EXHIBIT 1.1
4,700,000 SHARES
EQUITY ONE, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
_______, 1997
CREDIT SUISSE FIRST BOSTON CORPORATION
THE XXXXXXXX-XXXXXXXX COMPANY, LLC
SALOMON BROTHERS INC
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, N.Y. 10010-3629
Dear Sirs:
1. INTRODUCTORY. Equity One, Inc., a Maryland corporation ("Company"),
proposes to issue and sell 4,700,000 shares ("Firm Securities") of its Common
Stock ("Securities") and also proposes to issue and sell to the Underwriters, at
the option of the Underwriters, an aggregate of not more than 705,000 additional
shares ("Optional Securities") of its Securities as set forth below. The Firm
Securities and the Optional Securities are herein collectively called the
"Offered Securities". The Company hereby agrees with the several Underwriters
named in Schedule A hereto ("Underwriters") as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. 333-33977) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("Commission") and either (i)
has been declared effective under the Securities Act of 1933 ("Act")
and is not proposed to be amended or (ii) is proposed to be amended by
amendment or post-effective amendment. If such registration statement
("initial registration statement") has been declared effective, either
(i) an additional registration statement ("additional registration
statement") relating to the Offered Securities may have been filed with
the Commission pursuant to Rule 462(b) ("Rule 462(b)") under the Act
and, if so filed, has become effective upon filing pursuant to such
Rule and the Offered Securities all have been duly registered under the
Act pursuant to the initial registration statement and, if applicable,
the additional registration statement or (ii) such an additional
registration statement may be filed with the Commission pursuant to
Rule 462(b) and will become effective upon filing pursuant to such Rule
and upon such filing the Offered Securities will all have been duly
registered under the Act pursuant to the initial registration statement
and such additional registration statement. If the Company does not
propose to amend the initial registration statement or if an additional
registration statement has been filed and the Company does not propose
to amend it, and if any post-effective amendment to either such
registration statement has been filed with the Commission prior
to the execution and delivery of this Agreement, the most recent
amendment (if any) to each such registration statement has been
declared effective by the Commission or has become effective upon
filing pursuant to Rule 462(c) ("Rule 462(c)") under the Act or, in the
case of the additional registration statement, Rule 462(b). For
purposes of this Agreement, "Effective Time" with respect to the
initial registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement means
(i) if the Company has advised the Representatives that it does not
propose to amend such registration statement, the date and time as of
which such registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and delivery of
this Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (ii) if the Company
has advised the Representatives that it proposes to file an amendment
or post-effective amendment to such registration statement, the date
and time as of which such registration statement, as amended by such
amendment or post-effective amendment, as the case may be, is declared
effective by the Commission. If an additional registration statement
has not been filed prior to the execution and delivery of this
Agreement but the Company has advised the Representatives that it
proposes to file one, "Effective Time" with respect to such additional
registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to Rule
462(b). "Effective Date" with respect to the initial registration
statement or the additional registration statement (if any) means the
date of the Effective Time thereof. The initial registration statement,
as amended at its Effective Time, including all information contained
in the additional registration statement (if any) and deemed to be a
part of the initial registration statement as of the Effective Time of
the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("Rule
430A(b)") under the Act, is hereinafter referred to as the "Initial
Registration Statement". The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including
all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "Additional Registration
Statement". The Initial Registration Statement and the Additional
Registration Statement are herein referred to collectively as the
"Registration Statements" and individually as a "Registration
Statement". The form of prospectus relating to the Offered Securities,
as first filed with the Commission pursuant to and in accordance with
Rule 424(b) ("Rule 424(b)") under the Act or (if no such filing is
required) as included in a Registration Statement, is hereinafter
referred to as the "Prospectus". No document has been or will be
prepared or distributed in reliance on Rule 434 under the Act.
(b) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (i)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all respects to the
requirements of the Act and the rules and regulations of the Commission
("Rules and Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
(ii) on the Effective Date of the Additional Registration Statement (if
any), each Registration Statement conformed, or will conform, in all
respects to the requirements of the Act and the Rules and Regulations
and did not include, or will not include, any untrue statement of a
material fact and did not omit, or will not omit, to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and (iii) on the date of this Agreement, the
Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and
delivery of this Agreement, the Additional Registration Statement each
conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectus is included,
each Registration Statement and the Prospectus will conform, in all
respects to the requirements of the Act and the Rules and Regulations,
and neither of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
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statements therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of
this Agreement: on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and the Prospectus will
conform in all respects to the requirements of the Act and the Rules
and Regulations, neither of such documents will include any untrue
statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and no Additional Registration Statement has
been or will be filed. The two preceding sentences do not apply to
statements in or omissions from a Registration Statement or the
Prospectus based upon written information furnished to the Company by
any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information
is that described as such in Section 7(b) hereof.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Maryland,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification.
(d) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus; and each subsidiary of the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification; all of the issued
and outstanding capital stock of each subsidiary of the Company has
been duly authorized and validly issued, is fully paid and
nonassessable and is owned by the Company; and the capital stock of
each subsidiary owned by the Company, directly or through subsidiaries,
is owned free from liens, encumbrances and defects.
(e) Since the effective date of the Company's REIT election,
each subsidiary of the Company has at all times been treated, and will
be treated, as a "qualified REIT subsidiary" under Section 856(i) of
the Code.
(f) The Offered Securities and all other outstanding shares of
stock of the Company have been duly authorized; all outstanding shares
of stock of the Company are, and, when the Offered Securities have been
delivered and paid for in accordance with this Agreement on each
Closing Date (as defined below), such Offered Securities will have
been, validly issued, fully paid and nonassessable and will conform in
all material respects to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Securities and no Securities issued by the
Company have been issued in violation of such preemptive rights
(including all outstanding shares of capital stock) except such
violations as have been irrevocably waived.
(g) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(h) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to a Registration Statement or in any securities being
registered pursuant to any other
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registration statement filed by the Company under the Act, and all
rights as to this offering have been waived.
(i) Except as disclosed in the Prospectus, there are no
outstanding (A) securities, equity interests or obligations of the
Company or any of its subsidiaries convertible into or exchangeable for
any capital stock or equity interests (as the case may be) of the
Company or any such subsidiary, (B) warrants, rights or options to
subscribe for or purchase from the Company or any such subsidiary any
such capital stock or equity interests or any such convertible or
exchangeable securities, equity interests or obligations, or (C)
obligations of the Company or any such subsidiary to issue any shares
of capital stock, equity interests, any such convertible or
exchangeable securities, equity interests or obligations, or any such
warrants, rights or options.
(j) Except as disclosed in the Prospectus and except for the
shares of capital stock of each of the subsidiaries owned by the
Company, neither the Company nor any such subsidiary owns any shares of
stock or any other equity securities of any corporation or has any
equity interest in any firm, partnership, association or other entity.
(k) The Offered Securities have been approved for listing on
the New York Stock Exchange subject to notice of issuance.
(l) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by this Agreement
in connection with the issuance and sale of the Offered Securities by
the Company, except such as have been obtained and made under the Act
and such as may be required under state securities laws.
(m) The execution, delivery and performance of this Agreement,
and the issuance and sale of the Offered Securities will not result in
a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company, any subsidiary of the Company or
any of their properties, or any indenture, mortgage, deed of trust,
lease or any other agreement or instrument to which the Company, any
such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the Company or
any such subsidiary is subject, or the charter or by-laws of the
Company or any such subsidiary and the Company has full power and
authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement; provided, however that the execution of
this Agreement may constitute defaults under the mortgages related to
the Company's Monument Pointe Shopping Center, Plaza Del Rey Shopping
Center, Westlake Shopping Center and Atlantic Shopping Center for which
the Company has received waivers or which will be paid off with the
proceeds of the offering or for which sufficient capacity will remain
at all times under the Acquisition Line of Credit (as defined in the
Prospectus) or any subsequent credit facility.
(n) This Agreement has been duly authorized, executed and
delivered by the Company.
(o) The Company is organized in conformity with the
requirements for qualification as a real estate investment trust (a
"REIT") under the Internal Revenue Code of 1986, as amended (the
"Code"), and the method of operation of the Company and its
subsidiaries has at all times enabled since such qualification in 1995,
and its proposed method of operation will enable, the Company to
continue to meet the requirements for taxation as a REIT under the
Code. All statements in the Prospectus regarding the Company's
qualification as a REIT are true, complete and correct in all material
respects.
(p) Deloitte & Touche LLP are independent public accountants
with respect to the Company as required by the Act.
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(q) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof
by them; the Company and its subsidiaries hold any leased real or
personal property under valid and enforceable leases with no exceptions
that would materially interfere with the use made or to be made thereof
by them; and except as disclosed in the Prospectus, no tenant under any
lease pursuant to which the Company or any of its subsidiaries will
lease its property or any other person will have an option or a right
of first refusal to purchase the premises leased thereunder or the
building of which such premises are a part.
(r) No default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any
indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party
(including, without limitation, a default by any tenant of any portion
of the property of the Company or its subsidiaries) or by which the
Company or any of its subsidiaries or any of their respective
properties is bound or may be affected in any material adverse respect
with regard to property, business or operations of the Company and its
subsidiaries taken as a whole except such as have been irrevocably
waived; provided, however that the execution of this Agreement may
constitute defaults under the mortgages related to the Company's
Monument Pointe Shopping Center, Plaza Del Rey Shopping Center,
Westlake Shopping Center and Atlantic Shopping Center for which the
Company has received waivers or which will be paid off with the
proceeds of the offering or for which sufficient capacity will remain
at all times under the Acquisition Line of Credit (as defined in the
Prospectus) or any subsequent credit facility.
(s) No foreclosures have been instituted and none are
currently threatened with respect to any property or assets directly or
indirectly owned (whether now or in the past) by the Company or any of
its subsidiaries.
(t) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its subsidiaries
would individually or in the aggregate have a material adverse effect
on the Company and its subsidiaries taken as a whole.
(u) Each of the properties owned by the Company and its
subsidiaries is in substantial compliance with all presently applicable
provisions of the Americans with Disabilities Act and no failure of the
Company or any of its subsidiaries to comply with all presently
applicable provisions of the Americans with Disabilities Act would have
a material adverse effect on the Company and its subsidiaries, taken as
a whole.
(v) 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 Company and its
subsidiaries taken as a whole.
(w) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
"intellectual property rights") necessary to conduct the business now
operated by them, or presently employed by them, and have not received
any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if
determined adversely to the Company or any of its subsidiaries would
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individually or in the aggregate have a material adverse effect on the
Company and its subsidiaries taken as a whole.
(x) Except as disclosed in the Prospectus, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "Environmental Laws"), owns or operates any
real property contaminated with any substance that is subject to any
Environmental Laws, is liable for any off-site disposal or
contamination pursuant to any Environmental Laws, or is subject to any
claim relating to any Environmental Laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a material adverse effect on the Company and its
subsidiaries taken as a whole; and the Company is not aware of any
pending investigation which might lead to such a claim.
(y) The Company has provided the Representatives with all
environmental site assessments, investigations or other reports or
surveys in its possession or of which it is aware in connection with
environmental laws and laws and regulations relating to health and
safety requested by the Representatives in their due diligence request
letter.
(z) Except as disclosed in the Prospectus, there are no
pending actions, suits, proceedings, inquiries, arbitrations,
investigations, litigation or governmental proceedings against or
affecting the Company, any of its subsidiaries, or any of their
respective properties that, if determined adversely to the Company or
any of its subsidiaries would individually or in the aggregate have a
material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole, or would materially and adversely affect
the ability of the Company to perform its obligations under this
Agreement; and no such actions, suits, proceedings, inquiries,
arbitrations, investigations, litigation or governmental proceedings
are threatened or, to the Company's knowledge, contemplated. Neither
the Company nor any of its subsidiaries is a party or subject to the
provisions of any injunction, judgment, decree or order of any court,
regulatory body, administrative agency or other governmental body which
would individually or in the aggregate have a material adverse effect
on the Company and its subsidiaries taken as a whole.
(aa) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position of
the Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and
such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied
on a consistent basis; and the schedules included in each Registration
Statement present fairly the information required to be stated therein
and the assumptions used in preparing the pro forma financial
information included in each Registration Statement and the Prospectus
provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described therein,
the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
(bb) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
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(cc) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus none
of the properties owned by the Company or its subsidiaries has
sustained any material loss or interference from fire, flood,
hurricane, accident or other calamity, whether or not covered by
insurance.
(dd) The Company is not and, after giving effect to the
offering and sale of the Offered 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.
(ee) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida Statutes
and the Company agrees to comply with such Section if prior to the
completion of the distribution of the Offered Securities it commences
doing such business.
(ff) Except as disclosed in the Prospectus, the Company and
its subsidiaries have and maintain liability, property and casualty
insurance (insured by insurers of recognized financial responsibility)
in favor of the Company and its subsidiaries with respect to each of
the properties owned by the Company and its subsidiaries in an amount
and on such terms as is reasonable and customary for businesses of the
type proposed to be conducted by the Company and its subsidiaries,
including, among other things, insurance against theft, damage,
destruction and acts of vandalism. None of the Company nor any of its
subsidiaries has received from any insurance company notice of any
material defects or deficiencies affecting the insurability of any such
property.
(gg) Title insurance in favor of the Company is in force with
respect to each of the properties owned by the Company and its
subsidiaries in an amount previously disclosed to the Representatives.
(hh) Except as disclosed in the Prospectus, all entitlements
necessary for development and/or renovation of each of the properties
planned for development, material expansion or renovation as described
in the Prospectus as having been vested or entitled with development
rights have been obtained, and no further governmental or regulatory
approvals are necessary for additional development of such properties.
With respect to any other property planned for development, material
expansion or renovation and which is not described in the Prospectus as
having received all necessary entitlements, the Company expects that
such entitlements will be issued in normal course.
(ii) The mortgages and deeds of trust encumbering the
properties are not convertible and such mortgages and deeds of trust
are not cross-defaulted or cross-collateralized.
(jj) No environmental engineering firm which prepared Phase I
environmental assessment reports (or other similar reports) with
respect to the properties owned by the Company and its subsidiaries as
set forth in the Registration Statement was employed for such purpose
on a contingent basis or has any substantial interest in the Company or
any of its subsidiaries.
(kk) Each of the properties owned by the Company and its
subsidiaries complies with all applicable codes, laws and regulations
(including, without limitation, building and zoning codes and laws
relating to handicapped access), except such violations which would not
have a material adverse effect on the Company and its subsidiaries
taken as a whole.
(ll) The Company will apply the net proceeds from the offering
of the Offered Securities in the manner set forth under "Use of
Proceeds" in the Prospectus, and the Company will file timely and
accurate reports with the Commission in accordance with Rule 463 under
the Act or any successor provision.
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3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of $ per share, the respective numbers of
shares of Firm Securities set forth opposite the names of the Underwriters in
Schedule A hereto.
The Company will deliver the Firm Securities to the Representatives for
the accounts of the Underwriters, against payment of the purchase price in
Federal (same day) funds by official bank check or checks or wire transfer to an
account at a bank acceptable to Credit Suisse First Boston Corporation ("CSFBC")
drawn to the order of Equity One, Inc., account number ____________________, at
the office of ____________________, ____________________, at __________ A.M.,
New York time, on _______________, 1997, or at such other time not later than
seven full business days thereafter as CSFBC and the Company determine, such
time being herein referred to as the "First Closing Date". For purposes of Rule
15c6-1 under the Securities Exchange Act of 1934, the First Closing Date (if
later than the otherwise applicable settlement date) shall be the settlement
date for payment of funds and delivery of securities for all the Offered
Securities sold pursuant to the offering. The certificates for the Firm
Securities so to be delivered will be in definitive form, in such denominations
and registered in such names as CSFBC requests and will be made available for
checking and packaging at the office of CSFBC, Eleven Madison Avenue, New York,
N.Y. 10010-3629, at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company from
time to time not more than 30 days subsequent to the date of the Prospectus, the
Underwriters may purchase all or less than all of the Optional Securities at the
purchase price per Security to be paid for the Firm Securities. The Company
agrees to sell to the Underwriters the number of shares of Optional Securities
specified in such notice and the Underwriters agree, severally and not jointly,
to purchase such Optional Securities. Such Optional Securities shall be
purchased for the account of each Underwriter in the same proportion as the
number of shares of Firm Securities set forth opposite such Underwriter's name
bears to the total number of shares of Firm Securities (subject to adjustment by
CSFBC to eliminate fractions) and may be purchased by the Underwriters only for
the purpose of covering over-allotments made in connection with the sale of the
Firm Securities. No Optional Securities shall be sold or delivered unless the
Firm Securities previously have been, or simultaneously are, sold and delivered.
The right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFBC to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company will deliver the
Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters, against payment of
the purchase price therefor in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to CSFBC drawn to
the order of Equity One, Inc., at the office of ____________________,
____________________. The certificates for the Optional Securities being
purchased on each Optional Closing Date will be in definitive form, in such
denominations and registered in such names as CSFBC requests upon reasonable
notice prior to such Optional Closing Date and will be made available for
checking and packaging at the office of CSFBC, Eleven Madison Avenue, New York,
N.Y. 10010-3629 at a reasonable time in advance of such Optional Closing Date.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
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5. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with the
several Underwriters that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Company will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by CSFBC, subparagraph (4)) of Rule 424(b) not later than the earlier
of (A) the second business day following the execution and delivery of
this Agreement or (B) the fifteenth business day after the Effective
Date of the Initial Registration Statement.
The Company will advise CSFBC promptly of any such filing pursuant to
Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement and
an additional registration statement is necessary to register a portion
of the Offered Securities under the Act but the Effective Time thereof
has not occurred as of such execution and delivery, the Company will
file the additional registration statement or, if filed, will file a
post-effective amendment thereto with the Commission pursuant to and in
accordance with Rule 462(b) on or prior to 10:00 P.M., New York time,
on the date of this Agreement or, if earlier, on or prior to the time
the Prospectus is printed and distributed to any Underwriter, or will
make such filing at such later date as shall have been consented to by
CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial
Registration Statement, the Additional Registration Statement (if any)
or the Prospectus and will not effect such amendment or supplementation
without CSFBC's consent; and the Company will also advise CSFBC
promptly of the effectiveness of each Registration Statement (if its
Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of a Registration
Statement or the Prospectus and of the institution by the Commission of
any stop order proceedings in respect of a Registration Statement and
will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
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 is
necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify CSFBC of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment
or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither CSFBC's consent
to, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section
6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the Effective Date of the
Initial Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provisions of
Section 11(a) of the Act. For the purpose of the preceding sentence,
"Availability Date" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "Availability Date" means the
90th day after the end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of
each Registration Statement (four of which will be signed and will
include all exhibits), each related preliminary prospectus, and, so
long as a prospectus relating to the Offered Securities is required to
be delivered under the Act in
9
connection with sales by any Underwriter or dealer, the Prospectus and
all amendments and supplements to such documents, in each case in such
quantities as CSFBC requests. The Prospectus shall be so furnished on
or prior to 3:00 P.M., New York time, on the business day following the
later of the execution and delivery of this Agreement or the Effective
Time of the Initial Registration Statement. All other documents shall
be so furnished as soon as available. The Company will pay the expenses
of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as
CSFBC designates and will continue such qualifications in effect so
long as required for the distribution.
(g) During the period of five years hereafter, the Company
will furnish to the Representatives and, upon request, to each of the
other Underwriters, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year; and
the Company will furnish to the Representatives (i) as soon as
available, a copy of each report and any definitive proxy statement of
the Company filed with the Commission under the Securities Exchange Act
of 1934 or mailed to stockholders, and (ii) from time to time, such
other information concerning the Company as CSFBC may reasonably
request.
(h) The Company will pay all expenses incident to the
performance of its obligations under this Agreement, for any filing
fees and other expenses (including fees and disbursements of counsel)
incurred in connection with qualification of the Offered Securities for
sale under the laws of such jurisdictions as CSFBC designates and the
printing of memoranda relating thereto, for the filing fee incident to,
and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review by the National Association
of Securities Dealers, Inc. of the Offered Securities, which fees are
not expected to exceed $5,000.00, for any travel expenses of the
Company's officers and employees and any other expenses of the Company
in connection with attending or hosting meetings with prospective
purchasers of the Offered Securities and for expenses incurred in
distributing preliminary prospectuses and the Prospectus (including any
amendments and supplements thereto) to the Underwriters.
(i) For a period of 180 days after the date of the initial
public offering of the Offered Securities, the Company will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Act relating to, any additional shares of its Securities or
securities convertible into or exchangeable or exercisable for any
shares of its Securities, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior
written consent of CSFBC except (A) the filing of a registration
statement on a Form S-8 in accordance with the terms of an employee
stock option plan in effect on the date hereof, (B) grants of employee
stock options pursuant to the terms of a plan in effect on the date
hereof, (C) issuances of Securities pursuant to the exercise of such
options or the exercise of any other employee stock options outstanding
on the date hereof, (D) issuances of Securities pursuant to the
Company's agreement with Globe Reit Investments, Ltd. and (E) issuances
of Securities pursuant to the Company's outstanding Series C Warrants.
(j) The Company will use its best efforts to continue to meet
the requirements to qualify as a REIT under the Code.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the
certificates of Company officers to the Underwriters made pursuant to the
10
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions precedent:
(a) The Representatives shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement, shall be on or prior to the date of this Agreement
or, if the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement, shall be
prior to the filing of the amendment or post-effective amendment to the
registration statement to be filed shortly prior to such Effective
Time), of Deloitte & Touche LLP confirming that they are independent
public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the effect
that:
(i) in their opinion the financial statements and
schedules examined by them and included or incorporated by
reference in the Registration Statements comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial statements included in
the Registration Statements;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial data included in
the Registration Statements do not comply as to form
in all material respects with the applicable
accounting requirements of the Act and the related
published Rules and Regulations or any material
modifications should be made to such unaudited
financial statements for them to be in conformity
with generally accepted accounting principles;
(B) the unaudited consolidated total
revenues, net operating income, net income and net
income per share amounts for the six-month periods
ended June 30, 1996 and June 30, 1997 included in the
Prospectus were not determined on a basis
substantially consistent with that of the
corresponding amounts in the audited statements of
income;
(C) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the capital stock or any
increase in indebtedness of the Company and its
consolidated subsidiaries or, at the date of the
latest available balance sheet read by such
accountants, there was any decrease in consolidated
net assets, as compared with amounts shown on the
latest balance sheet included in the Prospectus; or
(D) for the period from the closing date of
the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such accountants
there were any decreases, as compared with the
corresponding period of the previous year and with
the period of corresponding length ended the date of
the latest
11
income statement included in the Prospectus, in
consolidated total revenues, or in the total or per
share amounts of consolidated net income,
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter;
(iv) they have read the unaudited pro forma
information included in the Registration Statement and made
inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified
procedures, and nothing came to their attention that caused
them to believe that the unaudited pro forma financial data
included in the Registration Statements do not comply as to
form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation
of those statements; and
(v) they have compared specified amounts (or
percentages derived from such amounts) and other financial
information contained in the Registration Statements (in each
case to the extent that such amounts, percentages and other
financial information are derived from the general accounting
records of the Company and its subsidiaries subject to the
internal controls of the Company's accounting system or are
derived directly from such records by analysis or computation)
with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in
such letter and have found such amounts, percentages and other
financial information to be in agreement with such results,
except as otherwise specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, "Registration Statements" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement but
the Effective Time of the Additional Registration is subsequent to such
execution and delivery, "Registration Statements" shall mean the
Initial Registration Statement and the additional registration
statement as proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its Effective
Time, and (iii) "Prospectus" shall mean the prospectus included in the
Registration Statements.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or such later date as shall
have been consented to by CSFBC. If the Effective Time of the
Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have occurred at such later
date as shall have been consented to by CSFBC. If the Effective Time of
the Initial Registration Statement is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with
the Commission in accordance with the Rules and Regulations and Section
5(a) of this Agreement. Prior to such Closing Date, no stop order
suspending the effectiveness of a Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company or the Representatives,
shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or
12
other), business, properties or results of operations of the Company
and its subsidiaries taken as a whole which, in the judgment of a
majority in interest of the Underwriters including the Representatives,
is material and adverse and makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and
payment for the Offered Securities; (ii) any downgrading in the rating
of any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange or the
Nasdaq Stock Market's National Market, or any setting of minimum prices
for trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market; (iv) any banking moratorium declared by U.S. Federal, New York
or Florida authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of
war by Congress or any other substantial national or international
calamity or emergency if, in the judgment of a majority in interest of
the Underwriters including the Representatives, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated
as of such Closing Date, of Greenberg, Traurig, Hoffman, Lipoff, Xxxxx
& Quentel, P.A., counsel for the Company, to the effect that:
(i) The Company is a corporation duly incorporated
and existing under the laws of the State of Maryland and is in
good standing with the State Department of Assessments and
Taxation of Maryland with corporate power and authority to own
its properties and conduct its business substantially as
described in the Prospectus; and the Company is duly qualified
to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such
qualification except where the failure to so qualify would not
have a material adverse effect on the Company and its
subsidiaries taken as a whole;
(ii) Each of the subsidiaries has been duly
incorporated and is an existing corporation in good standing
under the laws of the state of its incorporation, with
corporate power and authority to own its properties and
conduct its business as described in the Prospectus; and the
each subsidiary is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification except where the failure
to so qualify would not have a material adverse effect on the
Company and its subsidiaries taken as a whole; all of the
issued and outstanding capital stock of each subsidiary of the
Company has been duly authorized and validly issued and is
fully paid and nonassessable and is owned by the Company; and
the capital stock of each subsidiary owned by the Company,
directly or through subsidiaries, is owned free from liens,
encumbrances and defects;
(iii) The Company has an authorized and outstanding
capitalization as set forth under the heading "Capitalization"
in the Prospectus; the Offered Securities delivered on such
Closing Date and all other outstanding shares of the Common
Stock of the Company have been duly authorized and validly
issued, are fully paid and nonassessable and conform in all
material respects to the description thereof under the heading
"Description of Capital Stock" in the Prospectus; the
stockholders of the Company have no preemptive rights with
respect to the Securities and all other outstanding shares of
the Common Stock of the Company and no Securities issued by
the Company have been issued in violation of any such
preemptive rights except such violations as
13
have been irrevocably waived and the Securities conform to
the description under the heading "Description of Capital
Stock" in the Prospectus;
(iv) Except as disclosed in the Prospectus, there are
no contracts, agreements or understandings between the Company
and any person granting such person the right to require the
Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned
by such person or to require the Company to include such
securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the
Company under the Act, and all rights as to this offering have
been waived;
(v) The Company is not and, after giving effect to
the offering and sale of the Offered 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;
(vi) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required for the consummation of the transactions
contemplated by this Agreement in connection with the issuance
or sale of the Offered Securities by the Company, except such
as have been obtained and made under the Act and such as may
be required under state securities laws;
(vii) The execution, delivery and performance of this
Agreement and the issuance and sale of the Offered Securities
will not result in a breach or violation of any of the terms
and provisions of, or constitute a default or event which with
notice and passage of time would constitute a default or
additional default under, any statute, any rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over the Company or any subsidiary of the Company
or any of their properties, or any indenture, mortgage, deed
of trust, lease or any other agreement or instrument to which
the Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject,
or the charter or by-laws of the Company or any such
subsidiary, provided, however, that the execution of this
Agreement may constitute defaults under the mortgages related
to the Company's Monument Pointe Shopping Center, Plaza Del
Rey Shopping Center, Westlake Shopping Center and Atlantic
Shopping Center for which the Company has received waivers or
which will be paid off with the proceeds of the offering or
for which sufficient capacity will remain at all times under
the Acquisition Line of Credit (as defined in the Prospectus)
or any subsequent credit facility and the Company has full
power and authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement;
(viii) The statements set forth in the Prospectus
under the caption "Description of Capital Stock", insofar as
they purport to constitute a summary of the terms of the
Securities, under the captions "Federal Income Tax
Considerations", "Shares Eligible for Future Sale", "ERISA
Considerations", and under the caption "Underwriting", insofar
as they purport to describe the provisions of the laws and
documents referred to therein, are accurate and complete in
all material respects and fairly present the information
required to be shown;
(ix) The Initial Registration Statement was declared
effective under the Act as of the date and time specified in
such opinion, the Additional Registration Statement (if any)
was filed and became effective under the Act as of the date
and time (if determinable) specified in such opinion, the
Prospectus either was filed with the Commission pursuant to
the subparagraph of Rule 424(b) specified in such opinion on
the date specified therein or was included in the Initial
Registration Statement or the Additional Registration
Statement (as the case may be), and, to the
14
knowledge of such counsel, no stop order suspending the
effectiveness of a Registration Statement or any part thereof
has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act, and
each Registration Statement and the Prospectus, and each
amendment or supplement thereto, as of their respective
effective or issue dates, complied as to form in all material
respects with the requirements of the Act and the Rules and
Regulations; such counsel has no reason to believe that any
part of a Registration Statement or any amendment thereto, as
of its effective date or as of such Closing Date, 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 in light of the
circumstances under which they were made or that the
Prospectus or any amendment or supplement thereto, as of its
issue date or as of such Closing Date, contained any untrue
statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; the descriptions in the Registration Statements
and Prospectus of statutes, rules, regulations, orders,
injunctions, decrees, judgments, legal and governmental
proceedings and contracts and other documents are accurate and
complete in all material respects and fairly present the
information required to be shown; and such counsel does not
know of any legal or governmental proceedings required to be
described in a Registration Statement or the Prospectus which
are not described as required or of any contracts or documents
of a character required to be described in a Registration
Statement or the Prospectus or to be filed as exhibits to a
Registration Statement which are not described and filed as
required; it being understood that such counsel need express
no opinion as to the financial statements or other financial
data contained in the Registration Statements or the
Prospectus;
(x) This Agreement has been duly authorized,
executed and delivered by the Company;
(xi) To such counsel's knowledge after reasonable
investigation, there are no governmental actions, governmental
suits or governmental proceedings pending or threatened
against the Company with respect to the business and property
of the Company and its subsidiaries other than (a) those which
have been disclosed in the Prospectus, and (b) those which
would not have a material adverse effect on the Company and
its subsidiaries taken as a whole;
(xii) To such counsel's knowledge after reasonable
investigation, no default exists, and no event has occurred
which, with notice or lapse of time or both, would constitute
a default in the due performance and observance of any term,
covenant or condition of any indenture, mortgage, deed of
trust, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party (including,
without limitation, a default by any tenant of any portion of
the property of the Company or its subsidiaries) or by which
the Company of any of its subsidiaries or any of their
respective properties is bound or may be affected in any
material adverse respect with regard to property, business or
operations of the Company and its subsidiaries taken as a
whole, except such as have been irrevocably waived;
(xiii) Except as disclosed in the Prospectus, to such
counsel's knowledge after reasonable investigation, there are
no outstanding (A) securities, equity interests or obligations
of the Company or any of its subsidiaries convertible into or
exchangeable for any stock or equity interests (as the case
may be) of the Company or any such subsidiary, (B) warrants,
rights or options to subscribe for or purchase from the
Company or any such subsidiary any such stock or equity
interests or any such convertible or exchangeable securities,
equity interests or obligations, or (C) obligations of the
Company or any such subsidiary to issue any shares of capital
stock, equity interests, any such convertible or exchangeable
securities, equity interests or obligations, or any such
warrants, rights or options;
15
(xiv) The Company is organized in conformity with the
requirements for qualification as a REIT under the Code, and
the method of operation of the Company and its subsidiaries
has at all times enabled, and its proposed method of operation
will enable, the Company to continue to meet the requirements
for taxation as a REIT under the Code. All statements in the
Prospectus regarding the Company's qualification as a REIT are
true, complete and correct in all material respects; and
(xv) Since the date of the Company's REIT election,
each subsidiary of the Company has at all times been treated,
and will be treated, as a "qualified REIT subsidiary" under
Section 856(i) of the Code.
In rendering the opinions above, Greenberg, Traurig, Hoffman, Lipoff, Xxxxx &
Xxxxxxx, P.A. may rely as to the incorporation of the Company and all other
matters governed by Maryland law upon the opinion of Xxxxxxx Xxxxx Xxxxxxx &
Ingersoll.
(e) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, counsel for
the Company, to the effect that:
(i) The Company is a corporation duly incorporated
and existing under the laws of the State of Maryland and is in
good standing with the State Department of Assessments and
Taxation of Maryland with corporate power and authority to own
its properties and conduct its business substantially as
described in the Prospectus; and the Company is duly qualified
to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such
qualification except where the failure to so qualify would not
have a material adverse effect on the Company and its
subsidiaries as a whole;
(ii) The Company has an authorized and outstanding
capitalization as set forth under the heading "Capitalization"
in the Prospectus, and the Offered Securities delivered on
such Closing Date and all other outstanding shares of the
Common Stock of the Company have been duly authorized and
validly issued, are fully paid and nonassessable and conform
in all material respects to the description thereof contained
under the heading "Description of Capital Stock" in the
Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Securities and all other
outstanding shares of the Common Stock of the Company or other
similar rights arising by operation of the Maryland General
Corporation Law (the "MGCL") or under the charter or bylaws of
the Company or any agreement or other instrument known to such
counsel and no securities issued by the Company, have been
issued in violation of any such preemptive rights;
(iii) The executive and delivery of this Agreement
has been duly authorized by the Company;
(iv) The form of certificate used to represent the
Offered Securities is in due and proper form and complies in
all material respects with all applicable statutory
requirements under the laws of the State of Maryland;
(v) The information in the Prospectus under the
caption "Description of Capital Stock" to the extent that it
constitutes matters of Maryland law, summaries of legal
matters, documents or proceedings, or legal conclusions, has
been reviewed by them and is correct in all material respects.
16
(f) The Representatives shall have received from Xxxxxx &
Xxxxxxx, counsel for the Underwriters, such opinion or opinions, dated
such Closing Date, with respect to the incorporation of the Company,
the validity of the Offered Securities delivered on such Closing Date,
the Registration Statements, the Prospectus and other related matters
as the Representatives may 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. In rendering such
opinion, Xxxxxx & Xxxxxxx may rely as to the incorporation of the
Company and all other matters governed by Maryland law upon the opinion
of Xxxxxxx Xxxxx Xxxxxxx & Ingersoll referred to above.
(g) The Representatives shall have received a certificate,
dated as of such Closing Date, of the Chief Executive Officer and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that: the representations and warranties of
the Company in this Agreement are true and correct; the Company has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to such Closing
Date; no stop order suspending the effectiveness of any Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule
462(b), including payment of the applicable filing fee in accordance
with Rule 111(a) or (b) under the Act, prior to the time the Prospectus
was printed and distributed to any Underwriter; and, subsequent to the
date of the most recent financial statements in the Prospectus, there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole except as set forth
in or contemplated by the Prospectus or as described in such
certificate.
(h) The Representatives shall have received letters, dated as
of such Closing Date, of Deloitte & Touche LLP which meet the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three days prior to such Closing Date for the purposes of this
subsection.
(i) The Representatives shall have received from each of the
principal stockholders and affiliates a lockup agreement whereby each
of the foregoing, for a period of 180 days after the date of the
initial public offering of the Offered Securities will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Act relating to, any additional shares of its Securities or
securities convertible into or exchangeable or exercisable for any
shares of the Securities, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior
written consent of CSFBC except grants of employee stock options
pursuant to the terms of a plan in effect on the date hereof, issuances
of Securities pursuant to the exercise of such options or the exercise
of any other employee stock options outstanding on the date hereof,
issuances of Securities pursuant to the Company's dividend reinvestment
plan and issuances of Securities pursuant to the Class C Warrants.
(j) The Representatives shall have received on or before the
First Closing Date with respect to each of the properties owned by the
Company and its subsidiaries:
(i) An Extended ALTA Owner's Title Insurance Policy
issued at the time of the acquisition of each property by the
Company (each, a "Title Policy") naming the Company or its
subsidiaries as named insured and insuring such party that it
owns fee title to the real property described therein in an
amount of the original purchase price thereof, subject only to
any material exceptions to title as are described in the
Prospectus, and such exceptions which do not adversely affect
the current or potential use to be made of such property (the
"Permitted Exceptions");
17
(ii) A current title status report issued by a
reputable title insurance company reasonably acceptable to the
Representatives and showing fee title to the property
described therein vested in the Company or its subsidiaries,
subject only to the Permitted Exceptions and subsequent
matters which will not materially adversely affect the
Company's title.
(iii) Either (A) a current final "as-built" ALTA
survey of each Property completed in accordance with the
Minimum Standard Detail requirements for ALTA/ACSM Land Title
Surveys, with additional Title A survey requirements, jointly
established and adopted by ALTA and ACSM in 1992 that meet the
requirements of a Class A Survey as defined therein or (B)
such other form of title survey which is in form and substance
satisfactory to the Representatives for each of the
Properties.
(iv) The Representatives shall have satisfied
themselves that (A) all utilities serving the Properties are
adequate for the present use of the Properties and any
expansions thereof described in the Prospectus; and (B) all
means of ingress and egress, parking, access to public streets
and drainage facilities are or will be available to the
Properties and are adequate for the present use of the
Properties and any expansions thereof described in the
Prospectus and are in compliance with applicable law;
(v) The Representatives shall have received and
approved with respect to each Property, to the extent
applicable, (A) copies of the applicable zoning ordinances and
maps marked to show the location of such Property and
certified by an appropriate governmental authority to be
complete and accurate; (B) evidence that such zoning
ordinances and the general plans/specific plans and all other
land use regulations of the applicable municipal jurisdictions
and all covenants, conditions and restrictions, if any,
affecting the Property permit the use of the Property for its
current use (and reconstruction and resumption of use in the
event of damage, destruction, or cessation of use) as a matter
of right for an unlimited time period and not merely as a
legal non-conforming use; (c) copies of all material licenses,
certificates, approvals and authorizations, including plot
plan and subdivision approvals, zoning variances and other
material authorizations required by governmental authorities
or by any applicable covenants, conditions and restrictions
for the use and operation of such Property for current use.
(vi) The Representatives shall have received written
reports in form and substance satisfactory to the
Representatives from one or more qualified engineering firms
approved by Representatives to the effect that the
improvements on each Property have been constructed in
compliance with, and currently are in substantial compliance
with, all governmental requirements, including the Americans
With Disabilities Act, and with all restrictions of record
applicable thereto which affect the use of such Property, and
that there are no material structural defects or other
material capital repairs required for such Property.
(vii) Policies or certificates of insurance relating
to each property evidencing coverages and in amounts
customarily obtained by owners of similar properties, together
with a letter of opinion from a nationally or regionally
recognized insurance broker approved by the Representatives
stating, in substance, that the coverage limits and companies
underwriting such insurance for the Company are within the
realm of reasonableness given the Company's business,
operations and claims history;
(viii) UCC, judgment and tax lien searches confirming
that the personal property comprising a part of each Property
is subject to no liens other than Permitted Exceptions;
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(ix) An estoppel certificate, in form and substance
acceptable to the Representatives, from each of the Anchor
Tenants (as defined in the Prospectus);
(x) If such property is subject to a mortgage, deed
of trust or similar financing (an "Existing Mortgage") which,
as described in the Prospectus, is to be repaid with the
proceeds of the offering, a letter dated not earlier than 10
days prior to the First Closing Date from the holder of such
Existing Mortgage indicating the amount required to satisfy
all amounts then secured by such Existing Mortgage and the
additional amount required for each day after the date of such
letter necessary to satisfy all obligations secured thereby,
together with all documentation and consents necessary to
permit the repayment of all amounts owed and the release of
the Existing Mortgage; and if such property is subject to an
Existing Mortgage which, as described in the Prospectus, is to
remain of record after the offering, a letter dated not
earlier than 10 days prior to the First Closing Date from the
holder of such Existing Mortgage indicating that the mortgagor
or grantor under such Existing Mortgage is not then in
default, indicating the total principal amount due under the
Existing Mortgage, the date of the last payment and principal
and interest under such mortgage, and to the extent required
by the mortgage, the holder of the Existing Mortgage's consent
to this offering; and
(xi) A Phase I Environmental Report, or updates, for
each of the Company's properties in form and substance
acceptable to the Representatives.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. CSFBC may in its sole discretion waive on behalf of the Underwriters
compliance with any conditions to the obligations of the Underwriters hereunder,
whether in respect of an Optional Closing Date or otherwise.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act 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 any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, 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 will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
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 an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (b) below.
(b) Each Underwriter will severally and not jointly indemnify
and hold harmless the Company against any losses, claims, damages or liabilities
to which the Company may become subject, under the Act 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 any material fact contained in any Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
19
Representatives specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of the following information
in the Prospectus furnished on behalf of each Underwriter: the last paragraph at
the bottom of the cover page concerning the terms of the offering by the
Underwriters, the legend concerning over-allotments and stabilizing on the
inside front cover page, the concession and reallowance figures appearing in the
fourth paragraph under the caption "Underwriting" and the information contained
in the fifth paragraph under the caption "Underwriting".
(c) Promptly after receipt by an indemnified party under this
Section 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 subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other from the offering
of the Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. 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
20
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed a Registration Statement and to each person, if any, who controls
the Company within the meaning of the Act.
8. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by such Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Offered Securities that such defaulting Underwriters
agreed but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the aggregate number of shares of Offered Securities
with respect to which such default or defaults occur exceeds 10% of the total
number of shares of Offered Securities that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to CSFBC and the
Company for the purchase of such Offered Securities by other persons are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company, except
as provided in Section 9 (provided that if such default occurs with respect to
Optional Securities after the First Closing Date, this Agreement will not
terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term "Underwriter" includes
any person substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Underwriters pursuant to Section 7 shall
remain in effect, and if any Offered Securities have been purchased hereunder
the representations and warranties in Section 2 and all obligations under
Section 5 shall also remain in effect. If the purchase of the Offered Securities
by the Underwriters is not consummated for any reason other than solely because
of the termination of this Agreement pursuant to Section 8 or the occurrence of
any event specified in clause (iii), (iv) or (v) of Section 6(c), the Company
will reimburse the Underwriters for all out-of-pocket expenses (including fees
and disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. NOTICES. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, c/o Credit Suisse First Boston Corporation, Eleven
Madison Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking
Department,Transactions Advisory Group, or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at 000 00xx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxx, XX 00000, Attention: Xxxxx Xxxxxxx, with a copy
21
to Xxxx Xxxxxxx, Esq., Greenberg, Traurig, Hoffman, Lipoff, Xxxxx & Xxxxxxx,
P.A., 0000 Xxxxxxxx Xxxxxx, Xxxxx, XX 00000; provided, however, that any notice
to an Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed
and confirmed to such Underwriter.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12. REPRESENTATION OF UNDERWRITERS. The Representatives will act for
the several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representatives jointly or by CSFBC will be binding
upon all the Underwriters.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
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If the foregoing is in accordance with the Representatives
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement between the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
EQUITY ONE, INC.
By...............................
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
Acting on behalf of itself and as the
Representative of the several
Underwriters.
CREDIT SUISSE FIRST BOSTON CORPORATION
THE XXXXXXXX-XXXXXXXX COMPANY, LLC
SALOMON BROTHERS INC
By CREDIT SUISSE FIRST BOSTON CORPORATION
By........................................
Title:
23
SCHEDULE A
UNDERWRITER
NUMBER OF
FIRM SECURITIES
---------------
Credit Suisse First Boston Corporation........................
The Xxxxxxxx-Xxxxxxxx Company, LLC............................
Salomon Brothers Inc..........................................
Total............................................... 4,700,000
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