Exhibit 1.1
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Equity One, Inc.
$200,000,000
Debt Securities
Underwriting Agreement
March 23, 2004
Credit Suisse First Boston LLC
Deutsche Bank Securities Inc.
J.P. Morgan Securities Inc.
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 four (4)
Supplemental Indentures thereto (and as further amended and supplemented from
time to time, 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 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 has filed with the Commission a registration statement
on Form S-3, including a prospectus ("Registration Statement No.
333-81216"), for the registration under the Act of $250,000,000 aggregate
amount of the Company's equity and debt securities described therein. Such
registration statement has been declared effective by the Commission and no
stop order suspending such effectiveness has been issued under the Act and
no proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, threatened by the Commission. All but
$103,067,500 aggregate amount of securities registered with the Commission
under the Act pursuant to Registration Statement No. 333-81216 have been
previously issued. A joint registration statement on Form S-3, including a
prospectus ("Registration Statement No. 333-106909"), has also been filed
by the Company together with 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-Registrant's
guarantees relating to the debt securities registered pursuant to such
registration statement and pursuant to Registration Statement No.
333-81216. References herein to the term "Registration Statement" as of any
given date shall mean Registration Statement No. 333-81216 and Registration
Statement No. 333-106909, each 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
combined prospectus forming a part of Registration Statement Nos. 333-81216
and 333-106909, 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 relating to (i) securities other than the Securities or (ii)
when referring to the Prospectus relating to a particular offering of the
Securities, 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 later of the time and date
that Registration Statement Nos. 333-81216 or 333-106909 was declared
effective and the time and date of the filing thereafter of the Company's
most recent Annual Report on Form 10-K, if such filing is made prior to the
Closing Date (as hereinafter defined). 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
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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
Registration Statement No. 333-106909; 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
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;
(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. 4 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.
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(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
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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
William L. Mack, David Mack, Earle Mack, Frederic Mack, and Robert A.
Elkins, 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
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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 Offered 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.
(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
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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
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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 controls 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 controls 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
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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 99.275% 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 March 26, 2004, 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.
9
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 Offered Securities) or publicly announce an intention to effect
any such transaction, until the first day following the Closing Date;
provided that nothing herein shall
10
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.
11
(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 Greenberg Traurig,
P.A., Venable 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;
12
(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
13
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;
(x) the Indenture has been duly and validly 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 agreement of the Company, enforceable against the
Company 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
14
(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.
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 Alston & Bird 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
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:
15
(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, 2003, 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, 2003 consolidated balance sheet included or incorporated by
reference in the Registration Statement and the Prospectus, or
for the period from January 1, 2004 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
16
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, 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.
(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 Alston & Bird LLP, counsel for the Underwriters, at 3201
Beechleaf Court, Suite 600, Raleigh, North Carolina 27604, on the Closing Date.
17
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.
18
(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
19
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
20
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
21
or inadvisable to proceed with the offering 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. 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., 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,
Executive Vice President and 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 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.
"Agreement" shall mean this Underwriting Agreement between the
Company, the Guarantors and the Underwriters dated March 23, 2004.
"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.
22
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Rating Agencies" shall mean Moody's 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/ Howard M. Sipzner
-------------------------------
Howard M. Sipzner
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.
Centerfund (US), LLC
Centrefund Acquisition (Texas) Corp.
Centrefund Acquisition Corp.
Centrefund Development (Gainesville), LLC
Centrefund Realty (U.S.) Corporation
Colony GP, LLC
Copperfield 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.
By: /s/ Howard M. Sipzner
-------------------------------
Howard M. Sipzner
Vice President and Treasurer
23
Equity One (El Novillo) Inc.
Equity One (Eustis Square) Inc.
Equity One (Forest Edge) Inc.
Equity One (Forest Village Phase II) Inc.
Equity One (Gamma) Inc.
Equity One (Lantana) Inc.
Equity One (Losco) 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 (Summerlin) Inc.
Equity One (Walden Woods) Inc.
Equity One (West Lake) Inc.
Equity One Acquisition Corp.
Equity One (Clematis) LLC
Equity One Properties, Inc.
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.
Forrestwood Equity Partners GP, LLC
Garland & Barns, LLC
Garland & Jupiter, LLC
Gazit (Meridian) Inc.
Grogan Centre Corp.
Harbor Barker Cypress GP, LLC
Hedwig GP, LLC
Homestead Market Center, Inc.
IRT Alabama, Inc.
IRT Capital Corporation II
IRT Management Company
KirkBiss GP, LLC
Leesburg DrugStore, LLC
Mariner Outparcel, Inc.
Mason Park GP, LLC
McMinn Holdings, Inc.
North Kingwood Centre Corp.
Oakbrook Square Shopping Center Corp.
Parcel F, LLC
Plymouth South Acquisition Corp.
By: /s/ Howard M. Sipzner
-------------------------------
Howard M. Sipzner
Vice President and Treasurer
24
Prosperity Shopping Center Corp.
PSL Developments, Inc.
Ryanwood Shopping Center, L.L.C.
SA Blanco Village Partners GP, LLC
Salerno 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. Charles Outparcel, Inc.
Steeplechase Centre Corp.
Southwest 19 Northern, Inc.
Texas Equity Holdings, LLC
The Harbour Center, Inc.
The Meadows 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.
Wickham DrugStore, LLC
Wimbledon Center Corp.
Wurzbach Centre, LLC
By: /s/ Howard M. Sipzner
-------------------------------
Howard M. Sipzner
Vice President and Treasurer
Bandera Festival Partners, LP
By: Bandera Festival GP, LLC
By: /s/ Howard M. Sipzner
-------------------------------
Howard M. Sipzner
Vice President and Treasurer
BC Centre Partners, LP
By: Harbour Barker Cypress GP, LLC
By: /s/ Howard M. Sipzner
-------------------------------
Howard M. Sipzner
Vice President and Treasurer
25
Beechnut Centre I L.P.
By: Beechnut Centre Corp.
By: /s/ Howard M. Sipzner
-------------------------------
Howard M. Sipzner
Vice President and Treasurer
Bend Shopping Centre I L.P.
By: Bend Shopping Centre Corp.
By: /s/ Howard M. Sipzner
-------------------------------
Howard M. Sipzner
Vice President and Treasurer
Eastbelt Centre I L.P.
By: Eastbelt Centre Corp.
By: /s/ Howard M. Sipzner
-------------------------------
Howard M. Sipzner
Vice President and Treasurer
FC Market Partners, LP
By: FC Market GP, LLC
By: /s/ Howard M. Sipzner
-------------------------------
Howard M. Sipzner
Vice President and Treasurer
Grogan Centre I L.P.
By: Grogan Centre Corp.
By: /s/ Howard M. Sipzner
-------------------------------
Howard M. Sipzner
Vice President and Treasurer
Hedwig Partners, LP
By: Hedwig GP, LLC
By: /s/ Howard M. Sipzner
-------------------------------
Howard M. Sipzner
Vice President and Treasurer
26
IRT Partners LP
By: Equity One, Inc.
By: /s/ Howard M. Sipzner
-------------------------------
Howard M. Sipzner
Vice President and Treasurer
Kirkwood - Bissonnet Partners, LP
By: KirkBiss GP, LLC
By: /s/ Howard M. Sipzner
-------------------------------
Howard M. Sipzner
Vice President and Treasurer
Mason Park Partners, LP
By: Mason Park GP, LLC
By: /s/ Howard M. Sipzner
-------------------------------
Howard M. Sipzner
Vice President and Treasurer
Park Northern/Centennial Partners, L.P.
By: UIRT I - Centennial, Inc.
By: /s/ Howard M. Sipzner
-------------------------------
Howard M. Sipzner
Vice President and Treasurer
SA Blanco Village Partners, LP
By: SA Blanco Village Partners GP, LLC
By: /s/ Howard M. Sipzner
-------------------------------
Howard M. Sipzner
Vice President and Treasurer
27
Steeplechase Centre I L.P.
By: Steeplechase Centre Corp.
By: /s/ Howard M. Sipzner
-------------------------------
Howard M. Sipzner
Vice President and Treasurer
Texas CP Land, LP
By: Colony GP, LLC
By: /s/ Howard M. Sipzner
-------------------------------
Howard M. Sipzner
Vice President and Treasurer
Texas Spring Shadows Partners, LP
By: Spring Shadows GP, LLC
By: /s/ Howard M. Sipzner
-------------------------------
Howard M. Sipzner
Vice President and Treasurer
UIRT, Ltd.
By: UIRT GP, LLC
By: /s/ Howard M. Sipzner
-------------------------------
Howard M. Sipzner
Vice President and Treasurer
28
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
Credit Suisse First Boston LLC
By: /s/ Eric Anderson
-----------------------------------
Name: Eric Anderson
Title: Managing Director
Deutsche Bank Securities Inc.
By: /s/ Edward Casey
------------------------------------
Name: Edward Casey
Title: Managing Director
By: /s/ Eric Dobi
------------------------------------
Name: Eric Dobi
Title: Director
J.P. Morgan Securities Inc.
By: /s/ Stephen L. Sheiner
-----------------------------------
Name: Stephen L. Sheiner
Title: Vice President
For themselves and the other several Underwriters named in Schedule I to the
foregoing Agreement.
29
SCHEDULE I
Principal Amount
of
Name of Underwriter Nature of Lending Relationship Securities and Guarantees
- ------------------- ------------------------------ -------------------------
BB&T Capital Markets, a division $4,660,000
of Scott & Stringfellow, Inc.
Banc One Capital Markets, Inc. A participant in the Company's $4,660,000
unsecured revolving credit facility.
Bear, Stearns & Co. Inc. $4,660,000
Credit Suisse First Boston LLC, $48,000,000
a Representative
Deutsche Bank Securities Inc., A participant in the Company's $62,060,000
a Representative unsecured revolving credit facility.
J.P. Morgan Securities Inc., $48,000,000
a Representative
McDonald Investments Inc. A participant in the Company's $4,660,000
unsecured revolving credit facility
PNC Capital Markets, Inc. A participant in the Company's $4,660,000
unsecured revolving credit facility
SouthTrust Securities A participant in the Company's $4,660,000
unsecured revolving credit facility
SunTrust Capital Markets, Inc. A participant in the Company's $4,660,000
unsecured revolving credit facility
UBS Securities LLC $4,660,000
Wells Fargo Brokerage Services, LLC Representatives of the participants $4,660,000
in the Company's
unsecured revolving credit facility
30
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 Chaim Katzman.
3. Amended and Restated Employment Agreement effective as of January 1, 2002,
between Equity One, Inc. and Doron Valero.
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
Alony Hetz Properties & Investments, Ltd.
6. Registration Rights Agreement dated January 1, 1996 among Equity One, Inc.,
Chaim Katzman, Gazit Holdings, Inc., Dan Overseas Limited, M.G.N. Oil & Gas
Resources, Ltd., Eli Macaby, Doron Valero and David Voolkan.
7. Settlement Agreement dated March 6, 1998 among Gazit, Inc., Danbar
Resources Ltd. and Dan Overseas.
8. Investment Contract dated May 21, 1996 between Gazit-Globe (1982) Ltd., Dan
Overseas, Gazit (1995), Inc., Equity One, Inc. and M.G.N. (USA), Inc.
9. Registration Rights Agreement dated December 1998 by and between Mack
Affiliates and Robert A. Elkins, doing business as Frankline Development
Co., L.L.C., and Equity One, Inc.