EXHIBIT 1.1
-----------
Equity One, Inc.
3,000,000 Shares*
Common Stock
($0.01 par value)
Underwriting Agreement
New York, New York
March 21, 2002
Legg Mason Wood Walker, Incorporated
McDonald Investments Inc.
BB&T Capital Markets, a division of Scott & Stringfellow, Inc.
As Representatives of the several Underwriters,
c/o Legg Mason Wood Walker, Incorporated
100 Light Street
Baltimore, Maryland 21202
Ladies and Gentlemen:
Equity One, Inc., a corporation organized under the laws of
the State of Maryland (the "Company"), proposes to sell to the
several underwriters named in Schedule I hereto (the
"Underwriters"), for whom you (the "Representatives") are
acting as representatives, 3,000,000 shares of Common Stock,
$0.01 par value ("Common Stock") of the Company (said shares
to be issued and sold by the Company being hereinafter called
the "Underwritten Securities"). The Company also proposes to
grant to the Underwriters an option to purchase up to 450,000
additional shares of Common Stock to cover over-allotments
(the "Option Securities"; the Option Securities, together with
the Underwritten Securities, being hereinafter called the
"Securities"). To the extent there are no additional
Underwriters listed on Schedule I other than you, 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. Any reference herein to the Registration Statement,
a Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under
the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of such Preliminary
Prospectus or the Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be
- ---------------------------
* Plus an option to purchase from Equity One, Inc. up to 450,000 additional
shares to cover over-allotments.
deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the
Registration Statement, or the issue date of any Preliminary
Prospectus or the Prospectus, as the case may be, deemed to be
incorporated therein by reference. Certain terms used herein
are defined in Section 17 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) The Company meets the requirements for use of Form S-3
under the Act and has prepared and filed with the Commission a
registration statement (file number 333-81216) on Form S-3, including a
related preliminary prospectus, for registration under the Act of the
offering and sale of the Company's debt and equity securities. The
Company has filed a preliminary prospectus supplement related to the
Securities together with a prospectus (the "Preliminary Prospectus"),
which has previously been furnished to you. The Company will next file
with the Commission a final prospectus supplement related to the
Securities together with a prospectus in accordance with Rule 424(b).
The Company has included in such registration statement, as amended at
the Effective Date, all information required by the Act and the rules
thereunder to be included in such registration statement. As filed,
such final 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 (beyond that contained in the latest Preliminary Prospectus) as
the Company has advised you, prior to the Execution Time, will be
included or made therein.
(b) On the Effective Date, the Registration Statement did, and
when the Prospectus is first filed in accordance with Rule 424(b) and
on the Closing Date (as defined herein) and on any date on which Option
Securities are purchased, if such date is not the Closing Date (a
"settlement date"), the Prospectus will, comply in all material
respects with the applicable requirements of the Act and the Exchange
Act and the respective rules thereunder; 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; and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date and any settlement
date, the Prospectus will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; PROVIDED, HOWEVER, that the
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.
2
(c) The subsidiaries listed on Schedule 1(c) (individually a
"Subsidiary" and collectively the "Subsidiaries") are all of the
indirect or direct Subsidiaries of the Company.
(d) Each of the Company and the Subsidiaries 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;
(e) All the outstanding shares of capital stock, partnership
interests, limited liability company interests or other equivalent
equity interest 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;
(f) The Company's authorized equity capitalization is as set
forth as of the Prospectus date or dates stated therein; the capital
stock of the Company conforms in all material respects to the
description thereof contained in the Prospectus; the outstanding shares
of capital stock have been duly and validly authorized and issued and
are fully paid and nonassessable; the Securities have been duly and
validly authorized, and, when issued and delivered to and paid for by
the Underwriters pursuant to this Agreement, will be fully paid and
nonassessable; the certificates for the Common Stock are in valid and
sufficient form; the holders of outstanding shares of capital stock of
the Company are not entitled to preemptive or other rights to subscribe
for the Securities; and except as set forth in the Prospectus no
options, warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any obligations into or
exchange any securities for, shares of capital stock of or ownership
interests in the Company are outstanding.
(g) 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 Common and Preferred Stock" 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.
3
(h) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation
of the Company enforceable in accordance with its terms except to the
extent that the indemnification provisions hereof may be limited by
federal or state securities laws and public policy considerations in
respect thereof.
(i) 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.
(j) 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.
(k) 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, except such as have been
obtained under the Act, 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 by the Underwriters in
the manner contemplated herein and in the Prospectus.
(l) 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.
(m) Neither the issue and sale of the Securities 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, 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.
4
(n) 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(n), all of which have been effectively
waived.
(o) 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.
(p) 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.
(q) 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, (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.
(r) 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, any settlement date pursuant to Section 3 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.
5
(s) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its Subsidiaries or its or their property is pending
or, to the best knowledge of the Company, threatened that (i) could
reasonably be expected to have a material adverse effect on the
performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (ii) could reasonably be expected
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, 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).
(t) All pending legal or governmental proceedings to which the
Company or any of its Subsidiaries is a party or of which any of its
property or assets is the subject which are not described in the
Prospectus, including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not material.
(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.
(w) Except as disclosed in the Prospectus, the Company and its
Subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or revenues derived therefrom or materially interfere with the
use made or to be made thereof by them; the Company and its
Subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere
with the use made or to be made thereof by them; except as disclosed in
the Prospectus, no tenant under any lease pursuant to which the Company
or any of its Subsidiaries will lease its property or any other person
will have an option or a right of first refusal to purchase the
premises leased thereunder or the building of which such premises are a
part; no tenant under any lease to which the Company or any Subsidiary
lease any portion of its property is in default under such
6
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, operations, prospects or earnings of the non-compliant
property; 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.
(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) To the best knowledge of the Company and its Subsidiaries,
the real property of such entities is free of material structural
defects and all building systems contained therein are in good working
order in all material respects, subject to ordinary wear and tear or,
in each instance, the Company maintains adequate reserves to effect
reasonably required repairs, maintenance and capital expenditures.
(aa) The Company's rent roll dated December 31, 2001 is in all
material respects a true, correct and complete specification of the
identity of each tenant, square footage, base rent, common area
maintenance payment, tax payment and lease expiration for the real
property of the Company and its Subsidiaries as of such date.
(bb) Each of the partnership and joint venture agreements to
which the Company or any of its Subsidiaries is a party, and which
relates to real property described in the Prospectus, has been duly
authorized, executed and delivered by such applicable party and
constitutes the valid agreement thereof, enforceable in accordance with
its terms, except as limited by (a) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights or remedies of
creditors or (b) the effect of general principles of equity, whether
7
enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be
brought.
(cc) 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
or sale by the Company of the Securities.
(dd) 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 so to 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).
(ee) No labor problem or dispute with the employees of the
Company or any of its Subsidiaries exists or is threatened or imminent,
and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or its Subsidiaries'
principal suppliers, contractors or customers, that could 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).
(ff) 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;
the Company and its Subsidiaries are in compliance with the terms of
such policies and instruments in all material respects; and there are
no claims by the Company or any of its Subsidiaries under any such
policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause; neither
the Company nor any such Subsidiary has been refused any insurance
coverage sought or applied for; and neither the Company nor any such
Subsidiary has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
8
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).
(gg) No Subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends or other
distributions to the Company, from making any other distribution on
such Subsidiary's capital stock, partnership interests, limited
liability company interests or other equivalent equity interest, from
repaying to the Company any loans or advances to such Subsidiary from
the Company or from transferring any of such Subsidiary's property or
assets to the Company or any other Subsidiary of the Company, except as
described in or contemplated by the Prospectus.
(hh) 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).
(ii) 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.
(jj) 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.
(kk) 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,
9
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.
(ll) 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). (mm) None of the Company, or any
of its Subsidiaries has any knowledge of (a) the presence of any
Hazardous Materials on any of the properties owned by it, or (b) any
spills, releases, discharges or disposal, of Hazardous Materials that
have occurred or are presently occurring on, under, to or from off such
properties as a result of any construction on or operation and use of
such properties, which presence, spills, releases, discharges or
disposals 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; and
in connection with the construction on or operation and use of the
properties owned by the Company and its Subsidiaries, each of the
Company, and its Subsidiaries represents that, it has no knowledge of
any material failure to comply with all Environmental Laws.
As used herein, "Hazardous Materials" shall include, without
limitation, any flammable substances, explosives, radioactive
materials, hazardous materials, hazardous wastes, hazardous or toxic
substances, or related materials, oil and petroleum products, asbestos
or any material as defined by any federal, state or local environmental
law, ordinance, rule, or regulation including, without limitation,
Environmental Laws, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section
9601, ET SEQ.) ("CERCLA"), the Hazardous Materials Transportation Act,
as amended (49 U.S.C. Section 1801, ET SEQ.), the Resource Conservation
and Recovery Act, as amended (42 U.S.C. Section 9601, ET SEQ.), the
Clean Water Act, as amended (33 U.S.C. Section 1251, ET SEQ.)and in the
regulations adopted
10
and publications promulgated pursuant to any of the foregoing or by any
federal, state or local governmental authority having or claiming
jurisdiction over any property owned by the Company or any Subsidiary
as described in the Prospectus.
(nn) Each of the Company and its Subsidiaries has fulfilled
its obligations, if any, under the minimum funding standards of Section
302 of the United States Employee Retirement Income Security Act of
1974 ("ERISA") and the regulations and published interpretations
thereunder with respect to each "plan" (as defined in Section 3(3) of
ERISA and such regulations and published interpretations) in which
employees of the Company and its Subsidiaries are eligible to
participate and each such plan is in compliance in all material
respects with the presently applicable provisions of ERISA and such
regulations and published interpretations. The Company and its
Subsidiaries have not incurred any unpaid liability to the Pension
Benefit Guaranty Corporation (other than for the payment of premiums in
the ordinary course) or to any such plan under Title IV of ERISA.
(oo) The Company (i) does not have any material lending or
other relationship with any bank or lending affiliate of Legg Mason
Wood Walker, Incorporated 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 affiliate of Legg Mason Wood Walker,
Incorporated.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Company, as to matters covered thereby, to each Underwriter.
2. PURCHASE AND SALE. (a) 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, at a purchase price of
$12.5544 per share, the amount of the Underwritten Securities set forth opposite
such Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company hereby grants
an option to the several Underwriters to purchase, severally and not jointly, up
to 450,000 Option Securities at the same purchase price per share as the
Underwriters shall pay for the Underwritten Securities. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised in whole or in part
at any time (but not more than once) on or before the 30th day after the date of
the Prospectus upon written or telegraphic notice by the Representatives to the
Company setting forth the number of shares of the Option Securities as to which
the several Underwriters are exercising the option and the settlement date. The
number of shares of the Option Securities to be purchased by each Underwriter
shall be the same percentage of the total number of shares of the Option
Securities to be purchased by the several Underwriters as such Underwriter is
purchasing of the Underwritten Securities, subject to such adjustments as you in
your absolute discretion shall make to eliminate any fractional shares.
11
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made at 10:00 AM, New York City time, on
March 27, 2002, or at such time on such later date not more than three Business
Days after the foregoing 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 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 Underwritten
Securities and the Option Securities shall be made through the facilities of The
Depository Trust Company unless the Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised
after the third Business Day prior to the Closing Date, the Company will deliver
the Option Securities (at the expense of the Company) to the Representatives on
the date specified by the Representatives (which shall be within three Business
Days after exercise of said option) 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. If settlement for the Option
Securities occurs after the Closing Date, the Company will deliver to the
Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. OFFERING BY UNDERWRITERS. The Company understands that the
several Underwriters propose to offer the Securities for sale to the public as
set forth in the Prospectus.
5. AGREEMENTS. The Company 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. Prior to the termination of the
offering of the Securities, 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
12
Securities, 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 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 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 or the Exchange Act 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) 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.
(d) 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 each Preliminary
Prospectus and the Prospectus and any supplement thereto as the
Representatives may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to
the offering.
(e) The Company will arrange, if necessary, for the
qualification of the Securities 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 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, in any jurisdiction where it is not now so subject.
13
(f) The Company will not, without the prior written consent of
Legg Mason Wood Walker, Incorporated, 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, any other shares
of Common Stock or any securities convertible into, or exercisable, or
exchangeable for, shares of Common Stock; or publicly announce an
intention to effect any such transaction, for a period of 180 days
after the date of the Underwriting Agreement, PROVIDED, HOWEVER, that
the Company may -------- ------- issue and sell Common Stock pursuant
to any employee stock option plan, stock ownership plan or dividend
reinvestment plan of the Company in effect at the Execution Time and
the Company may issue Common Stock issuable upon the conversion of
securities or the exercise of warrants outstanding at the Execution
Time.
(g) The Company has furnished or will furnish to you "lock-up"
letters, substantially in the form of Exhibit A signed by Chaim
Katzman, Doron Valero and Howard Sipzner, and substantially in the form
of Exhibit B signed by Gazit, (1995) Inc., Silver Maple (2001), Inc.
and AH Investments US, L.P.
(h) 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.
(i) 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, 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.
(j) The Company will use its best efforts to list the
Securities on the New York Stock Exchange.
(k) 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.
(l) Up to an aggregate of 500,000 of the Underwritten
Securities (the "Reserved Securities") shall be reserved for sale by
the Underwriters to Gazit (1995), Inc., Silver Maple (2001), Inc. and
AH Investments US, L.P. as part of the distribution of the Underwritten
Securities by the Underwriters, subject to the terms of this Agreement,
the applicable rules, regulations and interpretations of the National
Association of Securities Dealers, Inc. and all other applicable laws,
rules and regulations. To the extent that such Reserved Securities are
not orally confirmed for purchase by the end of the first
14
business day after the date of this Agreement, such Reserved Securities
may be offered to the public as part of the public offering
contemplated hereby.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Underwritten Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the Execution Time, the Closing Date and any settlement date pursuant to Section
3 hereof, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its 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 Greenberg
Traurig, P.A., Greenberg Traurig, LLP, Andrews & Kurth LLP and Ballard
Spahr, Andrews & Ingersol LLP, each counsel for the Company, 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 has been duly incorporated or formed, as applicable,
and 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 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 all
outstanding shares of capital stock, partnership interests,
limited liability
15
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; the capital stock of the
Company conforms in all material respects to the description
thereof contained in the Prospectus; the outstanding shares of
Common Stock have been duly authorized and validly issued and
are fully paid and nonassessable; the Securities have been
duly and validly authorized, and, when issued and delivered to
and paid for by the Underwriters pursuant to this Agreement,
will be validly issued, fully paid and nonassessable; the
certificates for the Securities are in valid and sufficient
form; the holders of outstanding shares of capital stock of
the Company are not entitled to preemptive or other rights to
subscribe for the Securities except for such rights as have
been effectively waived;
(iv) 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;
(v) the statements included or incorporated by reference
in the Prospectus under the captions "Material Federal Income
Tax Considerations", "Description of Common and Preferred
Stock " and "Risk Factors" insofar as such statements
summarize legal matters, agreements, documents or proceedings
discussed therein, are accurate in all material respects;
(vi) the Registration Statement has become effective
under the Act; 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
16
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, as to which
such counsel need express no opinion);
(vii) this Agreement has been duly authorized, executed
and delivered by the Company;
(viii) 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;
(ix) 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;
(x) the Securities are approved for listing, subject to
official notice of issuance, on the New York Stock Exchange;
(xi) 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 of the
transactions contemplated herein, except such as have been
obtained under the Act, 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 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;
(xii) except as set forth in the Prospectus, neither the
issue and sale of the Securities by the Company, nor the
consummation by the Company of any other of the transactions
herein contemplated nor the fulfillment of the terms hereof
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, (i) the charter or by-laws of the Company or its
Subsidiaries, (ii) 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 (iii) 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
17
authority having jurisdiction over the Company or its
Subsidiaries or any of its or their properties; and
(xiii) 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.
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, 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 Paul,
Hastings, Janofsky & Walker 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 shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, or any settlement date pursuant to
Section 3, to the effect that the signers of such certificate 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 in
this Agreement are true and correct on and as of the Closing
Date or settlement date with the same effect as if made on the
Closing Date or settlement date and the Company 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
18
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, with respect to financial information of United
Investors Realty Trust, Ernst & Young LLP 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 the
historical summaries of revenue and operating expenses for the
properties related thereto 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, 2001, 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, 2001 consolidated balance sheet included or
incorporated by reference in the Registration Statement
and the Prospectus, or for the period from January 1,
2002 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;
19
(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 and Centrefund Realty (U.S.) Corporation and United
Investors Realty Trust 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) 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 as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto).
20
(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 Securities shall have been listed and admitted and
authorized for trading on the New York Stock Exchange, and satisfactory
evidence of such actions shall have been provided to the
Representatives.
(i) At the Execution Time, the Company shall have furnished to
the Representatives a letter substantially in the form of Exhibit A
hereto from Chaim Katzman, Doron Valero and Howard Sipzner and
substantially in the form of Exhibit B signed by Gazit (1995), Inc.,
Silver Maple (2001), Inc. and AH Investments US, L.P.
(j) As of the Execution Time, the Company shall have furnished
to the Representatives evidence satisfactory to the Representatives of
the Company having undertaken to obtain written clarifications,
amendments or consents from each of the lenders under mortgages that
may be in default as described in the Prospectus under the heading
"Risk Factors".
(k) The Company shall have caused Deloitte & Touche LLP or
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
Execution Time.
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 Paul, Hastings, Janofsky & Walker LLP, counsel for
the Underwriters, at 399 Park Avenue, 31st Floor, New York, New York 10022, on
the Closing Date.
7. EXPENSES.
(a) If the sale of the Securities 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 Legg Mason Wood Walker,
Incorporated 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.
21
(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, including any stamp taxes in
connection with the original issuance and sale of the Securities; (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; (v) the listing of the Securities on the New
York Stock Exchange; (vi) the registration or qualification of the Securities
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); (vii) 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.; (viii) the transportation and other expenses incurred by or on behalf of
Company representatives in connection with presentations to prospective
purchasers of the Securities; (ix) the fees and expenses of the Company's
accountants and the fees and expenses of counsel (including local and special
counsel) for the Company.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company 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 Preliminary
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,
22
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 it shall have been determined by a court of competent
jurisdiction by final and nonappealable judgment that (w) the Company had
previously furnished copies of the Prospectus to the Representatives, (x)
delivery of the 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
Preliminary Prospectus was corrected in the 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 the Prospectus. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each Underwriter, but only
with reference to written information relating to such Underwriter furnished to
the Company 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. The Company acknowledges that the statements
set forth under the heading "Underwriting", (i) the list of Underwriters and
their respective participation in the sale of the Securities, (ii) the sentences
related to concessions and reallowances and (iii) the paragraph related to
stabilization, syndicate covering transactions and penalty bids in the
Prospectus constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in any Preliminary Prospectus or the
Prospectus.
(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 the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the 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 the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the 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 the 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 the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the 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 the indemnifying party and the
indemnified party shall have reasonably
23
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) the 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)
the indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the 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 includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(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 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
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 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 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 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 shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by
it, 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 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 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 within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration
24
Statement and each director of the Company 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 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 set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; PROVIDED, HOWEVER, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities 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 if such nondefaulting Underwriters do not purchase all the Securities, 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 or (iii) 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 or delivery of the Securities 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 or its 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 or the Company 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.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. 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 Legg
25
Mason Wood Walker, Incorporated, Attention: Edwin J. Bradley, Jr., Managing
Director, (fax no.: (410) 454-5157) and confirmed to Legg Mason Wood Walker,
Incorporated, at 100 Light Street, Baltimore, Maryland, 21202, Attention: Edwin
J. Bradley, Jr., Managing Director; or, if sent to the Company, will be mailed,
delivered or telefaxed to Equity One, Inc., 1696 N.E. Miami Gardens Drive, North
Miami Beach, FL 33179, (fax no. (305) 947-1734) and confirmed to it at Equity
One, Inc., 1696 N.E. Miami Gardens Drive, North Miami Beach, FL 33179 ,
attention: Howard Sipzner, Chief Financial Officer.
13. 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.
14. 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.
15. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. HEADINGS. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. 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.
"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.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"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.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(a) above.
26
"Prospectus" shall mean the prospectus together with any
prospectus supplement relating to the Securities that is filed pursuant
to Rule 424(b) after the Execution Time or, if no filing pursuant to
Rule 424(b) is required, shall mean the form of final prospectus
relating to the Securities included in the Registration Statement at
the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be.
"Rule 424" and "Rule 462" refer to such rules under the Act.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
27
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/ CHAIM KATZMAN
-------------------------------------
Chaim Katzman
Chief Executive Officer
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.
Legg Mason Wood Walker, Incorporated
McDonald Investments Inc.
BB&T Capital Markets
By: Legg Mason Wood Walker, Incorporated
By: EDWIN J. BRADLEY, JR.
------------------------------
Edwin J. Bradley, Jr.
Managing Director
For themselves and the other several Underwriters named in Schedule I to the
foregoing Agreement.
28