EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and
entered into as of March 24, 2003 by and between iStar Financial Inc., a
Maryland corporation (the "Company"), and Teachers Insurance and Annuity
Association of America, a New York insurance company ("TIAA").
The Company agrees with TIAA and any Affiliate of TIAA to which TIAA
transfers at least 50% of the Shares (TIAA and each of its Affiliates, a
"HOLDER" and together the "HOLDERS"), as follows:
SECTION 1. DEFINITIONS. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following terms shall have the
following meanings:
AFFILIATE means with respect to any specified person, an "affiliate" of
such person as defined in Rule 12b-2 under the Exchange Act.
BLACKOUT CONDITION has the meaning set forth in Section 3(e) hereof.
BUSINESS DAY means each day that is not a day on which banking
institutions in the City of New York are authorized or obligated by law or
executive order to close.
DEFERRAL NOTICE has the meaning set forth in Section 3(e)(i) hereof.
DEFERRAL PERIOD means the period during which the availability of the
Shelf Registration Statement and Prospectus is suspended pursuant to Section
3(e) hereof.
EFFECTIVENESS PERIOD means the period commencing with the date hereof
and ending on the date that all Registrable Securities have ceased to be
Registrable Securities.
EXCHANGE ACT means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
FILING DATE has the meaning set forth in Section 2 hereof.
HOLDER has the meaning set forth in the second paragraph of this
Agreement.
MATERIAL EVENT has the meaning set forth in Section 3(e) hereof.
PROSPECTUS means the prospectus included in the Shelf Registration
Statement, as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all material
incorporated by reference in such Prospectus.
PURCHASE AGREEMENT means the Purchase arid Sale Agreement dated as of
March 26, 2003 between LF Mortgage REIT and TIAA, pursuant to which TIAA
purchased the Shares.
REGISTRABLE SECURITIES means the Shares held by each Holder and any
security issued with respect thereto upon any stock dividend, split or
similar event until, in the case of any such security (A) the earliest of (i)
its sale under the Shelf Registration Statement, (ii) any time that it is
eligible for sale without restriction under Rule 144(k) or (iii) its sale
pursuant to Rule 144 and (B) as a result of the event or circumstance
described in the foregoing clauses (A)(i) through (A)(iii), all legends with
respect to transfer restrictions under the Securities Act are removed or
removable in accordance with the terms of
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Rule 144; PROVIDED, HOWEVER, that Registrable Securities shall not include
any securities into or for which the Shares (and any other securities that
constitute Registrable Securities pursuant to this definition) have been
exchanged in a transaction under an effective registration statement on Form
S-4, or any successor form replacing Form S-4, under the Securities Act,
pursuant to which such Registrable Securities become freely tradeable without
restriction under the Securities Act (including, without limitation, Rule
145).
RULE 144 means Rule 144 under the Securities Act, as such rule may be
amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
RULE 144A means Rule 144A under the Securities Act, as such rule may be
amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC means the Securities and Exchange Commission.
SECURITIES ACT means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
SERIES A PREFERRED STOCK means the 9.5% Series A Cumulative Redeemable
Preferred Stock of the Company.
SHARES means the 500,000 shares of Series A Preferred Stock purchased by
TIAA pursuant to the Purchase Agreement.
SHELF REGISTRATION STATEMENT has the meaning set forth in Section 2
hereof and shall include the Prospectus, amendments and supplements to the
Shelf Registration Statement, including post-effective amendments, all
exhibits, and all material incorporated by reference in the Shelf
Registration Statement.
TRANSFER AGENT AND REGISTRAR means Equiserve Trust Company, N.A. (or
any successor entity), as the transfer agent and registrar for the Shares.
SECTION 2. SHELF REGISTRATION. The Company shall prepare and file with
the SEC within 60 days after the date of this Agreement (the "FILING DATE"),
a registration statement for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 of the Securities Act registering the
resale from time to time by Holders of all of the Registrable Securities (the
"SHELF REGISTRATION STATEMENT"). The Shelf Registration Statement shall be
on Form S-3, or any successor form replacing Form S-3, and shall permit the
resale of Shares in accordance with the methods of distribution elected by
the Holders and set forth in the Shelf Registration Statement, but which
methods shall not include an underwritten public offering. The Company may
register Series A Preferred Stock of the Company in addition to the Shares
pursuant to the Shelf Registration Statement. The Company shall use its
reasonable best efforts to cause the Shelf Registration Statement to become
effective under the Securities Act as soon as practicable after filing and to
keep the Shelf Registration Statement continuously effective under the
Securities Act until the expiration of the Effectiveness Period. At the time
the Shelf Registration Statement becomes effective, each Holder shall be
named as a selling securityholder in the Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of Registrable Securities in accordance with
applicable law.
SECTION 3. REGISTRATION PROCEDURES. In connection with the
registration obligations of the Company under Section 2 hereof, the Company
shall:
(a) Before filing any Shelf Registration Statement, Prospectus or
amendments or supplements contemplated by Section 3(b) with the SEC, furnish
each Holder copies of all such
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documents proposed to be filed and use its reasonable best efforts to reflect
in each such document when so filed with the SEC such comments as any Holder
reasonably shall propose within two Business Days after receiving such
proposed filing.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to the Shelf Registration Statement as may be necessary to keep
the Shelf Registration Statement continuously effective until the expiration
of the Effectiveness Period; cause the related Prospectus to be supplemented
by any required prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and use its reasonable best efforts to comply with the
provisions of the Securities Act applicable to it with respect to the
disposition of all securities covered by the Shelf Registration Statement
until the expiration of the Effectiveness Period in accordance with the
intended methods of disposition by the sellers thereof set forth in the Shelf
Registration Statement as so amended or the related Prospectus as so
supplemented.
(c) Deliver to each Holder in connection with any sale of
Registrable Securities pursuant to the Shelf Registration Statement, without
charge, as many copies of the Prospectus relating to the Registrable
Securities and any amendment or supplement thereto as such Holder may
reasonably request; and the Company hereby consents to the use of the
Prospectus and each amendment or supplement thereto by each Holder in
connection with any offering and sale of the Registrable Securities covered
by the Prospectus or any amendment or supplement thereto in the manner set
forth therein.
(d) Within a reasonable period after the date that (1) the Shelf
Registration Statement becomes effective under the Securities Act, and (2) a
Holder delivers the certificate representing such Holder's Registrable
Securities, duly endorsed, to the extent necessary, prepare and deliver
certificates representing Registrable Securities to be sold pursuant to the
Shelf Registration Statement, which certificates shall not bear any
restrictive legends, and cause such Registrable Securities to be in such
denominations and registered in such names as such Holder may request.
(e) Upon (A) the issuance by the SEC of a stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to the Shelf Registration Statement under Section
8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the
existence of any fact (a "MATERIAL EVENT") as a result of which the Shelf
Registration Statement shall 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, or the related Prospectus
shall 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, in the light of the circumstances under which they were
made, not misleading, or (C) the determination of the Board of Directors of
the Company in good faith to suspend the availability of the Shelf
Registration Statement and the related Prospectus because the disclosure
required thereby would adversely affect a material financing, acquisition,
disposition, reorganization or other material transaction involving the
Company or any of its subsidiaries (such condition, a "BLACKOUT CONDITION"):
(i) give prompt notice to each Holder that the availability of
the Shelf Registration Statement is suspended (a "DEFERRAL NOTICE"), such
notice to state that it is a Deferral Notice under this Agreement, and
state whether it is being delivered due to an event under (A), (B) or (C)
above, and, upon receipt of any Deferral Notice, each Holder shall not
sell any Registrable Securities pursuant to the Shelf Registration
Statement until such Holder's receipt of copies of the supplemented or
amended Prospectus provided for in clause (ii) below, or until it (x) is
advised in writing by the Company that the Prospectus may be used, and (y)
has received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in
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such Prospectus or, in connection with a Blackout Condition, the
expiration of ninety (90) days from delivery of the relevant Deferral
Notice;
(ii) in the case of clause (A) above, the Company shall use its
reasonable best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof; and in the case of clause (B) above,
subject to the next sentence, as promptly as practicable after the Material
Event, the Company shall prepare and file, if necessary pursuant to
applicable law, a post-effective amendment to the Shelf Registration
Statement or a supplement to the related Prospectus or any document
incorporated therein by reference or file any other required document that
would be incorporated by reference into the Shelf Registration Statement
and Prospectus so that the Shelf Registration Statement does 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, and the related Prospectus does 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, in the
light of the circumstances under which they were made, not misleading, as
thereafter delivered to the purchasers of the Registrable Securities being
sold thereunder, and, in the case of a post-effective amendment to the
Shelf Registration Statement, subject to the next sentence, use their
reasonable best efforts to cause it to become effective as promptly as is
practicable.
(iii) Notwithstanding anything contained herein to the
contrary, in connection with a Blackout Condition, the Company may only
suspend the Shelf Registration Statement twice in any twelve (12) month
period for an aggregate of ninety (90) days from the delivery of the
relevant Deferral Notices (the "MAXIMUM BLACKOUT PERIOD").
SECTION 4. HOLDERS' OBLIGATION. Each Holder agrees that it will
satisfy the prospectus delivery requirements of the Securities Act in
connection with transfers and sales of Registrable Shares pursuant to the
Shelf Registration Statement.
SECTION 5. EXPENSES. The Company shall bear all fees and expenses
incurred in connection with the performance by the Company of its obligations
under Sections 2 and 3 hereof whether or not the Shelf Registration Statement
becomes effective. Such fees and expenses shall include, without limitation,
(i) all registration and filing fees, (ii) printing expenses, (iii)
duplication expenses relating to copies of the Shelf Registration Statement
or Prospectus delivered to any Holders hereunder, (iv) fees and disbursements
of counsel for the Company in connection with the Shelf Registration
Statement, (v) fees and disbursements of all independent accountants of the
Company and (vi) reasonable fees and disbursements of the Transfer Agent and
Registrar. In addition, the Company shall pay the internal expenses of the
Company (including, without limitation, all salaries and expenses of officers
and employees performing legal or accounting duties). The Company shall have
no obligation to pay and shall not pay any brokerage fees, discounts,
commissions or transfer taxes in connection with the offer and sale of the
Registrable Securities by such Holder, and each of the Company and each
Holder shall pay the expenses of its own counsel.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF HOLDERS. In the event of the registration of
the Shares under the Securities Act pursuant to this Agreement, the Company
agrees to indemnify each Holder, its directors, officers, trustees,
fiduciaries, employees, stockholders, members or general and limited partners
(and the directors, officers, employees, etc thereof), and each person, if
any, who controls any Holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act as follows:
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(i) against any and all loss, liability, claim, damage and
expense whatsoever including reasonable legal fees and expenses, as
incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Shelf Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement
or alleged untrue statement of a material fact included in any preliminary
prospectus or Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information relating to any
Holder furnished to the Company in writing by such Holder expressly for use
in the Shelf Registration Statement (or any amendment thereto), or Prospectus
(or any amendment or supplement thereto).
(b) INDEMNIFICATION OF COMPANY, DIRECTORS, OFFICERS AND OTHER
HOLDERS. In the event of the registration of the Shares under the Securities
Act pursuant to this Agreement, each Holder severally (as to itself only)
agrees to indemnify and hold harmless the Company, its directors, each of its
officers who signs the Shelf Registration Statement, 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, each other Holder and each person, if any,
who controls any other Holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only to the extent untrue
statements or omissions, or alleged untrue statements or omissions, are made
in the Shelf Registration Statement (or any amendment thereto), or Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity
with information relating to such Holder furnished to the Company by such
Holder expressly for use in the Shelf Registration Statement (or any
amendment thereto) or Prospectus (or any amendment or supplement thereto);
provided that with respect to any amount due to an indemnified person under
this paragraph (b), each Holder shall be liable only to the extent of the net
proceeds received by such Holder upon the sale of the Registrable Securities
pursuant to the Shelf Registration Statement giving rise to such
indemnification obligation.
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder except to the
extent of actual damages suffered by such delay and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. In the case of parties indemnified pursuant to
Section 6(a) above, counsel (reasonably acceptable to the indemnified
parties) to the indemnified parties shall be selected by the Company, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel
(reasonably acceptable to the indemnified parties) to the indemnified parties
shall be selected by the Holders of a majority of the Shares constituting
Registrable Securities. An indemnified party may employ its own counsel in
connection with the defense of any such action, but the legal fees and
expenses of such counsel shall be at the expense of the indemnified party,
unless the employment of such counsel
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shall have been authorized in writing by the indemnifying party in connection
with the defense of such action, or the indemnifying party shall not have
employed counsel to take charge of the defense of such action or the
indemnified party shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party
shall not have the right to direct the defense of such action on behalf of
the indemnified party), in any of which events such fees and expenses shall
be borne by the indemnifying party; provided, however, that counsel to the
indemnified party shall not (except with the consent of the indemnifying
party) also be counsel to the indemnifying party. Except as provided in the
preceding sentence, in no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection
with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act by or on behalf
of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable, to the extent such
indemnifying party is already liable pursuant to Section 6 (a) or (b), for
any settlement of the nature contemplated by Section 6(a)(ii) effected
without its written consent if (i) such settlement is entered into more than
45 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement.
SECTION 7. CONTRIBUTION.
(a) If for any reason the foregoing indemnity is unavailable or is
insufficient to hold harmless an indemnified party under Sections 6(a) or (b)
then each indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of any claim in such proportion as is
appropriate to reflect the relative fault and relative benefits of the
indemnifying party, on the one hand, and the indemnified party, on the other
hand, with respect to such offering of securities. The relative fault shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
indemnifying party or the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The relative benefit shall be determined by
reference to, among other things, the proceeds received from such offering of
securities. The parties hereto agree that it would not be just and equitable
if contributions pursuant to this Section 7(a) were to be determined by pro
rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the preceding
sentences of this Section 7(a). The amount paid or payable in respect of any
claim shall be deemed to include any legal or expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
claim. 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.
Notwithstanding anything in this Section 7(a) to the contrary, no
indemnifying party
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(other than the Company) shall be required pursuant to this Section 7(a) to
contribute any amount in excess of the net proceeds received by such
indemnifying party from the sale of Registrable Securities in the offering to
which the losses, claims, damages or liabilities of the indemnified parties
relate, less the amount of any indemnification payment made by such
indemnifying party pursuant to Section 6.
(b) The indemnity agreements contained herein shall be in addition
to any other rights to indemnification or contribution which any indemnified
party may have pursuant to law or contract and shall remain operative and in
full force and effect regardless of any investigation made or omitted by or
on behalf of any indemnified party and shall survive the transfer of the
Registrable Securities by any such party.
(c) The indemnification and contribution required by this Section 7
shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, as and when bills are received or expense,
loss, damage or liability is incurred.
SECTION 8. INFORMATION REQUIREMENTS. The Company shall file the
reports required to be filed by it under the Exchange Act, and, if at any
time before the end of the Effectiveness Period the Company is not subject to
the reporting requirements of the Exchange Act, it will cooperate with any
Holder of Registrable Securities and take such further reasonable action as
any Holder of Registrable Securities may reasonably request (including,
without limitation, making such reasonable representations as any such Holder
may reasonably request), all to the extent required from time to time to
enable such Holder to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by Rule
144 and Rule 144A. Notwithstanding the foregoing, nothing in this Section 8
shall be deemed to require the Company to register any of its securities
under the Exchange Act. In connection with any sale, transfer or other
disposition by any Holder of Registrable Securities pursuant to Rule 144
under the Securities Act, upon delivery by such Holder of the certificate
representing the Holder's transferred Registrable Securities, duly endorsed,
to the extent necessary, for transfer, the Company shall cooperate with the
Holder to facilitate the preparation and delivery of the Registrable
Securities to be transferred, in the form of certificates without any
Securities Act legend, and enable the certificates for such Registrable
Securities to be for such number of shares and registered in such names as
the selling Holder may reasonably request.
SECTION 9. REPRESENTATIONS AND WARRANTIES. The Company hereby
represents and warrants to the Holders as follows:
(a) The Company has not entered, as of the date hereof, nor shall
it, on or after the date of this Agreement enter, into any agreement with
respect to its securities that conflicts with the rights granted to the
Holders in this Agreement. The Company represents and warrants that the
rights granted to the Holders hereunder do not in any way conflict with the
rights granted to the holders of the Company's securities under any other
agreements.
(b) As of the date hereof, the Company has outstanding 98,622,217
shares of common stock, par value $.001 per share; 4,400,000 shares of Series
A Preferred Stock, having a liquidation preference of $50.00 per share;
2,000,000 shares of 9 3/8% Series B Cumulative Redeemable Preferred Stock,
having a liquidation preference of $25.00 per share; 1,300,000 shares of 9.2%
Series C Cumulative Redeemable Preferred Stock, having a liquidation
preference of $25.00 per share; and 4,000,000 shares of 8% Series D
Cumulative Redeemable Preferred Stock, having a liquidation preference of
$25.00 per share.
(c) The Company's Amended and Restated Charter was filed with the
Maryland State Department of Assessments and Taxation on November 3, 1999
(the "Charter"). No amendment or other
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document relating to or affecting the Charter has been adopted since November
3, 1999, except for the filing on September 24, 2000 of an amendment to the
Charter for the sole purpose of changing the Company's name from "Starwood
Financial Inc." to "iStar Financial Inc." Annex A to the Charter, which
contains the terms, preferences and powers of the Series A Preferred Stock,
supersedes in all respects the Articles Supplementary of Series A Preferred
Shares of Starwood Financial Trust, dated December 9, 1998.
(d) No Restriction Termination Date, as defined in the Charter, is
in effect on the date hereof, nor has any action been taken by the Company or
its stockholders in contemplation of a Restriction Termination Date.
SECTION 10. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless the Company has obtained the written consent
of Holders of a majority of the Shares then constituting Registrable
Securities. Notwithstanding the foregoing, a waiver or consent to depart
from the provisions hereof with respect to a matter that relates exclusively
to the rights of Holders whose securities are being sold pursuant to the
Shelf Registration Statement and that does not directly or indirectly affect
the rights of other Holders may be given by Holders of at least a majority of
the Shares then constituting Registrable Securities being sold by such
Holders pursuant to the Shelf Registration Statement; provided that the
provisions of this sentence may not be amended, modified, or supplemented
except in accordance with the provisions of the immediately preceding
sentence.
(b) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, by telecopier,
by courier guaranteeing overnight delivery or by first-class mail, return
receipt requested, and shall be deemed given (i) when made, if made by hand
delivery, (ii) upon confirmation, if made by telecopier, or (iii) one
Business Day after being deposited with such courier, if made by overnight
courier, to the parties as follows:
(1) If to a Holder of Registrable Securities, at the most
current address given by such Holder to the Company;
(2) If to TIAA:
Teachers Insurance and Annuity Association of America
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Director
Fax: (000) 000-0000
(3) If to the Company, at:
iStar Financial Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxx
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With a copy to:
Xxxxxxxx Chance US LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxx
or to such other address as such person may have furnished to the other
persons identified in this Section 10(b) in writing in accordance herewith.
(c) APPROVAL OF HOLDERS. Whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or its affiliates (as
such term is defined in Rule 405 under the Securities Act) (other than a
Holder if such Holder is deemed to be an affiliate solely by reason of its
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
(d) SUCCESSORS AND ASSIGNS. Any person who purchases any
Registrable Securities from a Holder shall be deemed, for purposes of this
Agreement, to be an assignee of such Holder. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties and shall inure to the benefit of and be binding upon each Holder of
any Registrable Securities.
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be original and all of which taken
together shall constitute one and the same agreement.
(f) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
regard to conflicts of laws principles thereof.
(h) SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated thereby, and the parties hereto shall use their
reasonable best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such term,
provision, covenant or restriction, it being intended that all of the rights
and privileges of the parties shall be enforceable to the fullest extent
permitted by law.
(i) ENTIRE AGREEMENT. This Agreement is intended by the parties as
a final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein and the registration rights
granted by the Company with respect to the Registrable Securities. Except as
provided in the Purchase Agreement, there are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect
to the Registrable Securities. This Agreement supersedes all prior
agreements and undertakings among the parties with respect to such
registration rights. No party hereto shall have any rights, duties or
obligations other than those specifically set forth in this Agreement.
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(j) TERMINATION. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except
for any liabilities or obligations under Sections 5, 6 or 7 hereof, each of
which shall remain in effect in accordance with its terms.
(k) REMEDIES. The Company and each Holder acknowledge that there
would be no adequate remedy at law if any party fails to perform any of its
obligations hereunder, and accordingly agree that the Company and each
Holder, in addition to any other remedy to which it may be entitled at law or
in equity, shall be entitled to compel specific performance of the
obligations of another party under this Agreement in accordance with the
terms and conditions of this Agreement in any court of the United States or
any state thereof having jurisdiction.
10
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
iSTAR FINANCIAL INC.
By: /s/ XXXXXXX X. XXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By: /s/ XXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
11
