thereto
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II-3
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Exhibit
Number
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Exhibit Description
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10.10**
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Representation, Warranty and Indemnity Agreement among DLC Realty Trust, Inc., DLC Realty, L.P., Adam Ifshin and Stephen Ifshin
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10.11**
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Employment Agreement between DLC Realty Trust, Inc. and Adam Ifshin
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10.12**
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Employment Agreement between DLC Realty Trust, Inc. and Stephen Ifshin
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10.13**
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Employment Agreement between DLC Realty Trust, Inc. and Daniel Taub
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10.14**
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Employment Agreement between DLC Realty Trust, Inc. and William Comeau
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10.15**
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Employment Agreement between DLC Realty Trust, Inc. and Jonathan Wigser
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10.16**
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Employment Agreement between DLC Realty Trust, Inc. and Michael Cohen
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10.17**
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Form of Amended and Restated Management Agreement
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10.18**
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Form of Management Agreement
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21.1**
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List of Subsidiaries of DLC Realty Trust, Inc.
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23.1**
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Consent of Clifford Chance US LLP (included in Exhibits 5.1 and 8.1)
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23.2**
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Consent of Ernst & Young LLP
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23.3**
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Consent of Edward N. Constantino
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23.4**
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Consent of Catherine J. Paglia
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23.5**
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Consent of Adam Popper
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23.6**
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Consent of Kieran P. Quinn
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23.7**
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Consent of Charles W.B. Wardell III
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24.1**
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Power of Attorney (included on the signature page to the registration statement)
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(a) The
undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement, certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery
to each purchaser.
(b) Insofar as indemnification for liabilities arising under the Securities Act, may be permitted to
directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(c) The undersigned registrant hereby further undertakes that:
(1) For purposes of determining any liability under the Securities Act, the information omitted from the form of
prospectus filed as part of this registration statement in reliance under Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4), or 497(h) under the Securities Act shall be deemed to part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any
liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-11 and has duly caused this Amendment No. 7 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of
New York, on August 11, 2010.
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DLC Realty Trust, Inc.
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By:
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/s/ Adam W.
Ifshin
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Adam W. Ifshin
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Chief Executive Officer and President
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Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 7 to the Registration Statement has
been signed below by the following persons in the capacities and on the date indicated.
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Signatures
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Title
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Date
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By:
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/s/ Adam W. Ifshin
Adam W. Ifshin
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Chairman of Our Board of Directors, Chief Executive Officer and President
(Principal Executive Officer)
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August 11, 2010
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By:
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*
Stephen N. Ifshin
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Vice Chairman of Our Board of Directors
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August 11, 2010
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By:
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/s/ William M. Comeau
William M. Comeau
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Chief Financial Officer and Treasurer
(Principal Financial and
Accounting Officer)
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August 11, 2010
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*By:
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/s/ Adam W. Ifshin
Adam W. Ifshin
Attorney-in-fact
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EXHIBIT INDEX
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Exhibit
Number
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Exhibit Description
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1.1**
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Underwriting Agreement among DLC Realty Trust, Inc. and the underwriters named therein
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3.1**
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Form of Articles of Amendment and Restatement of DLC Realty Trust, Inc.
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3.2**
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Form of Amended and Restated Bylaws of DLC Realty Trust, Inc.
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3.3**
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Form of Amended and Restated Agreement of Limited Partnership of DLC Realty, L.P.
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4.1**
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Form of Specimen Common Stock Certificate of DLC Realty Trust, Inc.
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5.1**
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Opinion of Clifford Chance US LLP (including consent of such firm)
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8.1**
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Tax Opinion of Clifford Chance US LLP (including consent of such firm)
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10.1**
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Form of Registration Rights Agreement among DLC Realty Trust, Inc. and the persons named therein
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10.2**
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DLC Realty Trust, Inc. 2010 Equity Incentive Plan
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10.3**
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Form of Restricted Stock Agreement
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10.4**
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Form of LTIP Agreement
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10.5**
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Form of Tax Protection Agreement among DLC Realty Trust, Inc., DLC Realty, L.P., Adam Ifshin and Stephen Ifshin
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10.6**
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Form of Tax Protection Agreement among DLC Realty Trust, Inc., DLC Realty, L.P. and each of the persons listed on Schedule 2.1 thereto
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10.7**
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Form of Indemnification Agreement among DLC Realty Trust, Inc. and its directors and officers
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10.8
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Revolving Secured Credit Facility among DLC Realty Trust, Inc. and affiliates of certain of our underwriters
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10.9**
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Irrevocable Exchange and Subscription Agreement among DLC Realty Trust, Inc., DLC Realty, L.P., Adam Ifshin, Stephen Ifshin and the persons named on the signature page
thereto
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10.10**
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Representation, Warranty and Indemnity Agreement among DLC Realty Trust, Inc., DLC Realty, L.P., Adam Ifshin and Stephen Ifshin
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10.11**
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Employment Agreement between DLC Realty Trust, Inc. and Adam Ifshin
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10.12**
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Employment Agreement between DLC Realty Trust, Inc. and Stephen Ifshin
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10.13**
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Employment Agreement between DLC Realty Trust, Inc. and Daniel Taub
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10.14**
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Employment Agreement between DLC Realty Trust, Inc. and William Comeau
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10.15**
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Employment Agreement between DLC Realty Trust, Inc. and Jonathan Wigser
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10.16**
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Employment Agreement between DLC Realty Trust, Inc. and Michael Cohen
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10.17**
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Form of Amended and Restated Management Agreement
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10.18**
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Form of Management Agreement
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21.1**
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List of Subsidiaries of DLC Realty Trust, Inc.
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23.1**
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Consent of Clifford Chance US LLP (included in Exhibits 5.1 and 8.1)
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23.2**
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Consent of Ernst & Young LLP
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23.3**
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Consent of Edward N. Constantino
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23.4**
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Consent of Catherine J. Paglia
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23.5**
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Consent of Adam Popper
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23.6**
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Consent of Kieran P. Quinn
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23.7**
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Consent of Charles W.B. Wardell III
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24.1**
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Power of Attorney (included on the signature page to the registration statement)
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Index-1
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