STRICTLY PRIVATE
AND CONFIDENTIAL
DATED AUGUST 9, 2001
$350,000,000
iSTAR FINANCIAL INC.
8 3/4 % SENIOR NOTES DUE 2008
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UNDERWRITING
AGREEMENT
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iStar Financial Inc.
$350,000,000
8-3/4 % SENIOR NOTES DUE 2008
UNDERWRITING AGREEMENT
August 9, 2001
To:
DEUTSCHE BANC ALEX. BROWN INC.
BEAR, XXXXXXX & CO. INC.
as Representatives of the
several Underwriters named
in Schedule II hereto
c/o DEUTSCHE BANC XXXX. BROWN INC.
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
iStar Financial Inc., a Maryland corporation (the "Company"),
hereby confirms its agreement with the several underwriters named in Schedule II
hereto (the "Underwriters"), for whom you have been duly authorized to act as
representatives (the one or more firms acting in such capacities, the
"Representatives"), as set forth below.
Section 1. UNDERWRITING. Subject to the terms and conditions contained herein:
(a) The Company proposes to issue and sell to the several Underwriters the
principal amount of its debt securities (the "Securities") having the terms
identified in Schedule I hereto. The Securities are to be issued pursuant to the
terms of an indenture dated as of February 5, 2001, as amended by a supplemental
indenture dated as of August 16, 2001 (the "Indenture") between the Company and
State Street Bank and Trust Company, N.A., as trustee (the "Trustee").
(b) Upon your authorization of the release of the Securities, the Underwriters
propose to make a public offering (the "Offering") of the Securities upon the
terms set forth in the Prospectus (as defined below) as soon as in the
Representatives' sole judgment is advisable. As used in this Agreement, the term
"Effective Date" shall mean each date that the registration statement and any
post-effective amendment or amendments thereto became or become effective;
the term "Original Registration Statement" means the registration statement
referred to in Section 5(a)(i) below, as amended at the time when it was or is
declared effective, including incorporated documents, financial schedules and
exhibits thereto, including any Rule 430A Information (as defined below) deemed
to be included therein at the Effective Date as provided by Rule 430A, and, in
the event any post-effective amendment thereto becomes effective prior to the
Closing Date (as defined below), also means such registration statement as so
amended; the term "Rule 430A Information" means information permitted to be
omitted from the Original Registration Statement when it becomes effective
pursuant to Rule 430A; the term "Rule 462(b) Registration Statement" means any
registration statement filed with the Commission pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the "Securities Act") (including the
Registration Statement and any Preliminary Prospectus (as defined below), or
Prospectus incorporated therein at the time such Registration Statement becomes
effective); the term "Registration Statement" includes both the Original
Registration Statement and any Rule 462(b) Registration Statement; the term
"Base Prospectus" shall mean the prospectus referred to in Section 5(a)(i) below
contained in the Registration Statement at the Effective Date including, in the
case of a Rule 430A Offering (as defined below), any Preliminary Prospectus; the
term "Preliminary Prospectus" means the preliminary prospectus supplement to the
Base Prospectus used prior to the filing of the Prospectus; the term
"Prospectus" means the prospectus supplement to the Base Prospectus first filed
with the Commission pursuant to Rule 424(b) under the Securities Act, together
with the Base Prospectus.
"Rule 415", "Rule 424" and "Rule 430A" refer to such rules or
regulations under the Securities Act. Any reference herein to the
Registration Statement, the Base Prospectus, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the Effective Date of the Registration
Statement or the issue date of the Base Prospectus, any Preliminary
Prospectus or the Prospectus, as the case may be; and any reference
herein to the terms "amend", "amendment" or "supplement" with respect
to the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective
Date of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus or the Prospectus, as the case
may be, deemed to be incorporated therein by reference. A "Rule 430A
Offering" means an offering of securities which is intended to commence
promptly after the effective date of a registration statement, with the
result that, pursuant to Rules 415 and 430A, all information (other
than Rule 430A Information) with respect to the securities so offered
must be included in such registration statement at the effective date
thereof. A "Rule 415 Offering" means an offering of securities pursuant
to Rule 415 which does not commence promptly after the effective date
of a registration statement, with the result that only information
required pursuant to Rule 415 need be included in such registration
statement at the effective date thereof with respect to the securities
so offered. Whether the offering of the Securities is a Rule 430A
Offering or a Rule 415 Offering shall be set forth in Schedule I
hereto.
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Section 2. PURCHASE AND CLOSING.
(a) On the basis of the representations, warranties, agreements and covenants
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company, at
the purchase price set forth in Schedule I hereto (the "Purchase Price"), the
principal amount of Securities set forth opposite the name of such Underwriter
in Schedule II hereto. The Securities shall be registered by the Trustee in the
name of the nominee of the Depository Trust Company ("DTC"), Cede & Co. ("Cede &
Co."), and credited to the accounts of such of its participants as the
Representatives shall request, upon notice to the Company at least 48 hours
prior to the Closing Date (as defined below), with any transfer taxes payable in
connection with the transfer of the Securities to the Underwriters duly paid,
and deposited with the Trustee as custodian for DTC on the Closing Date, against
payment by or on behalf of the Underwriters to the account of the Company of the
aggregate Purchase Price therefor by wire transfer in immediately available
funds. Such time and date of delivery against payment are herein referred to as
the "Closing Date", and the implementation of all the actions described in this
Section 2(a) is herein referred to as the "Closing".
(b) It is understood that any of you, individually and not as one of the
Representatives, may (but shall not be obligated to) make Payment on behalf of
any Underwriter or Underwriters for any of the Securities to be purchased by
such Underwriter or Underwriters. No such Payment shall relieve such Underwriter
or Underwriters from any of its or their obligations hereunder.
Section 3. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
several Underwriters that:
(a) The Company will:
(i) use its best efforts to cause the Registration
Statement, if not effective at the time of execution
of this Agreement, and any amendments thereto to
become effective as promptly as possible. If
required, the Company will file the Prospectus and
any amendment or supplement thereto with the
Commission in the manner and within the time period
required by Rule 424(b) under the Securities Act.
During any time when a prospectus relating to the
Securities is required to be delivered under the
Securities Act, the Company (x) will comply with all
requirements imposed upon it by the Securities Act,
the Exchange Act and the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and the
respective rules and regulations of the Commission
thereunder to the extent necessary to permit the
continuance of sales of or dealings in the Securities
in accordance with the provisions hereof and of the
Prospectus, as then amended or supplemented, and (y)
will not file with the Commission the Base Prospectus
or any amendment or supplement to such Base
Prospectus (including the Prospectus or any
Preliminary Prospectus), any amendment to the
Registration Statement (including the
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amendment referred to in the second sentence of
Section 5(a)(i) hereof) or any Rule 462(b)
Registration Statement unless the Representatives
previously have been advised of, and furnished with a
copy within a reasonable period of time prior to, the
proposed filing and the Representatives shall have
given their consent to such filing, which shall not
be unreasonably withheld. The Company will prepare
and file with the Commission, in accordance with the
rules and regulations of the Commission, promptly
upon request by the Representatives or counsel for
the Underwriters, any amendments to the Registration
Statement or amendments or supplements to the
Prospectus that may be necessary or advisable, in the
reasonable judgment of the Underwriters or their
counsel, in connection with the distribution of the
Securities by the several Underwriters. The Company
will advise the Representatives, promptly after
receiving notice thereof, of the time when the
Registration Statement or any amendment thereto has
been filed or declared effective or the Prospectus or
any amendment or supplement thereto has been filed
and will provide evidence satisfactory to the
Representatives of each such filing or effectiveness.
(ii) without charge, provide (x) to the
Representatives and to counsel for the Underwriters,
an executed and a conformed copy of the Original
Registration Statement and each amendment thereto or
any Rule 462(b) Registration Statement (in each case
including exhibits thereto), (y) to each other
Underwriter, a conformed copy of the Original
Registration Statement and each amendment thereto or
any Rule 462(b) Registration Statement (in each case
without exhibits thereto), and (z) so long as a
prospectus relating to the Securities is required to
be delivered under the Securities Act, as many copies
of each Preliminary Prospectus or the Prospectus or
any amendment or supplement thereto as the
Representatives may reasonably request.
(iii) advise the Representatives, promptly after
receiving notice or obtaining knowledge thereof, of
(w) the issuance by the Commission of any stop order
suspending the effectiveness of the Original
Registration Statement or any amendment thereto or
any Rule 462(b) Registration Statement or any order
preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or any amendment or
supplement thereto, (x) the suspension of the
qualification of the Securities for offering or sale
in any jurisdiction, (y) the institution, threatening
or contemplation of any proceeding for any purpose
identified in the preceding clause (w) or (x), or (z)
any request made by the Commission for amending the
Original Registration Statement or any Rule 462(b)
Registration Statement, for amending or supplementing
the Prospectus or for additional information. The
Company will use its best efforts to prevent the
issuance of any such stop order and, if any such stop
order is
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issued, to obtain the withdrawal thereof as promptly
as possible.
(b) The Company will cooperate with the Underwriters in qualifying the
Securities for offering and sale in each jurisdiction as the Representatives
shall designate including, but not limited to, pursuant to applicable state
securities ("Blue Sky") laws of certain states of the United States of America
or other U.S. jurisdictions, and the Company shall maintain such qualifications
in effect for so long as may be necessary in order to complete the placement of
the Securities; PROVIDED, HOWEVER, that the Company shall not be obliged to file
any general consent to service of process or to qualify as a foreign corporation
or as a securities dealer in any jurisdiction or to subject itself to taxation
in respect of doing business in any jurisdiction in which it is not otherwise so
subject.
(c) If, at any time prior to the final date when a prospectus relating to the
Securities is required to be delivered under the Securities Act, any event
occurs as a result of which the Prospectus, as then amended or supplemented,
would 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, or if for any
other reason it shall be necessary at any time to amend the Registration
Statement or amend or supplement the Prospectus to comply with the Securities
Act, the Exchange Act or the Trust Indenture Act or the respective rules or
regulations of the Commission thereunder or applicable law, the Company will
promptly notify the Representatives thereof and will promptly, at its own
expense, but subject to the second sentence of Section 3(a)(i) hereof: (x)
prepare and file with the Commission an amendment to the Registration Statement
or amendment or supplement to the Prospectus which will correct such statement
or omission or effect such compliance; and (y) supply any amended Registration
Statement or amended or supplemented Prospectus to the Underwriters in such
quantities as the Underwriters may reasonably request.
(d) The Company will make generally available to the Company's securityholders
and to the Representatives as soon as practicable an earning statement that
satisfies the provisions of Section 11(a) of the Securities Act, including Rule
158 thereunder.
(e) The Company will apply the net proceeds from the sale of the Securities as
set forth under "Use of Proceeds" in the Prospectus.
(f) Neither the Company nor any of its affiliates, nor any person acting on
behalf of any of them will, directly or indirectly, (i) take any action designed
to cause or to result in, or that has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Securities or
(ii) (x) sell, bid for, purchase, or pay anyone any compensation for soliciting
purchases of, the Securities or (y) pay or agree to pay to any person any
compensation for soliciting another to purchase any other securities of the
Company.
Section 4. EXPENSES. The Company shall bear and pay all costs and expenses
incurred incident to the performance of its obligations under this Agreement,
whether or not the transactions contemplated herein are consummated or this
Agreement is terminated pursuant to Section 9 hereof, including: (i) fees and
expenses of preparation, issuance and delivery of this
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Agreement to the Underwriters and of the Indenture; (ii) the fees and expenses
of its counsel, accountants and any other experts or advisors retained by the
Company; (ii) fees and expenses incurred in connection with the registration of
the Securities under the Securities Act and the preparation and filing of the
Registration Statement, the Prospectus and all amendments and supplements
thereto; (iii) the fees and expenses incurred in connection with the printing
and distribution of the Prospectus and any Preliminary Prospectus and the
printing and production of all other documents connected with the Offering
(including this Agreement and any other related agreements); (iv) expenses
related to the qualification of the Securities under the state securities or
Blue Sky laws, including filing fees and the fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation of any Blue Sky memoranda; (v) the filing fees and expenses, if any,
incurred with respect to any filing with the National Association of Securities
Dealers, Inc., including the fees and disbursements of counsel for the
Underwriters in connection therewith; (vi) all arrangements relating to the
preparation, issuance and delivery to the Underwriters of any certificates
evidencing the Securities; (vii) any fees charged by investment rating agencies
for the rating of the Securities; (viii) the fees and expenses of the Trustee;
(ix) the costs and expenses of the "roadshow" and any other meetings with
prospective investors in the Securities (other than as shall have been
specifically approved by the Representatives to be paid for by the
Underwriters); and (x) the costs and expenses of advertising relating to the
Offering (other than as shall have been specifically approved by the
Representatives to be paid for by the Underwriters).
Section 5. REPRESENTATIONS AND WARRANTIES.
(a) As a condition of the obligation of the Underwriters to underwrite and pay
for the Securities, the Company represents and warrants to, and agrees with,
each of the several Underwriters as follows:
REGISTRATION STATEMENT AND PROSPECTUS
(i) If the Offering is a Rule 415 Offering (as
specified in Schedule I hereto), paragraph (x) below is
applicable and, if the Offering is a Rule 430A Offering (as so
specified), paragraph (y) below is applicable.
(x) The Company meets the
requirements for use of Form S-3 under the
Securities Act and has filed with the
Commission the Original Registration
Statement (the file number of which is set
forth in Schedule I hereto) on such Form,
including a Base Prospectus, for
registration under the Act of the offering
and sale of the Securities, one or more
amendments to such Registration Statement
may have been so filed, and the Company may
have used a Preliminary Prospectus. Such
Registration Statement, as so amended, has
become effective. The Offering is a Rule 415
Offering and, although the Base Prospectus
may not include all the information with
respect to the Securities and the
6
offering thereof required by the Securities
Act and the rules thereunder to be included
in the Prospectus, the Base Prospectus
includes all such information required by
the Securities Act and the rules thereunder
to be included therein as of the Effective
Date. After the execution of this Agreement,
the Company will file with the Commission
pursuant to Rules 415 and 424(b)(2) or (5) a
final supplement to the Base Prospectus
included in such Registration Statement
relating to the Securities and the offering
thereof, with such information as is
required or permitted by the Securities Act
and as has been provided to and approved by
the Representatives prior to the date hereof
or, to the extent not completed at the date
hereof, containing only such specific
additional information and other changes
(beyond that contained in the Base
Prospectus and any Preliminary Prospectus)
as the Company has advised you, prior to the
date hereof, will be included or made
therein. The Company may also file a Rule
462(b) Registration Statement with the
Commission for the purpose of registering
certain additional Securities, which
registration shall be effective upon filing
with the Commission.
(y) The Company meets the
requirements for the use of Form S-3 under
the Securities Act and has filed with the
Commission the Original Registration
Statement (the file number of which is set
forth in Schedule I hereto) on such Form,
including a Base Prospectus, for
registration under the Securities Act of the
offering and sale of the Securities, and one
or more amendments to such Registration
Statement, including a Preliminary
Prospectus, may have been so filed. After
the execution of this Agreement, the Company
will file with the Commission either (I) if
such Registration Statement, as it may have
been amended, has been declared by the
Commission to be effective under the
Securities Act, a final prospectus
supplement to the Base Prospectus in the
form most recently included in an amendment
to such Registration Statement (or, if no
such amendment shall have been filed, in
such Registration Statement), with such
changes or insertions as are required by
Rule 430A under the Securities Act or
permitted by Rule 424(b) under the
Securities Act, and as have been provided to
and approved by the Representatives prior to
the execution of this Agreement, or (II) if
such Registration Statement, as it may have
been amended, has not been declared by the
Commission to be effective under the
Securities Act, an amendment to such
Registration Statement, including the form
of final prospectus supplement to the Base
Prospectus, a copy of which amendment has
been furnished to and approved by the
Representatives prior to the execution of
this Agreement or, to the extent not
completed at
7
the date hereof, containing only such
specific additional information and other
changes (beyond that contained in the Base
Prospectus and any Preliminary Prospectus)
as the Company has advised you, prior to the
execution of this Agreement, will be
included or made therein. The Company may
also file a Rule 462(b) Registration
Statement with the Commission for the
purpose of registering certain additional
Securities, which registration shall be
effective upon filing with the Commission.
(ii) The Commission has not issued any order
preventing or suspending the use of any Preliminary
Prospectus. When any Preliminary Prospectus was filed with the
Commission, it (x) complied as to form in all material
respects with the requirements of, the Securities Act and the
rules and regulations of the Commission thereunder and (y) did
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. When the Registration
Statement or any amendment thereto was or is declared
effective, it (I) complied as to form or will comply in all
material respects with the requirements of, the Securities
Act, the Exchange Act, the Trust Indenture Act and the
respective rules and regulations of the Commission thereunder
and (II) did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein
not misleading. When the Prospectus or any amendment or
supplement to the Prospectus is filed with the Commission
pursuant to Rule 424(b) (or, if the Prospectus or such
amendment or supplement is not required to be so filed, when
the Registration Statement or the amendment thereto containing
the Prospectus or such amendment or supplement to the
Prospectus was or is declared effective) and on the Closing
Date, the Prospectus, as amended or supplemented at any such
time, (A) complied as to form or will comply in all material
respects with the requirements of, the Securities Act, the
Exchange Act, the Trust Indenture Act and the respective rules
and regulations of the Commission thereunder and (B) did not
or 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. When the Registration
Statement or any amendment thereto was or is declared
effective and on the Closing Date, the Indenture did or will
comply in all material respects with the requirements of the
Trust Indenture Act and the rules and regulations of the
Commission thereunder. The foregoing provisions of this
paragraph (ii) do not apply to (1) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (2) statements or omissions
made in any Preliminary Prospectus, the Registration Statement
or any amendment thereto or the Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with
written information furnished to the Company by any
Underwriter through the Representatives specifically for use
8
therein.
(iii) If the Company has elected to rely on Rule
462(b) and the Rule 462(b) Registration Statement is not
effective, (x) the Company will file a Rule 462(b)
Registration Statement in compliance with, and that is
effective upon filing pursuant to, Rule 462(b) and (y) the
Company has given irrevocable instructions for transmission of
the applicable filing fee in connection with the filing of the
Rule 462(b) Registration Statement, in compliance with Rule
111 under the Securities Act, or the Commission has received
payment of such filing fee.
(iv) The Company has not distributed and, prior to
the later of (x) the Closing Date and (y) the completion of
the distribution of the Securities, will not distribute any
offering material in connection with the Offering other than
the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto.
(v) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus (x) the Company and its subsidiaries, taken as a
whole, have not incurred any material liability or obligation,
direct or contingent, nor entered into any material
transaction not in the ordinary course of business; (y) the
Company has not purchased any of its outstanding capital
stock, nor declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock; and (z) there
has not been any material change in the capital stock of the
Company, or in the short-term or long-term debt of the Company
and its subsidiaries, taken as a whole, except in each case as
described in or contemplated by the Prospectus.
(vi) Each document, if any, filed or to be filed
pursuant to the Exchange Act and incorporated by reference in
either the Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) complied or will comply when
so filed in all material respects with the Exchange Act and
the applicable rules and regulations thereunder.
THE SECURITIES
(vii) The Company has an authorized, issued and
outstanding capitalization as set forth in the Prospectus. All
of the issued shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and
nonassessable.
(viii) The execution and delivery of the Securities
have been duly authorized by all necessary corporate action of
the Company and, on and as of the Closing Date, the Securities
will have been duly executed and delivered by the Company and,
assuming due authentication by the Trustee, will be the legal,
valid and binding obligations of the Company, enforceable in
accordance with their terms and entitled to the benefits of
the Indenture. No holder of securities of the
9
Company has any right which has not been fully exercised or
waived to require the Company to register the offer or sale of
any securities owned by such holder under the Securities Act
in the Offering contemplated by this Agreement.
(ix) Except for the shares of capital stock of each
of the subsidiaries owned by the Company and such
subsidiaries, neither the Company nor any such subsidiary owns
any shares of stock or any other equity securities of any
corporation or has any equity interest in any firm,
partnership, association or other entity, except in entities
used in connection with an investment in its ordinary course
of business, or as otherwise described in or contemplated by
the Prospectus.
MARKET MANIPULATION
(x) Neither the Company nor any of its affiliates,
nor any person acting on behalf of any of them has, directly
or indirectly, (x) taken any action designed to cause or to
result in, or that has constituted or which might reasonably
be expected to constitute, the stabilization or manipulation
of the price of any security of the Company to facilitate the
sale or resale of the Securities, or (y) since the filing of
the Original Registration Statement (I) sold, bid for,
purchased, or paid anyone any compensation for soliciting
purchases of, the Securities or (II) paid or agreed to pay to
any person any compensation for soliciting another to purchase
any other securities of the Company.
CORPORATE POWER AND AUTHORITY
(xi) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
law of its jurisdiction of incorporation with full power and
authority to own, lease and operate its properties and assets
and conduct its business as described in the Prospectus, is
duly qualified to transact business and is in good standing in
each jurisdiction in which its ownership, leasing or operation
of its properties or assets or the conduct of its business
requires such qualification, except where the failure to be so
qualified does not amount to a material liability or
disability to the Company and its subsidiaries, taken as a
whole, and has full power and authority to execute and perform
its obligations under this Agreement, the Indenture and the
Securities; each subsidiary of the Company is a corporation
duly incorporated and validly existing as a corporation in
good standing under the laws of its jurisdiction of
incorporation and is duly qualified to transact business and
is in good standing in each jurisdiction in which its
ownership, leasing or operation of its properties or assets or
the conduct of its business requires such qualification,
except where the failure to be so qualified does not amount to
a material liability or disability to the Company and its
subsidiaries, taken as a whole, and each has full power and
authority to own, lease and operate its properties and assets
and conduct its business as described in the Registration
Statement and the Prospectus; all of the
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issued and outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and are fully
paid and nonassessable and, except for SFT II, Inc. and as
otherwise set forth in the Prospectus, are owned beneficially
by the Company free and clear of any security interests,
liens, encumbrances, equities or claims.
(xii) The execution and delivery of this Agreement
and the issuance and sale of the Securities have been duly
authorized by all necessary corporate action of the Company,
and this Agreement has been duly executed and delivered by the
Company and, assuming due authorization, execution and
delivery, by the other parties hereto will be the valid and
binding agreement of the Company, enforceable against the
Company in accordance with its terms.
(xiii) The execution and delivery of the Indenture
have been duly authorized by the Company, and, on and as of
the Closing Date, the Indenture will have been duly executed
and delivered by the Company and duly qualified under the
Trust Indenture Act and, assuming due authorization, execution
and delivery by the Trustee, will be a legal, valid and
binding agreement of the Company, enforceable against the
Company in accordance with its terms.
(xiv) The execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement, the Indenture and the Securities, the
issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the
compliance by the Company with the other provisions of this
Agreement and the consummation of the other transactions
herein contemplated do not (x) require the consent, approval,
authorization, registration or qualification of or with any
governmental authority, except such as have been obtained or
made or such as may be required by the state securities or
Blue Sky laws of the various states of the United States of
America or other U.S. jurisdictions in connection with the
offer and sale of the Securities by the Underwriters, or (y)
conflict with or result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, lease or other agreement
or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries
or any of their respective properties are bound, or the
charter documents or by-laws of the Company or any of its
subsidiaries, or any statute or any judgment, decree, order,
rule or regulation of any court or other governmental
authority or any arbitrator applicable to the Company or any
of its subsidiaries.
(xv) Neither the Company nor any of its subsidiaries
is in violation of any term or provision of its charter
documents or by-laws, or in breach of or in default under any
statute or any judgment, decree, order, rule or regulation of
any court or other governmental authority or any arbitrator
applicable to the Company or any of its subsidiaries, the
consequence of which violation, breach or default
11
would have a materially adverse effect on or constitute a
materially adverse change in, or constitute a development
involving a prospective materially adverse effect on or change
in, the condition (financial or otherwise), earnings,
properties, business affairs or business prospects, net worth
or results of operations of the Company or of its
subsidiaries, taken as a whole.
(xvi) The Company is not an "investment company" and,
after giving effect to the Offering and the application of the
proceeds therefrom, will not be an "investment company", as
such term is defined in the Investment Company Act of 1940, as
amended (the "1940 Act").
TITLE, LICENSES AND CONSENTS
(xvii) The Company and each of its subsidiaries have
good and marketable title in fee simple to all items of real
property and marketable title to all personal property owned
by each of them, in each case free and clear of any security
interests, liens, encumbrances, equities, claims and other
defects, except such as do not materially and adversely affect
the value of such property and do not interfere with the use
made or proposed to be made of such property by the Company or
such subsidiary, and any real property and buildings held
under lease by the Company or any such subsidiary are held
under valid, subsisting and enforceable leases, with such
exceptions as are not material and do not interfere with the
use made or proposed to be made of such property and buildings
by the Company or such subsidiary, in each case except as
described in or contemplated by the Prospectus.
(xviii) The Company and its subsidiaries own or
possess, or can acquire on reasonable terms, all material
patents, patent applications, trademarks, service marks, trade
names, licenses, know-how, copyrights, trade secrets and
proprietary or other confidential information necessary to
operate the business now operated by them, and neither the
Company nor any such subsidiary has received any notice of
infringement of or conflict with asserted rights of any third
party with respect to any of the foregoing which, singly or in
the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a materially adverse effect on
or constitute a materially adverse change in, or constitute a
development involving a prospective materially adverse effect
on or change in, the condition (financial or otherwise),
earnings, properties, business affairs or business prospects,
stockholders' equity, net worth or results of operations of
the Company or any of its subsidiaries, taken as a whole,
except as described in or contemplated by the Prospectus.
(xix) The Company and its subsidiaries possess all
consents, licenses, certificates, authorizations and permits
issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses,
and neither the Company nor any such subsidiary has received
any notice of
12
proceedings relating to the revocation or modification of any
such certificate, authorization or permit which, singly or in
the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a materially adverse effect on
or constitute a materially adverse change in, or constitute a
development involving a prospective materially adverse effect
on or change in, the condition (financial or otherwise),
earnings, properties, business affairs or business prospects,
net worth or results of operations of the Company or any of
its subsidiaries, taken as a whole, except as described in or
contemplated by the Prospectus.
FINANCIAL STATEMENTS
(xx) PricewaterhouseCoopers LLP, who have certified
certain financial statements of the Company and its
consolidated subsidiaries and delivered their report with
respect to the audited consolidated financial statements and
schedules included in the Registration Statement and the
Prospectus, are independent public accountants as required by
the Securities Act and the applicable rules and regulations
thereunder.
(xxi) The consolidated financial statements and
schedules of the Company and its consolidated subsidiaries
included or incorporated in the Registration Statement and the
Prospectus were prepared in accordance with generally accepted
accounting principles ("GAAP") consistently applied throughout
the periods involved (except as otherwise noted therein) and
they present fairly the financial condition of the Company as
at the dates at which they were prepared and the results of
operations of the Company in respect of the periods for which
they were prepared.
INTERNAL ACCOUNTING CONTROLS
(xxii) The Company and each of its subsidiaries
maintain a system of internal accounting controls sufficient
to provide reasonable assurance that (w) transactions are
executed in accordance with management's general or specific
authorizations; (x) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
GAAP and to maintain asset accountability; (y) access to
assets is permitted only in accordance with management's
general or specific authorization; and (z) the recorded
accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with
respect to any differences.
LITIGATION
(xxiii) No legal or governmental proceedings are
pending or threatened to which the Company or any of its
subsidiaries is a party or to which the property of the
Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the
Prospectus and are not described therein; and
13
no statutes, regulations, contracts or other documents that
are required to be described or incorporated in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described
or incorporated therein or filed as required.
DIVIDENDS AND DISTRIBUTIONS
(xxiv) No subsidiary of the Company is currently
prohibited, directly or indirectly, from paying any dividends
to the Company, making any other distribution on such
subsidiary's capital stock, repaying to the Company any loans
or advances to such subsidiary from the Company or
transferring any of such subsidiary's property or assets to
the Company or any other subsidiary of the Company, and the
Company is not currently prohibited, directly or indirectly,
from paying any dividends or making any other distribution on
its capital stock, in each case except for restrictions upon
the occurrence of a default or failure to meet financial
covenants or conditions under existing agreements or
restrictions that require a subsidiary to service its debt
obligations before making dividends, distributions or
advancements in respect of its capital stock.
TAXES
(xxv) The Company is organized in conformity with the
requirements for qualification as a real estate investment
trust under Sections 856 through 860 of the Internal Revenue
Code of 1986, as amended (the "Code"), and its proposed method
of operation as described in the Prospectus will enable it to
continue to meet the requirements for taxation as a real
estate investment trust under the Code.
(xxvi) The Company has filed all foreign, federal,
state and local tax returns that are required to be filed or
has requested extensions thereof (except in any case in which
the failure so to file would not have a materially adverse
effect on the Company and its subsidiaries, taken as a whole)
and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it (except in any
case in which the failure so to pay would not have a
materially adverse effect on the Company and its subsidiaries,
taken as a whole), 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
described in or contemplated by the Prospectus.
INSURANCE
(xxvii) The Company and each of its subsidiaries 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; neither the Company nor any such subsidiary has been
refused any insurance coverage sought or applied for; and
neither the Company nor any such
14
subsidiary has any reason to believe that it will not be able
to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a
cost that would not materially and adversely affect the
condition (financial or otherwise), earnings, properties,
business affairs or business prospects, net worth or results
of operations of the Company or any of its subsidiaries, taken
as a whole, except as described in or contemplated by the
Prospectus.
PENSION AND LABOR
(xxviii) The Company and each of its subsidiaries is
in compliance in all material respects with all presently
applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations
and published interpretations thereunder ("ERISA"); no
"reportable event" (as defined in ERISA) has occurred with
respect to any "pension plan" (as defined in ERISA) for which
the Company would reasonably be expected to have any
liability; the Company has not incurred and does not expect to
incur liability under (x) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (y)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension
plan" for which the Company would have any liability that is
intended to be qualified under Section 401(a) of the Code has
received a determination letter from the Internal Revenue
Service to the effect that it is so qualified in all material
respects and nothing has occurred, whether by action or by
failure to act, which would cause the plan to not be adversely
affected by such determination.
(xxix) No labor dispute with the employees of the
Company or any of its subsidiaries exists or is threatened or
imminent that could have a materially adverse effect on or
constitute a materially adverse change in, or constitute a
development involving a prospective materially adverse effect
on or change in, the condition (financial or otherwise),
properties, management, earnings, business affairs or business
prospects, net worth or results of operations of the Company
or any of its subsidiaries, taken as a whole, except as
described in or contemplated by the Prospectus.
ENVIRONMENTAL
(xxx) Except as described in or contemplated by the
Prospectus, and except as would not otherwise reasonably be
expected to have a material adverse effect on the financial
condition or results of operations of the Company and its
subsidiaries, taken as a whole, (A) the Company and each of
its subsidiaries is in compliance with and not subject to any
known liability under applicable Environmental Laws (as
defined below), (B) the Company and each of its subsidiaries
has made all filings and provided all notices required under
any
15
applicable Environmental Law, (C) there is no civil, criminal
or administrative action, suit, demand, claim, hearing, notice
of violation, investigation, proceeding, notice or demand
letter or request for information pending or, to the best
knowledge of the Company, threatened against the Company or
any of its subsidiaries under any Environmental Law, (D) no
lien, charge, encumbrance or restriction has been recorded
under any Environmental Law with respect to any assets,
facility or property owned, operated or leased by the Company
or any of its subsidiaries, (E) neither the Company nor any of
its subsidiaries has received notice that it has been
identified as a potentially responsible party under the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), or any
comparable law, (F) no property owned or operated by the
Company or any of its subsidiaries is (i) listed or, to the
best knowledge of the Company, proposed for listing on the
National Priorities List under CERCLA or (ii) listed in the
Comprehensive Environmental Response, Compensation and
Liability Information System List promulgated pursuant to
CERCLA, or on any comparable list maintained by any
governmental authority, (G) neither the Company nor any of its
subsidiaries is subject to any order, decree or agreement
requiring, or otherwise obligated or required to perform any
response or corrective action under any Environmental Law, (H)
there are no past or present actions, occurrences or
operations which could reasonable be expected to prevent or
interfere with compliance by the Company with any applicable
Environmental Law or to result in liability under any
applicable Environmental Law. For purposes of this Agreement,
"Environmental Laws" means the Common Law and all applicable
foreign, federal, provincial, state and local laws or
regulations, codes, orders, decrees, judgments or injunctions
issued, promulgated, approved or entered thereunder, relating
to pollution or protection of public or employee health and
safety or the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or
subsurface strata), including, without limitation, laws
relating to (i) emissions, discharges, releases or threatened
releases of Hazardous Materials into the environment, (ii) the
manufacture, processing, distribution, use, generation,
treatment, storage, disposal, transport or handling of
Hazardous Materials and (iii) underground and aboveground
storage tanks and related piping, and emissions, discharges,
releases or threatened releases therefrom. "Hazardous
Material" means any pollutant, contaminant, waste, chemical,
substance or constituent, including, without limitation,
petroleum or petroleum products subject to regulation or which
can give rise to liability under any Environmental Laws.
OTHER AGREEMENTS
(xxxi) No default exists, and no event has occurred
which, with notice or lapse of time or both, would constitute
a default in the due performance and observance of any term,
covenant or condition of any indenture, mortgage, deed of
trust, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries or
16
any of their respective properties is bound, except any
default that would not have a materially adverse effect on the
Company and its subsidiaries, taken as a whole.
ABSENCE OF MATERIALLY ADVERSE CHANGE
(xxxii) Subsequent to the respective dates as of
which information is given in the Registration Statement and
the Prospectus, neither the Company nor any of its
subsidiaries has sustained any material loss or interference
with their respective businesses or properties from fire,
flood, hurricane, accident or other calamity, whether or not
covered by insurance, or from any labor dispute or any legal
or governmental proceeding, and there has been no materially
adverse change (including, without limitation, a change in
management or control), or development involving a prospective
materially adverse change, in the condition (financial or
otherwise), management, earnings, property, business affairs
or business prospects, stockholders' equity, net worth or
results of operations of the Company or any of its
subsidiaries, taken as a whole, other than as described in or
contemplated by the Prospectus (exclusive of any amendments or
supplements thereto).
(xxxiii) No receiver or liquidator (or similar
person) has been appointed in respect of the Company or any
subsidiary of the Company or in respect of any part of the
assets of the Company or any subsidiary of the Company; no
resolution, order of any court, regulatory body, governmental
body or otherwise, or petition or application for an order,
has been passed, made or presented for the winding up of the
Company or any subsidiary of the Company or for the protection
of the Company or any such subsidiary from its creditors; and
the Company has not, and no subsidiary of the Company has,
stopped or suspended payments of its debts, become unable to
pay its debts or otherwise become insolvent.
NO EVENT OF DEFAULT
(xxxiv) On and as of the date hereof, no event has
occurred or is continuing which constitutes, or with notice or
lapse of time would constitute, an Event of Default (as
defined in the Securities).
(b) The above representations and warranties shall be deemed to be repeated at
the Closing Date.
Section 6. INDEMNITY.
(a) The Company agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, against any and all
losses, claims, damages or liabilities, joint or several, to which such
Underwriter or such controlling person may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in
17
respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement
of any material fact contained in the Registration
Statement or any amendment thereto, the Base
Prospectus, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, or
(ii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, the
Base Prospectus, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto a
material fact required to be stated therein or
necessary to make the statements therein not
misleading,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other costs or expenses reasonably incurred by such
Underwriter or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in the
Registration Statement or any amendment thereto, the Base Prospectus, any
Preliminary Prospectus, 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 specifically for use
therein. The indemnity provided for in this Section 6 shall be in addition to
any liability that the Company may otherwise have. The Company will not, without
the prior written consent of the Representatives, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action,
suit or proceeding in respect of which indemnification may be sought hereunder
(whether or not any such Representatives or any person who controls any such
Representatives is a party to such claim, action, suit or proceeding), unless
such settlement, compromise or consent (A) includes an unconditional release of
all of the Underwriters and such controlling persons from all liability arising
out of such claim, action, suit or proceeding and (B) does not include any
statement as to an admission of fault, culpability or failure to act by or on
behalf of any of the Underwriters or such controlling persons.
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless the Company, each of its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act against any losses, claims, damages or liabilities to which the Company or
any such director, officer or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement or any amendment thereto, the Base Prospectus, any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto
or (ii) the omission or the alleged omission to state in the Registration
Statement or any amendment thereto, the Base Prospectus any Preliminary
18
Prospectus or the Prospectus or any amendment or supplement thereto a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such Underwriter through the Representatives specifically for use
therein, and, subject to the limitation set forth immediately preceding this
clause, will reimburse, as incurred, any legal or other expenses reasonably
incurred by the Company or any such director, officer or controlling person in
connection with investigating, defending against or appearing as a third-party
witness in connection with any such loss, claim, damage, liability or any action
in respect thereof. The remedies provided for in this Section 6 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(c) In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to paragraph (a) or (b) of this Section 6, such person (for purposes of
this paragraph (c), the "indemnified party") shall, promptly after receipt by
such party of notice of the commencement of such action, notify the person
against whom such indemnity may be sought (for purposes of this paragraph (c),
the "indemnifying party"), but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under this Section 6. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party; PROVIDED, HOWEVER, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or parties
and such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense of any such action and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 6 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated in writing by the Representatives in
the case of paragraph (a) of this Section 6, representing the indemnified
parties under such paragraph (a) who are parties to such action or actions), or
(ii) the indemnifying party does not promptly retain counsel satisfactory to the
indemnified party, or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the
19
expense of the indemnifying party. All fees and expenses reimbursed pursuant to
this paragraph (c) shall be reimbursed as they are incurred. After such notice
from the indemnifying party to such indemnified party, the indemnifying party
will not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the consent of the indemnifying
party.
(d) In circumstances in which the indemnity agreement provided for in the
preceding paragraphs of this Section 6 is unavailable or insufficient, for any
reason, to hold harmless an indemnified party in respect of any losses, claims,
damages or liabilities (or actions in respect thereof), each indemnifying party,
in order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect (i) the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified party on
the other from the Offering or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, not only such relative benefits
but also the relative fault of the indemnifying party or parties on the one hand
and the indemnified party on the other in connection with the statements or
omissions or alleged statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total proceeds from the Offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault of the parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Underwriters, the parties' relative intents, knowledge, access to information
and opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances. The Company and the
Underwriters agree that it would not be equitable if the amount of such
contribution were determined by PRO RATA or PER CAPITA allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take into account the equitable considerations
referred to above in this paragraph (d). Notwithstanding any other provision of
this paragraph (d), no Underwriter shall be obligated to make contributions
hereunder that in the aggregate exceed the total public offering price of the
Securities purchased by such Underwriter under this Agreement, less the
aggregate amount of any damages that such Underwriter has otherwise been
required to pay in respect of the same or any substantially similar claim, and
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute hereunder are several in proportion to their
respective underwriting obligations, and not joint, and contributions among
Underwriters shall be governed by the provisions of the Deutsche Banc Xxxx.
Xxxxx Inc. Master Agreement Among Underwriters. For purposes of this paragraph
(d), each person, if any, who controls an Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act 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
20
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
shall have the same rights to contribution as the Company.
Section 7. CONDITIONS PRECEDENT. The obligations of the several Underwriters to
purchase and pay for the Securities shall be subject, in the Representatives'
sole discretion, to the accuracy of the representations and warranties of the
Company contained herein as of the date hereof and as of each Closing Date, as
if made on and as of each Closing Date, to the accuracy of the statements of the
Company's officers made pursuant to the provisions hereof, to the performance by
the Company of its covenants and agreements hereunder and to the following
additional conditions:
(a) (i) If the Original Registration Statement or any amendment thereto filed
prior to the Closing Date has not been declared effective as of the time of
execution hereof, the Original Registration Statement or such amendment shall
have been declared effective not later than 6:00 P.M. New York City time on the
date of determination of the public offering price, if such determination
occurred at or prior to 4:30 P.M. New York City time on such date, or 12:00 Noon
New York City time on the business day following the day on which the public
offering price was determined, if such determination occurred after 4:30 P.M.
New York City time on such date, and (ii) if the Company has elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have been
declared effective not later than the time confirmations are sent or given as
specified by Rule 462(b)(2), or such later time and date as shall have been
consented to by the Representatives; if required, the Prospectus and any
amendment or supplement thereto shall have been filed with the Commission in the
manner and within the time period required by Rule 424(b) under the Securities
Act; no stop order suspending the effectiveness of the Registration Statement or
any amendment thereto shall have been issued, and no proceedings for that
purpose shall have been instituted or threatened or, to the knowledge of the
Company or the Representatives, shall be contemplated by the Commission; and the
Company shall have complied with any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus or
otherwise).
(b) The Representatives shall have received a legal opinion from Xxxxxxxx Chance
Xxxxxx & Xxxxx LLP, counsel for the Company, dated the Closing Date, to the
effect that:
(i) the Registration Statement is effective under the
Securities Act; any required filing of the Prospectus
pursuant to Rule 424(b) has been made in the manner
and within the time period required by Rule 424(b);
and no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has
been issued and, to the best knowledge of such
counsel, no proceedings for that purpose are pending
or threatened by the Commission;
(ii) the Original Registration Statement and each
amendment thereto, any Rule 462(b) Registration
Statement and the Prospectus (in each case, including
the documents incorporated by reference therein but
not including the financial statements and other
financial information
21
contained therein, as to which such counsel need
express no opinion) comply as to form in all material
respects with the applicable requirements of the
Securities Act, the Exchange Act, the Trust Indenture
Act and the respective rules and regulations of the
Commission thereunder;
(iii) such counsel has no reason to believe that (in
each case, other than the financial statements and
other financial information contained therein, as to
which such counsel need express no opinion) (x) the
Registration Statement, as of its effective date,
contained any 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 (y) the Prospectus, as of
its date or the date of such opinion, included or
includes any untrue statement of a material fact or
omitted or omits 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.
(iv) the Company and each of its significant
subsidiaries have been duly organized and are validly
existing as corporations in good standing under the
laws of their respective jurisdictions of
incorporation and are duly qualified to transact
business as foreign corporations and are in good
standing under the laws of all other jurisdictions
where such counsel has been advised that the failure
to be so qualified would amount to a material
liability or disability to the Company and its
subsidiaries, taken as a whole; the Company and each
of its significant subsidiaries have full power and
authority to own, lease and operate their respective
properties and assets and conduct their respective
businesses as described in the Registration Statement
and the Prospectus, and the Company has corporate
power to enter into this Agreement and the Indenture
and to carry out all the terms and provisions hereof
and thereof and of the Securities to be carried out
by it; all of the issued and outstanding shares of
capital stock of each of the Company's significant
subsidiaries, except as otherwise set forth in the
Prospectus, are owned beneficially by the Company
free and clear of any perfected security interests
or, to the best knowledge of such counsel, any other
security interests, liens, encumbrances, equities or
claims, except for pledges of subsidiary stock under
debt instruments;
(v) the statements set forth under the heading
"Description of Debt Securities" in the Base
Prospectus and "Description of Notes" in the
Prospectus, insofar as such statements purport to
summarize certain provisions of the Securities and
the Indenture, provide a fair summary of such
provisions; and the statements set forth under the
heading "Federal Income Tax Consequences" in or
incorporated by reference to the Prospectus or,
insofar as such statements constitute a summary of
the legal matters, documents or proceedings referred
to therein, have been reviewed
22
by such counsel and fairly present the information
called for with respect to such legal matters,
documents and proceedings in all material respects as
required by the Securities Act and the Exchange Act
and the respective rules and regulations thereunder;
(vi) the execution and delivery of this Agreement
have been duly authorized by all necessary corporate
action of the Company and this Agreement has been
duly executed and delivered by the Company;
(vii) the execution and delivery of the Indenture
have been duly authorized by the Company, and, on and
as of the Closing Date, the Indenture will have been
duly executed and delivered by the Company and duly
qualified under the Trust Indenture Act and, assuming
due authorization, execution and delivery by the
Trustee, will be a legal, valid and binding agreement
of the Company, enforceable against the Company in
accordance with its terms (subject, as to enforcement
of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to
time in effect);
(viii) the Securities have been duly authorized by
all necessary corporate action of the Company and, on
and as of the Closing Date, the Securities will have
been duly executed and delivered by the Company and,
assuming due authentication by the Trustee, will be
the legal, valid and binding obligations of the
Company, enforceable in accordance with their terms
(subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights
generally from time to time in effect) and entitled
to the benefits of the Indenture; no holder of
securities of the Company has any right which has not
been fully exercised or waived to require the Company
to register the offer or sale of any securities owned
by such holder under the Securities Act in the
Offering contemplated by this Agreement;
(ix) the execution and delivery by the Company of,
and the performance by the Company of its obligations
under, this Agreement, the Indenture and the
Securities, the issuance, offering and sale of the
Securities to the Underwriters by the Company
pursuant to this Agreement, the compliance by the
Company with the other provisions of this Agreement
and the consummation of the other transactions herein
contemplated do not (x) require the consent,
approval, authorization, registration or
qualification of or with any governmental authority,
except such as have been obtained or made (and
specified in such opinion) or such as may be required
by the securities or Blue Sky laws of the various
states of the United States of America and other U.S.
jurisdictions in connection with the offer and sale
of the Securities by the Underwriters, or (y)
conflict with or result in a breach or violation of
any of the terms and
23
provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, lease or other
material agreement or instrument, known to such
counsel, to which the Company or any of its
significant subsidiaries is a party or by which the
Company or any of its subsidiaries or any of their
respective properties are bound, or the charter
documents or by-laws of the Company or any of its
subsidiaries, or any statute or any judgment, decree,
order, rule or regulation of any court or other
governmental authority or any arbitrator known to
such counsel and applicable to the Company or its
subsidiaries;
(x) the Company is not an "investment company" and,
after giving effect to the Offering and the
application of the proceeds therefrom, will not be an
"investment company", as such term is defined in the
1940 Act; and
(xi) such counsel does not know of any legal or
governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is a
party or to which the property of the Company or any
of its subsidiaries is subject that are required to
be described or incorporated in the Registration
Statement or the Prospectus and are not described or
incorporated therein or any statutes, regulations,
contracts or other documents that are required to be
described or incorporated in the Registration
Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not
described or incorporated therein or filed as
required.
(xii) commencing with the Company's taxable year
ended December 31, 1998, the Company has been
organized in conformity with the requirements for
qualification as a real estate investment trust
("REIT") under the Code, and its method of operation,
as described in the Registration Statement and set
forth in the Company's amended and restated charter,
has enabled the Company to meet and, provided that
the Company continues to meet the applicable asset
composition, source of income, shareholder
diversification, distribution, record keeping and
other requirements of the Code necessary for a
corporation to qualify as a REIT, will enable it to
continue to meet the requirements for qualification
and taxation as a REIT under the Code.
In rendering any such opinion, such counsel may rely, as to
matters of fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and public officials and, as to matters
involving the application of laws of any jurisdiction other than the State of
New York or the United States or the General Corporation Law of the State of
Delaware, to the extent satisfactory in form and scope to counsel for the
Underwriters, upon the opinion of Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP. An
opinion of Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP shall be delivered to the
Representatives and counsel for the Underwriters
24
covering matters reasonably requested by the Representatives.
References to the Registration Statement and the Prospectus in
this paragraph (b) shall include any amendment or supplement thereto at the date
of such opinion. The opinions of issuer's counsel described herein shall be
rendered to the Underwriters at the request of the Company and shall so state
therein.
(c) The Representatives shall have received a legal opinion and letter from
Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Underwriters, dated the Closing Date,
covering the issuance and sale of the Securities, the Registration Statement and
the Prospectus, the Indenture and such other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(d) The Representatives shall have received from PricewaterhouseCoopers LLP a
letter or letters dated, respectively, the date hereof and the Closing Date, in
form and substance satisfactory to the Representatives.
(e) The Company shall have furnished or caused to be furnished to the
Representatives at the Closing a certificate of its Chairman of the Board, its
President or its Chief Executive Officer and its Chief Financial Officer
satisfactory to the Underwriters to the effect that:
(i) the representations and warranties of the Company
in this Agreement are true and correct as if made on
and as of the Closing Date; and the Company has
performed all covenants and agreements and satisfied
all conditions on its part to be performed or
satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which
information is given in the Registration Statement
and the Prospectus (exclusive of any amendment or
supplement thereto), neither the Company nor any of
its subsidiaries has sustained any material loss or
interference with their respective businesses or
properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance,
or from any labor dispute or any legal or
governmental proceeding, and there has not been any
materially adverse change (including, without
limitation, a change in management or control), or
development involving a prospective materially
adverse change, in the condition (financial or
otherwise), management, earnings, properties,
business affairs or business prospects, stockholders'
equity, net worth or results of operations of the
Company or any of its subsidiaries, taken as a whole,
except in each case as described in or contemplated
by the Prospectus (exclusive of any amendment or
supplement thereto).
(f) Subsequent to the execution and delivery of this Agreement and prior to the
Closing Date, there shall not have occurred any downgrading, nor shall any
notice have been given of any
25
intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded
any of the Company's securities by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act.
(g) The Indenture shall have been executed and delivered by all the parties
thereto.
(h) On or before the Closing Date, the Representatives and counsel for the
Underwriters shall have received such further certificates, documents or other
information as they may have reasonably requested from the Company.
All opinions, certificates, letters and documents delivered
pursuant to this Agreement will comply with the provisions hereof only if they
are satisfactory in all material respects to the Representatives and counsel for
the Underwriters. The Company shall furnish to the Representatives such
conformed copies of such opinions, certificates, letters and documents in such
quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
Section 8. DEFAULT OF UNDERWRITERS. If, at the Closing, any one or more of the
Underwriters shall fail or refuse to purchase Securities that it has or they
have agreed to purchase hereunder on such date, and the aggregate principal
amount of Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is ten percent or less of the aggregate
principal amount of Securities to be purchased on such date, the other
Underwriters may make arrangements satisfactory to the Representatives for the
purchase of such Securities by other persons (who may include one or more of the
non-defaulting Underwriters, including the Representatives), but if no such
arrangements are made by the Closing Date, the other Underwriters shall be
obligated severally in the proportions that the principal amount of Securities
set forth opposite their respective names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as the
Representatives may specify, to purchase the Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date. If, at the Closing, any Underwriter or Underwriters shall fail or refuse
to purchase Securities and the aggregate principal amount of Securities with
respect to which such default occurs is more than ten per cent of the aggregate
principal amount of Securities to be purchased, and arrangements satisfactory to
the Representatives and the Company for the purchase of such Securities are not
made within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case either the Representatives or the Company shall have the right to
postpone the Closing, but in no event for longer than seven days, in order that
the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. As used in
this Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 8. Any action taken under this Section 8 shall
not relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
26
Section 9. TERMINATION. This Agreement shall be subject to termination in the
sole discretion of the Representatives by notice to the Company given prior to
the Closing Date in the event that the Company shall have failed, refused or
been unable to perform all obligations and satisfy all conditions on its part to
be performed or satisfied hereunder at or prior thereto or, if at or prior to
the Closing Date, (a) trading in securities generally on the New York Stock
Exchange or the Nasdaq National Market shall have been suspended or materially
limited or minimum or maximum prices shall have been established by or on, as
the case may be, the Commission or the New York Stock Exchange or the Nasdaq
National Market; (b) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market; (c) a general
moratorium on commercial banking activities shall have been declared by either
Federal or New York State authorities; (d) there shall have occurred (i) an
outbreak or escalation of hostilities between the United States and any foreign
power, (ii) an outbreak or escalation of any other insurrection or armed
conflict involving the United States, or (iii) any other calamity or crisis or
materially adverse change in general economic, political or financial conditions
having an effect on the U.S. financial markets that, in the judgment of the
Representatives, makes it impractical or inadvisable to proceed with the public
offering or the delivery of the Securities as contemplated by the Registration
Statement, as amended as of the date hereof; or (e) the Company or any of its
subsidiaries shall have, in the sole judgment of the Representatives, sustained
any material loss or interference with their respective businesses or properties
from fire, flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any labor dispute or any legal or governmental proceeding,
or there shall have been any materially adverse change (including, without
limitation, a change in management or control), or constitute a development
involving a prospective materially adverse change, in the condition (financial
or otherwise), management, earnings, properties, business affairs or business
prospects, stockholders' equity, net worth or results of operations of the
Company or any of its subsidiaries, except in each case as described in or
contemplated by the Prospectus (exclusive of any amendment or supplement
thereto). Termination of this Agreement pursuant to this Section 9 shall be
without liability of any party to any other party except for the liability of
the Company in relation to expenses as provided in Sections 4 and 10 hereof, the
indemnity and contribution provisions provided in Section 6 hereof and any
liability arising before or in relation to such termination.
Section 10. REIMBURSEMENT OF EXPENSES. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 7 hereof is not satisfied or because of any
termination pursuant to Section 9 hereof (other than by reason of a default by
any of the Underwriters), the Company shall reimburse the Underwriters,
severally upon demand, for all out-of-pocket expenses (including fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
Section 11. INFORMATION SUPPLIED BY UNDERWRITERS. The statements set forth in
the last paragraph on the front cover page and under the heading "Underwriting"
in any Preliminary Prospectus or the Prospectus (to the extent such statements
relate to the Underwriters) constitute the only information furnished by any
Underwriter through the Representatives to the Company for the purposes of
Section 5(a)(ii) and Section 6 hereof. The Underwriters confirm that such
27
statements (to such extent) are correct.
Section 12. NOTICES. In all dealings hereunder, you shall act on behalf of each
of the Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any Underwriter
made or given by the Representatives. Any notice or notification in any form to
be given under this Agreement may be delivered in person or sent by telex,
facsimile or telephone (subject in the case of a communication by telephone to
confirmation by telex or facsimile) addressed to:
in the case of the Company:
iStar Financial Inc.
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
with a copy to: General Counsel
in the case of the Underwriters:
Deutsche Banc Xxxx. Xxxxx Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx
Any notice under this Section 12 shall take effect, in the case of delivery, at
the time of delivery and, in the case of telex or facsimile, at the time of
dispatch.
Section 13. MISCELLANEOUS.
(a) Time shall be of the essence of this Agreement.
(b) The headings herein are inserted for convenience of reference only and are
not intended to be part of, or to affect, the meaning or interpretation of this
Agreement.
(c) For purposes of this Agreement, (a) "business day" means any day on which
the New York Stock Exchange is open for trading, and (b) "subsidiary" has the
meaning set forth in Rule 405 under the Securities Act.
(d) This Agreement may be executed in any number of counterparts, all of which,
taken together, shall constitute one and the same Agreement and any party may
enter into this
28
Agreement by executing a counterpart.
(e) This Agreement shall inure to the benefit of and shall be binding upon the
several Underwriters, the Company and their respective successors and legal
representatives, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person, except that (i) the indemnities of the
Company contained in Section 6 hereof shall also be for the benefit of any
person or persons who control any Underwriter within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act and (ii) the indemnities
of the Underwriters contained in Section 6 hereof shall also be for the benefit
of the directors of the Company, the officers of the Company who have signed the
Registration Statement and any person or persons who control the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act. No purchaser of Securities from any Underwriter shall be deemed a successor
because of such purchase.
(f) The respective representations, warranties, agreements, covenants,
indemnities and other statements of the Company, its officers and the several
Underwriters set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement shall remain in full force and effect,
regardless of (i) any investigation made by or on behalf of the Company, any of
its officers, directors, employees or agents, any Underwriter or any controlling
person referred to in Section 6 hereof and (ii) delivery of and payment for the
Securities. The respective agreements, covenants, indemnities and other
statements set forth in Sections 4, 6 and 10 hereof shall remain in full force
and effect, regardless of any termination or cancellation of this Agreement.
Section 14. SEVERABILITY. It is the desire and intent of the parties that the
provisions of this Agreement be enforced to the fullest extent permissible under
the law and public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, in the event that any provision of this Agreement would be
held in any jurisdiction to be invalid, prohibited or unenforceable for any
reason, such provision, as to such jurisdiction, shall be ineffective, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
Section 15. GOVERNING LAW. The validity and interpretation of this Agreement,
and the terms and conditions set forth herein, shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to any provisions relating to conflicts of laws.
29
If the foregoing is in accordance with your understanding,
please sign and return to us seven counterparts hereof, and upon the acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof shall constitute a binding agreement among each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set
forth in the Deutsche Banc Xxxx. Xxxxx Inc. Master Agreement Among Underwriters,
the form of which shall be submitted to the Company for examination upon
request, but without warranty on your part as to the authority of the signers
thereof.
Very truly yours,
iSTAR FINANCIAL INC.
By /s/ Xxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and
Chief Financial Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date specified in Schedule I hereto.
DEUTSCHE BANC ALEX. BROWN INC.
BEAR, XXXXXXX & CO. INC.
FLEET SECURITIES, INC.
UBS WARBURG LLC
By: DEUTSCHE BANC ALEX. BROWN INC.
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By /s/ Xxxx Xxxxxxxx
--------------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Director
For itself and on behalf of the
several Underwriters, named in
Schedule II hereto.
30
SCHEDULE I
Underwriting Agreement dated: August 9, 2001
Representatives:
Deutsche Banc Xxxx. Xxxxx Inc.
Bear, Xxxxxxx & Co. Inc.
Type of Offering: Rule 415 Offering or Rule 430A Offering
Title, Purchase Price and Description of Securities:
Title: Senior Notes
Principal Amount: $350,000,000
Purchase price (include accrued interest or amortization, if any): 100%
Closing Date and Location:
August 16, 2001 at the offices of Xxxxxx Xxxxxx & Xxxxxxx located at 00
Xxxx Xxxxxx, Xxx Xxxx, XX 00000.
Registration Statement No. 333-55396
I-1
SCHEDULE II
The Underwriters
UNDERWRITER UNDERWRITING COMMITMENT
Deutsche Banc Xxxx. Xxxxx Inc........................ $ 175,000,000
Bear, Xxxxxxx & Co. Inc. ............................ $ 122,500,000
Fleet Securities, Inc................................ $ 26,250,000
UBS Warburg LLC ..................................... $ 26,250,000
-------------
Total................................................ $ 350,000,000
