EXHIBIT 1.1
EXECUTION COPY
Dated December 5, 2003
iStar Financial Inc.
$350,000,000
6.0% Senior Notes Due 2010
$150,000,000
6.5% Senior Notes Due 2013
UNDERWRITING AGREEMENT
iStar Financial Inc.
$350,000,000 6.0% Senior Notes due 2010
$150,000,000 6.5% Senior Notes due 2013
UNDERWRITING AGREEMENT
December 5, 2003
DEUTSCHE BANK SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
BEAR, STEARNS & CO. INC.
FLEET SECURITIES, INC.
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS INC.
c/o Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
Dear Sirs:
iStar Financial Inc., a Maryland corporation
(the Company), hereby confirms its agreement with the several underwriters
listed in Schedule I hereto (collectively, the Underwriters) 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 (i) the
principal amount of its debt securities having the terms identified in
Schedule II hereto (the Seven Year Securities) and (ii) the principal
amount of its debt securities having the terms identified in Schedule III
hereto (the Ten Year Securities and together with the Seven Year Securities,
the Securities). The Securities are
to be issued pursuant to the terms of an indenture dated as of February 5,
2001, as amended and supplemented, including as amended and supplemented by a
supplemental indenture relating to the Seven Year Securities (the Seven Year
Securities Supplemental Indenture) and a supplemental indenture relating to
the Ten Year Securities (the Ten Year Securities Supplemental Indenture and
together with the Seven Year Supplemental Indenture, the Supplemental
Indentures) each dated as of December 12, 2003 (the Indenture) between
the Company and US Bank Trust National Association, 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 Underwriters 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 Securities Exchange Commission (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 relating to the Securities and used prior to the filing of
the Prospectus; the term Prospectus means the prospectus supplement to the
Base Prospectus relating to the Securities and 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 II 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 II hereto with respect to the
Seven Year Securities (the Seven Year Securities Purchase Price) and
Schedule III hereto with respect to the Ten Year Securities (the Ten Year
Securities Purchase Price and together with the Seven Year Securities Purchase
Price, the Purchase Price), the principal amount of the Securities set forth
opposite the name of such Underwriter in Schedule I hereto.
(b) 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 Underwriters 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 (as defined below),
against payment by or on behalf of the Underwriters of the aggregate Purchase
Price therefor to the account of the Company 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 is herein
referred to as the Closing.
Section 3. Covenants
of the Company. The Company
covenants and agrees with the 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 or any Rule 462(b)
Registration Statement unless the Underwriters previously have been advised of,
and furnished with a copy within a reasonable period of time prior to, the
proposed filing and the Underwriters shall have given their consent to such
filing, which shall not be unreasonably withheld. The Company will prepare
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and file with the Commission, in accordance
with the rules and regulations of the Commission, promptly upon request by the
Underwriters 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
Underwriters. The Company will advise
the Underwriters, 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 Underwriters of each such
filing or effectiveness.
(ii) without charge,
provide (y) to the Underwriters and to their counsel, 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) 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 Underwriters may reasonably request.
(iii) advise the Underwriters,
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
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 Underwriters 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.
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(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 Underwriters
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 Companys securityholders and to the Underwriters 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 8 hereof, including:
(i) fees and expenses of preparation, issuance and delivery of this 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
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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 Underwriters 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 Underwriters 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, the
Underwriters as follows:
Registration
Statement and Prospectus
(i) If
the Offering is a Rule 415 Offering (as specified in Schedule II 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 II 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 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
Underwriters 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
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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 II 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
Underwriters 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 Underwriters prior to the execution of this Agreement 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 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
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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 the Underwriters specifically for use
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; 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
8
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 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
other than as contemplated by this Agreement 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
9
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 duly organized
and validly existing and in good standing under the laws of its jurisdiction of
organization 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 issued and outstanding shares of capital stock
of each of the Companys subsidiaries have been duly authorized and are fully
paid and nonassessable and, except for SFT II, Inc., pledges made in connection
with the Companys $300 million revolving credit facility maturing in
July 2003 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 (including each of the Supplemental
Indentures) have been duly authorized by the Company, and, on and as of the
Closing Date, the Indenture (including each of the Supplemental Indentures)
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, 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
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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 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 and its
subsidiaries, taken as a whole (a Material Adverse Effect).
(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 Material
Adverse Effect, 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
proceedings relating to the
11
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 Material Adverse Effect, 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 or
incorporated 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 managements 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 managements 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 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
12
such subsidiarys capital stock, repaying to the Company any loans or
advances to such subsidiary from the Company or transferring any of such
subsidiarys 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 Material
Adverse Effect), 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 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 have a Material Adverse Effect, except as described in or
contemplated by the Prospectus.
Pension and
Labor
(xxviii) The
Company and each of its subsidiaries are 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
13
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 Material Adverse Effect,
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, (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 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
14
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
any of their respective properties is bound, except any default that would not
have a Material Adverse Effect.
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.
15
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 the Underwriters 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 any
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 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, the Underwriters and each such controlling person for
any legal or other costs or expenses reasonably incurred by the Underwriters 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 the Underwriters through Deutsche Bank Securities Inc. 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 Underwriters, 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 the Underwriters or any person who controls
the Underwriters is a party to such claim, action, suit or proceeding), unless
such settlement, compromise or consent (A) includes an unconditional release 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
16
statement as
to an admission of fault, culpability or failure to act by or on behalf 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
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 the Underwriters through Deutsche Bank Securities Inc.
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.
(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 Section 6, 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
Section 6, 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 paragraph (a) or (b) of 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
17
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 Underwriters 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 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 any Underwriter 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 such Underwriter. 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 such
Underwriter, 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 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
18
contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters obligations to contribute
pursuant to this paragraph (d) are several and not joint. 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 the Underwriters, 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 Securities Act or Section 20 of the Exchange
Act, shall have the same rights to contribution as the Company.
(e) 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.
Section 7. Conditions
Precedent. The obligations of the
Underwriters to purchase and pay for the Securities shall be subject, in the
Underwriters 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 Companys 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) 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 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 Underwriters; 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
Underwriters, 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 Underwriters shall
have received a legal opinion from Clifford Chance US 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
19
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 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 (as defined in Rule 1.02(w) of Regulation S-X
under the Exchange Act) 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
Companys 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
20
Securities and the Indenture, provide a fair
summary of such provisions; and the statements set forth under the heading
Material Federal Income Tax Consequences in the Base Prospectus and Federal
Income Tax Consequences in the Prospectus or, insofar as such statements
constitute a summary of the legal matters, documents or proceedings referred to
therein, have been reviewed 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 (including each of the Supplemental Indentures) 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)
21
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 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
significant subsidiaries or any of their respective properties are bound, or
the charter documents or by-laws of the Company or any of its significant
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 significant 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) for the Companys taxable
years ended December 31, 1998, 1999, 2000, 2001 and 2002, the Company was
organized and has operated in conformity with the requirements for
qualification as a real estate investment trust (REIT) under the Code, and
its method of operation, as represented by the Company will permit it to
continue to so qualify.
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 Venable LLP. An opinion of
Venable LLP shall be delivered to the Underwriters and counsel for the
Underwriters covering matters reasonably requested by the Underwriters.
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 issuers counsel described
herein shall be rendered to the Underwriters at the request of the Company and
shall so state therein.
(c) The Underwriters
shall have received a legal opinion from Cahill Gordon & Reindel LLP,
counsel for the Underwriters, dated the Closing Date, covering the issuance and
sale of the Securities, the Registration Statement and the Prospectus, the
22
Indenture and such other related matters as
the Underwriters 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 Underwriters 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 Underwriters.
(e) The Company shall
have furnished or caused to be furnished to the Underwriters 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 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 Companys 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
(including each of the Supplemental Indentures) shall have been executed and
delivered by all the parties thereto.
(h) On or before the
Closing Date, the Underwriters and counsel for the Underwriters shall have
received such further certificates, documents or other information as they may
have reasonably requested from the Company.
23
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
Underwriters and counsel for the Underwriters.
The Company shall furnish to the Underwriters such conformed copies of
such opinions, certificates, letters and documents in such quantities as the
Underwriters and counsel for the Underwriters shall reasonably request.
Section 8. Termination. This Agreement may be terminated in the sole
discretion of the Underwriters 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 or a material disruption in commercial
banking or securities settlement or clearance services in the United States
shall have occurred; (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 national or international calamity,
crisis or emergency 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 Underwriters, 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 Underwriters, 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 8 or pursuant to 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 9. Default
by an Underwriter. If any one or
more Underwriters shall fail to purchase and pay for any of the Securities
agreed to be purchased by such Underwriter hereunder and such failure to purchase
shall constitute a default in the performance of its or their obligations under
this Agreement, the remaining Underwriters shall be obligated severally to take
up and pay for (in the respective proportions which the amount of Securities
set forth opposite their names in Schedule I hereto bears to the aggregate
amount of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase; provided, however, that in the event
24
that the amount of Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the total aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company.
In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not
exceeding five business days, as the nondefaulting Underwriters shall determine
in order that the required changes in the Prospectus or in any other documents
or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company or any nondefaulting Underwriter
for damages occasioned by its default hereunder.
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 8 hereof
(other than by reason of a default by the Underwriters), the Company shall
reimburse the Underwriters, upon demand, for all out-of-pocket expenses
(including fees and disbursements of counsel) that shall have been incurred by
it 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 the Underwriters to the Company for the purposes of
Section 5(a)(ii) and Section 6 hereof. The Underwriters confirm that such statements (to such extent)
are correct.
Section 12. Notices. 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.
1114 Avenue of the Americas, 27th Floor
New York, NY 10036
Facsimile: (212) 930-9494
Attention: Chief Executive Officer
with a copy to: General Counsel
in the case of the Underwriters:
25
Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
Facsimile: (212) 797-4495
Attention: Jon Mehlman
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 Agreement by executing a counterpart.
(e) This
Agreement shall inure to the benefit of and shall be binding upon the
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 the Underwriters 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 the
Underwriters 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 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, the Underwriters 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
26
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.
27
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, this letter and such acceptance hereof shall
constitute a binding agreement between the Underwriters and the Company.
|
Very truly yours,
|
|
|
|
iSTAR FINANCIAL INC.
|
|
|
|
|
|
|
|
By
|
Catherine D. Rice
|
|
|
Name:
Catherine D. Rice
|
|
|
Title:
Chief Financial Officer
|
The foregoing Agreement is hereby confirmed
and accepted as of the date specified in Schedule II hereto.
|
|
|
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DEUTSCHE BANK SECURITIES INC.
|
|
BANC OF AMERICA SECURITIES LLC
|
|
BEAR, STEARNS & CO. INC.
|
|
FLEET SECURITIES, INC.
|
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GOLDMAN, SACHS & CO.
|
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LEHMAN BROTHERS INC.
|
|
|
|
|
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By: DEUTSCHE BANK SECURITIES
INC.
|
|
By
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/s/ Jon Mehlman
|
|
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Name:
John Mehlman
|
|
|
Title:
Managing Director
|
|
|
|
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By
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/s/ Martin Newburger
|
|
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Name:
Martin Newburger
|
|
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Title:
Vice President
|
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28
SCHEDULE I
Underwriters
|
|
Principal
Amount of
Seven Year Securities
|
|
Principal
Amount of
Ten Year Securities
|
|
Deutsche Bank Securities Inc.
|
|
$
|
175,000,000
|
|
$
|
75,000,000
|
|
Banc of America Securities LLC
|
|
70,000,000
|
|
30,000,000
|
|
Bear, Stearns & Co. Inc.
|
|
26,250,000
|
|
11,250,000
|
|
Fleet Securities, Inc.
|
|
26,250,000
|
|
11,250,000
|
|
Goldman, Sachs & Co.
|
|
26,250,000
|
|
11,250,000
|
|
Lehman Brothers Inc.
|
|
26,250,000
|
|
11,250,000
|
|
|
|
|
|
|
|
Total
|
|
$
|
350,000,000
|
|
$
|
150,000,000
|
|
SCHEDULE II
Seven Year Securities
Underwriting
Agreement dated: December 5, 2003
Underwriters:
Deutsche Bank
Securities Inc.
Banc of
America Securities LLC
Bear, Stearns
& Co. Inc.
Fleet
Securities, Inc.
Goldman, Sachs
& Co.
Lehman
Brothers Inc.
Type of
Offering: Rule 415 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): 97.686%.
Closing Date
and Location:
December 12, 2003 at the offices of Cahill Gordon & Reindel
LLP located at 80 Pine Street, New York, NY
10005.
Registration Statement No.
333-109599
SCHEDULE III
Ten Year Securities
Underwriting
Agreement dated: December 5, 2003
Underwriters:
Deutsche Bank
Securities Inc.
Banc of
America Securities LLC
Bear, Stearns
& Co. Inc.
Fleet
Securities, Inc.
Goldman, Sachs
& Co.
Lehman
Brothers Inc.
Type of
Offering: Rule 415 Offering
Title,
Purchase Price and Description of Securities:
Title: Senior Notes
Principal
Amount: $150,000,000
Purchase price (include accrued interest or amortization, if any): 97.525%.
Closing Date
and Location:
December 12, 2003 at the offices of Cahill Gordon & Reindel
LLP located at 80 Pine Street, New York, NY
10005.
Registration Statement No.
333-109599