UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 7, 2005
iStar Financial Inc.
(Exact name of registrant as specified in its charter)
Maryland
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1-15371
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95-6881527
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(State or other jurisdiction of
incorporation)
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(Commission File
Number)
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(IRS Employer
Identification Number)
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1114 Avenue of the Americas, 27th
Floor
New York, New York
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10036
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(Address of principal executive offices)
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(Zip Code)
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Registrants telephone number, including area code: (212) 930-9400
N/A
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of
the following provisions (see General Instruction A.2. below):
o
Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
ITEM 8.01 Other Events.
On December 7, 2005, we entered into an underwriting agreement
with Merrill Lynch, Pierce, Fenner & Smith Incorporated and UBS
Securities LLC, as representatives of the several underwriters named in the
Underwriting Agreement in connection with our public offering of $250 million
5.80% Senior Notes due 2011 and $225 million Senior Floating Rate Notes due
2009 (collectively, the Notes). The
Notes will be issued pursuant to an Indenture, dated as of February 5,
2001 between the Company and US Bank Trust National Association, as Trustee
(the Trustee), as supplemented by the Ninth Supplemental Indenture and the
Tenth Supplemental Indenture, dated as of December 14, 2005, by and
between the Company and the Trustee.
ITEM 9.01 Financial Statements and Exhibits.
1.1 Underwriting
Agreement dated December 7, 2005.
2
SIGNATURES
Pursuant to the
requirements of the Securities Exchange Act of 1934, as amended, the Registrant
has duly caused this Report to be signed on its behalf by the undersigned,
thereunto duly authorized.
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iSTAR FINANCIAL INC.
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Date:
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December 7, 2005
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By:
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/s/ Jay Sugarman
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Jay Sugarman
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Chairman and Chief Executive Officer
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Date:
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December 7, 2005
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By:
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/s/ Catherine D. Rice
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Catherine D. Rice
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Chief Financial Officer
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3
EXHIBIT INDEX
Exhibit
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Number
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Description
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1.1
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Underwriting
Agreement dated December 7, 2005.
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4
Exhibit 1.1
Dated December 7, 2005
iStar Financial Inc.
$250,000,000
5.80% Senior Notes due 2011
$225,000,000
Senior Floating Rate Notes due 2009
UNDERWRITING AGREEMENT
iStar Financial Inc.
$250,000,000
5.80% Senior Notes due 2011
$225,000,000
Senior Floating Notes due 2009
UNDERWRITING
AGREEMENT
December 7, 2005
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
UBS SECURITIES LLC
as Representative(s) of the several Underwriters
MERRILL LYNCH & CO.
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center
New York, New York 10080
and
UBS SECURITIES LLC
299 Park Avenue
New York, New York 10171
Ladies and
Gentlemen:
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 Fixed Rate Notes) and (ii) the principal amount of its debt
securities having the terms identified in Schedule III hereto (the Floating
Rate Notes and together with the Fixed Rate Notes, 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 Fixed Rate Notes (the Fixed Rate Notes Supplemental Indenture)
and a supplemental indenture relating to the Floating Rate Notes
(the Floating Rate Notes
Supplemental Indenture and together with the Fixed Rate Notes Supplemental
Indenture, the Supplemental Indentures) each dated as of December 14,
2005 (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, dated December 7, 2005 to the
Base Prospectus relating to the Securities and used prior to the filing of the
Prospectus; the term Prospectus means the final 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; the term Free Writing Prospectus means a free writing
prospectus, as defined in Rule 405; the term Issuer Free Writing
Prospectus means an issuer free writing prospectus, as defined in Rule 433;
and the term Disclosure Package means (i) the Base Prospectus and the
Preliminary Prospectus (ii) the Issuer Free Writing Prospectuses, if any,
identified in Schedule IV hereto and (iii) any other Free Writing
Prospectuses that the parties hereto shall hereafter expressly agree in writing
to treat as part of the Disclosure Package.
Rule 158,
Rule 163, Rule 164, Rule 172, Rule 405, Rule 415,
Rule 424, Rule 430A and Rule 433 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
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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. Execution Time means the date and time that
this Agreement is executed and delivered by the parties hereto.
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
Fixed Rate Notes (the Fixed Rate Notes Purchase Price) and Schedule III
hereto with respect to the Floating Rate Notes (the Floating Rate Notes
Purchase Price and together with the Fixed Rate Notes 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.
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Section 3. Covenants
and Agreements. 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 or any Free Writing Prospectus 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 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 (including in
circumstances where such requirement may be satisfied pursuant to Rule 172),
as many copies of each Preliminary Prospectus, the Prospectus and each Issuer
Free
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Writing 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 Free
Writing 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.
(c) The
Company agrees that, unless it obtains the prior written consent of each
Underwriter, and each Underwriter, severally and not jointly, agrees with the
Company that, unless it has obtained or will obtain, as the case may be, the
prior written consent of the Company, it has not made and will not make any
offer relating to the Securities that would constitute an Issuer Free Writing
Prospectus or that would otherwise constitute a Free Writing Prospectus
required to be filed by the Company with the Commission or retained by the
Company under Rule 433; provided that
the prior written consent of the parties hereto shall be deemed to have been
given in respect of the Free Writing Prospectuses included in Schedule III
hereto and any electronic road show. Any
such Free Writing Prospectus consented to by the Representatives or the Company
is hereinafter referred to as a Permitted Free Writing Prospectus. The Company agrees that (x) it has treated
and will treat, as the case may be, each Permitted Free Writing Prospectus as
an Issuer Free Writing Prospectus and (y) it has complied and will comply, as
the case may be, with the requirements of Rules 164 and 433 applicable to
any Permitted Free Writing Prospectus, including in respect of timely filing
with the
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Commission, legending and record
keeping. For the avoidance of doubt,
Underwriter Free Writing Prospectuses that are not required to be filed by the
Company with the Commission or retained by the Company under Rule 433 are
permitted hereby.
(d) 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 (including in
circumstances where such requirement may be satisfied pursuant to Rule 172),
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. If there occurs an event or development as a
result of which the Disclosure Package would include an untrue statement of
material fact or would omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances then prevailing, not
misleading, the Company will notify promptly the Underwriters so that any use
of the Disclosure Package may cease until it is amended or supplemented. The foregoing two sentences do not apply to
statements in or omissions from the Disclosure Package based upon and in
conformity with written information furnished to the Company by any Underwriter
specifically for use therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 11 hereof.
(e) 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.
(f) The
Company will apply the net proceeds from the sale of the Securities as set
forth under Use of Proceeds in the Prospectus.
(g) 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
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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, any Preliminary Prospectus and any
Permitted Free Writing 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 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
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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 has 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 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
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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 or Issuer Free Writing 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 Issuer Free Writing Prospectus or any amendment or supplement
thereto in reliance
9
upon and in conformity with written information furnished to the
Company by the Underwriters specifically for use therein, it being understood
and agreed that the only such information furnished by or on behalf of any
Underwriters consists of the information described as such in Section 11
hereof.
(iii) The
Disclosure Package as of the Execution Time does not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The
preceding sentence does not apply to statements in or omissions from the
Disclosure Package based upon and in conformity with written information
furnished to the Company by any Underwriter specifically for use therein, it
being understood and agreed that the only such information furnished by or on
behalf of any Underwriter consists of the information described as such in Section 11
hereof.
(iv) At
the earliest time that (i) the Company or another offering participant
made a bona fide offer (within the meaning of Rule 164(h)(2))
of the Securities and (ii) as of the Execution Time (with such date being
used as the determination date for purposes of this clause (ii)), the Company
was not and is not an Ineligible Issuer (as defined in Rule 405), without
taking account of any determination by the Commission pursuant to Rule 405
that it is not necessary that the Company be considered an Ineligible Issuer.
(v) Each
Issuer Free Writing Prospectus, if any, does not include any information that
conflicts with the information contained in the Registration Statement,
including any document incorporated therein and any prospectus supplement
deemed to be a part thereof that has not been superseded or modified. If there occurs an event or development as a
result of which the Disclosure Package would include an untrue statement of
material fact or would omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances then prevailing, not
misleading, the Company will notify promptly the Underwriters so that any use
of the Disclosure Package may cease until it is amended or supplemented. The foregoing two sentences do not apply to
statements in or omissions from the Disclosure Package based upon and in
conformity with written information furnished to the Company by any Underwriter
specifically for use therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 11 hereof.
(vi) 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.
10
(vii) 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, any Permitted Free Writing Prospectus or any amendment or
supplement thereto.
(viii) 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.
(ix) 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.
(x) At
the date hereof the Company is a well-known seasoned issuer as defined in Rule 405,
including not having been and not being an ineligible issuer as defined in Rule 405. The Company has not received from the
Commission any notice pursuant to Rule 401(g)(2) under the Securities
Act objecting to the use of the automatic shelf registration statement form.
The
Securities
(xi) 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.
(xii) 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.
11
(xiii) 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
(xiv) 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
(xv) 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 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 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.
12
(xvi) 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.
(xvii) 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.
(xviii) 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 any court or other governmental authority or any arbitrator
applicable to the Company or any of its subsidiaries.
(xix) 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).
13
(xx) 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
(xxi) 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.
(xxii) 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.
(xxiii) 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 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
(xxiv) 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
14
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.
(xxv) The
consolidated financial statements and schedules of the Company and its
consolidated subsidiaries included or incorporated in the Registration
Statement, the Disclosure Package 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.
(xxvi) 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.
(xxvii) The
Company has established and maintains disclosure controls and procedures (as
defined in Exchange Act Rules 13a-14 and 15d-14) that are adequate and
effective and designed to ensure that material information relating to the
Company, including its consolidated subsidiaries, is made known to its chief
executive officer and chief financial officer by others within those entities.
(xxviii) Since
the date of the filing of the Companys Annual Report on Form 10-K for the
year ended December 31, 2004, the Company has not advised its auditors,
and the audit committee of the board of directors of the Company have not been
advised, of (i) any significant deficiencies in the design or operation of
internal controls which could adversely affect the Companys ability to record,
process, summarize and report financial data nor any material weaknesses in
internal controls; or (ii) any fraud, whether or not material, that
involves management or other employees who have a significant role in the
Companys internal controls.
(xxix) Since
the date of the filing of the Companys Annual Report on Form 10-K for the
year ended December 31, 2004, there have been no significant changes in
internal controls or in other factors that could significantly affect internal
controls, including any corrective actions with regard to significant
deficiencies and material weaknesses.
15
Litigation
(xxx) 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
(xxxi) No
subsidiary of the Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company, making any other distribution on 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
(xxxii) 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.
(xxxiii) 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 to so 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.
16
Insurance
(xxxiv) 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
(xxxv) 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 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.
(xxxvi) 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
(xxxvii) 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
17
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
(xxxviii) 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.
18
Absence of
Materially Adverse Change
(xxxix) 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).
(xl) 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
(xli) 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).
Additional
Representations
(xlii) Except
as disclosed in the Registration and the Prospectus, there are no outstanding
guarantees or other contingent obligations of the Company or any Subsidiary
that could reasonably be expected to have a Material Adverse Effect.
(xliii) No
event or circumstance has occurred or arisen that is reasonably likely to give
rise to a requirement that the Company make additional disclosure on Form 8-K
and has not been so disclosed.
(b) The
above representations and warranties shall be deemed to be repeated at the
Closing Date.
19
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, the Prospectus or any Issuer Free Writing 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, the
Prospectus or any Issuer Free Writing 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, any
Issuer Free Writing Prospectus or any amendment or supplement thereto in
reliance upon and in conformity with written information furnished to the
Company by the Underwriters through Merrill Lynch & Co. and UBS
Securities LLC. 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 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
20
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, the Prospectus or any Issuer
Free Writing 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, the
Prospectus or any Issuer Free Writing 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 Merrill Lynch &
Co. and UBS Securities LLC 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 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 costs of investigation, subsequently
incurred by such indemnified party in connection with the
21
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 intent, 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
22
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 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 and any Issuer Free Writing Prospectus shall have been filed
under Rule 433; no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto shall have been issued, and no
proceedings for that purpose or pursuant to Section 8A of the Securities
Act against the Company or related to the Offering 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
23
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 any
Issuer Free Writing Prospectus required to have been filed under Rule 433
shall have been filed; 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 or pursuant to Section 8A
of the Securities Act against the Company or in connection with the Offering
are pending or threatened by the Commission;
(ii) the
Original Registration Statement and each amendment thereto, any Rule 462(b) Registration
Statement, the Prospectus and each Permitted Free Writing 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, (y) the Prospectus, as of its date and 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 or (z) that the documents specified in a schedule to
such counsels letter, consisting of those included in the Disclosure Package,
as of the Execution Time, when considered together with the pricing related
information specified in a schedule to such counsels letter, contained
any untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(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
24
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 Securities and the
Indenture, provide a fair summary of such provisions; and the statements set forth
under the heading Certain U.S. 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);
25
(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
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
26
to be filed as exhibits to the Registration
Statement that are not described or incorporated therein or filed as required.
(xii) commencing
with its taxable year ended December 31, 1998, 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 Skadden, Arps, Slate,
Meagher & Flom LLP, 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 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
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(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) The
Company shall have furnished or caused to be furnished to the Underwriters at
the Closing a certificate of its Chief Financial Officer in such form as shall
be agreed upon by the parties.
(g) 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.
(h) The
Indenture (including each of the Supplemental Indentures) shall have been executed
and delivered by all the parties thereto.
(i) 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.
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
28
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 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,
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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
MERRILL LYNCH &
CO.
Merrill Lynch,
Pierce Fenner & Smith
Incorporated
4 World
Financial Center
New York, New
York 10080
Attention:
General Counsel- Investment Banking
Facsimile:
(212) 449-3207
and
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UBS SECURITIES
LLC
677 Washington
Blvd
Stamford, CT
06901
Attention:
Fixed Income Syndicate
Facsimile:
(203) 719-0495
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. No
Fiduciary Duty. The Company hereby
acknowledges that (a) the purchase and sale of the Securities pursuant to
this Agreement is an arms-length commercial transaction between the Company,
on the one hand, and the Underwriters and any affiliate through which it may be
acting, on the other, (b) the Underwriters are acting as principal and not
as an agent or fiduciary of the Company and (c) the Companys engagement
of the Underwriters in connection with the offering and the process leading up
to the offering is as independent contractors and not in any other capacity.
Furthermore, the Company agrees that it is solely responsible for making its
own judgments in connection with the offering (irrespective of whether any of
the Underwriters has advised or is currently advising the Company on related or
other matters).
Section 14. Integration. This Agreement supersedes all prior
agreements and understandings (whether written or oral) between the Company and
the Underwriters, or any of them, with respect to the subject matter hereof.
Section 15. 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
31
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 10 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
Section 16. 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 17. 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.
32
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.
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Very truly yours,
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iSTAR FINANCIAL INC.
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By:
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Title:
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Name:
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The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule II hereto.
MERRILL LYNCH & CO.
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MERRILL LYNCH, PIERCE, FENNER &
SMITH
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INCORPORATED
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UBS SECURITIES LLC
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By: MERRILL LYNCH, PIERCE,
FENNER & SMITH
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INCORPORATED
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By:
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Name:
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Title:
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By: UBS SECURITIES LLC
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By:
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Name:
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Title:
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