EQUITY ONE, INC. (a Maryland corporation) $250,000,000 6.25% Senior Notes Due 2014 PURCHASE AGREEMENT Dated: December 2, 2009
Exhibit 1.1
Execution
version
(a Maryland corporation)
$250,000,000 6.25% Senior Notes Due 2014
Dated: December 2, 2009
(a Maryland corporation)
$250,000,000 6.25% Senior Notes Due 2014
December 2, 0000
Xxxx xx Xxxxxxx Securities LLC
X.X. Xxxxxx Securities Inc.
Xxxxx Fargo Securities, LLC
X.X. Xxxxxx Securities Inc.
Xxxxx Fargo Securities, LLC
as Representatives of the several Underwriters
c/o Wells Fargo Securities, LLC
c/o Wells Fargo Securities, LLC
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
Equity One, Inc., a Maryland corporation (the “Company”), and each of its subsidiaries named
in the Prospectus (as defined below) as a Guarantor (each a “Guarantor” and collectively, the
“Guarantors”), confirm their agreement with Banc of America Securities LLC, X.X. Xxxxxx Securities
Inc. and Xxxxx Fargo Securities, LLC, and each of the other Underwriters named in Schedule
A hereto (collectively, the “Underwriters,” which term shall also include any underwriter
substituted as hereinafter provided in Section 9 hereof), for whom Banc of America Securities LLC,
X.X. Xxxxxx Securities Inc. and Xxxxx Fargo Securities, LLC are acting as representatives (in such
capacity, the “Representatives”), with respect to the issue and sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of the respective principal amounts
set forth in Schedule A of $250,000,000 aggregate principal amount of the Company’s 6.25%
Senior Notes Due 2014 (the “Notes”). The Notes are to be issued pursuant to an indenture dated as
of September 9, 1998 (the “Base Indenture”), as supplemented by eleven Supplemental Indentures
thereto and which is expected to be further amended and supplemented by Supplemental Indenture No.
12 (the Base Indenture, including such twelve Supplemental Indentures, being referred to hereafter
collectively as the “Indenture”), between the Company, the Guarantors named therein and U.S. Bank
National Association, as trustee (the “Trustee”). The Notes will be unconditionally guaranteed as
to the payment of principal and interest (each, a “Guarantee” and, collectively, the “Guarantees”
and, together with the Notes, the “Securities”) by the Guarantors. To the extent there are no
additional Underwriters listed on Schedule A other than the Representatives, the terms
Representatives shall mean you, as Underwriters, and the terms Representatives and Underwriters
shall mean either singular or plural as the context requires.
The Company understands that the Underwriters propose to make a public offering of the
Securities as soon as the Representatives deem advisable after this Agreement has been executed and
delivered.
The Company and the Guarantors have jointly prepared and filed with the U.S. Securities and
Exchange Commission (the “Commission”) a shelf registration statement on Form S-3 (No. 333-158195),
including the related preliminary prospectus or prospectuses, which registration statement was
declared effective on April 6, 2009 under the rules and regulations of the Commission (the “1933
Act Regulations”) under the Securities Act of 1933, as amended (the “1933 Act”). Such registration
statement covers the registration of the Securities under the 1933 Act. Promptly after execution
and delivery of this Agreement, the Company will prepare and file a prospectus in accordance with
the provisions of Rule 430B (“Rule 430B”) of the 1933 Act Regulations and paragraph (b) of Rule 424
(“Rule 424(b)”) of the 1933 Act Regulations. Any information included in such prospectus that was
omitted from such registration statement at the time it became effective but that is deemed to be
part of and included in such registration statement pursuant to Rule 430B is referred to as “Rule
430B Information.” Each prospectus used in connection with the offering of the Securities that
omitted Rule 430B Information is herein called a “preliminary prospectus.” Such registration
statement, at any given time, including the amendments thereto to such time, the exhibits and any
schedules thereto at such time, the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act at such time and the documents otherwise deemed to be a part thereof
or included therein by 1933 Act Regulations, is herein called the “Registration Statement.” The
Registration Statement at the time it originally became effective is herein called the “Original
Registration Statement.” The final prospectus in the form first furnished to the Underwriters for
use in connection with the offering of the Securities, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at the time of the execution
of this Agreement and any preliminary prospectuses that form a part thereof, is herein called the
“Prospectus.” For purposes of this Agreement, all references to the Registration Statement, any
preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall
be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system (“XXXXX”).
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” in the Registration Statement, any preliminary
prospectus or the Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which is incorporated by
reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the
Registration Statement, any preliminary prospectus or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934, as amended (the “1934 Act”) which is
incorporated by reference in or otherwise deemed by 1933 Act Regulations to be a part of or
included in the Registration Statement, such preliminary prospectus or the Prospectus, as the case
may be.
SECTION 1. Representations and Warranties.
Representations and Warranties by the Company and the Guarantors. The Company and the
Guarantors represent and warrant to each Underwriter as of the date hereof, the Applicable Time
referred to in Section 1(a) hereof and as of the Closing Time referred to in Section 2(b) hereof,
and agrees with each Underwriter, as follows:
(a) Registration Statement, Prospectus and Disclosure at Time of Sale. At the time of
filing the Original Registration Statement, at the earliest time thereafter that the Company or
another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the
1933 Act Regulations) of the Securities and at the date hereof, the Company was not and is not an
“ineligible issuer,” as defined in Rule 405. The conditions to the use of Form S-3 in connection
with the offering and sale of the Securities as contemplated hereby have been satisfied. The
Registration Statement meets the requirement set forth in Rule 415(a)(1)(x). The Original
Registration Statement was declared effective on April 6, 2009, and any post-effective amendment
thereto has also been declared effective. No stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no proceedings for that
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purpose have been instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the Commission for additional
information has been complied with.
At the respective times the Original Registration Statement and each amendment thereto became
effective, at each deemed effective date with respect to the Underwriters pursuant to Rule
430B(f)(2) of the 1933 Act Regulations and at the Closing Time, the Registration Statement complied
and will comply as to form in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and the Trust Indenture Act of 1939, as amended (the “1939 Act”), and the
rules and regulations of the Commission under the 1939 Act (the “1939 Act Regulations), and did not
and will not contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading.
Each preliminary prospectus (including the prospectus or prospectuses filed as part of the
Original Registration Statement or any amendment thereto) complied as to form when so filed in all
material respects with the 1933 Act Regulations. The Prospectus (including any amendment thereto)
complied or will comply as to form when filed and at the Closing Time in all material respects with
the 1933 Act Regulations. Each preliminary prospectus and the Prospectus delivered to the
Underwriters for use in connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
As of the Applicable Time, neither (x) the Issuer General Use Free Writing Prospectus(es) (as
defined below) issued at or prior to the Applicable Time (as defined below) and the Statutory
Prospectus (as defined below), considered together (collectively, the “General Disclosure
Package”), nor (y) any individual Issuer Limited Use Free Writing Prospectus (as defined below),
when considered together with the General Disclosure Package, included 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.
As of the time of the filing of the Final Term Sheet, the General Disclosure Package, when
considered together with the Final Term Sheet (as defined in Section 3(b)), 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 the light of the circumstances under which they were made, not
misleading.
As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means 3:15 P.M. (Eastern Time) on December 2, 2009 or such other time as
agreed in writing by the Company and the Representatives.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the Securities that (i) is required
to be filed with the Commission by the Company (including without limitation, the Final Term
Sheet), (ii) is a “road show that is a written communication” within the meaning of Rule
433(d)(8)(i), whether or not required to be filed with the Commission or (iii) is exempt from
filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities or of the
offering that does not reflect the final terms, in each case in the form filed or required to be
filed with the Commission or, if not required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g).
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is
intended for general distribution to prospective investors, as evidenced by its being specified in
Schedule D hereto.
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“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is
not an Issuer General Use Free Writing Prospectus.
“Statutory Prospectus” as of any time means the prospectus relating to the Securities that is
included in the Registration Statement immediately prior to that time, including any document
incorporated by reference therein and any preliminary or other prospectus deemed to be a part
thereof.
Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through
the completion of the public offer and sale of the Securities or until any earlier date that the
issuer notified or notifies the Representatives as described in Section 3(e), did not, does not and
will not include any information that conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the Prospectus, including any document incorporated by
reference therein and any preliminary or other prospectus deemed to be a part thereof that has not
been superseded or modified.
The representations and warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus
made in reliance upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use therein.
(b) Incorporated Documents. The documents incorporated or deemed to be incorporated
by reference in the Registration Statement and 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 1933 Act and the 1933 Act Regulations or the 1934 Act and the rules and
regulations of the Commission thereunder (the “1934 Act Regulations”), and, when read together with
the other information in the Prospectus, (a) at the time the Original Registration Statement became
effective, (b) at the earlier of time the Prospectus was first used and the date and time of the
first contract of sale of Securities in this offering and (c) at the Closing Time, did not and will
not contain an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
(c) Indenture. The Indenture, on the date of filing thereof with the Commission and
at the Closing Time, conformed or will conform in all material respects with the requirements of
the 1939 Act and the 1939 Act Regulations. A Statement of Eligibility on Form T-1 (“Form T-1”)
relating to the Indenture has been qualified under the 1939 Act and no stop order suspending the
effectiveness of the Form 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.
(d) Independent Accountants. The accountants who certified the financial statements
and supporting schedules included in the Registration Statement are independent public accountants
as required by the 1933 Act and the 1933 Act Regulations.
(e) Financial Statements. The financial statements included in the Registration
Statement, the General Disclosure Package and the Prospectus, together with the related schedules
and notes, present fairly in all material respects the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement of operations, stockholders’
equity and cash flows of the Company and its consolidated subsidiaries for the periods specified.
Such financial statements have been prepared in conformity with generally accepted accounting
principles (“GAAP”) applied on a consistent basis throughout the periods involved except as noted
therein. The supporting schedules, if any, present fairly in all material respects in accordance
with GAAP the information required to be stated therein. The selected financial data and the
summary financial information included in the General Disclosure Package and the Prospectus present
fairly in all material respect the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the Registration Statement.
All
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disclosures contained in the Registration Statement, the General Disclosure Package or the
Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and
regulations of the Commission) comply with Regulation G under the 1934 Act and Item 10 of
Regulation S-K of the 1933 Act Regulations, to the extent applicable.
(f) No Material Adverse Change in Business. Since the respective dates as of which
information is given in the Registration Statement, the General Disclosure Package or the
Prospectus, except as otherwise stated therein, (A) there has been no material adverse change in
the condition (financial or otherwise), or in the earnings, business affairs or business prospects
of the Company and its subsidiaries or their properties, taken as a whole (a “Material Adverse
Effect”), whether or not arising in the ordinary course of business, (B) other than those arising
in the ordinary course of business, there have been no transactions entered into by the Company or
any of its subsidiaries, that are material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) except for regular quarterly dividends on the 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.
(g) Good Standing of the Company. The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of Maryland and has
corporate power and authority to own, lease and operate its properties and to conduct its business
as described in the General Disclosure Package and the Prospectus and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not result in a Material
Adverse Effect.
(h) Good Standing of Subsidiaries. Each “Significant Subsidiary” of the Company (as
such term is defined in Rule 1-02(w) of Regulation S-X) and each subsidiary of the Company that
owns any real property, including each Guarantor (each a “Property Subsidiary”, collectively and,
together with the Significant Subsidiaries, the “Subsidiaries”), has been duly incorporated or
organized and is validly existing as a corporation, limited partnership, general partnership or
limited liability company in good standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate, partnership or limited liability company power and
authority to own, lease and operate, as the case may be, its properties and to conduct its business
as described in the General Disclosure Package and the Prospectus and is duly qualified as a
foreign corporation, limited partnership, general partnership or limited liability company to
transact business and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the conduct of business,
except in any case in which the failure so to qualify or to be in good standing would not result in
a Material Adverse Effect. All the outstanding shares of capital stock, partnership interests,
limited liability company interests or other equivalent equity interests of each Significant
Subsidiary and each Property Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable. Except as otherwise set forth in the General Disclosure Package and
the Prospectus, all outstanding shares of capital stock, partnership interests, limited liability
company interests or other equivalent equity interest of the Significant Subsidiaries and the
Property Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries
of the Company free and clear of any security interest, mortgage, pledge, lien, encumberance, claim
or equity; and none of the outstanding shares of capital stock, partnership interests, limited
liability company interests or other equivalent equity interests of any Subsidiary was issued in
violation of the preemptive or similar rights of any security holder of such Subsidiary.
(i) Authorization of Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and each Guarantor.
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(j) Authorization of the Indenture. The Base Indenture has been duly authorized,
executed and delivered by the Company and duly qualified under the 1939 Act and constitutes a valid
and binding agreement of the Company, enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization, moratorium or other laws
affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is considered in a proceeding in
equity or at law); Supplemental Indenture No. 12 has been duly authorized by the Company, and when
duly executed and delivered by the Company and the Trustee, will constitute a valid and binding
agreement of the Company, enforceable against the Company in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or other laws affecting
enforcement of creditors’ rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a proceeding in equity or
at law).
(k) Authorization of the Notes. The Notes have been duly authorized and, at the
Closing Time, will have been duly executed by the Company and, when authenticated, issued and
delivered in the manner provided for in the Indenture and delivered against payment of the purchase
price therefor as provided in this Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or other laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in equity or at law), and
will be in the form contemplated by, and entitled to the benefits of, the Indenture.
(l) Authorization of the Guarantees. Each Guarantee has been duly authorized and, at
the Closing Time will have been duly executed and delivered by the applicable Guarantor and, when
authenticated, issued and delivered in the manner provided for in the Indenture and delivered
against payment of the purchase price therefor as provided in this Agreement, will constitute a
valid and legally binding obligation of such Guarantor enforceable in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization, moratorium or other laws
affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is considered in a proceeding in
equity or at law).
(m) Description of the Securities and the Indenture. The Securities and the Indenture
will conform in all material respects to the respective statements relating thereto contained in
the Registration Statement, the General Disclosure Package and the Prospectus and will be in
substantially the respective forms filed or incorporated by reference, as the case may be, as
exhibits to the Registration Statement.
(n) Absence of Defaults and Conflicts. Neither the Company nor any of its
Subsidiaries is in violation of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its Subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of the Company or any subsidiary is subject
(collectively, “Agreements and Instruments”) except for such defaults that would not result in a
Material Adverse Effect; and the execution, delivery and performance of this Agreement, the
Indenture and the Securities and the consummation of the transactions contemplated herein and in
the General Disclosure Package and the Prospectus (including the issuance and sale of the
Securities and the use of the proceeds from their sale as described in the General Disclosure
Package and
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the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its
obligations hereunder and under the Indenture and the Notes, and compliance by the Guarantors with
the Guarantees have been duly authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts,
breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation of the provisions of the
charter or by-laws of the Company or any subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any subsidiary or any of their assets,
properties or operations. As used herein, a “Repayment Event” means any event or condition which
gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on
such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any subsidiary.
(o) Absence of Labor Dispute. No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is imminent, and the Company is not
aware of any existing or imminent labor disturbance by the employees of any of its or any
subsidiary’s principal suppliers, manufacturers, customers or contractors, which, in either case,
would result in a Material Adverse Effect.
(p) Absence of Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body, domestic or foreign,
now pending, or, to the knowledge of the Company, threatened, against or affecting the Company or
any subsidiary, which is required to be disclosed in the General Disclosure Package or the
Prospectus (other than as disclosed therein), or which might result in a Material Adverse Effect,
or which might materially and adversely affect the properties or assets thereof or the consummation
of the transactions contemplated in this Agreement or the performance by the Company of its
obligations hereunder; the aggregate of all pending legal or governmental proceedings to which the
Company or any subsidiary is a party or of which any of their respective property or assets is the
subject which are not described in the General Disclosure Package or the Prospectus, including
ordinary routine litigation incidental to the business, could not be reasonably expected to result
in a Material Adverse Effect.
(q) Accuracy of Exhibits. There are no contracts or documents which are required to
be described in the Registration Statement, the General Disclosure Package, the Prospectus or the
documents incorporated by reference therein or to be filed as exhibits thereto which have not been
so described and filed as required.
(r) Possession of Intellectual Property. Neither the Company nor any of its
subsidiaries is required to own or possess any trademarks, service marks, trade names or copyrights
(collectively, “Intellectual Property”) 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, whether or not
arising from transactions in the ordinary course of business.
(s) Absence of Manipulation. Neither the Company nor any affiliate of the Company has
taken, nor will the Company or any affiliate take, directly or indirectly, any action which is
designed to or which has constituted or which would be expected to cause or result in, under the
1934 Act or otherwise, stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
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(t) Absence of Further Requirements. No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the Company of its obligations
hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the
consummation of the transactions contemplated by this Agreement or for the due execution, delivery
or performance of the Indenture by the Company, except such as have been already obtained or as may
be required under the 1933 Act or the 1933 Act Regulations; provided, however, that the Company
makes no representation or warranty as to the blue sky laws or real estate syndication laws of any
jurisdiction or any such requirements of the Financial Industry Regulatory Authority (“FINRA”).
(u) Possession of Licenses and Permits. The Company and its Subsidiaries possess all
permits, licenses, approvals, consents and other authorizations (collectively, “Governmental
Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them, except where the failure so to possess
would not, singly or in the aggregate, result in a Material Adverse Effect; the Company and its
subsidiaries are in compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the aggregate, result in a Material
Adverse Effect; all of the Governmental Licenses are valid and in full force and effect, except
when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to
be in full force and effect would not, singly or in the aggregate, result in a Material Adverse
Effect; and neither the Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental Licenses which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(v) Title to Property. Except as disclosed in the General Disclosure Package and the
Prospectus, the Company and the Property Subsidiaries have good and marketable fee simple title to
or leasehold title in all real property and all other properties and assets owned or leased by them
and good title to all other properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions, defects or encumbrances that
would have a Material Adverse Effect; except as disclosed in the General Disclosure Package and the
Prospectus, no tenant under any lease to which the Company or any of the Property Subsidiaries
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; each of the properties of any of the Company or
the Property 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; and neither the
Company nor any of the Property 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
the Property Subsidiary except in any case where such action or proceeding would not have a
Material Adverse Effect.
(w) Investment Company Act. The Company is not required, and upon the issuance and
sale of the Securities as herein contemplated and the application of the net proceeds therefrom as
described in the General Disclosure Package and the Prospectus will not be required, to register as
an “investment company” under the Investment Company Act of 1940, as amended (the “1940 Act”).
(x) Environmental Laws. Except as described in the General Disclosure Package and the
Prospectus and except as would not, singly or in the aggregate, result in a Material Adverse
Effect, the Company and its Property 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
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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 Effect, whether or not arising from
transactions in the ordinary course of business. Except as set forth in the General Disclosure
Package and the Prospectus, neither the Company nor any of the Property 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. The
term “Hazardous Materials” mean chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold.
(y) Accounting Controls and Disclosure Controls. The Company and each of its
subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable
assurances that (1) transactions are executed in accordance with management’s general or specific
authorization; (2) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain accountability for assets; (3) access to assets
is permitted only in accordance with management’s general or specific authorization; and (4) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
The Company and its consolidated subsidiaries have established and maintain “internal control
over financial reporting” and “disclosure controls and procedures,” in each case as required by
Rule 13a-15 under the 1934 Act. To the knowledge of the Company, the Company’s internal control
over financial reporting and disclosure controls and procedures are effective at a reasonable
assurance level to perform the functions for which they were designed and established. Except as
described in the General Disclosure Package and the Prospectus, since the end of the Company’s most
recent audited fiscal year, there has been (I) no material weakness in the Company’s internal
control over financial reporting (whether or not remediated) and (II) no change in the Company’s
internal control over financial reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over financial reporting.
Notwithstanding
the foregoing, no representation and warranty is made in this Section 2(y) as
to DIM Vastgoed, N.V.
(z) Compliance with the Xxxxxxxx-Xxxxx Act. There is and has been no failure on the
part of the Company or, to the knowledge of the Company, any of the Company’s directors or
officers, in their capacities as such, to comply in all material respects with any provision of the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection therewith (the
“Xxxxxxxx-Xxxxx Act”), including Section 402 related to loans and Sections 302 and 906 related to
certifications.
(aa) Pending Proceedings and Examinations. The Registration Statement is not the
subject of a pending proceeding or examination under Section 8(d) or 8(e) of the 1933 Act, and the
Company is not the subject of a pending proceeding under Section 8A of the 1933 Act in connection
with the offering of the Securities.
(bb) Tax Law Compliance. The Company has filed all foreign, federal, state and local
tax returns that are required to be filed or has requested extensions thereof, except in any case
in which the failure to so file would not have a Material Adverse Effect and has paid all taxes
required to be paid by it and any other assessment, fine or penalty levied against it, to the
extent that any of the foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith or as
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would not have a Material Adverse Effect, whether or not arising from transactions in the
ordinary course of business, except as set forth in the General Disclosure Package and the
Prospectus (exclusive of any supplement thereto).
(cc) Insurance and Title Insurance. Each of the Company, the Significant Subsidiaries
and the Property Subsidiaries and each of their respective 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, the Significant Subsidiaries and the Property
Subsidiaries or their respective properties, businesses, assets, employees, officers and directors
are in full force and effect, except for the failure to insure or lapses in policies which would
not have a Material Adverse Effect. Title insurance in favor of the Company and the Property
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.
(dd) Statistical and Market-Related Data. Any statistical and market-related data
included in the Registration Statement, the General Disclosure Package and the Prospectus are based
on or derived from sources that the Company believes to be reliable and accurate, and the Company
has obtained the written consent to the use of such data from such sources to the extent required.
(ee) Real Estate Investment Trust. 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.
(ff) Mortgages, Deeds of Trust. The mortgages and deeds of trust encumbering the
properties and assets described in the Registration Statement, the General Disclosure Package and
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 of its subsidiaries, nor does the
Company or any of its subsidiaries hold a participating interest therein, (ii) except as set forth
in the Registration Statement, the General Disclosure Package and the Prospectus, are not
cross-defaulted to any indebtedness other than indebtedness of the Company or any of its
subsidiaries and (iii) are not cross-collateralized to any property not owned by the Company or any
of its subsidiaries.
(gg) Foreign Corrupt Practices Act. Neither the Company nor, to the knowledge of the
Company, any director, officer, agent, employee, affiliate or other person acting on behalf of the
Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly,
that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder (the “FCPA”), including without limitation,
making use of the mails or any means or instrumentality of interstate commerce corruptly in the
furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or
other property, gift, promise to give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of the FCPA and the Company
and to the knowledge of the Company, its affiliates have conducted their businesses in compliance
with the FCPA and have instituted and maintain policies and procedures designed to ensure and which
are reasonable expected to continue to ensure, continued compliance therewith.
(hh) Money Laundering Laws. The operations of the Company are and have been conducted
at all times in material compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of
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all jurisdictions, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the Company with
respect to the Money Laundering Laws is pending or, to the best knowledge of the Company,
threatened.
(ii) OFAC. Neither the Company nor, to the knowledge of the Company, any director,
officer, agent, employee, affiliate or person acting on behalf of the Company is currently subject
to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”); and the Company will not directly or indirectly use the proceeds from the sale
of the Securities, or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by OFAC.
(jj) The Company does not intend to use any of the proceeds from the sale of the Securities
hereunder to repay any outstanding debt owed to any affiliate except as set forth in the General
Disclosure Package and the Prospectus.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to
purchase from the Company, at the price set forth in Schedule B, the aggregate principal
amount of the Securities set forth in Schedule A opposite such Underwriter’s name, plus any
additional principal amount of Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 9 hereof.
(b) Payment. Payment of the purchase price for, and delivery of certificates for, the
Securities and the Guarantees shall be made at the offices of DLA Piper LLP (US), 0000 Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, X.X. 00000, or at such other place as shall be agreed upon by the
Representatives and the Company, at 10:00 AM (Eastern time) on December 9, 2009 (unless postponed
in accordance with the provisions of Section 9), or such other time not later than ten business
days after such date as shall be agreed upon by the Representatives and the Company (such time and
date of payment and delivery being herein called “Closing Time”).
Payment shall be made to the Company by wire transfer of immediately available funds to a bank
account(s) designated by the Company against delivery to the Representatives for the respective
accounts of the Underwriters of certificates for the Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the Securities which it has
agreed to purchase. Banc of America Securities LLC, X.X. Xxxxxx Securities Inc. and Xxxxx Fargo
Securities, LLC, individually and not as representatives of the Underwriters, may (but shall not be
obligated to) make payment of the purchase price for the Securities to be purchased by any
Underwriter whose funds have not been received by the Closing Time, but such payment shall not
relieve such Underwriter from its obligations hereunder.
(c) Delivery. Delivery of the Securities will be made through the facilities of The
Depository Trust Company (“DTC”) unless the Representatives instruct otherwise.
SECTION 3. Covenants of the Company. The Company covenants with each Underwriter as
follows:
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(a) Compliance with Securities Regulations and Commission Requests; Payment of Filing
Fees. The Company, subject to Section 3(b), will comply with the requirements of Rule 430B
and will notify the Representatives immediately, and confirm the notice in writing, (i) when
any post-effective amendment to the Registration Statement or new registration statement
relating to the Securities shall become effective, or any supplement to the Prospectus or
any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the Registration
Statement or the filing of a new registration statement or any amendment or supplement to
the Prospectus or any document incorporated by reference therein or otherwise deemed to be a
part thereof or for additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or such new
registration statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for offering or sale
in any jurisdiction, or of the initiation or threatening of any proceedings for any of such
purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the
Registration Statement and (v) if the Company becomes the subject of a proceeding under
Section 8A of the 1933 Act in connection with the offering of the Securities. The Company
will effect the filings required under Rule 424(b), in the manner and within the time period
required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it
deems necessary to ascertain promptly whether the form of prospectus transmitted for filing
under Rule 424(b) was received for filing by the Commission and, in the event that it was
not, it will promptly file such prospectus. The Company will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments and 1934 Act Documents; Preparation of Final Term Sheet. The
Company will give the Representatives notice of its intention to file or prepare any
amendment to the Registration Statement or new registration statement relating to the
Securities or any amendment, supplement or revision to either any preliminary prospectus
(including any prospectus included in the Original Registration Statement or amendment
thereto at the time it became effective) or to the Prospectus, whether pursuant to the 1933
Act, the 1934 Act or otherwise, and the Company will furnish the Representatives with copies
of any such documents a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file or use any such document to which the Representatives or
counsel for the Underwriters shall object. The Company has given the Representatives notice
of any filings made pursuant to the 1934 Act or 1934 Act Regulations within 48 hours prior
to the execution of this Agreement; the Company will give the Representatives notice of its
intention to make any such filing from the execution of this Agreement to the Closing Time
and will furnish the Representatives with copies of any such documents a reasonable amount
of time prior to such proposed filing and will not file or use any such document to which
the Representatives or counsel for the Underwriters shall object. The Company will prepare a
final term sheet (the “Final Term Sheet”) reflecting the final terms of the Securities, in
form and substance satisfactory to the Representatives, a form of which is attached as
Schedule C hereto, and shall file such Final Term Sheet as an “issuer free writing
prospectus” pursuant to Rule 433 prior to the close of business two business days after the
date hereof; provided that the Company shall furnish the Representatives with copies of any
such Final Term Sheet a reasonable amount of time prior to such proposed filing and will not
use or file any such document to which the Representatives or counsel to the Underwriters
shall object.
(c) Delivery of Registration Statements. The Company has furnished or will deliver to
the Representatives and counsel for the Underwriters, without charge, signed copies of the
Original Registration Statement and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or deemed to be
incorporated by
- 12 -
reference therein or otherwise deemed to be a part thereof) and signed copies of all
consents and certificates of experts, and will also deliver to the Representatives, without
charge, a conformed copy of the Original Registration Statement and of each amendment
thereto (without exhibits) for each of the Underwriters. The copies of the Original
Registration Statement and each amendment thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each Underwriter, without
charge, as many copies of each preliminary prospectus as such Underwriter reasonably
requested, and the Company hereby consents to the use of such copies for purposes permitted
by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the
period when the Prospectus is required to be delivered under the 1933 Act, such number of
copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply with the 1933
Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act
and the 1939 Act Regulations so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that the Prospectus
will not include any untrue statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it shall be
necessary, in the opinion of such counsel, at any such time to amend the Registration
Statement or to file a new registration statement or amend or supplement the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section 3(b), such
amendment, supplement or new registration statement as may be necessary to correct such
statement or omission or to comply with such requirements, the Company will use its best
efforts to have such amendment or new registration statement declared effective as soon as
practicable and the Company will furnish to the Underwriters such number of copies of such
amendment, supplement or new registration statement as the Underwriters may reasonably
request. If at any time following issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information contained in the Registration
Statement (or any other registration statement relating to the Securities) or the Statutory
Prospectus or any preliminary prospectus or included or would include an untrue statement of
a material fact or omitted or would omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances prevailing at that subsequent
time, not misleading, the Company will promptly notify the Representatives and will promptly
amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or
correct such conflict, untrue statement or omission.
(f) Blue Sky Qualifications. The Company will use its best efforts, in cooperation
with the Underwriters, to qualify the Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions as the Representatives may designate
and to maintain such qualifications in effect for a period of not less than one year from
the date hereof; provided,
- 13 -
however, that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so subject. The Company
will also supply the Underwriters with such information as is necessary for the
determination of the legality of the Securities for investment under the laws of such
jurisdictions as the Underwriters may reasonably request.
(g) Rule 158. The Company will timely file such reports pursuant to the 1934 Act as
are necessary in order to make generally available to its security holders as soon as
practicable an earnings statement for the purposes of, and to provide to the Underwriters
the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it from the
sale of the Securities in the manner specified in the Prospectus under “Use of Proceeds.”
(i) Restriction on Sale of Securities. During the period from the date of the
Prospectus until one business day following the Closing Time, the Company will not, without
the prior written consent of the Representatives, directly or indirectly, issue, sell, offer
or contract to sell, grant any option for the sale of, or otherwise transfer or dispose of
any debt securities of the Company.
(j) Reporting Requirements. The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file all documents required to be filed
with the Commission pursuant to the 1934 Act within the time periods required by the 1934
Act and the 1934 Act Regulations.
(k) Issuer Free Writing Prospectuses. The Company represents and agrees that, unless
it obtains the prior consent of the Representatives, and each Underwriter represents and
agrees that, unless it obtains the prior consent of the Company and the Representatives, it
has not made and will not make any offer relating to the Securities that would constitute an
“issuer free writing prospectus,” as defined in Rule 433, or that would otherwise constitute
a “free writing prospectus,” as defined in Rule 405, required to be filed with the
Commission; provided, however, that prior to the preparation of the Final Term Sheet in
accordance with Section 3(b), the Underwriters are authorized to use the information with
respect to the final terms of the Securities in communications conveying information
relating to the offering to investors, provided that no such communication constitutes a
free writing prospectus. Any such free writing prospectus consented to by the
Representatives or by the Company and the Representatives, as the case may be, is
hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents
that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as
an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will
comply with the requirements of Rule 433 applicable to any Permitted Free Writing
Prospectus, including timely filing with the Commission where required, legending and record
keeping.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay or cause to be paid all expenses incident to the
performance of its obligations under this Agreement, including (i) the preparation, printing and
filing of the Registration Statement (including financial statements and exhibits) as originally
filed and of each amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters, the Indenture and such other
documents as may be required in connection with the offering, purchase, sale, issuance or delivery
of the Securities, (iii) the preparation, issuance and delivery of the certificates for the
Securities to the Underwriters, (iv) the fees and disbursements of the
- 14 -
Company’s counsel, accountants and other advisors, (v) the qualification of the Securities
under securities laws in accordance with the provisions of Section 3(f) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey and any supplement thereto,
(vi) the printing and delivery to the Underwriters of copies of each preliminary prospectus, any
Permitted Free Writing Prospectus and of the Prospectus and any amendments or supplements thereto
and any costs associated with electronic delivery of any of the foregoing by the Underwriters to
investors, (vii) the preparation, printing and delivery to the Underwriters of copies of the Blue
Sky Survey and any supplement thereto, (viii) the fees and expenses of the Trustee, including the
fees and disbursements of counsel for the Trustee in connection with the Indenture and the
Securities, (ix) the costs and expenses of the Company relating to investor presentations on any
“road show” undertaken in connection with the marketing of the Securities, including without
limitation, expenses associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show presentations, travel and
lodging expenses of the representatives and officers of the Company and any such consultants, and
the cost of aircraft and other transportation chartered in connection with the road show and (x)
any fees payable in connection with the rating of the Securities.
(b) Termination of Agreement. If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 5 or Section 8(a)(i) hereof, the Company shall reimburse
the Underwriters for all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters’ Obligations. The obligations of the several
Underwriters hereunder are subject to the accuracy of the representations and warranties of the
Company contained in Section 1 hereof or in certificates of any officer of the Company or any
subsidiary of the Company delivered pursuant to the provisions hereof, to the performance by the
Company of its covenants and other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement; Filing of Prospectus. The Registration Statement
is and remains effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated
or threatened by the Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing the Rule 430B Information shall have been filed with the
Commission in the manner and within the time period required by Rule 424(b) without reliance on
Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and
become effective in accordance with the requirements of Rule 430B).
(b) Opinion of Counsel for Company. At Closing Time, the Representatives shall have received
the favorable opinion, dated as of Closing Time, of Xxxxxxxxx Xxxxxxx, P.A. and Xxxxxxx LLP, each
counsel for the Company, 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, the Significant Subsidiaries and the Property Subsidiaries is
duly incorporated or formed, and is validly existing as a corporation, limited partnership
or limited liability company in good standing under the laws of the jurisdiction in which it
is chartered or formed, with full corporate, partnership or limited liability company power
and authority to own or lease, as the case may be, and to operate its properties and conduct
its business as described in the Prospectus and the General Disclosure Package, 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
- 15 -
aggregate, have a Material Adverse Effect, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in the Prospectus
and the General Disclosure Package; 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 Significant
Subsidiary and Property Subsidiary have been duly authorized and validly issued and are
fully paid and nonassessable (except to the extent the general partner’s interest), as
applicable, and except as described in the Prospectus and the General Disclosure Package or
a schedule to such counsel’s opinion, all outstanding shares of capital stock, partnership
interests, limited liability company interests or other equivalent equity interest of the
Significant Subsidiaries and the Property 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 General Disclosure Package, and the Securities and Indenture will conform in all
material respects to the descriptions thereof contained in the Prospectus and the General
Disclosure Package;
(iv) the Notes have been duly and validly authorized by the Company, and, when
authenticated by the Trustee and issued and delivered by the Company in accordance with the
terms of the Indenture (assuming the due authorization, execution and delivery of the
Indenture by the Trustee), to, and paid for by, the Underwriters pursuant to this Agreement,
the Notes 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, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other laws affecting enforcement of creditors’ rights
generally and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at law);
(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, except as the enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other laws affecting enforcement of creditors’
rights generally and except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in equity or at
law);
(vi) this Agreement has been duly authorized, executed and delivered by the Company and
each of the Guarantors;
(vii) the Indenture has been duly and validly authorized, executed and delivered by the
Company and each of the Guarantors, as applicable, and assuming due authorization, execution
and delivery thereof by the Trustee, will constitute a valid and legally binding agreement
of the Company and such Guarantors enforceable against the Company and such Guarantors in
accordance with its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other laws affecting enforcement of creditors’ rights
generally and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at law);
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(viii) the Registration Statement has become effective under the 1933 Act to such
counsel’s knowledge; the Indenture has been qualified under the 1939 Act;
(ix) to such counsel’s knowledge, any required filing of each prospectus relating to
the Securities (including the Prospectus) pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b) (without reference to Rule
424(b)(8)); any required filing of each Issuer Free Writing Prospectus pursuant to Rule 433
has been made in the manner and within the time period required by Rule 433(d); and, to such
counsel’s knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or threatened by the Commission;
(x) the Registration Statement, including without limitation the Rule 430B Information,
the Prospectus, excluding the documents incorporated by reference therein, and each
amendment or supplement to the Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, as of their respective effective or issue dates
(including without limitation each deemed effective date with respect to the Underwriters
pursuant to Rule 430B(f)(2) of the 1933 Act Regulations), other than the financial
statements and supporting schedules included therein or omitted therefrom, as to which such
counsel need express no opinion, complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations;
(xi) the documents incorporated by reference in the Registration Statement (other than
the financial statements and supporting schedules included therein or omitted therefrom, as
to which such counsel need express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act and the 1934
Act Regulations;
(xii) to the knowledge of such counsel, there is no pending or threatened action, suit
or proceeding, by 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 General Disclosure Package or the Prospectus which is not
adequately disclosed therein, and there is no franchise, contract or other document of a
character required to be described in the General Disclosure Package or the Prospectus, or
to be filed as an exhibit to the Registration Statement, which is not described or filed
thereto;
(xiii) no filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or agency,
domestic or foreign is required in connection with the performance by the Company of the
transactions contemplated herein; except such as have been obtained under the Act or the
1939 Act, real estate syndication laws and such as may be required under the blue sky laws
of any jurisdictions in connection with the purchase and distribution of the Securities and
such other approvals (specified in such opinion) as have been obtained; provided that no
opinion shall be required with respect to real estate syndication or blue sky laws;
(xiv) except as set forth in the General Disclosure Package and the Prospectus, the
execution and delivery of this Agreement and the Indenture by the Company and the
Guarantors, the issuance and sale of the Notes by the Company or the issuance of the
Guarantees by the Guarantors, or the consummation by the Company of any of the other
transactions contemplated in this Agreement, the Indenture or the Registration Statement and
the fulfillment by the Company and the Guarantors of the terms thereof will not conflict
with, result in a breach or violation of, or
- 17 -
cause the imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any subsidiary pursuant to, (i) the charter or bylaws or similar instruments
of the Company or any subsidiary, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument known to such counsel to which the Company, the Guarantors
or any subsidiary is a party or to which its property is subject where such conflicts,
breaches, violations or liens, charges or encumbrances would constitute a Material Adverse
Effect, or (iii) any applicable law, statute, rule, regulation, judgment, order, writ or
decree, known to such counsel, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company, the Guarantors or any subsidiary
or any of its respective properties, assets or operations where such conflicts, breaches,
violations or liens, charges or encumbrances would constitute a Material Adverse Effect;
(xv) to such counsel’s knowledge, no holders of securities of the Company have the
rights to the registration of such securities under the Registration Statement except for
those which have been effectively waived or are inapplicable to the offering of the
Securities and those pursuant to that certain Registration Rights Agreement, dated January
1, 1999, by and between Xxxxxxx X. Xxxx, Xxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxx Xxxx, and Xxxxxx
X. Xxxxxx doing business as Frankline Development Co., and the Company;
(xvi) the statements included or incorporated by reference in the General Disclosure
Package and the Prospectus under the captions “Material Federal Income Tax Considerations,”
“Description of Debt Securities,” “Description of the Notes and Guarantees” and “Risk
Factors” insofar as such statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate in all material respects;
(xvii) the Company is not, and after giving effect to the offering and sale of the
Securities as herein contemplated and the application of the net proceeds therefrom as
described in the Prospectus, will not be required to register as, an “investment company” as
defined in the Investment Company Act of 1940, as amended; and
(xviii) commencing with the Company’s taxable year beginning January 1, 1995, the
Company has been organized in conformity with the requirements of the Code for qualification
as a “real estate investment trust” for United States federal income tax purposes for its
taxable years ended December 31, 1995 through 2008, the Company is in a position to continue
its qualification and taxation as a “real estate investment trust” within the definition of
Section 856(a) of the Code for the taxable year ending December 31, 2009, 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 for United States federal income
tax purposes.
In addition, such counsel shall state that nothing has come to its attention that would lead
it to believe that the Original Registration Statement or any amendment thereto (except for
financial statements and schedules and other financial data included or incorporated by reference
therein or omitted therefrom, to which such counsel need make no statement), at the time such
Original Registration Statement or any such amendment became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; that the Registration Statement, including
the Rule 430B Information (except for financial statements and schedules and other financial data
included or incorporated by reference therein or omitted therefrom, as to which such counsel need
make no statement), at each deemed effective date with respect to the Underwriters pursuant to Rule
430B(f)(2) of the 1933 Act Regulations, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the statements therein
not misleading; or that the Prospectus or any amendment or supplement thereto (except
- 18 -
for financial statements and schedules and other financial data included or incorporated by
reference therein or omitted therefrom, as to which such counsel need make no statement), at the
time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued
or at the Closing Time, included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. In addition, such counsel shall state
that nothing has come to such counsel’s attention that would lead it to believe that the General
Disclosure Package (except for the financial statements and schedules and other financial data
included or incorporated by reference therein or omitted therefrom, as to which such counsel need
make no statement), as of the Applicable Time, 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 circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters involving the application
of the laws of any jurisdiction other than the States of Maryland, Florida, Texas, Georgia,
Massachusetts 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 (but not as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. Such opinion shall not state that it is
to be governed or qualified by, or that it is otherwise subject to, any treatise, written policy or
other document relating to legal opinions, including, without limitation, the Legal Opinion Accord
of the ABA Section of Business Law (1991).
(c) Opinion of Counsel for Underwriters. At the Closing Time, the Representatives shall have
received the favorable opinion of DLA Piper LLP (US), counsel for the Underwriters, in form and
substance satisfactory to the Representatives.
(d) Officers’ Certificate. At the Closing Time, there shall not have been, since the date
hereof, since the Applicable Time or since the respective dates as of which information is given in
the Prospectus or the General Disclosure Package, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of
business, and the Representatives shall have received a certificate of the president or a vice
president of the Company and of each Guarantor and of the chief financial or chief accounting
officer of the Company and each Guarantor, dated as of Closing Time, to the effect that:
(i) the representations and warranties of the Company and each Guarantor in this
Agreement are true and correct, as if made on and as of such date, and the Company and each
Guarantor has complied with all the agreements and satisfied all the conditions on their
part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto has been issued and no proceedings for that purpose have
been instituted or are pending or threatened under the 1933 Act; and
(iii) subsequent to the respective dates as of which information is given in the
Registration Statement, Prospectus or the General Disclosure Package, there has not been (a)
any change, or any development or event that reasonably could be expected to result in a
change, that has or reasonably could be expected to have a Material Adverse Effect, whether
or not arising in the ordinary course of business, (b) any transaction that is material to
the Company and the Subsidiaries considered as one enterprise, (c) any obligation, direct or
contingent, that is material and adverse to the Company and the Subsidiaries considered as
one enterprise, incurred by the
- 19 -
Company or the Subsidiaries, (d) any adverse change in the capital stock or outstanding
indebtedness of the Company or any Subsidiary that is material and adverse to the Company
and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any
kind declared, paid or made on the capital stock or other equity interests of the Company or
any Subsidiary (other than any dividend or distribution to the Company or another
Subsidiary), or (f) any loss or damage (whether or not insured) to the property of the
Company or any Subsidiary that has been sustained or will have been sustained that has or
may reasonably be expected to have a Material Adverse Effect.
(e) Accountant’s Comfort Letter. At the time of the execution of this Agreement, the
Representatives shall have received from Ernst & Young LLP a letter dated such date, in form and
substance satisfactory to the Representatives, together with signed or reproduced copies of such
letter for each of the other Underwriters containing statements and information of the type
ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial
statements and certain financial information contained in the Registration Statement and the
Prospectus.
(f) Bring-down Comfort Letter. At the Closing Time, the Representatives shall have received
from Ernst & Young LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (e) of this Section, except that the
specified date referred to shall be a date not more than three business days prior to the Closing
Time.
(g) Maintenance of Rating. At Closing Time, the Securities shall be rated at least Baa3 by
Moody’s Investor’s Service Inc. and BBB- by Standard & Poor’s Ratings Group, a division of
XxXxxx-Xxxx, Inc., and the Company shall have delivered to the Representatives a letter dated the
Closing Time, from each such rating agency, or other evidence satisfactory to the Representatives,
confirming that the Securities have such ratings; and since the date of this Agreement, there shall
not have occurred a downgrading in the rating assigned to the Securities or any of the Company’s
other debt securities by any “nationally recognized statistical rating agency,” as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such
organization shall have publicly announced that it has under surveillance or review its rating of
the Securities or any of the Company’s other debt securities.
(h) No Objection. FINRA shall not have raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(i) Additional Documents. At the Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the Company in connection
with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form
and substance to the Representatives and counsel for the Underwriters.
(j) Termination of Agreement. If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated by the
Representatives by notice to the Company at any time at or prior to Closing Time, and such
termination shall be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such termination and remain in
full force and effect.
- 20 -
SECTION 6. Indemnity and Contribution by the Company and the Underwriters:
(a) The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, as
such term is defined in Rule 501(b) under the 1933 Act (each, an “Affiliate”), its selling agents
and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), including the Rule 430B
Information, or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, in any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto) or in any “road show” (as defined in Rule 433 under the
Securities Act) not constituting an “Issuer Free Writing Prospectus,” or the omission or
alleged omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement including without
limitation, by means of a Consent to Judgment of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission; provided that any such settlement is effected with the written
consent of the Company;
(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by the Representatives), reasonably incurred in
investigating, preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives expressly for
use in the Registration Statement (or any amendment thereto), including any preliminary prospectus,
any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold harmless the Company, the
Company’s directors, each of the Company’s officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage and expense described
in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), or any preliminary prospectus, any Issuer Free Writing
Prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter through the
Representatives expressly for use therein.
- 21 -
(c) Each indemnified party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party
from any liability hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Representatives, and, in the case of
parties indemnified pursuant to Section 6(b) above, counsel to the indemnified parties shall be
selected by the Company. An indemnifying party may participate at its own expense in the defense
of any such action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying party shall, without
the prior written consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 (whether or not the
indemnified parties are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all liability arising
out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section 6 is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Guarantors on the one hand and the Underwriters on the
other hand from the offering of the Securities pursuant to this Agreement, or (ii) if the
allocation provided by clause (i) 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 and the Guarantors on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Guarantors on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total net proceeds from
the offering of the Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the Guarantors and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, bear to the aggregate initial public
offering price of the Securities as set forth on the cover of the Prospectus.
The relative fault of the Company and each Guarantor on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Guarantors or by the Underwriters and
the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company, the Guarantors and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 6 were determined by pro rata allocation (even if the
Underwriters
- 22 -
were treated as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to above in this Section 6. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 6 shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 6, 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 any 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
0000 Xxx) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 6, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s
Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The
Underwriters’ respective obligations to contribute pursuant to this Section 6 are several in
proportion to the principal amount of Securities set forth opposite their respective names in
Schedule A hereto and not joint.
SECTION 7. Representations, Warranties and Agreements to Survive. All
representations, warranties and agreements contained in this Agreement or in certificates of
officers of the Company or any of its subsidiaries submitted pursuant hereto, shall remain
operative and in full force and effect regardless of (i) any investigation made by or on behalf of
any Underwriter or its Affiliates or selling agents, any person controlling any Underwriter, its
officers or directors or any person controlling the Company, and (ii) delivery of, and payment for,
the Securities.
SECTION 8. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this Agreement in their absolute
discretion, by notice to the Company, at any time at or prior to the Closing Time (i) if there has
been, since the time of execution of this Agreement or since the respective dates as of which
information is given in the Prospectus (exclusive of any supplement thereto) or General Disclosure
Package, any material adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the effect of which is such
as to make it, in the judgment of the Representatives, impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the Commission or the New
York Stock Exchange, or if trading generally on the New York Stock Exchange or the NASDAQ Global
Market has been suspended or materially limited, or minimum or maximum prices for trading have been
fixed, or maximum ranges for
- 23 -
prices have been required, by any of said exchanges or by such system or by order of the
Commission, FINRA or any other governmental authority, or (iv) a material disruption has occurred
in commercial banking or securities settlement or clearance services in the United States, or (v)
if a banking moratorium has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section, such termination
shall be without liability of any party to any other party except as provided in Section 4 hereof,
and provided further that Sections 1, 6, 7 and 8 shall survive such termination and remain in full
force and effect.
SECTION 9. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at the Closing Time to purchase the Securities which it or they are
obligated to purchase under this Agreement (the “Defaulted Securities”), the Representatives shall
have the right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of
the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth;
if, however, the Representatives shall not have completed such arrangements within such 24-hour
period, then:
(i) if the number of Defaulted Securities does not exceed 10% of the aggregate
principal amount of Securities to be purchased hereunder, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full amount of
the Defaulted Securities in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting Underwriters; or
(ii) if the number of Defaulted Securities exceeds 10% of the aggregate principal
amount of the Securities to be purchased hereunder, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement
either the Representatives or the Company shall have the right to postpone the Closing Time for a
period not exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. As used herein, the term
“Underwriter” includes any person substituted for an Underwriter under this Section 9.
SECTION 10. Tax Disclosure. Notwithstanding any other provision of this Agreement,
from the commencement of discussions with respect to the transactions contemplated hereby, the
Company (and each employee, representative or other agent of the Company) may disclose to any and
all persons, without limitation of any kind, the tax treatment and tax structure (as such terms are
used in Sections 6011, 6111 and 6112 of the U.S. Code and the Treasury Regulations promulgated
thereunder) of the transactions contemplated by this Agreement and all materials of any kind
(including opinions or other tax analyses) that are provided relating to such tax treatment and tax
structure.
SECTION 11. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication. Notices to the Representatives shall be sent to the Representatives c/o Banc
of America Securities LLC, Xxx Xxxxxx Xxxx, XX0-000-00-00, Xxx Xxxx, XX 00000 (fax no. (000)
000-0000), Attention: High Grade Transaction Management/Legal, X.X. Xxxxxx Securities Inc. (fax no.
(000) 000-0000), Attention: Investment Grade Syndicate Desk and Xxxxx Fargo Securities, LLC, 000 X.
Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 (fax no.: (000) 000-0000), Attention: Transaction Management
Department,
- 24 -
and notices to the Company shall be directed to it at 0000 X.X. Xxxxx Xxxxxxx Xxxxx, Xxxxx
Xxxxx Xxxxx, Xxxxxxx 00000 (fax no.: (000) 000-0000), Attention: Chief Financial Officer.
SECTION 12. No Advisory or Fiduciary Relationship. Each of the Company and the
Guarantors acknowledges and agrees that (a) the purchase and sale of the Securities pursuant to
this Agreement, including the determination of the public offering price of the Securities and any
related discounts and commissions, is an arm’s-length commercial transaction between the Company
and the Guarantors, on the one hand, and the several Underwriters, on the other hand, (b) in
connection with the offering contemplated hereby and the process leading to such transaction each
Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the
Company or the Guarantors, (c) no Underwriter has assumed or will assume an advisory or fiduciary
responsibility in favor of the Company or the Guarantors with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company or the Guarantors on other matters) and no Underwriter has any
obligation to the Company or the Guarantors with respect to the offering contemplated hereby except
the obligations expressly set forth in this Agreement, (d) the Underwriters and their respective
affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Company and the Guarantors, and (e) the Underwriters have not provided any legal,
accounting, regulatory or tax advice with respect to the offering contemplated hereby and the
Company and the Guarantors have consulted their own respective legal, accounting, regulatory and
tax advisors to the extent it deemed appropriate.
SECTION 13. Integration. This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Company and the Guarantors, on the one hand,
and the Underwriters, on the other, or any of them, with respect to the subject matter hereof.
SECTION 14. Parties. This Agreement shall inure to the benefit of and be binding upon
each of the Underwriters, the Company and the Guarantors and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm
or corporation, other than the Underwriters, the Company and the Guarantors and their respective
successors and the controlling persons and officers and directors referred to in Section 6 and
their heirs and legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters, the
Company and the Guarantors and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any Underwriter shall be deemed to be
a successor by reason merely of such purchase.
SECTION 15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 16. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE
SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 17. 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.
SECTION 18. Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
- 25 -
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the Underwriters and the Company in accordance with its
terms.
| Very truly yours, EQUITY ONE, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxx | |||
| Title: | Executive Vice President, General Counsel and Secretary | |||
| GUARANTORS: Cashmere Developments, Inc. Centrefund Realty (U.S.) Corporation Equity One (Commonwealth) Inc. Equity One (Delta) Inc. Equity One (Florida Portfolio) Inc. Equity One (Louisiana Portfolio) LLC Equity One (North Port) Inc. Equity One (Northeast Portfolio) Inc. Equity One (Point Royale) Inc. Equity One (Sky Lake) Inc. Equity One (Southeast Portfolio) Inc. Equity One (Xxxxxxxxx) Inc. Equity One (Sunlake) Inc. Equity One (Xxxxxx Xxxxx) Inc. Equity One Acquisition Corp. Equity One Realty & Management FL, Inc. Equity One Realty & Management NE, Inc. Equity One Realty & Management SE, Inc. Gazit (Meridian) Inc. IRT Alabama, Inc. IRT Capital Corporation II IRT Management Company Louisiana Holding Corp. Prosperity Shopping Center Corp. Shoppes at Jonathan’s Landing, Inc. Southeast U.S. Holdings Inc. The Xxxxxxx Shopping Center, LLC The Shoppes of Eastwood, LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxx | |||
| Title: | Vice President and Secretary | |||
- 26 -
| IRT Partners, L.P. |
|||||
| By: | Equity One, Inc. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | ||||
| Name: | Xxxxxx X. Xxxxxxxxx | ||||
| Title: | Executive Vice President, General Counsel and Secretary |
||||
- 27 -
| CONFIRMED AND ACCEPTED, as of the date first above written: BANC OF AMERICA SECURITIES LLC |
||||
| By | /s/ Xxxxx X. Xxxxxxx | |||
| Authorized Signatory | ||||
| X.X. XXXXXX SECURITIES INC. |
||||
| By | /s/ Xxxxxxx X. Xxxxxxx | |||
| Authorized Signatory | ||||
| XXXXX FARGO SECURITIES, LLC |
||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Authorized Signatory | ||||
For itself and as Representatives of the other Underwriters named in Schedule A
hereto.
- 28 -
SCHEDULE A
| Principal | ||||
| Amount of | ||||
| Name of Underwriter | Securities | |||
Banc of America Securities LLC |
$ | 75,000,000 | ||
X.X. Xxxxxx Securities Inc. |
75,000,000 | |||
Xxxxx Fargo Securities, LLC |
75,000,000 | |||
SunTrust Xxxxxxxx Xxxxxxxx, Inc. |
10,000,000 | |||
PNC Capital Markets LLC |
7,500,000 | |||
Xxxxxxx Xxxxx & Associates, Inc. |
5,000,000 | |||
BB&T Capital Markets, a division of Xxxxx & Xxxxxxxxxxxx, LLC |
2,500,000 | |||
Total |
$ | 250,000,000 | ||
Sch A-1
SCHEDULE B
$250,000,000
6.25% SENIOR NOTES DUE 2014
| 1. | The initial public offering price of the Securities shall be 99.136% of the principal amount thereof, plus accrued interest, if any, from the date of issuance. | |
| 2. | The purchase price to be paid by the Underwriters for the Securities shall be 98.536% of the principal amount thereof. | |
| 3. | The interest rate on the Securities shall be 6.25% per annum. | |
| 4. | Redemption Provisions: As set forth in the preliminary prospectus supplement dated December 2, 2009. |
Sch B-1
SCHEDULE C
EQUITY ONE, INC.
EQUITY ONE, INC.
$250,000,000
6.25% SENIOR NOTES DUE 2014
FINAL PRICING TERMS
December 2, 2009
December 2, 2009
ISSUER: |
Equity One, Inc. | |
SIZE: |
$250,000,000 | |
EXPECTED RATINGS: |
Baa3 (stable)/BBB- (stable) | |
(Xxxxx’x/S&P) |
||
OFFERING FORMAT: |
SEC Registered | |
TRADE DATE: |
December 2, 2009 | |
SETTLEMENT DATE: |
December 9, 2009 (T+5) | |
MATURITY DATE: |
December 15, 2014 | |
BENCHMARK TREASURY: |
2.125% due November 30, 2014 | |
BENCHMARK TREASURY |
100-07 / 2.079% | |
PRICE AND YIELD: |
||
SPREAD TO BENCHMARK |
+437.5 basis points | |
TREASURY: |
||
YIELD TO MATURITY: |
6.454% | |
COUPON: |
6.25% | |
PUBLIC
OFFERING PRICE (%): |
99.136% | |
INTEREST PAYMENT DATES: |
June 15 and December 15, commencing June 15, 2010 | |
OPTIONAL REDEMPTION: |
Make Whole Call @ T+50 bps | |
CUSIP: |
294752 AG5 | |
ISIN: |
US294752AG50 | |
JOINT BOOK-RUNNING |
Banc of America Securities LLC | |
MANAGERS: |
X.X. Xxxxxx Securities Inc. |
Sch C-1
| Xxxxx Fargo Securities, LLC | ||
CO-MANAGERS: |
SunTrust Xxxxxxxx Xxxxxxxx, Inc. | |
| PNC Capital Markets LLC | ||
| Xxxxxxx Xxxxx & Associates, Inc. | ||
| BB&T Capital Markets, a division of Xxxxx & Xxxxxxxxxxxx, LLC |
A securities rating is not a recommendation to buy, sell or hold securities and may be subject to
revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any underwriter or
any dealer participating in the offering will arrange to send you the prospectus if you request it
by contacting Banc of America Securities LLC toll free at 1-800-294-1322, X.X. Xxxxxx Securities
Inc. (call collect) at (000) 000-0000 or Xxxxx Fargo Securities, LLC toll free at 0-000-000-0000.
Sch C-2
SCHEDULE D
EACH ISSUER GENERAL USE FREE WRITING PROSPECTUS
Final Term Sheet dated December 2, 2009
Sch D-1
