Exhibit 1.1
$150,000,000
STANDARD PACIFIC CORP.
9 1/4% Senior Subordinated Notes due 2012
UNDERWRITING AGREEMENT
----------------------
April 10, 2002
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
BANC ONE CAPITAL MARKETS, INC.
c/o Credit Suisse First Boston Corporation
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Standard Pacific Corp., a Delaware corporation (the "Company"),
proposes to issue and sell $150,000,000 principal amount of its 9 1/4% Senior
Subordinated Notes due 2012 (the "Securities") to the several underwriters named
in Schedule I hereto (the "Underwriters"). The Securities are to be issued
pursuant to the provisions of an Indenture dated as of April 10, 2002, as
supplemented by the First Supplemental Indenture dated as of April 10, 2002 (the
"Indenture"), between the Company and Bank One Trust Company, N.A., as Trustee
(the "Trustee").
Section 1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-3, including a
prospectus, relating to the Securities. The registration statement, as amended
at the time it became effective, including the information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to Rule
430A under the Act, is hereinafter referred to as the "Registration Statement";
and the prospectus and prospectus supplement in the form first used to confirm
sales of the Securities is hereinafter referred to as the "Prospectus"
(including, in the case of all references to the Registration Statement or the
Prospectus, documents incorporated therein by reference). The terms "supplement"
and "amendment" or "amend" as used in this Agreement with respect to the
Registration Statement or the Prospectus shall include all documents
subsequently filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Exchange Act") that are deemed to be
incorporated by reference in the Prospectus.
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Section 2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell, and the Underwriters
agree, severally and not jointly, to purchase from the Company, an aggregate
principal amount of $150,000,000 of the Securities at a purchase price equal to
97.975% of the principal amount thereof (the "Purchase Price").
Section 3. Terms of Public Offering. The Underwriters have advised the
Company that the Underwriters propose (i) to make a public offering of the
Securities as soon after the execution and delivery of this Agreement as in the
Underwriters' judgment is advisable and (ii) initially to offer the Securities
upon the terms set forth in the Prospectus.
Section 4. Delivery and Payment. The Securities shall be represented by
a definitive global security registered in the name of the nominee of The
Depository Trust Company ("DTC"). The Company shall deliver the Securities, with
any transfer taxes thereon duly paid by the Company, to Credit Suisse First
Boston Corporation through the facilities of DTC, for the account of the
Underwriters, against payment to the Company of the Purchase Price therefore by
wire transfer of Federal or other funds immediately available in New York City.
The certificate representing the Securities shall be made available for
inspection not later than 9:30 A.M., New York City time, on the business day
prior to the Closing Date (as defined below), at the office of DTC or its
designated custodian (the "Designated Office"). The time and date of delivery
and payment for the Securities shall be 9:00 A.M., New York City time, on April
15, 2002 or such other time on the same or such other date as the Underwriters
and the Company shall agree in writing. The time and date of such delivery and
payment are hereinafter referred to as the "Closing Date".
The documents to be delivered on the Closing Date on behalf of the
parties hereto pursuant to Section 8 of this Agreement shall be delivered at the
offices of O'Melveny & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
and the Securities shall be delivered at the Designated Office, all on the
Closing Date.
Section 5. Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for such purposes, (iii) when any amendment to
the Registration Statement becomes effective, and (iv) of the happening of any
event during the period referred to in Section 5(d) below which makes any
statement of a material fact made in the Registration Statement or the
Prospectus untrue or which requires any additions to or changes in the
Registration Statement or the Prospectus in order to make the statements therein
not misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company will use
its best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time.
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(b) To furnish you five conformed copies of the Registration Statement
as first filed with the Commission and of each amendment to it, including all
exhibits and documents incorporated therein by reference, and to furnish to you
such number of conformed copies of the Registration Statement as so filed and of
each amendment to it, without exhibits but including documents incorporated
therein by reference, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be
satisfactory to you, and to file the Prospectus in such form with the Commission
within the applicable period specified in Rule 424(b) under the Act; from the
date hereof and so long as, in the opinion of counsel for the Underwriters, a
prospectus is required by the Act to be delivered in connection with sales by
the Underwriters or a dealer, not to file any further amendment to the
Registration Statement and not to make any amendment or supplement to the
Prospectus of which you shall not previously have been advised or to which you
shall reasonably object after being so advised; and, during such period, to
prepare and file with the Commission, promptly upon your reasonable request, any
amendment to the Registration Statement or amendment or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Securities by you, and to use its best efforts to cause any
such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the second business day
after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by the Act to be delivered in connection with sales by the Underwriters
or a dealer, to furnish in New York City to the Underwriters and any dealer as
many copies of the Prospectus (and of any amendment or supplement to the
Prospectus and any documents incorporated therein by reference) as the
Underwriters or dealer may reasonably request.
(e) If during the period specified in the second clause of Section
5(c), any event shall occur or condition shall exist as a result of which, in
the opinion of counsel for the Underwriters, it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with applicable law,
forthwith to prepare and file with the Commission an appropriate amendment or
supplement to the Prospectus so that the statements in the Prospectus, as so
amended or supplemented, will not in the light of the circumstances when it is
so delivered, be misleading, or so that the Prospectus will comply with
applicable law, and to furnish to the Underwriters and to any dealer as many
copies thereof as the Underwriters or dealer may reasonably request.
(f) Prior to any public offering of the Securities, to cooperate with
you and counsel for the Underwriters in connection with the registration or
qualification of the Securities for offer and sale by the Underwriters and by
dealers under the state securities or Blue Sky laws of such jurisdictions as you
may request, to continue such registration or qualification in effect so long as
required for distribution of the Securities and to file such consents to service
of process or other documents as may be necessary in order to effect such
registration or qualification; provided, however, that the Company shall not be
required in connection therewith to qualify as a foreign corporation in any
jurisdiction in which it is not now so qualified or to take any action that
would
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subject it to general consent to service of process or taxation other than as to
matters and transactions relating to the Prospectus, the Registration Statement,
any preliminary prospectus or the offering or sale of the Securities, in any
jurisdiction in which it is not now so subject.
(g) To make generally available to its security holders as soon as
practicable an earnings statement covering the twelve-month period ending June
30, 2002 that shall satisfy the provisions of Section 11(a) of the Act.
(h) So long as the Securities are outstanding, to furnish to you as
soon as available copies of all reports or other communications furnished to its
security holders or furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is listed
and such other publicly available information concerning the Company and its
subsidiaries as you may reasonably request.
(i) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Company's counsel and
the Company's accountants in connection with the registration and delivery of
the Securities under the Act and all other fees and expenses in connection with
the preparation, printing, filing and distribution of the Registration Statement
(including financial statements and exhibits), any preliminary prospectus, the
Prospectus and all amendments and supplements to any of the foregoing, including
the mailing and delivering of copies thereof to the Underwriters and dealers in
the quantities specified herein, (ii) all costs and expenses related to the
transfer and delivery of the Securities to the Underwriters, including any
transfer or other taxes payable thereon, (iii) all expenses in connection with
the registration or qualification of the Securities for offer and sale under the
securities or Blue Sky laws of the several states and all costs of producing any
Preliminary and Supplemental Blue Sky Memoranda in connection therewith
(including the filing fees and reasonable fees and disbursements of counsel for
the Underwriters in connection with such registration or qualification and
memoranda relating thereto), (v) the cost of printing certificates representing
the Securities, (vi) the costs and charges of any transfer agent, registrar
and/or depositary (including the Depository Trust Company), (vii) any fees
charged by rating agencies for the rating of the Securities, (viii) the fees and
expenses of the Trustee and the Trustee's counsel in connection with the
Indenture and the Securities and (ix) all other costs and expenses incident to
the performance of the obligations of the Company hereunder for which provision
is not otherwise made in this Section.
(j) During the period beginning on the date hereof and continuing to
and including the Closing Date, not to offer, sell, contract to sell or
otherwise transfer or dispose of any debt securities of the Company or any
warrants, rights or options to purchase or otherwise acquire debt securities of
the Company substantially similar to the Securities (other than (i) the
Securities and (ii) commercial paper issued in the ordinary course of business),
without the prior written consent of Credit Suisse First Boston Corporation.
(k) Not to voluntarily claim, and to actively resist any attempts to
claim, the benefit of any usury laws against the holders of the Securities.
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(l) To use its reasonable best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by the
Company prior to the Closing Date and to satisfy all conditions precedent to the
delivery of the Securities.
Section 6. Representations and Warranties of the Company. The Company
represents and warrants to the Underwriters that:
(a) The Registration Statement has become effective and no stop order
suspending the effectiveness of the Registration Statement is in effect, and, to
the best of the knowledge of the Company, no proceedings for such purpose are
pending before or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act; (ii) the
Registration Statement, when it became effective, did not contain and, as
amended, if applicable, does not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iii) the Registration Statement and
the Prospectus complied when filed and, as amended or supplemented, if
applicable, does comply in all material respects with the Act, and (iv) the
Prospectus, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter expressly
for use therein.
(c) Each preliminary prospectus, if any, filed as part of the
registration statement in connection with this offering as originally filed or
as part of any amendment thereto, or filed pursuant to Rule 424 under the Act,
complied when so filed in all material respects with the Act, and did not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this paragraph do
not apply to statements or omissions in any preliminary prospectus based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter expressly for use therein.
(d) The Company has the authorized equity capitalization as set forth
in the Prospectus and, as of the Closing Date, the Company shall have an
authorized equity capitalization as set forth in the Prospectus. The Company
has, as of the date of this Agreement, and as of the Closing Date the Company
will have, not less than 29,000,000 shares of common stock issued and
outstanding. All of the outstanding capital stock of the Company has been duly
authorized and validly issued and is fully paid and nonassessable and was not
issued in violation of any preemptive or similar rights.
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(e) The Company owns all of the outstanding capital stock and other
securities evidencing equity ownership of its subsidiaries (other than interests
held by third parties in Homebuilding Joint Ventures (as defined in the
Indenture)) free and clear of any pledge, fiduciary transfer, security interest,
claim, lien, limitation on voting rights or encumbrance, and all such securities
have been duly authorized and validly issued, fully paid and nonassessable and
have not been issued in violation of, or subject to, any preemptive or similar
rights. There are no outstanding rights, warrants or options to acquire, or
instruments convertible into or exchangeable for, any shares of capital stock or
other equity interest of any subsidiary (other than Homebuilding Joint
Ventures).
(f) The Company and each of its subsidiaries has been duly organized,
is validly existing as a corporation or partnership in good standing under the
laws of its respective jurisdiction of organized and has all requisite corporate
or partnership power and authority to (a) carry on its business as it is
currently being conducted and as described in the Prospectus and (b) own, lease,
license and operate its respective properties in accordance with its business as
currently conducted. The Company and each of its subsidiaries is duly qualified
and in good standing as a foreign corporation or partnership authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
business, prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole (a "Material Adverse Effect").
(g) The Company has all requisite corporate power and authority to
execute, deliver and perform all of its obligations under, and to consummate the
transactions contemplated by this Agreement, the Securities and the Indenture
(collectively, the "Operative Documents") and, without limitation, the Company
has all requisite corporate power and authority to issue, sell and deliver the
Securities.
(h) This Agreement has been duly and validly authorized, executed and
delivered by the Company.
(i) The Indenture has been duly and validly authorized by the Company,
will be executed and delivered by the Company and, as of the Closing Date, will
be a legal, valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except that enforceability of the
Indenture may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity, regardless of whether considered in a proceeding
in equity or at law. The Indenture will conform in all material respects to the
description thereof in the Prospectus. The Indenture will be duly qualified
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
prior to the Closing Date.
(j) The Securities have been duly and validly authorized for issuance
and sale to the Underwriters by the Company and, when issued, authenticated and
delivered by the Company against payment by the Underwriters in accordance with
the terms of this Agreement and the Indenture, the Securities will be legal,
valid and binding obligations of the Company, entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their terms,
except that enforceability of the Securities may be limited by bankruptcy,
insolvency,
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reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity, regardless of
whether considered in a proceeding in equity or at law. The Securities, when
issued, authenticated and delivered, will conform in all material respects to
the description thereof in the Prospectus.
(k) None of the Company or its subsidiaries is (A) in violation of its
charter, bylaws or other organizational document or (B) in default (or, with
notice or lapse of time or both, would be in default) in the performance or
observance of any obligation, agreement, covenant or condition contained in any
bond, debenture, note, indenture, mortgage, deed of trust, loan agreement,
lease, license, franchise agreement, authorization, permit, certificate or other
agreement or instrument to which any of them is a party or by which any of them
is bound or to which any of their assets or properties is subject, or (C) in
violation of any law, statute, rule, regulation, judgment, order or decree of
any domestic or foreign court with jurisdiction over any of them or any of their
assets or properties or other governmental or regulatory authority, agency or
other body, that, in the case of clauses (B) and (C) above, would, either
individually or in the aggregate, result in a Material Adverse Effect. There
exists no condition that, with notice or lapse of time or both, would constitute
a default by the Company or any of its subsidiaries under any such document or
instrument or result in the imposition of any penalty or the acceleration of any
indebtedness, other than penalties, defaults or conditions that would not,
either individually or in the aggregate, result in a Material Adverse Effect.
(l) The execution, delivery or performance by the Company of this
Agreement and each of the other Operative Documents does not violate, conflict
with or constitute a breach of any of the terms or provisions of, or a default
under (or an event that with notice or the lapse of time, or both, would
constitute a default), or require consent (except such consents as have been or
will be obtained prior to the Closing) under, or result in the creation or
imposition of a lien, charge or encumbrance on any property or assets of the
Company or any of its subsidiaries pursuant to, (i) the charter, bylaws or other
organizational documents of the Company or any of its subsidiaries, (ii) any
bond, debenture, note, indenture, mortgage, deed of trust, loan agreement 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 is bound or to which
any of the property or assets of the Company or any of its subsidiaries is
subject, (iii) any law, statute, rule or regulation applicable to the Company or
any of its subsidiaries or their assets or properties or (iv) any judgment,
order or decree of any domestic or foreign court or governmental agency or
authority having jurisdiction over the Company or any of its subsidiaries or
their assets or properties. No consent, approval, authorization or order of, or
filing, registration, qualification, license or permit of or with, any court or
governmental agency, body or administrative agency, domestic or foreign, is
required to be obtained or made by the Company for the execution, delivery and
performance of this Agreement or any of the other Operative Documents or any of
the transactions contemplated thereby, except (A) such as have been or will be
obtained or made prior to Closing, (B) such as may be required by the NASD or
(C) such as may be required by the securities or blue sky laws of the various
states. No consents or waivers from any other person or entity are required for
the execution, delivery and performance of this Agreement or any of the other
Operative Documents or any of the transactions contemplated hereby or thereby,
except such as have been or will be obtained or made prior to closing.
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(m) There is (i) except as set forth in the Prospectus, no action, suit
or proceeding before or by any court, arbitrator or governmental agency, body or
official, domestic or foreign, now pending or, to the knowledge of the Company
or its subsidiaries, threatened or contemplated, to which the Company or any of
its subsidiaries is or may be a party or to which the business, assets or
property of such person is or may be subject, (ii) except as set forth in the
Prospectus, no statute, rule, regulation or order that has been enacted, adopted
or issued or, to the knowledge of the Company or its subsidiaries, that has been
proposed by any governmental body or agency, domestic or foreign, (iii) no
injunction, restraining order or order of any nature by a federal or state court
or foreign court of competent jurisdiction to which the Company or any of its
subsidiaries is or may be subject that (x) in the case of clause (i) above, is
reasonably likely to, either individually or in the aggregate, (1) result in a
Material Adverse Effect, or (2) interfere with or adversely affect the issuance
of the Securities in any jurisdiction or adversely affect the consummation of
the transactions contemplated by any of the Operative Documents, and (y) in the
case of clauses (ii) and (iii) above, would, either individually or in the
aggregate, (1) result in a Material Adverse Effect, or (2) interfere with or
adversely affect the issuance of the Securities in any jurisdiction or adversely
affect the consummation of the transactions contemplated by any of the Operative
Documents. Every request of any securities authority or agency of any
jurisdiction for additional information with respect to Securities that has been
received by the Company or its counsel prior to the date hereof has been, or
will prior to the Closing Date be, complied with.
(n) No labor disturbance by the employees of the Company or any of its
subsidiaries exists or, to the actual knowledge of the Company is imminent that
might reasonably be expected to result in a Material Adverse Effect; the Company
and its subsidiaries are in compliance in all respects with, as applicable and
except where a failure to so comply would not have a Material Adverse Effect,
all presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no unwaivable "reportable event" (as defined in ERISA) has
occurred with respect to any "employee pension benefit plan" (as defined in
ERISA) for which the Company or its subsidiaries would have any liability; none
of the Company or its subsidiaries has incurred or expects to incur liability
under (i) Title IV of ERISA with respect to termination of, or withdrawal from,
any "employee pension benefit plan" or (ii) Sections 412, 4971 or 4975 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"); and each "employee pension
benefit plan" that is maintained or contributed to by the Company or its
subsidiaries that is intended to be qualified under Section 401(a) of the Code
has received a determination letter from the Internal Revenue Service to that
effect and nothing has occurred, whether by action or by failure to act, that
would result in the revocation of such determination letter.
(o) Except as set forth in the Prospectus, the Company and each of its
subsidiaries (i) is in compliance with, and not subject to costs or liabilities
under, any and all local, state, provincial, federal and foreign laws,
regulations, rules of common law, orders and decrees, as in effect as of the
date hereof, and any presently effective judgments, decrees, orders and
injunctions issued or promulgated thereunder, in each case, relating to
pollution or protection of public and employee health and safety and the
environment applicable to it or its business or operations or ownership or use
of its property ("Environmental Laws"), other than such noncompliance or costs
or liabilities that would not, either individually or in the aggregate, result
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in a Material Adverse Effect, and (ii) possesses all permits, licenses or other
approvals required under applicable Environmental Laws and has no reason to
believe all such permits, licenses and other approvals to expire within the next
five years will not be renewed or otherwise extended or reissued in due course,
in each case, other than such permits, licenses or approvals the lack of which
would not, either individually or in the aggregate, result in a Material Adverse
Effect. All currently pending and, to their knowledge, threatened proceedings,
notices of violation, demands, notices of potential responsibility or liability,
suits and existing environmental conditions with respect to which the Company or
its subsidiaries could reasonably be expected to have any liability are fully
and accurately described in all material respects in the Prospectus except as
would not, either individually or in the aggregate, result in a Material Adverse
Effect.
(p) The Company and each of its subsidiaries has (i) good and marketable
title to all of the properties and assets described in the Prospectus as owned
by it and good and marketable title to the leasehold estates in the real and
personal property described in the Prospectus as leased by it, free and clear of
all Liens (as defined in the Indenture), except for Liens described in the
Prospectus, Liens permitted under the Indenture and such Liens as would not,
either individually or in the aggregate, result in a Material Adverse Effect,
(ii) all licenses, certificates, permits, authorizations, approvals, franchises
and other rights from, and has made all declarations and filings with, all
federal, state, local and foreign authorities, all self-regulatory authorities
and all courts and other tribunals (each, an "Authorization") to (a) carry on
its business as it is currently being conducted and as described in the
Prospectus and (b) own, lease, license and operate its respective properties in
accordance with its business as currently conducted, except for such
Authorization the failure to maintain would not, either individually or in the
aggregate, result in a Material Adverse Effect and (iii) no reason to believe
that any governmental body or agency, domestic or foreign, is considering
limiting, suspending or revoking any such Authorization. Except where the
failure to be in full force and effect and in compliance would not, either
individually or in the aggregate, result in a Material Adverse Effect, all such
Authorizations are valid and in full force and effect and the Company and each
of its subsidiaries is in compliance with the terms and conditions of all such
Authorizations and with the rules and regulations of the regulatory authorities
having jurisdiction with respect to such Authorizations. All leases to which the
Company or any of its subsidiaries is a party are valid and binding, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity and the discretion of the court
before which any proceedings therefor may be brought and no default by the
Company or any of its subsidiaries or, to the knowledge of the Company, any
other party thereto has occurred and is continuing thereunder, other than
defaults that would not, either individually or in the aggregate, result in a
Material Adverse Effect.
(q) The Company and each of its subsidiaries owns, possesses or has the
right to employ all patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), trademarks,
service marks and trade names (collectively, the "Intellectual Property")
material to the conduct of the businesses operated by it as described in the
Prospectus. The Company has not received any notice of infringement of or
conflict with (and neither knows of any such infringement or a conflict with)
asserted rights of others with respect to any of the foregoing that, if such
assertion of infringement or conflict were sustained, would
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result in a Material Adverse Effect. The use of the Intellectual Property in
connection with the business and operations of the Company and its subsidiaries
does not infringe on the rights of any person, except for any infringements that
would not result in a Material Adverse Effect.
(r) All tax returns required to be filed by the Company and each of its
subsidiaries have been filed (or extensions have been obtained) in all
jurisdictions where such returns are required to be filed, other than such
returns the failure of which to file would not have a Material Adverse Effect;
and all taxes, including withholding taxes, penalties and interest, assessments,
fees and other charges due or claimed to be due from such entities or that are
due and payable have been paid, other than those being contested in good faith
and for which reserves have been provided in accordance with generally accepted
accounting principles, those currently payable without penalty or interest and
those the failure of which to pay would not have a Material Adverse Effect. To
the knowledge of the Company there are no material proposed additional tax
assessments against the Company or any of its subsidiaries or their assets or
property.
(s) None of the Company or its subsidiaries is an "investment company" or
a company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company Act"), or
analogous foreign laws and regulations.
(t) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance that:
(A) transactions are executed in accordance with management's general or
specific authorizations; (B) transactions are recorded as necessary to permit
preparation of its financial statements in conformity with United States
generally accepted accounting principles and to maintain accountability for
assets; (C) access to assets is permitted only in accordance with management's
general or specific authorization; and (D) the recorded accountability for its
assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(u) The Company and each of its subsidiaries maintains insurance covering
its properties, assets, operations, personnel and businesses, and such insurance
is of such type and in such amounts in accordance with customary industry
practice to protect the Company and its subsidiaries and their businesses. The
Company has not received notice from any insurer or agent of such insurer that
any material capital improvements or other material expenditures will have to be
made in order to continue any insurance maintained by any of them other than
capital improvements and other expenditures that have been budgeted by the
Company or its subsidiaries, as the case may be.
(v) The accountants who have certified the audited financial statements
included as part of or incorporated by reference in the Prospectus are
independent accountants within the meaning of the Act. The historical financial
statements of the Company comply as to form in all material respects with the
requirements applicable to registration statements on Form S-3 under the Act and
present fairly in all material respects the consolidated financial position and
results of operations of the Company at the respective dates and for the
respective periods indicated. Such financial statements have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods presented (except as disclosed in the Prospectus)
and comply as to form with the rules and regulations promulgated under the Act.
10
All other financial and statistical information and data included or
incorporated by reference in the Prospectus are accurately presented in all
material respects and prepared on a basis consistent with the financial
statements and the books and records of the Company and its subsidiaries.
(w) The statistical and market-related data included in the Prospectus
are based on or derived from sources that the Company believes to be reliable
and accurate.
(x) No forward-looking statement (within the meaning of Section 27A of
the Act and Section 21E of the Exchange Act) contained in the Prospectus has
been made or reaffirmed without a reasonable basis or has been disclosed other
than in good faith.
(y) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company to
file a registration statement under the Act with respect to the sale of any debt
securities of the Company or to include for sale any debt securities of the
Company with the sale of the Securities under the Registration Statement.
(z) No "nationally recognized statistical rating organization" as such
term is defined for purposes of Rule 436(g)(2) under the Act has indicated to
the Company that it is considering (i) the downgrading, suspension or withdrawal
of, or any review for a possible change that does not indicate the direction of
the possible change in, any rating assigned to the Company or any securities of
the Company or (ii) any change in the outlook for any rating of the Company or
any securities of the Company.
(aa) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there has not occurred any material adverse change or any development involving
a prospective material adverse change in the condition, financial or otherwise,
or the earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there has not been any material adverse
change or any development involving a prospective material adverse change in the
capital stock or in the long-term debt of the Company or any of its subsidiaries
and (iii) other than in the ordinary course of business, neither the Company nor
any of its subsidiaries has incurred any material liability or obligation,
direct or contingent.
(bb) Each certificate signed by any officer of the Company and delivered
to the Underwriters or counsel for the Underwriters pursuant to, or in
connection with, this Agreement shall be deemed to be a representation and
warranty by the Company to the Underwriters as to the matters covered by such
certificate.
11
Section 7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter,
its directors, its officers and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages, liabilities
and judgments (including, without limitation, any legal or other expenses
incurred in connection with investigating or defending any matter, including any
action, that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to any Underwriter furnished in writing to the Company by such Underwriter
expressly for use therein; provided, however, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter or any director or officer of, or person controlling,
such Underwriter who failed to deliver a Prospectus, as then amended or
supplemented, (so long as the Prospectus and any amendment or supplement thereto
was provided by the Company to several Underwriters in the requisite quantity
and on a timely basis to permit proper delivery on or prior to the Closing Date)
to the person asserting any losses, claims, damages, liabilities or judgements
caused by any untrue statement or alleged untrue statement of a material fact
contained in the preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, if such material
misstatement or omission or alleged material misstatement or omission was cured
in the Prospectus, as so amended or supplemented, and such Prospectus was
required by law to be delivered at or prior to the written confirmation of sale
to such person.
(b) Each Underwriter agrees to indemnify and hold harmless the Company,
its directors, its officers who sign the Registration Statement and each person,
if any, who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as the foregoing indemnity
from the Company to such Underwriter but only with reference to information
relating to such Underwriter furnished in writing to the Company by such
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus.
(c) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to Section 7(a) or 7(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 7(a) and 7(b), the Underwriter shall not be required to assume
the defense of such action pursuant to this Section 7(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
such
12
Underwriter). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it 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 assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. Such separate firm shall be
designated in writing by Credit Suisse First Boston Corporation, in the case of
parties indemnified pursuant to Section 7(a), and by the Company, in the case of
parties indemnified pursuant to Section 7(b). The indemnifying party shall
indemnify and hold harmless the indemnified party from and against any and all
losses, claims, damages, liabilities and judgments by reason of any settlement
of any action (i) effected with its written consent or (ii) effected without its
written consent if the settlement is entered into more than 60 days after the
indemnifying party shall have received a request from the indemnified party for
reimbursement for the fees and expenses of counsel (in any case where such fees
and expenses are at the expense of the indemnifying party), and, prior to the
date of such settlement, the indemnifying party shall have failed to comply with
such reimbursement request and such indemnified party shall have, on or after
such 60th day, given the indemnifying party at least 30 additional days' notice
that the indemnified party is entitled to settle such action. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement or compromise of, or consent to the entry of judgment with
respect to, any pending or threatened action in respect of which the indemnified
party is or could have been a party and indemnity or contribution may be or
could have been sought hereunder by the indemnified party, unless such
settlement, compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability on claims that are or could have been the
subject matter of such action 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 the
indemnified party.
(d) To the extent the indemnification provided for in this Section 7 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Securities or (ii) if the allocation provided by clause 7(d)(i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause 7(d)(i) above but also the
relative fault of the Company on the one hand and the Underwriters on the other
hand in connection with the statements or omissions which resulted in such
losses, claims, damages,
13
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other hand shall be deemed to be in the same
proportion as the total net proceeds from the offering (after deducting
underwriting discounts and commissions but before deducting expenses) received
by the Company, and the total underwriting discounts and commissions received by
the Underwriters, bear to the total price to the public of the Securities, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were 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 immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 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 Section 7(d) are several in proportion to the respective
principal amount of the Securities purchased by each of the Underwriters
hereunder and not joint.
(e) The remedies provided for in this Section 7 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 8. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase the Securities under this Agreement are subject to the
satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in this
Agreement shall be true and correct on the Closing Date with the same force and
effect as if made on and as of the Closing Date.
(b) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been commenced or shall be pending before or contemplated by the Commission.
14
(c) On or after the date hereof, (i) there shall not have occurred any
downgrading, suspension or withdrawal of, nor shall any notice have been given
of any potential or intended downgrading, suspension or withdrawal of, or of any
review (or of any potential or intended review) for a possible change that does
not indicate the direction of the possible change in, any rating of the Company
or any securities of the Company (including, without limitation, the placing of
any of the foregoing ratings on credit watch with negative or developing
implications or under review with an uncertain direction) by any "nationally
recognized statistical rating organization" as such term is defined for purposes
of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change
with negative or uncertain implications, nor shall any notice have been given of
any potential or intended change with negative or uncertain implications, in the
outlook for any rating of the Company or any securities of the Company by any
such rating organization and (iii) no such rating organization shall have given
notice to the Company that it has assigned (or is considering assigning) a lower
rating to the Securities than that existing on the date of this Agreement.
(d) You shall have received on the Closing Date a certificate dated the
Closing Date, signed by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, in their
capacities as the Senior Vice President - Finance and Chief Financial Officer
and Senior Vice President, General Counsel and Secretary of the Company,
confirming the matters set forth in Sections 6(aa), 8(a), 8(b) and 8(c) and that
the Company has complied with all of the agreements and satisfied all of the
conditions herein contained and required to be complied with or satisfied by the
Company on or prior to the Closing Date.
(e) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there shall not have occurred any change or any development involving a
prospective change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and its subsidiaries, taken as
a whole, (ii) there shall not have been any change or any development involving
a prospective change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries and (iii) other than in the ordinary course
of business, neither the Company nor any of its subsidiaries shall have incurred
any liability or obligation, direct or contingent, the effect of which, in any
such case described in clause 8(e)(i), 8(e)(ii) or 8(e)(iii), in your judgment,
is material and adverse and, in your judgment, makes it impracticable to market
the Securities on the terms and in the manner contemplated in the Prospectus.
15
(f) You shall have received on the Closing Date an opinion (satisfactory
to you and counsel for the Underwriters), dated the Closing Date, of ▇▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to the effect that:
(i) the Company and each of Standard Pacific of Texas, L.P.,
Standard Pacific of Orange County, Inc., Standard Pacific of Fullerton,
Inc., Family Lending Services, Inc., Standard Pacific of Arizona, Inc., HSP
Arizona, Inc. and The Writer Corporation (together, the "Material
Subsidiaries") have been duly organized and are validly existing as
corporations or partnerships, as applicable;
(ii) the Indenture and the Securities conform in all material
respects to the descriptions thereof in the Prospectus;
(iii) 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;
(iv) the Indenture has been duly and validly authorized, executed and
delivered by the Company, and constitutes the valid and binding agreement
of the Company, enforceable in accordance with its terms, subject (A) to
the effect of any applicable bankruptcy, reorganization, insolvency,
moratorium, arrangement and similar laws of general application relating to
or affecting creditors' rights, including, without limitation, the effect
of statutory or other law regarding fraudulent conveyances, fraudulent
transfers and preferential transfers, and (B) to the limitations imposed by
general principles of equity (regardless of whether considered in a
proceeding at law or in equity);
(v) the Securities are in the form contemplated by the Indenture,
have been duly and validly authorized by all necessary corporate action
and, when executed and authenticated as specified in the Indenture and
delivered against payment pursuant to this Agreement, will be entitled to
the benefits of the Indenture and will be valid and binding obligations of
the Company enforceable in accordance with their terms, subject (A) to the
effect of any applicable bankruptcy, reorganization, insolvency,
moratorium, arrangement and similar laws of general application relating to
or affecting creditors' rights, including, without limitation, the effect
of statutory or other law regarding fraudulent conveyances, fraudulent
transfers and preferential transfers, and (B) to the limitations imposed by
general principles of equity (regardless of whether considered in a
proceeding at law or in equity); and the purchase and sale of the
Securities in accordance with the terms and provisions of this Agreement
and the consummation of the transactions contemplated under this Agreement,
the Indenture and the Securities will not violate the provisions of Section
1 of Article XV of the Constitution of the State of California;
(vi) 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 other
Operative Documents and the consummation of the transactions herein and
therein contemplated do not (A) require the consent, approval,
authorization, registration or qualification of or with any governmental
authority, except such as have been obtained and such as may be required
under state
16
securities or blue sky laws, or (B) violate any statute, rule or regulation
known to such counsel and applicable to the Company or any of the Material
Subsidiaries;
(vii) the Registration Statement has become effective under the Act,
and to such counsel's knowledge no stop order suspending its effectiveness
has been issued and no proceedings for that purpose are pending before or
contemplated by the Commission;
(viii) the statements under the caption "Description of Notes" in the
prospectus supplement constituting part of the Prospectus and the caption
"Description of Debt Securities," in the base prospectus constituting part
of the Prospectus, insofar as such statements constitute a summary of the
legal matters, documents or proceedings referred to therein, fairly present
the information called for with respect to such legal matters, documents
and proceedings;
(ix) the Company is not or, after giving effect to the offering and
sale of the Securities and the application of the net proceeds thereof as
described in the Prospectus, will not be, an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended;
(x) the Indenture complies as to form in all material respects with
the requirements of the Trust Indenture Act, and the rules and regulations
of the Commission applicable to an indenture which is qualified thereunder;
(xi) the Company and each of the Material Subsidiaries are in good
standing under the laws of their respective jurisdictions of organization,
and are duly qualified to transact business as foreign corporations or
partnerships and are in good standing under the laws of each jurisdiction
identified in a certificate of the Company, executed by the Chief Executive
Office and the Senior Vice President-Finance of the Company, as being
jurisdictions in which any of such entities owns or leases property,
maintains or has an office or is engaged in the business of developing real
property, building and selling homes, except where the failure to be so
qualified would not result in material liability or disability to the
Company and its subsidiaries, taken as a whole;
(xii) the issued shares of the capital stock of each of the Material
Subsidiaries are owned of record by the Company or a wholly owned
subsidiary of the Company, and, to the knowledge of such counsel, free and
clear of any other security interests, liens, encumbrances or claims;
(xiii) the Company and each of the Material Subsidiaries have the
corporate or partnership power to own or lease their respective properties
and conduct their respective businesses as described in the Prospectus, and
the Company has the corporate power to enter into this Agreement and to
carry out all the terms and provisions thereof to be carried out by it;
(xiv) the Company's authorized equity capitalization is as set forth
in the Prospectus, and the issued shares of capital stock of each of the
Material Subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable, and are owned of record by the Company or a
wholly owned subsidiary of the Company;
17
(xv) to the knowledge of such counsel, no holders of outstanding
shares of capital stock of the Company are entitled as such to any
preemptive or other rights to subscribe for any of the Securities;
(xvi) to the knowledge of such counsel without investigation of
court records, no legal or governmental proceedings are pending to which
the Company or any of its Material Subsidiaries is a party or to which the
property of the Company or any of its Material Subsidiaries is subject that
are required to be described in the Prospectus and are not described
therein and no such proceedings have been threatened against the Company or
any of its Material Subsidiaries or with respect to any of their respective
properties, and;
(xvii) 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 other
Operative Documents and the consummation of the other transactions herein
and therein contemplated do not (A) 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 Material Subsidiaries is a
party or by which the Company or any of its Material Subsidiaries or any of
their respective properties are bound, which is identified in the Officers'
Certificate as being material to the business of the Company (the "Material
Agreements"), or any judgment, decree or order of any court or other
governmental authority or any arbitrator applicable to the Company or any
of the Material Subsidiaries which is identified in the Officers'
Certificate as being material to the business of the Company, or (B)
conflict with or result in a breach or violation of the charter documents
or by-laws of the Company or any of its Material Subsidiaries;
(xviii) to such counsel's knowledge, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company or to
require the Company to include such securities for sale with the sale of
the Securities hereunder; and
(xix) (A) each document, if any, filed pursuant to the Exchange Act
and incorporated by reference in the Prospectus (except for financial
statements and other financial data included therein as to which no opinion
need be expressed) complied when so filed as to form with the Exchange Act
in all material respects, (B) the Registration Statement and the Prospectus
and any supplement or amendment thereto (except for the financial
statements and other financial data included therein as to which no opinion
need be expressed) comply as to form with the Act in all material respects,
(C) nothing has come to the attention of such counsel which causes them to
believe that at March 21, 2002 the Registration Statement and the base
prospectus included therein (except for the financial statements and other
financial data as to which such counsel need not express any belief and
except for that part of the Registration Statement that constitutes the
Statement of Eligibility (Form T-1) under the Trust Indenture Act)
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein
18
or necessary to make the statements therein not misleading and (D) nothing
has come to the attention of such counsel which causes them to believe that
the Prospectus, as amended or supplemented, if applicable (except for the
financial statements and other financial data, as aforesaid), as of its
date or the date of such opinion, contained or contains any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
The opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP described in Section 8(f) above
shall be rendered to you at the request of the Company and shall so state
therein.
(g) You shall have received on the Closing Date an opinion, dated the
Closing Date, of O'Melveny & ▇▇▇▇▇ LLP, counsel for the Underwriters, as to such
matters as are customarily covered in such opinions.
(h) You shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to you, from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent
public accountants, containing the information and statements of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference into the Registration Statement and the
Prospectus.
(i) [Intentionally omitted.]
(j) The Securities shall have been rated "B+" by Standard & Poor's
Corporation and "Ba3" by ▇▇▇▇▇'▇ Investors Service, Inc.
(k) The Underwriters shall have received a counterpart, conformed as
executed, of the Indenture which shall have been entered into by the Company and
the Trustee.
(l) The Company shall not have failed on or prior to the Closing Date to
perform or comply with any of the agreements herein contained and required to be
performed or complied with by the Company on or prior to the Closing Date.
Section 9. Effectiveness of Agreement and Termination. This Agreement shall
become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by written notice to the Company if any of the following has
occurred: (i) any change, or any development or event involving a prospective
change, in the condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries taken as one enterprise which,
in the judgment of Credit Suisse First Boston Corporation, is material and
adverse and makes it impractical or inadvisable to proceed with completion of
the offering or the sale of and payment for the Securities; (ii) any downgrading
in the rating of any debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of the Company
(other than an announcement with positive implications of a possible upgrading,
and no implication of a
19
possible downgrading, of such rating) or any announcement that the Company has
been placed on negative outlook; (iii) any change in U.S. or international
financial, political or economic conditions or currency exchange rates or
exchange controls as would, in the judgment of Credit Suisse First Boston
Corporation, be likely to prejudice materially the success of the proposed
issue, sale or distribution of the Securities, whether in the primary market or
in respect of dealings in the secondary market, (iv) any material suspension or
material limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any exchange or in the
over-the-counter market; (v) any banking moratorium declared by U.S. Federal or
New York authorities; (vi) any major disruption of settlements of securities or
clearance services in the United States or (vii) any attack on, outbreak or
escalation of hostilities or act of terrorism involving the United States, any
declaration of war by Congress or any other national or international calamity
or emergency if, in the judgment of Credit Suisse First Boston Corporation, the
effect of any such attack, outbreak, escalation, act, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with completion of the
offering or sale of and payment for the Securities.
If on the Closing Date any one or more of the Underwriters shall fail or
refuse to purchase the Securities which it or they have agreed to purchase
hereunder on such date and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of
Securities to be purchased on such date by all Underwriters, each non-defaulting
Underwriter shall be obligated severally, in the proportion which the principal
amount of Securities set forth opposite its name in Schedule I bears to the
aggregate principal amount of Securities which all the non-defaulting
Underwriters have agreed to purchase, or in such other proportion as you may
specify, to purchase the Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the aggregate principal amount of Securities which any
Underwriter has agreed to purchase pursuant to Section 2 hereof be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such principal
amount of Securities without the written consent of such Underwriter. If on the
Closing Date any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate principal amount of Securities with respect to
which such default occurs is more than one-tenth of the aggregate principal
amount of Securities to be purchased by all Underwriters and arrangements
satisfactory to you and the Company for purchase of such Securities are not made
within 48 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter and the Company. In any
such case which does not result in termination of this Agreement, either you or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or arrangements
may be effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of any such
Underwriter under this Agreement.
Section 10. Miscellaneous. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (i) if to the Company, to Standard
Pacific Corp., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention:
Corporate Secretary, with a copy to ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
20
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. and (ii) if to the Underwriters or to you, to
you c/o Credit Suisse First Boston Corporation at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Legal and Compliance Department, with a copy to
O'Melveny & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., or in any case to such other address as the
person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the several Underwriters set
forth in or made pursuant to this Agreement shall remain operative and in full
force and effect, and will survive delivery of and payment for the Securities,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the officers or directors of any
Underwriter, any person controlling any Underwriter, the Company, the officers
or directors of the Company or any person controlling the Company, (ii)
acceptance of the Securities and payment for them hereunder and (iii)
termination of this Agreement.
If for any reason the Securities are not delivered by or on behalf of the
Company as provided herein (other than as a result of any termination of this
Agreement pursuant to Section 9), the Company agrees to reimburse the several
Underwriters for all out-of-pocket expenses (including the reasonable fees and
disbursements of counsel) incurred by it. Notwithstanding any termination of
this Agreement, the Company shall be liable for all expenses which it has agreed
to pay pursuant to Section 5(i) hereof. The Company agrees to reimburse the
several Underwriters, their directors and officers and any persons controlling
any of the Underwriters, and the Underwriters agree to reimburse the Company,
its directors, its officers who sign the Registration Statement and any person
who controls the Company, in each case for any and all fees and expenses
(including, without limitation, the reasonable fees disbursements of counsel)
incurred by them in connection with enforcing their rights hereunder (including,
without limitation, pursuant to Section 7 hereof).
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Company, the Underwriters, the
Underwriters' directors and officers, any controlling persons referred to
herein, the Company's directors and the Company's officers who sign the
Registration Statement and their respective successors and assigns, all as and
to the extent provided in this Agreement, and no other person shall acquire or
have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Securities from any of the
Underwriters merely because of such purchase.
21
This Agreement shall be governed and construed in accordance with the laws
of the State of New York.
The term "subsidiary" as used in this Agreement means a corporation, a
majority of the capital stock with voting power to elect directors of which is
directly or indirectly owned by the Company or any of its subsidiaries, or any
person in which the Company and its subsidiaries have at least a majority
ownership interest.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
22
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
STANDARD PACIFIC CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President-Finance,
Chief Financial Officer
CREDIT SUISSE FIRST BOSTON
CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
BANC OF AMERICA SECURITIES LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: /s/ H. ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: H. ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
BANC ONE CAPITAL MARKETS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
23
SCHEDULE I
----------
Principal Amount of
Underwriters Securities to Be Purchased
------------ --------------------------
Credit Suisse First Boston Corporation ........... $ 56,250,000
Banc of America Securities LLC ................... 41,250,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. ........................ 41,250,000
Banc One Capital Markets, Inc. ................... 11,250,000
--------------
Total ............................................ $ 150,000,000
===============
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