Equity One, Inc. Debt Securities Underwriting Agreement September 14, 2005
Exhibit 1.1
Equity One, Inc.
$120,000,000
Debt Securities
September 14, 2005
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Deutsche Bank Securities Inc.
UBS Securities LLC
As Representatives of the
Several Underwriters
Deutsche Bank Securities Inc.
UBS Securities LLC
As Representatives of the
Several Underwriters
Ladies and Gentlemen:
Equity One, Inc., a corporation organized under the laws of the State of Maryland (the
“Company”), and each of its Subsidiaries (as defined below) named in the Prospectus (as defined
below) as a Guarantor (each a “Guarantor” and collectively, the “Guarantors”), proposes to sell to
the several underwriters named in Schedule I hereto (the “Underwriters”), for whom the Underwriters
named as Representatives on Schedule I (the “Representatives”) are acting as representatives, the
principal amount of its debt securities identified on Schedule I hereto (the “Securities”) to be
issued under an Indenture, dated as of September 9, 1998 (the “Base Indenture”), as supplemented by
six Supplemental Indentures thereto and which is expected to be further amended and supplemented by
Supplemental Indenture No. 7 (such Indenture, including such seven Supplemental Indentures, being
referred to hereafter collectively as the “Indenture”), between the Company, the Guarantors named
therein and SunTrust Bank, as trustee (the “Trustee”). The Securities will be unconditionally
guaranteed as to the payment of principal and interest (each a “Guarantee” and collectively, the
“Guarantees”) by the Guarantors. To the extent there are no additional Underwriters listed on
Schedule I other than the Representatives, the term Representatives as used herein shall mean you,
as Underwriters, and the terms Representatives and Underwriters shall mean either the singular or
plural as the context requires. Certain terms used herein are defined in Section 18 hereof.
1 Representations and Warranties. The Company represents and warrants to, and agrees
with, each Underwriter as set forth below in this Section 1.
(a) A joint registration statement on Form S-3 (File No. 333-106909) has been filed by
the Company and certain of its subsidiaries named in such registration statement (the
“Co-Registrants”) for registration under the Act of (i) $600,000,000 aggregate amount of the
Company’s equity and debt securities described therein and (ii) $755,027,500 aggregate
amount of the Co-Registrants’ guarantees relating to the debt securities. All but (y)
$503,067,500 aggregate amount of the Company’s equity and debt securities and (z)
$555,027,500 of the Co-Registrants’ guarantees registered with the Commission under the Act
pursuant to such registration statement (File No. 333-106909) have been previously issued.
References herein to the term “Registration Statement” as of any given date shall mean
Registration Statement No.
333-106909, as amended or supplemented to such date, including all documents incorporated by
reference therein as of such date pursuant to Item 12 of Form S-3 (“Incorporated
Documents”). References herein to the term “Prospectus” as of any given date shall mean the
prospectus forming a part of the Registration Statement, as supplemented by a prospectus
supplement relating to the Securities and the Guarantees proposed to be filed pursuant to
Rule 424(b) of the general rules and regulations under the Act (“Rule 424”), and as further
amended or supplemented as of such date (other than amendments or supplements specifically
relating to a particular offering of securities other than the Securities being offered on
such date), including all Incorporated Documents. References herein to the term “Effective
Date” shall be deemed to refer to the time and date of the filing of the Company’s most
recent Annual Report on Form 10-K. References herein to the terms “amend”, “amendment” or
“supplement” with respect to the Registration Statement or the Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act deemed to be
incorporated therein by reference. The Company will next file with the Commission a
Prospectus supplemented by a prospectus supplement relating to the Securities and the
Guarantees in accordance with Rule 424. The Company has included in the Registration
Statement, as of the Effective Date, all information required by the Act and the rules
thereunder to be included therein. As filed, the Prospectus (together with any supplements
thereto) shall contain all required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific additional information and
other changes as the Company has advised you, prior to the Execution Time, will be included
or made therein. The Company and the transactions contemplated by this Agreement meet the
requirements for use of Form S-3 under the Act and also currently meet the requirements in
effect prior to October 21, 1992 for use of Form S-3.
(b) The Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for such
purpose are pending before or, to the Company’s knowledge, threatened by the Commission. On
the Effective Date, the Registration Statement did, and when the Prospectus is filed in
accordance with Rule 424 and on the Closing Date (as defined herein), the Prospectus will,
comply in all material respects with the applicable requirements of the Act and the Exchange
Act and the respective rules and regulations promulgated thereunder; when amended or
supplemented, the Registration Statement and the Prospectus will also so comply with such
acts and rules; and the Indenture, on the date of filing thereof with the Commission and at
the Closing Date (as hereinafter defined) conformed or will conform in all material respects
with the requirements of the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder (the “TIA”). On the Effective Date and at the
Execution Time, the Registration Statement did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading; nor will it do so on the date of any
amendment; and on the date of any filing pursuant to Rule 424 and on the Closing Date and
any settlement date, the Prospectus (as it may be amended or supplemented) will not include
any untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no representations or
warranties as to the information contained in or omitted from the Registration Statement or
the Prospectus in reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Prospectus. The T-1 was filed with the
Registration Statement; no stop order suspending the effectiveness of the T-1 is in effect
and no proceedings
for such purpose are pending before or to the Company’s knowledge are threatened by the
Commission.
(c) Each of the Company and its Subsidiaries (which term, as used in this Agreement,
includes direct and indirect subsidiaries that directly or indirectly own interests in real
property or are actively engaged in the management of real property) has been duly
incorporated or organized and is validly existing as a corporation, limited partnership,
general partnership or limited liability company in good standing under the laws of the
jurisdiction in which it is chartered or organized with full corporate, partnership or
limited liability company power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the Prospectus, and is duly
qualified to do business as a foreign corporation, limited partnership, general partnership
or limited liability company and is in good standing under the laws of each jurisdiction
which requires such qualification except in any case in which the failure to so qualify or
be in good standing would not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings or business of the Company and its Subsidiaries or their
properties, taken as a whole;
(d) All the outstanding shares of capital stock, partnership interests, limited
liability company interests or other equivalent equity interests of each Subsidiary has been
duly and validly authorized and issued and are fully paid and nonassessable, and, except as
otherwise set forth in the Prospectus, all outstanding shares of capital stock, partnership
interests, limited liability company interests or other equivalent equity interest of the
Subsidiaries are owned by the Company either directly or through wholly owned Subsidiaries
free and clear of any perfected security interest or any other security interests, claims,
liens or encumbrances;
(e) The Company’s authorized equity capitalization is as set forth in the Prospectus as
of the date or dates stated therein, and the Securities and the Guarantees will conform to
the description thereof contained in the Prospectus.
(f) The Securities have been duly authorized by the Company for issuance and sale
pursuant to this Agreement and the Indenture; and when duly authenticated and delivered by
the Trustee in accordance with the terms of the Indenture (assuming the due authorization,
execution and delivery of the Indenture by the Trustee), and delivered to, and paid for by,
the Underwriters pursuant to this Agreement, the Securities will be valid and legally
binding obligations of the Company entitled to the benefit of the Indenture and will be
enforceable against the Company in accordance with their terms, subject to (i) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws affecting creditors’
rights and remedies generally, (ii) general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or law) and (iii) the discretion of the
court before which any proceeding therefor may be brought (clauses (i), (ii) and (iii) are
collectively referred to as the “Enforceability Limitations”); the Indenture and
Supplemental Indenture No. 7 thereto have been, and prior to the issuance of the Securities
will be, duly qualified under the TIA, and will be duly authorized, executed and delivered
by the Company, and assuming due authorization, execution and delivery thereof by the
Trustee, will constitute a valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to the Enforceability Limitations.
(g) Each Guarantee has been duly authorized, executed and delivered by the applicable
Guarantor and constitutes a valid and legally binding obligation of such Guarantor
enforceable in accordance with its terms, subject to the Enforceability Limitations.
(h) There is no franchise, contract or other document of a character required to be
described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto,
which is not described or filed as required; and the statements in the Prospectus under the
headings “Material Federal Income Tax Considerations”, “Description of Debt Securities” and
“Risk Factors” insofar as such statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate and fair summaries of such legal matters,
agreements, documents or proceedings.
(i) This Agreement has been duly authorized, executed and delivered by the Company and
each Guarantor.
(j) The Company has operated, for all periods from and after January 1, 1995, and
intends to continue to operate in such a manner as to qualify to be taxed as a “real estate
investment trust” under the Internal Revenue Code of 1986, as amended (the “Code”),
including the taxable year in which sales of the Securities are to occur.
(k) The Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the Prospectus, will
not be an “investment company” as defined in the Investment Company Act of 1940, as amended.
(l) No consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the transactions contemplated
herein or in the Indenture, except such as have been obtained under the Act, the TIA, real
estate syndication laws and such as may be required under the rules of the National
Association of Securities Dealers and the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities and the Guarantees by the Underwriters
in the manner contemplated herein and in the Prospectus and the Company and each Guarantor
has full power and authority to authorize, issue and sell the Securities and Guarantees to
be offered by it as contemplated by this Agreement and the Indenture.
(m) Neither the Company nor any of its Subsidiaries is required to own or possess any
trademarks, service marks, trade names or copyrights in order to conduct the business now
operated by it, other than those the failure to possess or own would not have a material
adverse effect on the condition (financial or otherwise), prospects, earnings or business of
the Company and its Subsidiaries or their properties, taken as a whole, whether or not
arising from transactions in the ordinary course of business.
(n) Neither the execution or delivery of this Agreement or the Indenture, the issue and
sale of the Securities and the Guarantees nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms hereof will conflict with,
result in a breach or violation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its Subsidiaries pursuant to, (i) the charter or
articles or certificate of formation, bylaws, partnership agreement, limited liability
company agreement or other organizational documents of the Company or any of its
Subsidiaries, (ii) except as set forth in the Prospectus, the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or any of its
Subsidiaries is a party or bound or to which its or their property is subject where such
conflict, breach or violation would have a material adverse effect on the condition
(financial or otherwise), prospects, earnings or business of the Company and its
Subsidiaries or their properties, taken as a whole, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any of its Subsidiaries
of any court,
regulatory body, administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of its Subsidiaries or any of its or their
properties where such conflict, breach or violation would have a material adverse effect on
the condition (financial or otherwise), prospects, earnings or business of the Company and
its Subsidiaries or their properties, taken as a whole.
(o) No holders of securities of the Company have rights to the registration of such
securities under the Registration Statement except for those listed on Schedule 1(o), all of
which have been effectively waived or are inapplicable to the offering hereby, and those
pursuant to the Registration Rights Agreement, dated January 1, 1999, by and between ▇▇▇▇▇▇▇
▇. ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, doing business as
Frankline Development Co., and the Company.
(p) The consolidated historical financial statements and schedules of the Company and
its consolidated Subsidiaries included in the Prospectus and the Registration Statement
present fairly in all material respects the financial condition, results of operations and
cash flows of the Company as of the dates and for the periods indicated, comply as to form
with the applicable accounting requirements of the Act and have been prepared in conformity
with generally accepted accounting principles applied on a consistent basis throughout the
periods involved (except as otherwise noted therein). The financial information and data
included in the Prospectus and Registration Statement fairly present, on the basis stated in
the Prospectus and the Registration Statement, the information included therein.
(q) The pro forma financial statements included in the Prospectus and the Registration
Statement include assumptions that provide a reasonable basis for presenting the significant
effects directly attributable to the transactions and events described therein, the related
pro forma adjustments give appropriate effect to those assumptions, and the pro forma
adjustments reflect the proper application of those adjustments to the historical financial
statement amounts in the pro forma financial statements included in the Prospectus and the
Registration Statement. The pro forma financial statements included in the Prospectus and
the Registration Statement comply as to form in all material respects with the applicable
accounting requirements of Regulation S-X under the Act.
(r) Since the respective dates as of which information is given in the Registration
Statement and the Prospectus, except as may otherwise be stated therein or contemplated
thereby or in a supplement filed with the Commission prior to the Execution Time, (A) there
has been no material adverse change, in the condition (financial or otherwise), prospects,
earnings or business of the Company and its Subsidiaries or their properties, taken as a
whole, whether or not arising from transactions in the ordinary course of business, (B)
there have been no transactions or acquisitions entered into by the Company or any of its
Subsidiaries other than those arising in the ordinary course of business, which are material
with respect to the Company and its Subsidiaries considered as one enterprise, and (C)
except for regular quarterly dividends on the Company’s common stock, there has been no
dividend or distribution of any kind declared, paid or made by the Company on any class of
its capital stock.
(s) The documents incorporated or deemed to be incorporated by reference in 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, when
read together with the other information in the Prospectus, at the time the Registration
Statement became effective and as of the Execution Time, the Closing Date or during the
period specified in Section 5(b), did not and will not include an untrue statement of a
material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
(t) Except as disclosed in the Prospectus, there are no pending actions, suits or
proceedings against or affecting the Company, any of its Subsidiaries or any of their
respective properties, the ultimate determination of which would reasonably be expected,
individually or in the aggregate, to have a material adverse effect on the condition
(financial or otherwise), prospects, earnings or business of the Company and its
Subsidiaries or their properties, taken as a whole, or would reasonably be expected to
materially and adversely affect the ability of the Company to perform its obligations under
the Indenture or this Agreement, or which are otherwise material in the context of the sale
of the Securities; and no such actions, suits or proceedings are, to the Company’s
knowledge, threatened or contemplated.
(u) Neither the Company nor any Subsidiary is in violation or default of (i) any
provision of its charter or articles or certificate of formation, bylaws, partnership
agreement, limited liability company agreement or other organizational documents, (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument to which it is a
party or bound or to which its property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over the Company or
such Subsidiary or any of its properties, as applicable except in the cases of clause (ii)
or (iii) for such violations or defaults that would not have a material adverse effect on
the condition (financial or otherwise), prospects, earnings or business of the Company and
its Subsidiaries or their properties, taken as a whole.
(v) Deloitte & Touche LLP, which has certified certain financial statements of the
Company and its consolidated Subsidiaries and delivered their report with respect to the
audited consolidated financial statements and schedules included in the Prospectus, are
independent public accountants with respect to the Company within the meaning of the Act and
the applicable published rules and regulations thereunder. Ernst & Young LLP are
independent public accountants with respect to the Company within the meaning of the Act and
the applicable published rules and regulations thereunder.
(w) Except as disclosed in the Prospectus, the Company and its Subsidiaries have good
and marketable fee simple title to or leasehold title in all real properties and all other
properties and assets owned by them, in each case free from liens, encumbrances and defects
that would have a material adverse effect on the condition (financial or otherwise),
prospects, earnings or business of the Company and its Subsidiaries or their properties,
taken as a whole; except as disclosed in the Prospectus, no tenant under any lease to which
the Company or any Subsidiary lease any portion of its property is in default under such
lease, except in any case where such default would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings or business of the Company and its
Subsidiaries or their properties, taken as a whole; each of the properties of any of the
Company or its Subsidiaries complies with all applicable codes and zoning laws and
regulations except in any case where such non-compliance would not have a material adverse
effect on the condition (financial or otherwise), operations, prospects or earnings of the
Company and its Subsidiaries or their properties, taken as a whole, and neither the Company
nor any of its Subsidiaries has knowledge of any pending or threatened condemnation, zoning
change or other proceeding or action that will in any manner affect the size of, use of,
improvements on, construction on, or access to the properties of any of the Company or its
Subsidiaries except in any case where such action or proceeding would not have a material
adverse effect on the condition (financial or otherwise), operations, prospects or earnings
of the Company and its Subsidiaries or their properties, taken as a whole.
(x) Title insurance in favor of the Company and its Subsidiaries is maintained with
respect to each shopping center property owned by any such entity in an amount at least
equal to (a) the cost of acquisition of such property or (b) the cost of construction of
such property (measured at the time of such construction), except, in each case, where the
failure to maintain such title insurance would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings or business of the Company and its
Subsidiaries or their properties, taken as a whole.
(y) The mortgages and deeds of trust encumbering the properties and assets described in
the Prospectus (i) are not convertible (in the absence of foreclosure) into an equity
interest in the property or asset described therein or in the Company or any Subsidiary, nor
does any of the Company or its Subsidiaries hold a participating interest therein, (ii)
except as set forth in the Prospectus are not cross-defaulted to any indebtedness other than
indebtedness of the Company or any of the Subsidiaries and (iii) are not
cross-collateralized to any property not owned by the Company or any of the Subsidiaries.
(z) There are no transfer taxes or other similar fees or charges under federal law or
the laws of any state, or any political subdivision thereof, required to be paid in
connection with the execution and delivery of this Agreement or the issuance by the Company
and the Guarantors or sale by the Company and the Guarantors of the Securities and the
Guarantees.
(aa) The Company has filed all foreign, federal, state and local tax returns that are
required to be filed or has requested extensions thereof, except in any case in which the
failure to so file would not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto) and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any of the foregoing is
due and payable, except for any such assessment, fine or penalty that is currently being
contested in good faith or as would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of the Company and its
Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Prospectus (exclusive of
any supplement thereto).
(bb) No labor dispute with the employees of the Company or any subsidiary exists or, to
the knowledge of the Company, is imminent that might have a material adverse effect on the
condition (financial or otherwise), prospects, earnings or business of the Company and its
Subsidiaries or their properties, taken as a whole.
(cc) The Company, each of its Subsidiaries and each of their properties are insured by
insurers of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are engaged; all
policies of insurance and fidelity or surety bonds insuring the Company or any of its
Subsidiaries or their respective properties, businesses, assets, employees, officers and
directors are in full force and effect, except for the failure to insure or lapses in
policies which would not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries,
taken as a whole.
(dd) The Company and its Subsidiaries possess all licenses, certificates, permits and
other authorizations issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses, and neither the Company nor
any such Subsidiary has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto).
(ee) The Company and each of its Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance 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
generally accepted accounting principles and to maintain asset accountability; (iii) access
to assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to any
differences.
(ff) The Company has established and maintains the following, among other, internal
controls (without duplication): (i) a system of “internal accounting controls” as
contemplated in Section 13(b)(2)(B) of the Exchange Act (“Accounting Controls”), the
effectiveness of which are evaluated by the Company’s senior management on a regular basis,
and (ii) “disclosure controls and procedures” as such term is defined in Rule 13a-15(e)
under the Exchange Act (“Disclosure Controls”), the effectiveness of which is evaluated by
the Company’s senior management on a quarterly basis. To the knowledge of the Company, the
Disclosure Controls are effective at a reasonable assurance level to perform the functions
for which they were designed and established. Based on the most recent evaluation of the
Company’s internal control over financial reporting, all significant deficiencies and
material weaknesses in the design or operation of the internal controls over financial
reporting which are reasonably likely to adversely affect the Company’s ability to record,
process, summarize and report financial data required to be disclosed by the Company in its
Exchange Act reports within the time periods specified in the Exchange Act, and any fraud,
whether or not material, that involves management or other employees who have a significant
role in such internal control over financial reporting have been reported to the Company’s
auditors and the audit committee of the board of directors.
(gg) The Company has not taken, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(hh) The Company and its Subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of human
health and safety, the environment and Hazardous Materials (as defined herein), including,
but not limited to the generation, recycling, reuse, sale, storage, handling, transport and
disposal of Hazardous Materials (collectively, “Environmental Laws”), (ii) have received and
are in compliance with all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and (iii) have not
received notice of any actual or potential liability for the investigation or remediation of
any disposal or release of
Hazardous Materials, except where such non-compliance with Environmental Laws, failure to
receive required permits, licenses or other approvals, or liability would not, individually
or in the aggregate, have a material adverse change in the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto). Except as set forth in the Prospectus, neither the Company nor any of
the Subsidiaries has been named as a “potentially responsible party” under any Environmental
Laws, including, but not limited to the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended.
(ii) In the ordinary course of its business, the Company periodically reviews the
effect of Environmental Laws on the business, operations and properties of the Company and
its Subsidiaries, in the course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating expenditures required
for clean-up, closure of properties or compliance with Environmental Laws, or any permit,
license or approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not, singly or in the aggregate,
have a material adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(jj) The Company (i) does not have any material lending or other relationship with any
banking or lending affiliate of an Underwriter except as set forth on Schedule I and (ii)
does not intend to use any of the proceeds from the sale of the Securities hereunder to
repay any outstanding debt owed to any such affiliate except as set forth in the Prospectus.
2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase from the Company, the principal
amount of Securities and Guarantees set forth opposite such Underwriter’s name in Schedule I hereto
at a purchase price of 98.838% of such principal amount.
3. Delivery and Payment. Delivery of and payment for the Securities and the
Guarantees shall be made at 5:00 P.M., New York City time, on September 20, 2005, or at such time
on such later date as the Representatives shall designate, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the “Closing Date”).
Delivery of the Securities and Guarantees shall be made to the Representatives for the respective
accounts of the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the Company by wire transfer
payable in same-day funds. Delivery of the Securities and the Guarantees shall be made through the
facilities of The Depository Trust Company unless the Representatives shall otherwise instruct.
4. Offering By Underwriters. The Company understands that the several Underwriters
propose to offer the Securities and Guarantees for sale to the public as set forth in the
Prospectus.
5. Agreements. The Company and each Guarantor agrees with the several Underwriters
that:
(a) The Company will use its best efforts to file any amendment to the Registration
Statement necessary in connection with the offer and sale of the Securities and the
Guarantees. Prior to the termination of the offering of the Securities and the Guarantees,
the Company will not file any amendment of the Registration Statement or supplement to the
Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a
copy for your review prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing sentence, if filing of
the Prospectus is otherwise required under Rule 424(b), the Company will cause the
Prospectus, properly completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representatives of such timely filing. The Company
will promptly advise the Representatives (1) when the Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b) or
when any Rule 462(b) Registration Statement shall have been filed with the Commission, (2)
when, prior to termination of the offering of the Securities and the Guarantees, any
amendment to the Registration Statement shall have been filed or become effective, (3) of
any request by the Commission or its staff for any amendment of the Registration Statement,
or any Rule 462(b) Registration Statement, or for any supplement to the Prospectus or for
any additional information, (4) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or threatening
of any proceeding for that purpose and (5) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities and the Guarantees for
sale in any jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any such stop
order or the suspension of any such qualification and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities and the Guarantees is
required to be delivered under the Act, any event occurs as a result of which the Prospectus
as then supplemented would include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to amend the
Registration Statement or supplement the Prospectus to comply with the Act, the Exchange Act
or the TIA, or the respective rules thereunder, the Company promptly will (1) notify the
Representatives of such event, (2) prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance and (3) supply any supplemented
Prospectus to you in such quantities as you may reasonably request.
(c) The Company will not, without the prior written consent of the Underwriters, offer,
sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction
which is designed to, or might reasonably be expected to, result in the disposition (whether
by actual disposition or effective economic disposition due to cash settlement or otherwise)
by the Company or any affiliate of the Company or any person in privity with the Company or
any affiliate of the Company) directly or indirectly, including the filing (or participation
in the filing) of a registration statement with the Commission in respect of, or establish
or increase a put equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act in relation to, any debt securities
issued or guaranteed by the Company (other than the Securities) or publicly announce an
intention to effect any such transaction, until the first day following the Closing Date;
provided that nothing herein shall prevent the Company from establishing or increasing put
equivalent positions or liquidating or decreasing call equivalent positions in the
securities of the Company pursuant to the Company’s risk management policies and procedures
as currently in effect.
(d) As soon as practicable, the Company will make generally available to its security
holders and to the Representatives an earnings statement or statements of the Company and
its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158
under the Act.
(e) The Company will furnish to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement (including exhibits thereto) and
to each other Underwriter a copy of the Registration Statement (without exhibits thereto)
and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the
Act, as many copies of the Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will use its best efforts to so furnish the Prospectus on
or prior to 3:00 P.M., New York time, on the business day following the execution and
delivery of this Agreement. All other documents shall be so furnished as soon as available.
The Company will pay the expenses of printing or other production of all documents relating
to the offering.
(f) The Company will arrange, if necessary, for the qualification of the Securities and
the Guarantees for sale under the laws of such jurisdictions as the Representatives may
designate, will maintain such qualifications in effect so long as required for the
distribution of the Securities and the Guarantees and will pay any fee of the National
Association of Securities Dealers, Inc., in connection with its review of the offering;
provided that in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would subject it to
service of process in suits, other than those arising out of the offering or sale of the
Securities and the Guarantees, in any jurisdiction where it is not now so subject.
(g) The Company will use its best efforts to meet the requirements to qualify as a
“real estate investment trust” under the Code for the taxable year in which sales of the
Securities are to occur.
(h) The Company, during the period when the Prospectus is required to be delivered
under the Act or the Exchange Act in connection with sales of the Securities and the
Guarantees, will file all documents required to be filed with the Commission pursuant to
Section 13, 14 or 15 of the Exchange Act within the time period prescribed by the Exchange
Act.
(i) The Company will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities and the Guarantees.
(j) The Company will use the net proceeds from the sale of Securities and the
Guarantees in the manner specified in the form of the prospectus supplement previously
furnished to the Representatives.
(k) The Company will take all reasonable action necessary to enable the Rating Agencies
to provide their respective credit ratings of the Securities and the Guarantees.
(l) Each Guarantor will provide such cooperation as the Company may require in
fulfilling the foregoing obligations of this Section 5.
6. Conditions to the Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Securities and the Guarantees shall be subject to the accuracy of the
representations and warranties on the part of the Company and the Guarantors contained herein as of
the Execution Time and the Closing Date to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the performance by the Company and the
Guarantors of their obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, shall have been filed in the manner and
within the time period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, P.A., ▇▇▇▇▇▇▇ LLP
and Holland & Knight LLP, each counsel for the Company and the Guarantors, to have furnished
to the Representatives the opinions, dated the Closing Date and addressed to the
Representatives and reasonably satisfactory in form and substance to counsel for the
Underwriters, to the effect that:
(i) each of the Company and the Subsidiaries which directly or indirectly holds
real property (whether by fee ownership or lease) for the purpose of leasing to
third parties is validly existing as a corporation, limited partnership or limited
liability company in good standing under the laws of the jurisdiction in which it is
chartered or formed, with full corporate, partnership or limited liability company
power and authority to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Prospectus, and is duly
qualified to do business as a foreign corporation, partnership or limited liability
company and is in good standing under the laws of each jurisdiction which requires
such qualification wherein it owns or leases material properties or conducts
material business and where the failure to be so qualified would, individually or in
the aggregate, have a material adverse effect on the financial condition, earnings,
business or properties of the Company and its Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Prospectus; notwithstanding the foregoing,
the Company is duly qualified to do business as a foreign corporation and is in good
standing under the laws of Florida, Georgia and Texas;
(ii) all the outstanding shares of capital stock, partnership interests,
limited liability company interests or other equivalent equity interest of each
Subsidiary which directly or indirectly holds real property (whether by fee
ownership or lease) for the purpose of leasing to third parties have been duly
authorized and validly issued and are fully paid and nonassessable, as applicable,
and except as described in the Prospectus, all outstanding shares of capital stock,
partnership interests, limited liability company interests or other equivalent
equity interest of such Subsidiaries are owned by the Company either directly or
through wholly owned Subsidiaries;
(iii) the Company’s authorized equity capitalization is as set forth in the
Prospectus and the Securities and the Guarantees will conform to the descriptions
thereof contained in the Prospectus;
(iv) the Securities have been duly and validly authorized, and, when issued and
delivered by the Trustee in accordance with the terms of the Indenture (assuming the
due authorization, execution and delivery of the Indenture by the Trustee), and
delivered
to, and paid for by, the Underwriters pursuant to this Agreement, such Securities
will constitute valid and legally binding obligations of the Company entitled to the
benefits provided for in the Indenture and will be enforceable against the Company
in accordance with their terms, subject to the Enforceability Limitations;
(v) each Guarantee has been duly authorized, executed and delivered by the
applicable Guarantor and constitutes a valid and legally binding obligation of such
Guarantor enforceable in accordance with its terms, subject to the Enforceability
Limitations;
(vi) to the knowledge of such counsel, there is no pending or threatened
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 or its or
their property of a character required to be disclosed in the Registration Statement
which is not adequately disclosed in the Prospectus, and there is no franchise,
contract or other document of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is
not described or filed as required;
(vii) the statements included or incorporated by reference in the Prospectus
under the captions “Material Federal Income Tax Considerations”, “Description of
Debt Securities”, “Description of the Notes and Guarantees” and “Risk Factors”
insofar as such statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate in all material respects;
(viii) the Registration Statement has become effective under the Act; the
Indenture has been qualified under the TIA; any required filing of the Prospectus
pursuant to Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b); to the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened by the Commission and the
Registration Statement as of its filing date and effective date and the Prospectus
as of its filing date and as of its date (other than the financial statements and
other financial information contained therein, as to which such counsel need express
no opinion) complied as to form in all material respects with the applicable
requirements of the Act and the Exchange Act and the respective rules thereunder and
the Company satisfies all conditions and requirements for the filing of the
Registration Statement on Form S-3 under the Act; and such counsel has no reason to
believe that on the Effective Date or the date the Registration Statement was last
deemed amended the Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Prospectus as of
its date, the Execution Time and on the Closing Date contained or contains any
untrue statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading (in each case, other than the financial
statements and other financial information contained therein, those parts of the
Registration Statement that constitutes the statements of Eligibility on Form T-1,
and statements with respect to the DTC Information, as to which such counsel need
express no opinion); and the Indenture, on the date of filing thereof with the
Commission and at the Closing Date conformed or will conform in all material
respects with the requirements of the TIA;
(ix) this Agreement has been duly authorized, executed and delivered by the
Company and each of the Guarantors;
(x) the Indenture has been duly and validly authorized, executed and delivered
by the Company and each of the Guarantors, as applicable, and assuming due
authorization, execution and delivery thereof by the Trustee, will constitute a
valid and legally binding agreement of the Company and such Guarantors enforceable
against the Company and such Guarantors in accordance with its terms, subject to the
Enforceability Limitations;
(xi) the Company is not and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described in the
Prospectus, will not be an “investment company” as defined in the Investment Company
Act of 1940, as amended;
(xii) commencing with the Company’s taxable year beginning January 1, 1995, the
Company has been organized in conformity with the requirements of the Code for
qualification as a “real estate investment trust” for United States federal income
tax purposes and its method of operation will enable it to continue to satisfy the
requirements for qualification and taxation as a “real estate investment trust”
under the Code;
(xiii) no consent, approval, authorization, filing with or order of any court
or governmental agency or body is required in connection with the performance by the
Company and the Guarantors of the transactions contemplated herein, except such as
have been obtained under the Act or the TIA, real estate syndication laws and such
as may be required under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Securities and the Guarantees by the
Underwriters in the manner contemplated in this Agreement and in the Prospectus and
such other approvals (specified in such opinion) as have been obtained; provided,
however, that no opinion shall be required with respect to real estate syndication
or blue sky laws;
(xiv) except as set forth in the Prospectus, neither the issue and sale of the
Securities by the Company and the Guarantees by the Guarantors, the execution and
delivery of this Agreement and the Indenture by the Company and the Guarantors, the
consummation by the Company and the Guarantors of any other of the transactions
herein or therein contemplated nor the fulfillment of the terms hereof or thereof
will conflict with, result in a breach or violation of or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or its Subsidiaries
pursuant to, (a) the charter or by-laws of the Company or its Subsidiaries, (b) the
terms of any indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or instrument
known to such counsel to which the Company or its Subsidiaries is a party or bound
or to which its or their property is subject, or (c) any statute, law, rule,
regulation, or any judgment, order or decree known to such counsel applicable to the
Company or its Subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over the
Company or its Subsidiaries or any of its or their properties; and
(xv) to such counsel’s knowledge, no holders of securities of the Company have
rights to the registration of such securities under the Registration Statement
except for those which have been effectively waived and those pursuant to the
Registration
Rights Agreement, dated January 1, 1999, by and between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, doing business as Frankline
Development Co., and the Company.
In rendering such opinions, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the States of Maryland, Florida, Texas,
Georgia, Arizona and Delaware or the federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are satisfactory to counsel for the
Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates
of responsible officers of the Company and public officials. References to the Prospectus in
this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from DLA ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ US LLP,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed
to the Representatives, with respect to the issuance and sale of the Securities, the
Registration Statement, the Prospectus (together with any supplement thereto) and other
related matters as the Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(d) The Company and each Guarantor shall have furnished to the Representatives a
certificate of the Company, signed by its Chairman of the Board or the President and its
principal financial or accounting officer, dated the Closing Date to the effect that the
signers of such certificates have carefully examined the Registration Statement, the
Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company and each Guarantor in
this Agreement are true and correct on and as of the Closing Date with the same
effect as if made on the Closing Date and the Company and each Guarantor has
complied with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date or settlement date;
(ii) no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted or, to the
Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or
incorporated by reference in the Prospectus (exclusive of any supplement thereto),
there has been no material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its Subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(e) The Company shall have requested and caused Deloitte & Touche LLP and Ernst & Young
LLP, as the case may be, to have furnished to the Representatives, at the Execution Time and
at the Closing Date, letters, dated respectively as of the Execution Time and as of the
Closing Date, in form and substance satisfactory to the Representatives, confirming that
they are independent accountants within the meaning of the Act and the Exchange Act and the
respective applicable rules and regulations adopted by the Commission thereunder and stating
in effect that:
(i) in their opinion the audited financial statements and financial statement
schedules of the Company and those of IRT Property Company included or incorporated
by reference in the Registration Statement and the Prospectus and reported on by
them comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related rules and regulations
adopted by the Commission;
(ii) on the basis of carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing standards) which would
not necessarily reveal matters of significance with respect to the comments set
forth in such letter, a reading of the minutes of the meetings of the stockholders,
directors and each of the compensation committee, executive committee and audit and
review committee of the Company and the Subsidiaries and inquiries of certain
officials of the Company who have responsibility for financial and accounting
matters of the Company and its Subsidiaries as to transactions and events subsequent
to December 31, 2004, nothing came to their attention which caused them to believe
that:
(1) there were any changes, at a specified date not more than five
days prior to the date of the letter, in the long-term debt of the Company
and its Subsidiaries or capital stock of the Company or decreases in the net
assets or stockholders’ equity of the Company as compared with the amounts
shown on the December 31, 2004 consolidated balance sheet included or
incorporated by reference in the Registration Statement and the Prospectus,
or for the period from January 1, 2005 to such specified date there were any
decreases, as compared with the corresponding period in the preceding
quarter or the corresponding period in the prior year in net revenues or
income before income taxes or in total or per share amounts of net income of
the Company and its Subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the Representatives;
(2) the information included or incorporated by reference in the
Registration Statement and Prospectus in response to Regulation S-K, Item
301 (Selected Financial Data), Item 302 (Supplementary Financial
Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of
Earnings to Fixed Charges) is not in conformity with the applicable
disclosure requirements of Regulation S-K;
(iii) they have performed certain other specified procedures as a result of
which they determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the Company and its
Subsidiaries) set forth or incorporated by reference in the Registration Statement
and the Prospectus and in Exhibit 12 to the Registration Statement agrees with the
accounting records of the Company and its Subsidiaries, excluding any questions of
legal interpretation; and
(iv) on the basis of a reading of the unaudited pro forma financial statements
included or incorporated by reference in the Registration Statement and the
Prospectus (the “pro forma financial statements”); carrying out certain specified
procedures; inquiries of certain officials of the Company who have responsibility
for financial and
accounting matters; and proving the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the pro forma financial
statements, nothing came to their attention which caused them to believe that the
pro forma financial statements do not comply as to form in all material respects
with the applicable accounting requirements of Rule 11-02 of Regulation S-X or that
the pro forma adjustments have not been properly applied to the historical amounts
in the compilation of such statements. References to the Prospectus in this
paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information
is given in the Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change
or decrease specified in the letter or letters referred to in paragraph (e)(ii)(2) of this
Section 6 or (ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or properties of the
Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto) the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse
as to make it impractical or inadvisable to proceed with the offering or delivery of the
Securities and the Guarantees as contemplated by the Registration Statement (exclusive of
any amendment thereof) and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives
such further information, certificates and documents as the Representatives may reasonably
request.
(h) The Company shall have caused Deloitte & Touche LLP and Ernst & Young LLP, as the
case may be, to have delivered to the Representatives at the Closing Date all accounting
information specified in Section 6(e) above to the extent not delivered at the Execution
Time.
(i) Subsequent to the execution and delivery of this Agreement and prior to the Closing
Date, there shall not have occurred any downgrading in the rating accorded the Securities or
any other debt securities of the Company by any Rating Agency nor shall any notice have been
given to the Company of (i) any intended or potential downgrading by any Rating Agency in
such securities or (ii) any review or possible change by any Rating Agency that does not
indicate a stable, positive or improving rating accorded such securities.
If any of the conditions specified in this Section 6 shall not have been fulfilled in all
material respects when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall
be given to the Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered at the office of
DLA ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ US LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
7. Expenses.
(a) If the sale of the Securities and the Guarantees provided for herein is not
consummated because any condition to the obligations of the Underwriters set forth in
Section 6 hereof is not satisfied, because of any termination pursuant to Section 10 hereof
or because of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a default by
any of the Underwriters, the Company will reimburse the Underwriters severally through the
Representatives on demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities.
(b) The Company agrees to pay the following costs and expenses and all other costs and
expenses incident to the performance by it of its obligations hereunder:
(i) the preparation, printing or reproduction, and filing with the Commission
of the Registration Statement (including financial statements and exhibits thereto),
any preliminary prospectus, the Prospectus and each amendment or supplement to any
of them;
(ii) the printing (or reproduction) and delivery (including postage, air
freight charges and charges for counting and packaging) of such copies of the
Registration Statement, any preliminary prospectus, the Prospectus and all
amendments or supplements to any of them as may be reasonably requested for use in
connection with the offering and sale of the Securities;
(iii) the preparation, printing, authentication, issuance and delivery of
certificates for the Securities and the Guarantees, including any stamp taxes in
connection with the original issuance and sale of the Securities and the Guarantees;
(iv) the printing (or reproduction) and delivery of this Agreement and all
other agreements or documents printed (or reproduced) and delivered in connection
with the offering of the Securities and the Guarantees;
(v) the registration or qualification of the Securities and the Guarantees for
offer and sale under the laws of any jurisdiction as provided in Section 5(e) hereof
(including the reasonable fees, expenses and disbursements of counsel for the
Underwriters relating to the preparation, printing or reproduction, and delivery of
the preliminary and supplemental Blue Sky Memoranda and such registration and
qualification);
(vi) the filing fees and the fees and expenses of counsel for the Underwriters
in connection with any filings required to be made with the National Association of
Securities Dealers, Inc.;
(vii) the transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective purchasers of the
Securities and the Guarantees;
(viii) the fees and expenses of the Company’s accountants and the fees and
expenses of counsel (including local and special counsel) for the Company;
(ix) the fees charged by the Rating Agencies for the rating of the Securities
and the Guarantees at the request of the Company; and
(x) the costs and expenses of the Trustee under the Indenture.
8. Indemnification and Contribution.
(a) The Company and each Guarantor, jointly and severally, agrees to indemnify and hold
harmless each Underwriter, the directors, officers, employees and agents of each Underwriter
and each person who controls any Underwriter within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions 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 for the registration of the Securities as originally filed or in
any amendment thereof, or in any preliminary prospectus or the Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to the Company
by or on behalf of any Underwriter through the Representatives specifically for inclusion
therein; provided further, that with respect to any untrue statement or omission of material
fact made in any Prospectus, the indemnity agreement contained in this Section 8(a) shall
not inure to the benefit of any Underwriter from whom the person asserting any such loss,
claim, damage or liability purchased the Securities concerned, to the extent that any such
loss, claim, damage or liability of such Underwriter occurs under the circumstance where (w)
the Company had previously furnished copies of a later Prospectus to the Representatives in
accordance with this Agreement, (x) delivery of such later Prospectus was required by the
Act to be made to such person, (y) the untrue statement or omission of a material fact
contained in the Prospectus was corrected in such later Prospectus and (z) there was not
sent or given to such person, at or prior to the written confirmation of sale of such
securities to such person, a copy of such later Prospectus. This indemnity agreement will be
in addition to any liability which the Company and the Guarantors may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless
the Company and each Guarantor, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company or any Guarantor within the
meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity
from the Company and the Guarantors to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company and the Guarantors by or
on behalf of such Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof
is to
be made against any indemnifying party under this Section 8, notify such indemnifying party
(and in cases where any Guarantor is an indemnifying party, the Company) in writing of the
commencement thereof; but the failure so to notify any indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the extent it did
not otherwise learn of such action and such failure results in the forfeiture by such
indemnifying party of substantial rights and defenses and (ii) will not, in any event,
relieve such indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. Each indemnifying party
shall be entitled to appoint counsel of an indemnifying party’s choice at the expense of
such indemnifying party to represent the indemnified party in any action for which
indemnification is sought (in which case each indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding an indemnifying party’s election to
appoint counsel to represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and each indemnifying
party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by such indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest, (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified party and such indemnifying
party and the indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, (iii) such indemnifying party shall
not have employed counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action or (iv) such
indemnifying party (or in the case where a Guarantor is an indemnifying party, the Company)
shall authorize the indemnified party to employ separate counsel at the expense of each
indemnifying party. An indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified party from
all liability arising out of such claim, action, suit or proceeding, and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure to act by or
on behalf of an indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8
is unavailable to or insufficient to hold harmless an indemnified party for any reason, the
Company, each Guarantor and the Underwriters severally agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively “Losses”) to
which the Company, the Guarantors and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the Company and
the Guarantors on the one hand and by the Underwriters on the other from the offering of the
Securities; provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or commission applicable
to the Securities purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company, each Guarantor
and the Underwriters severally shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the Company and the
Guarantors on the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such Losses as well as
any other relevant equitable considerations. Benefits received by the Company and the
Guarantors shall be deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by them, and benefits received by the Underwriters shall be
deemed to be equal to the total underwriting discounts and commissions, in each case as set
forth on the cover page of the Prospectus. Relative fault shall be determined by reference
to, among other things, whether any untrue or any alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to information
provided by the Company and the Guarantors on the one hand or the Underwriters on the other,
the intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Company, the
Guarantors and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls an Underwriter within the meaning of either the Act or the Exchange
Act and each director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls the Company and any
Guarantor within the meaning of either the Act or the Exchange Act, each officer of the
Company and any Guarantor who shall have signed the Registration Statement and each director
of the Company and each Guarantor shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail to purchase
and pay for any of the Securities and Guarantees agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall constitute a default in the performance
of its or their obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount of Securities and
Guarantees set forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities and Guarantees set forth opposite the names of all the remaining Underwriters) the
Securities and Guarantees which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of Securities and
Guarantees which the defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Securities and Guarantees set forth in Schedule I hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be under any obligation
to purchase any, of the Securities and Guarantees, and if such nondefaulting Underwriters do not
purchase all the Securities and Guarantees, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by any Underwriter as set forth
in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business
Days, as the Representatives shall determine in order that the required changes in the Registration
Statement and the Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the absolute
discretion of the Representatives, by notice given to the Company prior to delivery of and payment
for the Securities, if at any time prior to such time (i) trading in the Company’s Common Stock
shall have been suspended by the Commission or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been suspended or limited or minimum prices
shall have been established on such Exchange, (ii) a banking moratorium shall have been declared
either by federal or New York State authorities, (iii) there shall have occurred any major
disruption of settlements of securities or clearance services in the United States, or (iv) there
shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war, or other calamity or crisis the
effect of which on financial markets is such as to make it, in the sole judgment of the
Representatives, impractical or inadvisable to proceed with the offering, sale or delivery of the
Securities and the Guarantees as contemplated by the Prospectus (exclusive of any supplement
thereto).
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company and each Guarantor or
their officers and of the Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation made by or on behalf of any Underwriter,
the Company, any Guarantor or any of the officers, directors, employees, agents or controlling
persons referred to in Section 8 hereof, and will survive delivery of and payment for the
Securities and the Guarantees. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
12. No Fiduciary Relationship. EACH OF THE COMPANY AND THE GUARANTORS ACKNOWLEDGES
THAT (i) IT IS CONTRACTING WITH THE UNDERWRITERS ON AN ARM’S-LENGTH BASIS TO PROVIDE THE SERVICES
DESCRIBED HEREIN, (ii) THE UNDERWRITERS ARE NOT ACTING AS ITS AGENTS OR ADVISORS OR IN A FIDUCIARY
CAPACITY WITH RESPECT TO IT, AND (iii) THE UNDERWRITERS ARE NOT ASSUMING ANY DUTIES OR OBLIGATIONS
OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT. FURTHER, IT IS NOT THE INTENTION OF THE
PARTIES TO CREATE A FIDUCIARY RELATIONSHIP BETWEEN THEM.
13. Notices. All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to the
Representatives at the address set forth on Schedule I and confirmed to the Representatives at the
address set forth on Schedule I; or, if sent to the Company or any Guarantor, will be mailed,
delivered or telefaxed to Equity One, Inc., ▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇, (fax no. (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to it at Equity One, Inc., ▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Executive Vice President and Chief
Financial Officer.
14. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
15. Applicable Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the
State of New York.
16. Counterparts. This Agreement may be signed in counterparts, each of which shall
constitute an original and all of which together shall constitute one and the same agreement.
17. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.
18. Definitions. The terms which follow, when used in this Agreement, shall have the
meanings indicated.
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Agreement” shall mean this Underwriting Agreement between the Company, the Guarantors
and the Underwriters dated September 14, 2005.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or
a day on which banking institutions or trust companies are authorized or obligated by law to
close in New York City or in the City of Atlanta.
“Commission” shall mean the Securities and Exchange Commission.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the date and time that this Agreement is executed and
delivered by the parties hereto.
“Rating Agencies” shall mean ▇▇▇▇▇’▇ Investors Service, Inc. and Standard & Poor’s
Rating Services.
If the foregoing is in accordance with your understanding of our agreement, please sign and return
to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a
binding agreement among the Company and the several Underwriters.
| Very truly yours, | ||||
| Equity One, Inc. | ||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Executive Vice President and Chief Financial Officer |
||||
| GUARANTORS: | ||
| Bandera Festival GP, LLC | ||
| Beechnut Centre Corp. | ||
| Benbrook Centre Corp. | ||
| Bend Shopping Centre Corp. | ||
| Cashmere Developments, Inc. | ||
| Centrefund (US), LLC | ||
| Centrefund Acquisition (Texas) Corp. | ||
| Centrefund Acquisition Corp. | ||
| Centrefund Development (Gainesville), LLC | ||
| Centrefund Realty (U.S.) Corporation | ||
| Colony GP, LLC | ||
| ▇▇▇▇▇▇▇▇▇▇▇ Crossing, Inc. | ||
| Eastbelt Centre Corp. | ||
| Equity (Landing) Inc. | ||
| Equity One (147) Inc. | ||
| Equity One (Alpha) Corp. | ||
| Equity One (Atlantic Village) Inc. | ||
| Equity One (Beauclerc) Inc. | ||
| Equity One (Beta) Inc. | ||
| Equity One (Commonwealth) Inc. | ||
| Equity One Construction Inc. | ||
| Equity One (Coral Way) Inc. | ||
| Equity One (Delta) Inc. | ||
| Equity One (El Novillo) Inc. | ||
| Equity One (Eustis Square) Inc. | ||
| Equity One (Florida Portfolio) Inc. (f/k/a Equity One |
||
| Properties, Inc.) | ||
| Equity One (Forest Edge) Inc. | ||
| Equity One (Forest Village Phase II) Inc. | ||
| Equity One (Gamma) Inc. | ||
| Equity One (Lantana) Inc. | ||
| Equity One (▇▇▇▇▇) Inc. | ||
| Equity One (Mandarin) Inc. | ||
| Equity One (Monument) Inc. | ||
| Equity One (North Port) Inc. |
| Equity One (Oak Hill) Inc. | ||
| Equity One (Olive) Inc. | ||
| Equity One (Point Royale) Inc. | ||
| Equity One (Sky Lake) Inc. | ||
| Equity One (▇▇▇▇▇▇▇▇▇) Inc. | ||
| Equity One (▇▇▇▇▇▇ ▇▇▇▇▇) Inc. | ||
| Equity One (Waterstone) Inc. (f/k/a Homestead Market Center, Inc.) |
||
| Equity One (West Lake) Inc. | ||
| Equity One Acquisition Corp. | ||
| Equity One (Clematis) LLC | ||
| Equity One Realty & Management Texas, Inc. | ||
| Equity One Realty & Management FL, Inc. | ||
| Equity Texas Properties, LLC | ||
| FC Market GP, LLC | ||
| Florida Del Rey Holdings II, Inc. | ||
| Forestwood Equity Partners GP, LLC | ||
| Garland & Barns, LLC | ||
| Garland & Jupiter, LLC | ||
| Gazit (Meridian) Inc. | ||
| ▇▇▇▇▇▇ Centre Corp. | ||
| Harbor ▇▇▇▇▇▇ Cypress GP, LLC | ||
| Hedwig GP, LLC | ||
| IRT Alabama, Inc. | ||
| IRT Capital Corporation II | ||
| IRT Management Company | ||
| KirkBiss GP, LLC | ||
| Leesburg DrugStore, LLC | ||
| Mariner Outparcel, Inc. | ||
| ▇▇▇▇▇ Park GP, LLC | ||
| ▇▇▇▇▇▇ Holdings, Inc. | ||
| North Kingwood Centre Corp. | ||
| Oakbrook Square Shopping Center Corp. | ||
| Parcel F, LLC | ||
| Plymouth South Acquisition Corp. | ||
| Prosperity Shopping Center Corp. | ||
| PSL Developments, Inc. | ||
| Ryanwood Shopping Center, L.L.C. | ||
| ▇▇ ▇▇▇▇▇▇ Village Partners GP, LLC | ||
| ▇▇▇▇▇▇▇ Village Shopping Center, LLC | ||
| Shoppes at Jonathan’s Landing, Inc. | ||
| Shoppes at Westbury Shopping Center, Inc. | ||
| South Kingwood Centre Corp. | ||
| Spring Shadows GP, LLC | ||
| St. ▇▇▇▇▇▇▇ Outparcel, Inc. | ||
| Steeplechase Centre Corp. | ||
| Southwest 19 Northern, Inc. | ||
| Texas Equity Holdings, LLC | ||
| The Harbour Center, Inc. | ||
| The ▇▇▇▇▇▇▇ Shopping Center, LLC | ||
| The Shoppes of Eastwood, LLC |
| UIRT GP, L.L.C. | ||
| UIRT I — Centennial, Inc. | ||
| UIRT LP, L.L.C. | ||
| UIRT-Northwest Crossing Inc. | ||
| ▇▇▇▇▇▇▇ DrugStore, LLC | ||
| Wimbledon Center Corp. | ||
| Wurzbach Centre, LLC |
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Vice President and Treasurer |
||||||||
| Bandera Festival Partners, LP | ||||||||
| By: Bandera Festival GP, LLC | ||||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Vice President and Treasurer |
||||||||
| BC Center Partners, LP | ||||||||
| By: Harbour ▇▇▇▇▇▇ Cypress GP, LLC | ||||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Vice President and Treasurer |
||||||||
| Beechnut Centre I L.P. | ||||||||
| By: Beechnut Centre Corp. | ||||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Vice President and Treasurer |
||||||||
| Bend Shopping Centre I L.P. | ||||||||
| By: Bend Shopping Centre Corp. | ||||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||||
| Vice President and Treasurer | ||||||||
| Eastbelt Centre I L.P. | ||||||
| By: | Eastbelt Centre Corp. | |||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Vice President and Treasurer |
||||||
| FC Market Partners, LP | ||||||
| By: | FC Market GP, LLC | |||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Vice President and Treasurer |
||||||
| ▇▇▇▇▇▇ Centre I L.P. | ||||||
| By: | ▇▇▇▇▇▇ Centre Corp. | |||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Vice President and Treasurer |
||||||
| Hedwig Partners, LP | ||||||
| By: | Hedwig GP, LLC | |||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Vice President and Treasurer |
||||||
| IRT Partners LP | ||||||
| By: | Equity One, Inc. | |||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Vice President and Treasurer |
||||||
| Kirkwood — Bissonnet Partners, LP | ||||||
| By: | KirkBiss GP, LLC | |||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| Vice President and Treasurer | ||||||
| ▇▇▇▇▇ Park Partners, LP | ||||||
| By: | ▇▇▇▇▇ Park GP, LLC | |||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Vice President and Treasurer |
||||||
| Park Northern/Centennial Partners, L.P. | ||||||
| By: UIRT I — Centennial, Inc. | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Vice President and Treasurer |
||||||
| ▇▇ ▇▇▇▇▇▇ Village Partners, LP | ||||||
| By: ▇▇ ▇▇▇▇▇▇ Village Partners GP, LLC | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Vice President and Treasurer |
||||||
| Steeplechase Centre I L.P. | ||||||
| By: Steeplechase Centre Corp. | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Vice President and Treasurer |
||||||
| Texas CP Land, LP | ||||||
| By: Colony GP, LLC | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Vice President and Treasurer |
||||||
| Texas Spring Shadows Partners, LP | ||||||
| By: Spring Shadows GP, LLC | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| Vice President and Treasurer | ||||||
| UIRT, Ltd. | ||||
| By: UIRT GP, LLC | ||||
| By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||
| Vice President and Treasurer | ||||
The foregoing Agreement is hereby confirmed and accepted as of the date first above written.
| ▇.▇. ▇▇▇▇▇▇ Securities Inc. | ||||
By:
|
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Vice President |
||||
| Deutsche Bank Securities Inc. | ||||
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇ | |||
| Name: ▇▇▇▇▇ ▇▇▇▇▇ | ||||
| Title: Managing Director | ||||
By:
|
/s/ ▇▇▇▇ ▇▇▇▇ | |||
| Name: ▇▇▇▇ ▇▇▇▇ | ||||
| Title: Director | ||||
| UBS Securities LLC | ||||
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ |
||||
| Title: Executive Director | ||||
By:
|
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇ ▇▇▇▇▇▇▇ | ||||
| Title: Director | ||||
For themselves and the other several Underwriters named in Schedule I to the foregoing Agreement.
SCHEDULE I
| Principal Amount | ||||||||
| Nature of Lending | of Securities and | |||||||
| Name of Underwriter | Relationship | Guarantees | Address | |||||
Representatives: |
||||||||
▇.▇. ▇▇▇▇▇▇ Securities Inc
|
A participant in the Company’s unsecured revolving credit facility | $ | 40,800,000 | ▇.▇. ▇▇▇▇▇▇ Securities Inc. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: High Grade Syndicate Desk — 8th Floor |
||||
Deutsche Bank Securities Inc
|
A participant in the Company’s unsecured revolving credit facility | 27,600,000 | Deutsche Bank Securities Inc. ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ |
|||||
UBS Securities LLC
|
None | 27,600.000 | UBS Securities LLC Attention: Fixed Income Syndicate Phone: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇ |
|||||
Others:
|
||||||||
Bear, ▇▇▇▇▇▇▇ & Co. Inc
|
None | $ | 6,000,000 | |||||
Credit
Suisse First Boston LLC
|
None | 6,000,000 | ||||||
Comerica Securities, Inc
|
A participant in the Company’s unsecured revolving credit facility | 2,400,000 | ||||||
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
|
None | 2,400,000 | ||||||
PNC Capital Markets, Inc
|
A participant in the Company’s unsecured revolving credit facility | 2,400,000 | ||||||
SunTrust
Capital Markets, Inc.
|
A participant in the Company’s unsecured revolving credit facility | 2,400,000 | ||||||
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Fargo Brokerage Services, LLC.
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Representatives of the participants in the Company’s unsecured revolving credit facility | 2,400,000 | ||||||
SCHEDULE 1(o)
LIST OF REGISTRATION RIGHTS AGREEMENTS
| 1. | Registration Rights Agreement dated October 28, 2002 among Equity One, Inc., Silver Maple (2001), Inc., M.G.N. (USA), Inc. and A-H Investments US, L.P. | |
| 2. | Amended and Restated Employment Agreement effective as of January 1, 2002, between Equity One, Inc. and ▇▇▇▇▇ ▇▇▇▇▇▇▇. | |
| 3. | Amended and Restated Employment Agreement effective as of January 1, 2002, between Equity One, Inc. and ▇▇▇▇▇ ▇▇▇▇▇▇. | |
| 4. | Stock Exchange Agreement dated May 18, 2001 among Equity One, Inc., First Capital Realty, Inc. (formerly Centrefund Realty Corporation) and First Capital America Holding Corp, as amended by the consent dated July 26, 2001 to the Assignment and Assumption Agreement dated July 26, 2001 among First Capital, First Capital Holding, Ficus, Inc. and Silver Maple (2001), Inc. | |
| 5. | Subscription Agreement dated October 4, 2000 between Equity One, Inc. and ▇▇▇▇▇ ▇▇▇▇ Properties & Investments, Ltd. | |
| 6. | Registration Rights Agreement dated January 1, 1996 among Equity One, Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇, Gazit Holdings, Inc., ▇▇▇ Overseas Limited, M.G.N. Oil & Gas Resources, Ltd., ▇▇▇ Macaby, ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ Voolkan. | |
| 7. | Settlement Agreement dated March 6, 1998 among Gazit, Inc., Danbar Resources Ltd. and ▇▇▇ Overseas. | |
| 8. | Investment Contract dated May 21, 1996 between Gazit-Globe (1982) Ltd., ▇▇▇ Overseas, Gazit (1995), Inc., Equity One, Inc. and M.G.N. (USA), Inc. | |
| 9. | Registration Rights Agreement dated December 1998 by and between ▇▇▇▇ Affiliates and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, doing business as Frankline Development Co., L.L.C., and Equity One, Inc. |