EXHIBIT 1.2
Equity One, Inc.
[Debt Securities Being Offered]
Underwriting Agreement
[Date]
-------------------------
-------------------------
-------------------------
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 ___ 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 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
$155,027,500 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 Nos.
333-_____ and 333-_____-01 through -nn"), 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 $XXX,000,000 aggregate amount of (i) the Company's equity
and debt securities described therein and (ii) 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 Nos. 333-_____ and 333-_____-01 through -nn
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-_____ and
333-_____-01 through -nn, 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-_____ and 333-_____-01 through -nn)
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
2
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.
(b) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the Company's knowledge, threatened by the Commission. On the
Effective Date, the Registration Statement did, and when the
Prospectus is filed in accordance with Rule 424 and on the Closing
Date (as defined herein), the Prospectus will, comply in all material
respects with the applicable requirements of the Act and the Exchange
Act and the respective rules and regulations promulgated thereunder;
when amended or supplemented, the Registration Statement and the
Prospectus will also so comply with such acts and rules; and the
Indenture, on the date of filing thereof with the Commission and at
the Closing Date (as hereinafter defined) conformed or will conform in
all material respects with the requirements of the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Commission
thereunder (the "TIA"). On the Effective Date and at the Execution
Time, the Registration Statement did not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading; nor will it do so on the date of any amendment; and on
the date of any filing pursuant to Rule 424 and on the Closing Date
and any settlement date, the Prospectus (as it may be amended or
supplemented) will not include any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes
no representations or warranties as to the information contained in or
omitted from the Registration Statement or the Prospectus in reliance
upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the
Prospectus, or to any statements in or omissions from the Statements
of Eligibility on Form T-1, or amendments thereto (the "T-1"), of the
Trustee filed with the Registration Statement or to any statements or
omissions made in the Prospectus relating to The Depository Trust
Company ("DTC") Book-Entry-Only System that are based solely on
information contained in published reports of DTC (the "DTC
Information"). The T-1 has become effective; 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.
3
(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
4
brought (clauses (i), (ii) and (iii) are collectively referred to as
the "Enforceability Limitations"); the Indenture [and Supplemental
Indenture No. __ thereto] has been, and prior to the issuance of the
Securities will be, duly qualified under the TIA, and will be duly
authorized, executed and delivered by the Company, and assuming due
authorization, execution and delivery thereof by the Trustee, will
constitute a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject
to the Enforceability Limitations.
(g) Each Guarantee has been duly authorized, executed and delivered by the
applicable Guarantor and constitutes a valid and legally binding
obligation of such Guarantor enforceable in accordance with its terms,
subject to the Enforceability Limitations.
(h) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectus,
or to be filed as an exhibit thereto, which is not described or filed
as required; and the statements in the Prospectus under the headings
"Material Federal Income Tax Considerations", "Description of Debt
Securities" and "Risk Factors" insofar as such statements summarize
legal matters, agreements, documents or proceedings discussed therein,
are accurate and fair summaries of such legal matters, agreements,
documents or proceedings.
(i) This Agreement was duly authorized, executed and delivered by the
Company and each Guarantor and constitutes the valid and binding
obligation of the Company and each Guarantor enforceable in accordance
with its terms subject to the Enforceability Limitations and except to
the extent that the indemnification provisions hereof may be limited
by federal or state securities laws and public policy considerations
in respect thereof.
(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 blue sky laws of any
jurisdiction in
5
connection with the purchase and distribution of the Securities and
the Guarantees by the Underwriters in the manner contemplated herein
and in the Prospectus and the Company and each Guarantor has full
power and authority to authorize, issue and sell the Securities and
Guarantees to be offered by it as contemplated by this Agreement and
the Indenture.
(m) Neither the Company nor any of its Subsidiaries is required to own or
possess any trademarks, service marks, trade names or copyrights in
order to conduct the business now operated by it, other than those the
failure to possess or own would not have a material adverse effect on
the condition (financial or otherwise), prospects, earnings or
business of the Company and its Subsidiaries or their properties,
taken as a whole, whether or not arising from transactions in the
ordinary course of business.
(n) Neither the execution or delivery of this Agreement or the Indenture,
the issue and sale of the Securities and the Guarantees nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach or violation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its Subsidiaries
pursuant to, (i) the charter or articles or certificate of formation,
bylaws, partnership agreement, limited liability company agreement or
other organizational documents of the Company or any of its
Subsidiaries, (ii) except as set forth in the Prospectus, the terms of
any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Company or any of its Subsidiaries
is a party or bound or to which its or their property is subject, 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.
(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(n), all of which have been
effectively waived or are inapplicable to the offering hereby.
(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
6
noted therein). The financial information and data included in the
Prospectus and Registration Statement fairly present, on the basis
stated in the Prospectus and the Registration Statement, the
information included therein.
(q) The pro forma financial statements included in the Prospectus and the
Registration Statement include assumptions that provide a reasonable
basis for presenting the significant effects directly attributable to
the transactions and events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma adjustments reflect the proper application of those adjustments
to the historical financial statement amounts in the pro forma
financial statements included in the Prospectus and the Registration
Statement. The pro forma financial statements included in the
Prospectus and the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of
Regulation S-X under the Act.
(r) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as may otherwise be
stated therein or contemplated thereby or in a supplement filed with
the Commission prior to the Execution Time, (A) there has been no
material adverse change, in the condition (financial or otherwise),
prospects, earnings or business of the Company and its Subsidiaries or
their properties, taken as a whole, whether or not arising from
transactions in the ordinary course of business, (B) there have been
no transactions or acquisitions entered into by the Company or any of
its Subsidiaries other than those arising in the ordinary course of
business, which are material with respect to the Company and its
Subsidiaries considered as one enterprise, and (c) except for regular
quarterly dividends on the Company's common stock, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(s) The documents incorporated or deemed to be incorporated by reference
in the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with
the requirements of the Exchange Act, and, when read together with the
other information in the Prospectus, at the time the Registration
Statement became effective and as of the Execution Time, the Closing
Date or during the period specified in Section 5(b), did not and will
not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(t) All pending legal or governmental proceedings to which the Company or
any of its Subsidiaries is a party or of which any of its property or
assets is
7
the subject which are not described in the Prospectus, including
ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material.
(u) Neither the Company nor any Subsidiary is in violation or default of
(i) any provision of its charter or articles or certificate of
formation, bylaws, partnership agreement, limited liability company
agreement or other organizational documents, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject, or (iii) any statute, law, rule, regulation, judgment, order
or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over the Company or such Subsidiary or any of its properties, as
applicable except in the cases of clause (ii) or (iii) for such
violations or defaults that would not have a material adverse effect
on the condition (financial or otherwise), prospects, earnings or
business of the Company and its Subsidiaries or their properties,
taken as a whole.
(v) Deloitte & Touche LLP, which has certified certain financial
statements of the Company and its consolidated Subsidiaries and
delivered their report with respect to the audited consolidated
financial statements and schedules included in the Prospectus, are
independent public accountants with respect to the Company within the
meaning of the Act and the applicable published rules and regulations
thereunder.
(w) Except as disclosed in the Prospectus, the Company and its
Subsidiaries have good and marketable fee simple title to or leasehold
interest 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 affect on the condition (financial
or otherwise), prospects, earnings or business of the Company or its
Subsidiaries, take 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, taken as a whole, and neither the Company nor any of its
Subsidiaries has knowledge of any pending or threatened condemnation,
zoning change or other proceeding or action that will in any manner
affect the size of, use of, improvements on, construction on, or
access to the properties of any of the Company or its Subsidiaries
except in any case where such action or proceeding would not have a
material adverse effect on the condition (financial or otherwise),
operations, prospects or earnings of the Company and its Subsidiaries,
taken as a whole.
8
(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 so to file would not
have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and its Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement
thereto) and has paid all taxes required to be paid by it and any
9
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) 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 failute to insure or lapses in policies which would not have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings or business of the Company and its Subsidiaries,
taken as a whole.
(cc) 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).
(dd) 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.
(ee) 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.
10
(ff) The Company and its Subsidiaries (i) are in compliance with any and
all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment
and Hazardous Materials (as defined herein), including, but not
limited to the generation, recycling, reuse, sale, storage, handling,
transport and disposal of Hazardous Materials (collectively,
"Environmental Laws"), (ii) have received and are in compliance with
all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses
and (iii) have not received notice of any actual or potential
liability for the investigation or remediation of any disposal or
release of Hazardous Materials, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals, or liability would not, individually or in the
aggregate, have a material adverse change in the condition (financial
or otherwise), prospects, earnings, business or properties of the
Company and its Subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any
supplement thereto). Except as set forth in the Prospectus, neither
the Company nor any of the Subsidiaries has been named as a
"potentially responsible party" under any Environmental Laws,
including, but not limited to the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended.
(gg) 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).
(hh) 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.
11
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, at a purchase price of ___________,
the principal amount of Securities and Guarantees set forth opposite such
Underwriter's name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the Securities and the
Guarantees and be made at ---------------------- ________, New York City
time, on ________, or if the pricing occurs after _______, New York City
time), on __________, or at such time on such later date as the
Representatives shall designate, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in
Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the
Securities and Guarantees shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Company by wire transfer payable in
same-day funds. Delivery of the Securities and the Guarantees shall be made
through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
4. Offering By Underwriters. The Company understands that the several
Underwriters propose to offer the Securities and Guarantees for sale to the
public as set forth in the Prospectus.
5. Agreements. The Company and each Guarantor agrees with the several
Underwriters that:
(a) The Company will use its best efforts to file any amendment to the
Registration Statement necessary in connection with the offer and sale
of the Securities and the Guarantees. Prior to the termination of the
offering of the Securities and the Guarantees, the Company will not
file any amendment of the Registration Statement or supplement to the
Prospectus or any Rule 462(b) Registration Statement unless the
Company has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, if filing of the
Prospectus is otherwise required under Rule 424(b), the Company will
cause the Prospectus, properly completed, and any supplement thereto
to be filed with the Commission pursuant to the applicable paragraph
of Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to the Representatives of such timely filing.
The Company will promptly advise the Representatives (1) when the
Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been
12
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) As soon as practicable, the Company will make generally available to
its security holders and to the Representatives an earnings statement
or statements of the Company and its Subsidiaries which will satisfy
the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so
long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of the Prospectus and any
supplement thereto as the Representatives may reasonably request. The
Company will pay the expenses of printing or other production of all
documents relating to the offering.
13
(e) 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.
(f) 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.
(g) 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.
(h) 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.
(i) 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.
(j) 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.
(k) If requested by the Representatives, the Company will use its best
efforts to list the Securities on the New York Stock Exchange.
(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
14
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 Xxxxxxxxx Xxxxxxx, P.A.,
_____________ and _____________, 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
15
capital stock, partnership interests, limited liability company
interests or other equivalent equity interest of such
Subsidiaries are owned by the Company either directly or through
wholly owned Subsidiaries;
(iii) the Company's authorized equity capitalization is as set forth
in the Prospectus and the Securities and the Guarantees will
conform to the descriptions thereof contained in the Prospectus;
(iv) the Securities have been duly and validly authorized, and, when
issued and delivered by the Trustee in accordance with the terms
of the Indenture (assuming the due authorization, execution and
delivery of the Indenture by the Trustee), and delivered to, and
paid for by, the Underwriters pursuant to this Agreement, such
Securities will constitute valid and legally binding obligations
of the Company entitled to the benefits provided for in the
Indenture and will be enforceable against the Company in
accordance with their terms, subject to the Enforceability
Limitations;
(v) each Guarantee has been duly authorized, executed and delivered
by the applicable Guarantor and constitutes a valid and legally
binding obligation of such Guarantor enforceable in accordance
with its terms, subject to the Enforceability Limitations;
(vi) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator
involving the Company or any of its Subsidiaries or its or their
property of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the
Prospectus, and there is no franchise, contract or other document
of a character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit thereto,
which is not described or filed as required;
(vii) the statements included or incorporated by reference in the
Prospectus under the captions "Material Federal Income Tax
Considerations", "Description of Debt Securities" 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
16
effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened
by the Commission and the Registration Statement as of its filing
date and effective date and the Prospectus as of its filing date
and as of its date (other than the financial statements and other
financial information contained therein, as to which such counsel
need express no opinion) complied as to form in all material
respects with the applicable requirements of the Act and the
Exchange Act and the respective rules thereunder and the Company
satisfies all conditions and requirements for the filing of the
Registration Statement on Form S-3 under the Act; and such
counsel has no reason to believe that on the Effective Date or
the date the Registration Statement was last deemed amended the
Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading or that the Prospectus as of its date, the Execution
Time and on the Closing Date contained or contains any untrue
statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements and
other financial information contained therein, those parts of the
Registration Statement that constitutes the statements of
Eligibility on Form T-1, and statements with respect to the DTC
Information, as to which such counsel need express no opinion);
and the Indenture, on the date of filing thereof with the
Commission and at the Closing Date conformed or will conform in
all material respects with the requirements of the TIA;
(ix) this Agreement has been duly authorized, executed and delivered
by the Company;
(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
17
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) if requested by the Representatives, the Securities are
approved for listing, subject to officer notice of issuance, on
the New York Stock Exchange;
(xiv) 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;
(xv) 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
(xvi) to such counsel's knowledge, no holders of securities of the
Company have rights to the registration of such securities under
18
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 _____________, 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
19
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:
(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 ____________, nothing came to their
attention which caused them to believe that:
(1) (x) any material modifications should be made to the
unaudited condensed consolidated balance sheet of the
Company as of __________ and the unaudited condensed
consolidated statements of income and cash flows for the
_______-month periods ended ____________ and _______
included in the Company's Quarterly Report on Form 10-Q for
the quarter ended __________, incorporated by reference in
the Registration Statement, for them to be in conformity
with generally accepted accounting principles or (y) such
unaudited financial statements do not comply as to form in
all material respects with the applicable
20
accounting requirements of the Exchange Act and regulations
thereunder;
(2) 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 _____________ consolidated balance sheet included or
incorporated by reference in the Registration Statement and
the Prospectus, or for the period from _____________ 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;
(3) the information included or incorporated by reference in the
Registration Statement and Prospectus in response to
Regulation S-K, Item 301 (Selected Financial Data), Item 302
(Supplementary Financial Information), Item 402 (Executive
Compensation) and Item 503(d) (Ratio of Earnings to Fixed
Charges) is not in conformity with the applicable disclosure
requirements of Regulation S-K;
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its Subsidiaries)
set forth or incorporated by reference in the Registration
Statement and the Prospectus and in Exhibit 12 to the
Registration Statement agrees with the accounting records of the
Company and its Subsidiaries, excluding any questions of legal
interpretation; and
(iv) on the basis of a reading of the unaudited pro forma financial
statements included or incorporated by reference in the
Registration Statement and the Prospectus (the "pro forma
financial statements"); carrying out certain specified
procedures; inquiries of certain officials of the Company who
have responsibility for financial and accounting matters; and
proving the
21
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) If requested by the Representatives, the Securities shall have been
listed and admitted and authorized for trading on the New York Stock
Exchange, and satisfactory evidence of such actions shall have been
provided to the Representatives.
(i) 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.
(j) 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.
22
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 __________, counsel for the Underwriters, at
______________________________, on the Closing Date.
7. Expenses.
(a) If the sale of the Securities and the Guarantees provided for herein
is not consummated because any condition to the obligations of the
Underwriters set forth in Section 6 hereof is not satisfied, because
of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform
any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally through the Representatives on
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
(b) The Company agrees to pay the following costs and expenses and all
other costs and expenses incident to the performance by it of its
obligations hereunder:
(i) the preparation, printing or reproduction, and filing with the
Commission of the Registration Statement (including financial
statements and exhibits thereto), any preliminary prospectus, the
Prospectus and each amendment or supplement to any of them;
(ii) the printing (or reproduction) and delivery (including postage,
air freight charges and charges for counting and packaging) of
such copies of the Registration Statement, any preliminary
prospectus, the Prospectus and all amendments or supplements to
any of them
23
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.
(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
24
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 (x) furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion
therein, (y) in the T-1 or (z) the DTC Information; 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 (w) the Company had previously furnished copies of a
later Prospectus to the Representatives, (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
25
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 the indemnifying
party under this Section 8, notify each indemnifying party in writing
of the commencement thereof; but the failure so to notify each
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 each 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 the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except
as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding 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 such 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 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 includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
26
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company, each Guarantor and the
Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending
same) (collectively "Losses") to which the Company, the Guarantors and
one or more of the Underwriters may be subject in such proportion as
is appropriate to reflect the relative benefits received by the
Company and the Guarantors on the one hand and by the Underwriters on
the other from the offering of the Securities; provided, however, that
in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by
the immediately preceding sentence is unavailable for any reason, the
Company, each Guarantor and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company and
the Guarantors on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations.
Benefits received by the Company and the Guarantors shall be deemed to
be equal to the total net proceeds from the offering (before deducting
expenses) received by them, and benefits received by the Underwriters
shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the
Prospectus. Relative fault shall be determined by reference to, among
other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information provided by the Company and the Guarantors
on the one hand or the Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The Company, the Guarantors and the Underwriters agree that it would
not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take
account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person who controls an Underwriter within the meaning
of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the
Company and any
27
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 or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of the
Representatives, impractical or inadvisable to
28
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., 0000 X.X. Xxxxx Xxxxxxx Xxxxx, Xxxxx
Xxxxx Xxxxx, XX 00000, (fax no. (000) 000-0000) and confirmed to it at
Equity One, Inc., 0000 X.X. Xxxxx Xxxxxxx Xxxxx, Xxxxx Xxxxx Xxxxx, XX
00000, attention: Xxxxxx Xxxxxxx, 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.
29
"Agreement" shall mean this Underwriting Agreement between the Company, the
Guarantors and the Underwriters dated __________.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Rating Agencies" shall mean Xxxxx'x 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:
-----------------------------------
Xxxxx Xxxxxxx
Chief Executive Officer
[Guarantors]
By: ______________________
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
[Name of Underwriter]
By: ________________________
Name: ________________________
Title: ________________________
30
By: ________________________
Name: ________________________
Title: ________________________
For themselves and the other several Underwriters named in Schedule I to the
foregoing Agreement.
31
SCHEDULE I
Principal Amount
Name of Underwriter of Nature of Lending Relationship
------------------- Securities and Guarantees ------------------------------
-------------------------
