EXHIBIT 1.1
Dated March 11, 2003
$150,000,000
iStar Financial Inc.
7.0% SENIOR NOTES DUE 2008
--------------------------
UNDERWRITING AGREEMENT
--------------------------
iSTAR FINANCIAL INC.
$150,000,000
7.0% SENIOR NOTES DUE 2008
UNDERWRITING AGREEMENT
March 11, 2003
To:
DEUTSCHE BANK SECURITIES INC.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
iStar Financial Inc., a Maryland corporation (the "Company"),
hereby confirms its agreement with Deutsche Bank Securities Inc. (the
"Underwriter") as set forth below.
Section 1. UNDERWRITING. Subject to the terms and
conditions contained herein:
(a) The Company proposes to issue and sell to the
Underwriter the principal amount of its debt securities (the "Securities")
having the terms identified in Schedule I hereto. The Securities are to be
issued pursuant to the terms of an indenture dated as of February 5, 2001, as
amended and supplemented, including as amended and supplemented by a
supplemental indenture (the "Supplemental Indenture") dated as of March 14, 2003
(the "Indenture") between the Company and US Bank Trust National Association, as
trustee (the "Trustee").
(b) Upon your authorization of the release of the
Securities, the Underwriter proposes to make a public offering (the "Offering")
of the Securities upon the terms set forth in the Prospectus (as defined below)
as soon as in the Underwriter's sole judgment is advisable. As used in this
Agreement, the term "Effective Date" shall mean each date that the registration
statement and any post-effective amendment or amendments thereto became or
become effective; the term "Original Registration Statement" means the
registration statement referred to in Section 5(a)(i) below, as amended at the
time when it was or is declared effective, including incorporated documents,
financial schedules and exhibits thereto, including any Rule 430A Information
(as defined below) deemed to be included therein at the Effective Date as
provided by Rule 430A, and, in the event any post-effective amendment thereto
becomes effective prior to the Closing Date (as defined below), also means such
registration statement as so amended; the term "Rule 430A Information" means
information permitted to be omitted from the Original Registration Statement
when it becomes effective pursuant to Rule 430A; the term "Rule 462(b)
Registration Statement" means any registration statement filed with the
Securities Exchange Commission (the "Commission") pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the "Securities Act") (including the
Registration Statement and any Preliminary Prospectus (as defined below), or
Prospectus incorporated therein at the time such Registration
Statement becomes effective); the term "Registration Statement" includes both
the Original Registration Statement and any Rule 462(b) Registration Statement;
the term "Base Prospectus" shall mean the prospectus referred to in Section
5(a)(i) below contained in the Registration Statement at the Effective Date
including, in the case of a Rule 430A Offering (as defined below), any
Preliminary Prospectus; the term "Preliminary Prospectus" means the preliminary
prospectus supplement to the Base Prospectus relating to the Securities and used
prior to the filing of the Prospectus; the term "Prospectus" means the
prospectus supplement to the Base Prospectus relating to the Securities and
first filed with the Commission pursuant to Rule 424(b) under the Securities
Act, together with the Base Prospectus.
"Rule 415", "Rule 424" and "Rule 430A" refer to such rules or
regulations under the Securities Act. Any reference herein to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), on or before the
Effective Date of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus or the Prospectus, as the case may be;
and any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Base Prospectus, any Preliminary
Prospectus or the Prospectus, as the case may be, deemed to be incorporated
therein by reference. A "Rule 430A Offering" means an offering of securities
which is intended to commence promptly after the effective date of a
registration statement, with the result that, pursuant to Rules 415 and 430A,
all information (other than Rule 430A Information) with respect to the
securities so offered must be included in such registration statement at the
effective date thereof. A "Rule 415 Offering" means an offering of securities
pursuant to Rule 415 which does not commence promptly after the effective date
of a registration statement, with the result that only information required
pursuant to Rule 415 need be included in such registration statement at the
effective date thereof with respect to the securities so offered. Whether the
offering of the Securities is a Rule 430A Offering or a Rule 415 Offering shall
be set forth in Schedule I hereto.
Section 2. PURCHASE AND CLOSING.
(a) On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Company agrees to issue and sell to the
Underwriter, and the Underwriter agrees to purchase from the Company, at the
purchase price set forth in Schedule I, the entire principal amount of the
Securities.
(b) The obligation of the Underwriter to purchase and pay
for the Securities may be satisfied by the Underwriter by delivering to the
Company in exchange for the Securities (x) $144,237,500 aggregate principal
amount of the Company's 7.214% Senior Notes due March 15, 2008 (the
"Remarketable Notes") issued under the indenture dated as of February 27, 1998
between TriNet Corporate Realty Trust, Inc. ("TriNet") and BNY Midwest Trust
Company ("BNY") (as successor to Xxxxxx Trust and Savings Bank), as amended by
the amended and restated supplemental indenture dated as of March 3, 2003 (the
"TriNet Supplemental Indenture") (or such lesser amount of the Remarketable
Notes as the Underwriter actually holds
-2-
or as is equal to the aggregate purchase price of the Securities as set forth in
Schedule I), in accordance with arrangements established between the Company and
the Underwriter, and (y) a cash payment in accordance with Section 2(c) equal to
the excess, if any, of the aggregate purchase price of the Securities as set
forth in Schedule I hereto over $145,521,036.01. The Remarketable Notes will be
delivered on the Closing Date (as defined below) through the facilities of The
Depository Trust Company ("DTC") to BNY, as trustee, for the account of the
Company. Delivery of the Remarketable Notes will be deemed to have occurred when
the Company receives notice from BNY that BNY's (or its nominee's) account with
DTC has been credited with the Remarketable Notes.
(c) The Securities shall be registered by the Trustee in
the name of the nominee of DTC, Cede & Co. ("Cede & Co."), and credited to the
accounts of such of its participants as the Underwriter shall request, upon
notice to the Company at least 48 hours prior to the Closing Date (as defined
below), with any transfer taxes payable in connection with the transfer of the
Securities to the Underwriter duly paid, and deposited with the Trustee as
custodian for DTC on the Closing Date (as defined below), against payment by or
on behalf of the Underwriter of the consideration described in Section 2(b). The
cash portion of the purchase price shall be paid to the account of the Company
by wire transfer in immediately available funds. Such time and date of delivery
against payment are herein referred to as the "Closing Date", and the
implementation of all the actions described in this Section 2 is herein referred
to as the "Closing.
Section 3. COVENANTS OF THE COMPANY. The Company
covenants and agrees with the Underwriter that:
(a) The Company will:
(i) use its best efforts to cause the Registration
Statement, if not effective at the time of execution of this
Agreement, and any amendments thereto to become effective as
promptly as possible. If required, the Company will file the
Prospectus and any amendment or supplement thereto with the
Commission in the manner and within the time period required by
Rule 424(b) under the Securities Act. During any time when a
prospectus relating to the Securities is required to be delivered
under the Securities Act, the Company (x) will comply with all
requirements imposed upon it by the Securities Act, the Exchange
Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the respective rules and regulations of the
Commission thereunder to the extent necessary to permit the
continuance of sales of or dealings in the Securities in
accordance with the provisions hereof and of the Prospectus, as
then amended or supplemented, and (y) will not file with the
Commission the Base Prospectus or any amendment or supplement to
such Base Prospectus (including the Prospectus or any Preliminary
Prospectus), any amendment to the Registration Statement or any
Rule 462(b) Registration Statement unless the Underwriter
previously has been advised of, and furnished with a copy within
a reasonable period of time prior to, the proposed filing and the
Underwriter shall have given its consent to such filing, which
shall not be unreasonably withheld. The Company will prepare and
file with the Commission, in accordance with the rules and
regulations of the
-3-
Commission, promptly upon request by the Underwriter or counsel
for the Underwriter, any amendments to the Registration Statement
or amendments or supplements to the Prospectus that may be
necessary or advisable, in the reasonable judgment of the
Underwriter or its counsel, in connection with the distribution
of the Securities by the Underwriter. The Company will advise the
Underwriter, promptly after receiving notice thereof, of the time
when the Registration Statement or any amendment thereto has been
filed or declared effective or the Prospectus or any amendment or
supplement thereto has been filed and will provide evidence
satisfactory to the Underwriter of each such filing or
effectiveness.
(ii) without charge, provide (y) to the Underwriter
and to its counsel, an executed and a conformed copy of the
Original Registration Statement and each amendment thereto or any
Rule 462(b) Registration Statement (in each case including
exhibits thereto) and (z) so long as a prospectus relating to the
Securities is required to be delivered under the Securities Act,
as many copies of each Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto as the Underwriter may
reasonably request.
(iii) advise the Underwriter, promptly after
receiving notice or obtaining knowledge thereof, of (w) the
issuance by the Commission of any stop order suspending the
effectiveness of the Original Registration Statement or any
amendment thereto or any Rule 462(b) Registration Statement or
any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or any amendment or supplement
thereto, (x) the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, (y) the
institution, threatening or contemplation of any proceeding for
any purpose identified in the preceding clause (w) or (x), or (z)
any request made by the Commission for amending the Original
Registration Statement or any Rule 462(b) Registration Statement,
for amending or supplementing the Prospectus or for additional
information. The Company will use its best efforts to prevent the
issuance of any such stop order and, if any such stop order is
issued, to obtain the withdrawal thereof as promptly as possible.
(b) The Company will cooperate with the Underwriter in
qualifying the Securities for offering and sale in each jurisdiction as
the Underwriter shall designate including, but not limited to, pursuant
to applicable state securities ("Blue Sky") laws of certain states of
the United States of America or other U.S. jurisdictions, and the
Company shall maintain such qualifications in effect for so long as may
be necessary in order to complete the placement of the Securities;
PROVIDED, HOWEVER, that the Company shall not be obliged to file any
general consent to service of process or to qualify as a foreign
corporation or as a securities dealer in any jurisdiction or to subject
itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject.
(c) If, at any time prior to the final date when a
prospectus relating to the Securities is required to be delivered under
the Securities Act, any event occurs as a result
-4-
of which the Prospectus, as then amended or supplemented, would include
any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if for
any other reason it shall be necessary at any time to amend the
Registration Statement or amend or supplement the Prospectus to comply
with the Securities Act, the Exchange Act or the Trust Indenture Act or
the respective rules or regulations of the Commission thereunder or
applicable law, the Company will promptly notify the Underwriter thereof
and will promptly, at its own expense, but subject to the second
sentence of Section 3(a)(i) hereof: (x) prepare and file with the
Commission an amendment to the Registration Statement or amendment or
supplement to the Prospectus which will correct such statement or
omission or effect such compliance; and (y) supply any amended
Registration Statement or amended or supplemented Prospectus to the
Underwriter in such quantities as the Underwriter may reasonably
request.
(d) The Company will make generally available to the
Company's securityholders and to the Underwriter as soon as practicable
an earning statement that satisfies the provisions of Section 11(a) of
the Securities Act, including Rule 158 thereunder.
(e) The Company will apply the net proceeds from the sale
of the Securities as set forth under "Use of Proceeds" in the
Prospectus.
(f) Neither the Company nor any of its affiliates, nor any
person acting on behalf of any of them will, directly or indirectly, (i)
take any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities or (ii) (x)
sell, bid for, purchase, or pay anyone any compensation for soliciting
purchases of, the Securities or (y) pay or agree to pay to any person
any compensation for soliciting another to purchase any other securities
of the Company.
Section 4. EXPENSES. The Company shall bear and pay all
costs and expenses incurred incident to the performance of its obligations under
this Agreement, whether or not the transactions contemplated herein are
consummated or this Agreement is terminated pursuant to Section 8 hereof,
including: (i) fees and expenses of preparation, issuance and delivery of this
Agreement to the Underwriter and of the Indenture; (ii) the fees and expenses of
its counsel, accountants and any other experts or advisors retained by the
Company; (ii) fees and expenses incurred in connection with the registration of
the Securities under the Securities Act and the preparation and filing of the
Registration Statement, the Prospectus and all amendments and supplements
thereto; (iii) the fees and expenses incurred in connection with the printing
and distribution of the Prospectus and any Preliminary Prospectus and the
printing and production of all other documents connected with the Offering
(including this Agreement and any other related agreements); (iv) expenses
related to the qualification of the Securities under the state securities or
Blue Sky laws, including filing fees and the fees and disbursements of counsel
for the Underwriter in connection therewith and in connection with the
preparation of any Blue Sky memoranda; (v) the filing fees and expenses, if any,
incurred with respect to any filing with the National Association of Securities
Dealers, Inc., including the fees and disbursements of counsel
-5-
for the Underwriter in connection therewith; (vi) all arrangements relating to
the preparation, issuance and delivery to the Underwriter of any certificates
evidencing the Securities; (vii) any fees charged by investment rating agencies
for the rating of the Securities; (viii) the fees and expenses of the Trustee;
(ix) the costs and expenses of the "roadshow" and any other meetings with
prospective investors in the Securities (other than as shall have been
specifically approved by the Underwriter to be paid for by the Underwriter); and
(x) the costs and expenses of advertising relating to the Offering (other than
as shall have been specifically approved by the Underwriter to be paid for by
the Underwriter).
Section 5. REPRESENTATIONS AND WARRANTIES.
(a) As a condition of the obligation of the Underwriter to
underwrite and pay for the Securities, the Company represents and warrants to,
and agrees with, the Underwriter as follows:
REGISTRATION STATEMENT AND PROSPECTUS
(i) If the Offering is a Rule 415 Offering (as specified in
Schedule I hereto), paragraph (x) below is applicable and, if the
Offering is a Rule 430A Offering (as so specified), paragraph (y) below
is applicable.
(x) The Company meets the requirements for use of Form S-3
under the Securities Act and has filed with the
Commission the Original Registration Statement (the
file number of which is set forth in Schedule I hereto)
on such Form, including a Base Prospectus, for
registration under the Act of the offering and sale of
the Securities, one or more amendments to such
Registration Statement may have been so filed, and the
Company may have used a Preliminary Prospectus. Such
Registration Statement, as so amended, has become
effective. The Offering is a Rule 415 Offering and,
although the Base Prospectus may not include all the
information with respect to the Securities and the
offering thereof required by the Securities Act and the
rules thereunder to be included in the Prospectus, the
Base Prospectus includes all such information required
by the Securities Act and the rules thereunder to be
included therein as of the Effective Date. After the
execution of this Agreement, the Company will file with
the Commission pursuant to Rules 415 and 424(b)(2) or
(5) a final supplement to the Base Prospectus included
in such Registration Statement relating to the
Securities and the offering thereof, with such
information as is required or permitted by the
Securities Act and as has been provided to and approved
by the Underwriter prior to the date hereof or, to the
extent not completed at the date hereof, containing
only such specific additional information and other
changes (beyond that contained in the Base Prospectus
and any Preliminary Prospectus) as the Company has
advised you, prior to the date hereof, will be included
or made therein. The Company may also file a Rule
462(b) Registration Statement with the Commission for
the purpose of registering certain additional
Securities, which registration shall be effective upon
filing with the Commission.
-6-
(y) The Company meets the requirements for the use of Form
S-3 under the Securities Act and has filed with the
Commission the Original Registration Statement (the
file number of which is set forth in Schedule I hereto)
on such Form, including a Base Prospectus, for
registration under the Securities Act of the offering
and sale of the Securities, and one or more amendments
to such Registration Statement, including a Preliminary
Prospectus, may have been so filed. After the execution
of this Agreement, the Company will file with the
Commission either (I) if such Registration Statement,
as it may have been amended, has been declared by the
Commission to be effective under the Securities Act, a
final prospectus supplement to the Base Prospectus in
the form most recently included in an amendment to such
Registration Statement (or, if no such amendment shall
have been filed, in such Registration Statement), with
such changes or insertions as are required by Rule 430A
under the Securities Act or permitted by Rule 424(b)
under the Securities Act, and as have been provided to
and approved by the Underwriter prior to the execution
of this Agreement, or (II) if such Registration
Statement, as it may have been amended, has not been
declared by the Commission to be effective under the
Securities Act, an amendment to such Registration
Statement, including the form of final prospectus
supplement to the Base Prospectus, a copy of which
amendment has been furnished to and approved by the
Underwriter prior to the execution of this Agreement
or, to the extent not completed at the date hereof,
containing only such specific additional information
and other changes (beyond that contained in the Base
Prospectus and any Preliminary Prospectus) as the
Company has advised you, prior to the execution of this
Agreement, will be included or made therein. The
Company may also file a Rule 462(b) Registration
Statement with the Commission for the purpose of
registering certain additional Securities, which
registration shall be effective upon filing with the
Commission.
(ii) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus. When any Preliminary
Prospectus was filed with the Commission, it (x) complied as to form in
all material respects with the requirements of, the Securities Act and
the rules and regulations of the Commission thereunder and (y) did not
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
When the Registration Statement or any amendment thereto was or is
declared effective, it (I) complied as to form or will comply in all
material respects with the requirements of, the Securities Act, the
Exchange Act, the Trust Indenture Act and the respective rules and
regulations of the Commission thereunder and (II) did not or will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. When the Prospectus or any amendment
or supplement to the Prospectus is filed with the Commission pursuant to
Rule 424(b) (or, if the Prospectus or such amendment or supplement is
not required to be so filed, when the Registration Statement or the
amendment thereto containing the Prospectus or such amendment or
supplement to the Prospectus was or is declared effective) and on the
-7-
Closing Date, the Prospectus, as amended or supplemented at any such
time, (A) complied as to form or will comply in all material respects
with the requirements of, the Securities Act, the Exchange Act, the
Trust Indenture Act and the respective rules and regulations of the
Commission thereunder and (B) did not or will not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. When the
Registration Statement or any amendment thereto was or is declared
effective and on the Closing Date, the Indenture did or will comply in
all material respects with the requirements of the Trust Indenture Act
and the rules and regulations of the Commission thereunder. The
foregoing provisions of this paragraph (ii) do not apply to (1) that
part of the Registration Statement which shall constitute the Statement
of Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of the Trustee or (2) statements or omissions made in any
Preliminary Prospectus, the Registration Statement or any amendment
thereto or the Prospectus or any amendment or supplement thereto in
reliance upon and in conformity with written information furnished to
the Company by the Underwriter specifically for use therein.
(iii) If the Company has elected to rely on Rule 462(b) and
the Rule 462(b) Registration Statement is not effective, (x) the Company
will file a Rule 462(b) Registration Statement in compliance with, and
that is effective upon filing pursuant to, Rule 462(b) and (y) the
Company has given irrevocable instructions for transmission of the
applicable filing fee in connection with the filing of the Rule 462(b)
Registration Statement, in compliance with Rule 111 under the Securities
Act, or the Commission has received payment of such filing fee.
(iv) The Company has not distributed and, prior to the later
of (x) the Closing Date and (y) the completion of the distribution of
the Securities, will not distribute any offering material in connection
with the Offering other than the Registration Statement or any amendment
thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto.
(v) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus
(x) the Company and its subsidiaries, taken as a whole, have not
incurred any material liability or obligation, direct or contingent, nor
entered into any material transaction not in the ordinary course of
business; (y) the Company has not purchased any of its outstanding
capital stock; and (z) there has not been any material change in the
capital stock of the Company, or in the short-term or long-term debt of
the Company and its subsidiaries, taken as a whole, except in each case
as described in or contemplated by the Prospectus.
(vi) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in either the Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto)
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations thereunder.
THE SECURITIES
-8-
(vii) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus. All of the issued shares
of capital stock of the Company have been duly authorized and validly
issued and are fully paid and nonassessable.
(viii) The execution and delivery of the Securities have been
duly authorized by all necessary corporate action of the Company and, on
and as of the Closing Date, the Securities will have been duly executed
and delivered by the Company and, assuming due authentication by the
Trustee, will be the legal, valid and binding obligations of the
Company, enforceable in accordance with their terms and entitled to the
benefits of the Indenture. No holder of securities of the Company has
any right which has not been fully exercised or waived to require the
Company to register the offer or sale of any securities owned by such
holder under the Securities Act in the Offering contemplated by this
Agreement.
(ix) Except for the shares of capital stock of each of the
subsidiaries owned by the Company and such subsidiaries, neither the
Company nor any such subsidiary owns any shares of stock or any other
equity securities of any corporation or has any equity interest in any
firm, partnership, association or other entity, except in entities used
in connection with an investment in its ordinary course of business, or
as otherwise described in or contemplated by the Prospectus.
MARKET MANIPULATION
(x) Neither the Company nor any of its affiliates, nor any
person acting on behalf of any of them has, directly or indirectly, (x)
taken any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities, or (y) since
the filing of the Original Registration Statement (I) sold, bid for,
purchased, or paid anyone any compensation for soliciting purchases of,
the Securities other than as contemplated by this Agreement or (II) paid
or agreed to pay to any person any compensation for soliciting another
to purchase any other securities of the Company.
CORPORATE POWER AND AUTHORITY
(xi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the law of its
jurisdiction of incorporation with full power and authority to own,
lease and operate its properties and assets and conduct its business as
described in the Prospectus, is duly qualified to transact business and
is in good standing in each jurisdiction in which its ownership, leasing
or operation of its properties or assets or the conduct of its business
requires such qualification, except where the failure to be so qualified
does not amount to a material liability or disability to the Company and
its subsidiaries, taken as a whole, and has full power and authority to
execute and perform its obligations under this Agreement, the Indenture
and the Securities; each subsidiary of the Company is duly organized and
validly existing and in good standing under the laws of its jurisdiction
of organization and is duly qualified to transact business and is in
good standing in each jurisdiction in which its ownership,
-9-
leasing or operation of its properties or assets or the conduct of its
business requires such qualification, except where the failure to be so
qualified does not amount to a material liability or disability to the
Company and its subsidiaries, taken as a whole, and each has full power
and authority to own, lease and operate its properties and assets and
conduct its business as described in the Registration Statement and the
Prospectus; all of the issued and outstanding shares of capital stock of
each of the Company's subsidiaries have been duly authorized and are
fully paid and nonassessable and, except for SFT II, Inc., pledges made
in connection with the Company's $300 million revolving credit facility
maturing in July 2003 and as otherwise set forth in the Prospectus, are
owned beneficially by the Company free and clear of any security
interests, liens, encumbrances, equities or claims.
(xii) The execution and delivery of this Agreement and the
issuance and sale of the Securities have been duly authorized by all
necessary corporate action of the Company, and this Agreement has been
duly executed and delivered by the Company and, assuming due
authorization, execution and delivery, by the other parties hereto will
be the valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms.
(xiii) The execution and delivery of the Indenture (including
the Supplemental Indenture) have been duly authorized by the Company,
and, on and as of the Closing Date, the Indenture (including the
Supplemental Indenture) will have been duly executed and delivered by
the Company and duly qualified under the Trust Indenture Act and,
assuming due authorization, execution and delivery by the Trustee, will
be a legal, valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms.
(xiv) The execution and delivery of the TriNet Supplemental
Indenture was duly authorized by the Company and TriNet, and the TriNet
Supplemental Indenture has been duly executed and delivered by the
Company and TriNet and duly qualified under the Trust Indenture Act and
is a legal, valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms.
(xv) The modification of the Remarketable Notes on March 3,
2003 was duly authorized by the Company and TriNet and the Remarketable
Notes have been duly executed and delivered by the Company and are the
legal and binding obligations of the Company enforceable against the
Company in accordance with their terms.
(xvi) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
TriNet Supplemental Indenture, the Remarketable Notes, the Indenture,
the Securities, the issuance, offering and sale of the Securities to the
Underwriter by the Company pursuant to this Agreement, the compliance by
the Company with the other provisions of this Agreement and the
consummation of the other transactions herein contemplated do not (x)
require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as have
been obtained or made or such as may be required by the state securities
or Blue Sky laws of the various states of the United States of America
or
-10-
other U.S. jurisdictions in connection with the offer and sale of the
Securities by the Underwriter, or (y) conflict with or result in a
breach or violation of any of the terms and provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, lease or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries or any of
their respective properties are bound, or the charter documents or
by-laws of the Company or any of its subsidiaries, or any statute or any
judgment, decree, order, rule or regulation of any court or other
governmental authority or any arbitrator applicable to the Company or
any of its subsidiaries.
(xvii) Neither the Company nor any of its subsidiaries is in
violation of any term or provision of its charter documents or by-laws,
or in breach of or in default under any statute or any judgment, decree,
order, rule or regulation of any court or other governmental authority
or any arbitrator applicable to the Company or any of its subsidiaries,
the consequence of which violation, breach or default would have a
materially adverse effect on or constitute a materially adverse change
in, or constitute a development involving a prospective materially
adverse effect on or change in, the condition (financial or otherwise),
earnings, properties, business affairs or business prospects,
stockholders' equity, net worth or results of operations of the Company
and its subsidiaries, taken as a whole (a "Material Adverse Effect").
(xviii) The Company is not an "investment company" and, after
giving effect to the Offering and the application of the proceeds
therefrom, will not be an "investment company", as such term is defined
in the Investment Company Act of 1940, as amended (the "1940 Act").
TITLE, LICENSES AND CONSENTS
(xix) The Company and each of its subsidiaries have good and
marketable title in fee simple to all items of real property and
marketable title to all personal property owned by each of them, in each
case free and clear of any security interests, liens, encumbrances,
equities, claims and other defects, except such as do not materially and
adversely affect the value of such property and do not interfere with
the use made or proposed to be made of such property by the Company or
such subsidiary, and any real property and buildings held under lease by
the Company or any such subsidiary are held under valid, subsisting and
enforceable leases, with such exceptions as are not material and do not
interfere with the use made or proposed to be made of such property and
buildings by the Company or such subsidiary, in each case except as
described in or contemplated by the Prospectus.
(xx) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, all material patents, patent applications,
trademarks, service marks, trade names, licenses, know-how, copyrights,
trade secrets and proprietary or other confidential information
necessary to operate the business now operated by them, and neither the
Company nor any such subsidiary has received any notice of infringement
of or conflict with asserted rights of any third party with respect to
any of the foregoing which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or
-11-
finding, would have a Material Adverse Effect, except as described in or
contemplated by the Prospectus.
(xxi) The Company and its subsidiaries possess all consents,
licenses, certificates, authorizations and permits issued by the
appropriate federal, state or foreign regulatory authorities necessary
to conduct their respective businesses, and neither the Company nor any
such subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a materially adverse
effect on or constitute a materially adverse change in, or constitute a
development involving a prospective Material Adverse Effect, except as
described in or contemplated by the Prospectus.
FINANCIAL STATEMENTS
(xxii) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company and its consolidated subsidiaries
and delivered their report with respect to the audited consolidated
financial statements and schedules included or incorporated in the
Registration Statement and the Prospectus, are independent public
accountants as required by the Securities Act and the applicable rules
and regulations thereunder.
(xxiii) The consolidated financial statements and schedules of
the Company and its consolidated subsidiaries included or incorporated
in the Registration Statement and the Prospectus were prepared in
accordance with generally accepted accounting principles ("GAAP")
consistently applied throughout the periods involved (except as
otherwise noted therein) and they present fairly the financial condition
of the Company as at the dates at which they were prepared and the
results of operations of the Company in respect of the periods for which
they were prepared.
INTERNAL ACCOUNTING CONTROLS
(xxiv) The Company and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (w) transactions are executed in accordance with
management's general or specific authorizations; (x) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability; (y) access to
assets is permitted only in accordance with management's general or
specific authorization; and (z) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
LITIGATION
(xxv) No legal or governmental proceedings are pending or
threatened to which the Company or any of its subsidiaries is a party or
to which the property of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement
or the Prospectus and are not described therein; and no statutes,
regulations, contracts or other documents that are required to be
described or incorporated in the
-12-
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement that are not described or incorporated
therein or filed as required.
DIVIDENDS AND DISTRIBUTIONS
(xxvi) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, making
any other distribution on such subsidiary's capital stock, repaying to
the Company any loans or advances to such subsidiary from the Company or
transferring any of such subsidiary's property or assets to the Company
or any other subsidiary of the Company, and the Company is not currently
prohibited, directly or indirectly, from paying any dividends or making
any other distribution on its capital stock, in each case except for
restrictions upon the occurrence of a default or failure to meet
financial covenants or conditions under existing agreements or
restrictions that require a subsidiary to service its debt obligations
before making dividends, distributions or advancements in respect of its
capital stock.
TAXES
(xxvii) The Company is organized in conformity with the
requirements for qualification as a real estate investment trust under
Sections 856 through 860 of the Internal Revenue Code of 1986, as
amended (the "Code"), and its proposed method of operation as described
in the Prospectus will enable it to continue to meet the requirements
for taxation as a real estate investment trust under the Code.
(xxviii) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested
extensions thereof (except in any case in which the failure so to file
would not have a materially adverse effect on the Company and its
subsidiaries, taken as a whole) and has paid all taxes required to be
paid by it and any other assessment, fine or penalty levied against it
(except in any case in which the failure so to pay would not have a
Material Adverse Effect), to the extent that any of the foregoing is due
and payable, except for any such assessment, fine or penalty that is
currently being contested in good faith or as described in or
contemplated by the Prospectus.
INSURANCE
(xxix) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the businesses
in which they are engaged; neither the Company nor any such subsidiary
has been refused any insurance coverage sought or applied for; and
neither the Company nor any such subsidiary has any reason to believe
that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that
would not have a Material Adverse Effect, except as described in or
contemplated by the Prospectus.
-13-
PENSION AND LABOR
(xxx) The Company and each of its subsidiaries are in
compliance in all material respects with all presently applicable
provisions of the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has
occurred with respect to any "pension plan" (as defined in ERISA) for
which the Company would reasonably be expected to have any liability;
the Company has not incurred and does not expect to incur liability
under (x) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (y) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"); and each "pension
plan" for which the Company would have any liability that is intended to
be qualified under Section 401(a) of the Code has received a
determination letter from the Internal Revenue Service to the effect
that it is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would cause the
plan to not be adversely affected by such determination.
(xxxi) No labor dispute with the employees of the Company or
any of its subsidiaries exists or is threatened or imminent that could
have a Material Adverse Effect, except as described in or contemplated
by the Prospectus.
ENVIRONMENTAL
(xxxii) Except as described in or contemplated by the
Prospectus, and except as would not otherwise reasonably be expected to
have a Material Adverse Effect, (A) the Company and each of its
subsidiaries is in compliance with and not subject to any known
liability under applicable Environmental Laws (as defined below), (B)
the Company and each of its subsidiaries has made all filings and
provided all notices required under any applicable Environmental Law,
(C) there is no civil, criminal or administrative action, suit, demand,
claim, hearing, notice of violation, investigation, proceeding, notice
or demand letter or request for information pending or, to the best
knowledge of the Company, threatened against the Company or any of its
subsidiaries under any Environmental Law, (D) no lien, charge,
encumbrance or restriction has been recorded under any Environmental Law
with respect to any assets, facility or property owned, operated or
leased by the Company or any of its subsidiaries, (E) neither the
Company nor any of its subsidiaries has received notice that it has been
identified as a potentially responsible party under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA"), or any comparable law, (F) no property owned or
operated by the Company or any of its subsidiaries is (i) listed or, to
the best knowledge of the Company, proposed for listing on the National
Priorities List under CERCLA or (ii) listed in the Comprehensive
Environmental Response, Compensation and Liability Information System
List promulgated pursuant to CERCLA, or on any comparable list
maintained by any governmental authority, (G) neither the Company nor
any of its subsidiaries is subject to any order, decree or agreement
requiring, or otherwise obligated or required to perform any response or
corrective action under any Environmental Law, (H) there are no past or
present actions, occurrences or operations
-14-
which could reasonable be expected to prevent or interfere with
compliance by the Company with any applicable Environmental Law or to
result in liability under any applicable Environmental Law. For purposes
of this Agreement, "Environmental Laws" means the common law and all
applicable foreign, federal, provincial, state and local laws or
regulations, codes, orders, decrees, judgments or injunctions issued,
promulgated, approved or entered thereunder, relating to pollution or
protection of public or employee health and safety or the environment
(including, without limitation, ambient air, surface water, groundwater,
land surface or subsurface strata), including, without limitation, laws
relating to (i) emissions, discharges, releases or threatened releases
of Hazardous Materials into the environment, (ii) the manufacture,
processing, distribution, use, generation, treatment, storage, disposal,
transport or handling of Hazardous Materials and (iii) underground and
aboveground storage tanks and related piping, and emissions, discharges,
releases or threatened releases therefrom. "Hazardous Material" means
any pollutant, contaminant, waste, chemical, substance or constituent,
including, without limitation, petroleum or petroleum products subject
to regulation or which can give rise to liability under any
Environmental Laws.
OTHER AGREEMENTS
(xxxiii) No default exists, and no event has occurred which,
with notice or lapse of time or both, would constitute a default in the
due performance and observance of any term, covenant or condition of any
indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries or any of their
respective properties is bound, except any default that would not have a
Material Adverse Effect.
ABSENCE OF MATERIALLY ADVERSE CHANGE
(xxxiv) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
neither the Company nor any of its subsidiaries has sustained any
material loss or interference with their respective businesses or
properties from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any labor dispute or any
legal or governmental proceeding, and there has been no materially
adverse change (including, without limitation, a change in management or
control), or development involving a prospective materially adverse
change, in the condition (financial or otherwise), management, earnings,
property, business affairs or business prospects, stockholders' equity,
net worth or results of operations of the Company or any of its
subsidiaries, taken as a whole, other than as described in or
contemplated by the Prospectus (exclusive of any amendments or
supplements thereto).
(xxxv) No receiver or liquidator (or similar person) has been
appointed in respect of the Company or any subsidiary of the Company or
in respect of any part of the assets of the Company or any subsidiary of
the Company; no resolution, order of any court, regulatory body,
governmental body or otherwise, or petition or application for an order,
has been passed, made or presented for the winding up of the Company or
any subsidiary of the Company or for the protection of the Company or
any such subsidiary from its
-15-
creditors; and the Company has not, and no subsidiary of the Company
has, stopped or suspended payments of its debts, become unable to pay
its debts or otherwise become insolvent.
NO EVENT OF DEFAULT
(xxxvi) On and as of the date hereof, no event has occurred or
is continuing which constitutes, or with notice or lapse of time would
constitute, an Event of Default (as defined in the Securities).
(b) The above representations and warranties shall be
deemed to be repeated at the Closing Date.
Section 6. INDEMNITY.
(a) The Company agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
against any and all losses, claims, damages or liabilities, joint or several, to
which the Underwriter or such controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any amendment
thereto, the Base Prospectus, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, or
(ii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, the Base Prospectus,
any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto a material fact required to be stated therein or
necessary to make the statements therein not misleading,
and will reimburse, as incurred, the Underwriter and each such controlling
person for any legal or other costs or expenses reasonably incurred by the
Underwriter or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in the
Registration Statement or any amendment thereto, the Base Prospectus, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in
reliance upon and in conformity with written information furnished to the
Company by the Underwriter specifically for use therein. The indemnity provided
for in this Section 6 shall be in addition to any liability that the Company may
otherwise have. The Company will not, without the prior written consent of the
Underwriter, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not the Underwriter or any
person who controls the Underwriter is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent (A) includes an
unconditional release of the Underwriter and
-16-
such controlling persons from all liability arising out of such claim, action,
suit or proceeding and (B) does not include any statement as to an admission of
fault, culpability or failure to act by or on behalf of the Underwriter or such
controlling persons.
(b) The Underwriter, will indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act against
any losses, claims, damages or liabilities to which the Company or any such
director, officer or controlling person may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement or any amendment thereto, the Base Prospectus, any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto
or (ii) the omission or the alleged omission to state in the Registration
Statement or any amendment thereto, the Base Prospectus any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by the Underwriter specifically for use therein, and, subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any legal or other expenses reasonably incurred by the Company or any
such director, officer or controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or any action in respect thereof.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to paragraph (a) or (b) of this Section 6, such
person (for purposes of this Section 6, the "indemnified party") shall, promptly
after receipt by such party of notice of the commencement of such action, notify
the person against whom such indemnity may be sought (for purposes of this
Section 6, the "indemnifying party"), but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 6. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; PROVIDED, HOWEVER,
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or parties
and such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense of any such action and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 6 for any
legal or other expenses, other than reasonable costs of
-17-
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, designated in writing by the
Underwriter in the case of paragraph (a) of this Section 6, representing the
indemnified parties under such paragraph (a) who are parties to such action or
actions), or (ii) the indemnifying party does not promptly retain counsel
satisfactory to the indemnified party, or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party. All fees and expenses reimbursed pursuant to this
paragraph (c) shall be reimbursed as they are incurred. After such notice from
the indemnifying party to such indemnified party, the indemnifying party will
not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the consent of the indemnifying
party.
(d) In circumstances in which the indemnity agreement
provided for in the preceding paragraphs of this Section 6 is unavailable or
insufficient, for any reason, to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof),
each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect (i) the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party on the other from the Offering or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by applicable
law, not only such relative benefits but also the relative fault of the
indemnifying party or parties on the one hand and the indemnified party on the
other in connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriter on the other shall be deemed to be in the same proportion as
the total proceeds from the Offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the
Underwriter. The relative fault of the parties shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriter, the parties'
relative intents, knowledge, access to information and opportunity to correct or
prevent such statement or omission, and any other equitable considerations
appropriate in the circumstances. The Company and the Underwriter agree that it
would not be equitable if the amount of such contribution were determined by PRO
RATA or PER CAPITA allocation or by any other method of allocation that does not
take into account the equitable considerations referred to above in this
paragraph (d). Notwithstanding any other provision of this paragraph (d), the
Underwriter shall not be obligated to make contributions hereunder that in the
aggregate exceed the total public offering price of the Securities purchased by
the Underwriter under this Agreement, less the aggregate amount of any damages
that the Underwriter has otherwise been required to pay in respect of the same
or any substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
-18-
For purposes of this paragraph (d), each person, if any, who controls the
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act shall have the same rights to contribution as the
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, shall have the same rights to contribution as the Company.
(e) The remedies provided for in this Section 6 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
Section 7. CONDITIONS PRECEDENT. The obligations of the
Underwriter to purchase and pay for the Securities shall be subject, in the
Underwriter's sole discretion, to the accuracy of the representations and
warranties of the Company contained herein as of the date hereof and as of each
Closing Date, as if made on and as of each Closing Date, to the accuracy of the
statements of the Company's officers made pursuant to the provisions hereof, to
the performance by the Company of its covenants and agreements hereunder and to
the following additional conditions:
(a) If the Original Registration Statement or any amendment
thereto filed prior to the Closing Date has not been declared effective
as of the time of execution hereof, the Original Registration Statement
or such amendment shall have been declared effective not later than 6:00
P.M. New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 4:30 P.M.
New York City time on such date, or 12:00 Noon New York City time on the
business day following the day on which the public offering price was
determined, if such determination occurred after 4:30 P.M. New York City
time on such date, and if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have been declared
effective not later than the time confirmations are sent or given as
specified by Rule 462(b)(2), or such later time and date as shall have
been consented to by the Underwriter; if required, the Prospectus and
any amendment or supplement thereto shall have been filed with the
Commission in the manner and within the time period required by Rule
424(b) under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement or any amendment thereto
shall have been issued, and no proceedings for that purpose shall have
been instituted or threatened or, to the knowledge of the Company or the
Underwriter, shall be contemplated by the Commission; and the Company
shall have complied with any request of the Commission for additional
information (to be included in the Registration Statement or the
Prospectus or otherwise).
(b) The Underwriter shall have received a legal opinion
from Clifford Chance US LLP, counsel for the Company, dated the Closing
Date, to the effect that:
(i) the Registration Statement is effective under
the Securities Act; any required filing of the Prospectus
pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement or any
amendment
-19-
thereto has been issued and, to the best knowledge of such
counsel, no proceedings for that purpose are pending or
threatened by the Commission;
(ii) the Original Registration Statement and each
amendment thereto, any Rule 462(b) Registration Statement and the
Prospectus (in each case, including the documents incorporated by
reference therein but not including the financial statements and
other financial information contained therein, as to which such
counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the
Securities Act, the Exchange Act, the Trust Indenture Act and the
respective rules and regulations of the Commission thereunder;
(iii) such counsel has no reason to believe that (in
each case, other than the financial statements and other
financial information contained therein, as to which such counsel
need express no opinion) (x) the Registration Statement, as of
its effective date, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or (y) the Prospectus, as of its date or the date of
such opinion, included or includes any untrue statement of a
material fact or omitted or omits to state any material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(iv) the Company and each of its "significant
subsidiaries" (as defined in Rule 1.02(w) of Regulation S-X under
the Exchange Act) have been duly organized and are validly
existing as corporations in good standing under the laws of their
respective jurisdictions of incorporation and are duly qualified
to transact business as foreign corporations and are in good
standing under the laws of all other jurisdictions where such
counsel has been advised that the failure to be so qualified
would amount to a material liability or disability to the Company
and its subsidiaries, taken as a whole; the Company and each of
its significant subsidiaries have full power and authority to
own, lease and operate their respective properties and assets and
conduct their respective businesses as described in the
Registration Statement and the Prospectus, and the Company has
corporate power to enter into this Agreement and the Indenture
and to carry out all the terms and provisions hereof and thereof
and of the Securities to be carried out by it; all of the issued
and outstanding shares of capital stock of each of the Company's
significant subsidiaries, except as otherwise set forth in the
Prospectus, are owned beneficially by the Company free and clear
of any perfected security interests or, to the best knowledge of
such counsel, any other security interests, liens, encumbrances,
equities or claims, except for pledges of subsidiary stock under
debt instruments;
(v) the statements set forth under the heading
"Description of Debt Securities" in the Base Prospectus and
"Description of Notes" in the Prospectus, insofar as such
statements purport to summarize certain provisions of the
Securities and the Indenture, provide a fair summary of such
provisions; and the
-20-
statements set forth under the heading "Material Federal Income
Tax Consequences" in the Base Prospectus and "Federal Income Tax
Consequences" in the Prospectus or, insofar as such statements
constitute a summary of the legal matters, documents or
proceedings referred to therein, have been reviewed by such
counsel and fairly present the information called for with
respect to such legal matters, documents and proceedings in all
material respects as required by the Securities Act and the
Exchange Act and the respective rules and regulations thereunder;
(vi) the execution and delivery of this Agreement
have been duly authorized by all necessary corporate action of
the Company and this Agreement has been duly executed and
delivered by the Company;
(vii) the execution and delivery of the Indenture
(including the Supplemental Indenture) have been duly authorized
by the Company, and, on and as of the Closing Date, the Indenture
will have been duly executed and delivered by the Company and
duly qualified under the Trust Indenture Act and, assuming due
authorization, execution and delivery by the Trustee, will be a
legal, valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect);
(viii) the Securities have been duly authorized by
all necessary corporate action of the Company and, on and as of
the Closing Date, the Securities will have been duly executed and
delivered by the Company and, assuming due authentication by the
Trustee, will be the legal, valid and binding obligations of the
Company, enforceable in accordance with their terms (subject, as
to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect) and
entitled to the benefits of the Indenture; no holder of
securities of the Company has any right which has not been fully
exercised or waived to require the Company to register the offer
or sale of any securities owned by such holder under the
Securities Act in the Offering contemplated by this Agreement;
(ix) the execution and delivery by the Company of,
and the performance by the Company of its obligations under, this
Agreement, the Indenture and the Securities, the issuance,
offering and sale of the Securities to the Underwriter by the
Company pursuant to this Agreement, the compliance by the Company
with the other provisions of this Agreement and the consummation
of the other transactions herein contemplated do not (x) require
the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such
as have been obtained or made (and specified in such opinion) or
such as may be required by the securities or Blue Sky laws of the
various states of the United States of America and other U.S.
jurisdictions in connection with the offer and sale of the
Securities by the Underwriter, or (y) conflict with or result in
a breach or violation of any of the terms and provisions
-21-
of, or constitute a default under, any indenture, mortgage, deed
of trust, lease or other material agreement or instrument, known
to such counsel, to which the Company or any of its significant
subsidiaries is a party or by which the Company or any of its
significant subsidiaries or any of their respective properties
are bound, or the charter documents or by-laws of the Company or
any of its significant subsidiaries, or any statute or any
judgment, decree, order, rule or regulation of any court or other
governmental authority or any arbitrator known to such counsel
and applicable to the Company or its significant subsidiaries;
(x) the Company is not an "investment company"
and, after giving effect to the Offering and the application of
the proceeds therefrom, will not be an "investment company", as
such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or
governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which the
property of the Company or any of its subsidiaries is subject
that are required to be described or incorporated in the
Registration Statement or the Prospectus and are not described or
incorporated therein or any statutes, regulations, contracts or
other documents that are required to be described or incorporated
in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or
incorporated therein or filed as required.
(xii) for the Company's taxable years ended
December 31, 1998, 1999, 2000, 2001 and 2002, the Company was
organized and has operated in conformity with the requirements
for qualification as a real estate investment trust ("REIT")
under the Code, and its method of operation, as represented by
the Company will permit it to continue to so qualify.
In rendering any such opinion, such counsel may rely, as to
matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and public officials
and, as to matters involving the application of laws of any jurisdiction
other than the State of New York or the United States or the General
Corporation Law of the State of Delaware, to the extent satisfactory in
form and scope to counsel for the Underwriter, upon the opinion of
Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP. An opinion of Xxxxxxx Xxxxx
Xxxxxxx & Xxxxxxxxx, LLP shall be delivered to the Underwriter and
counsel for the Underwriter covering matters reasonably requested by the
Underwriter.
References to the Registration Statement and the Prospectus in
this paragraph (b) shall include any amendment or supplement thereto at
the date of such opinion. The opinions of issuer's counsel described
herein shall be rendered to the Underwriter at the request of the
Company and shall so state therein.
(c) The Underwriter shall have received a legal opinion
from Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Underwriter, dated the
Closing Date, covering the issuance and sale of the Securities, the
Registration Statement and the Prospectus, the Indenture and such other
related matters as the Underwriter may reasonably require, and the
-22-
Company shall have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such
matters.
(d) The Underwriter shall have received from
PricewaterhouseCoopers LLP a letter or letters dated, respectively, the
date hereof and the Closing Date, in form and substance satisfactory to
the Underwriter.
(e) The Company shall have furnished or caused to be
furnished to the Underwriter at the Closing a certificate of its
Chairman of the Board, its President or its Chief Executive Officer and
its Chief Financial Officer satisfactory to the Underwriter to the
effect that:
(i) the representations and warranties of the
Company in this Agreement are true and correct as if made on and
as of the Closing Date; and the Company has performed all
covenants and agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus (exclusive of any amendment or supplement thereto),
neither the Company nor any of its subsidiaries has sustained any
material loss or interference with their respective businesses or
properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding, and there has
not been any materially adverse change (including, without
limitation, a change in management or control), or development
involving a prospective materially adverse change, in the
condition (financial or otherwise), management, earnings,
properties, business affairs or business prospects, stockholders'
equity, net worth or results of operations of the Company or any
of its subsidiaries, taken as a whole, except in each case as
described in or contemplated by the Prospectus (exclusive of any
amendment or supplement thereto).
(f) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have occurred
any downgrading, nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change that does
not indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally recognized
statistical rating organization", as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act.
(g) The Indenture (including the Supplemental Indenture)
shall have been executed and delivered by all the parties thereto.
(h) On or before the Closing Date, the Underwriter and
counsel for the Underwriter shall have received such further
certificates, documents or other information as they may have reasonably
requested from the Company.
All opinions, certificates, letters and documents delivered
pursuant to this Agreement will comply with the provisions hereof only if they
are satisfactory in all material
-23-
respects to the Underwriter and counsel for the Underwriter. The Company shall
furnish to the Underwriter such conformed copies of such opinions, certificates,
letters and documents in such quantities as the Underwriter and counsel for the
Underwriter shall reasonably request.
Section 8. TERMINATION. This Agreement may be terminated
in the sole discretion of the Underwriter by notice to the Company given prior
to the Closing Date in the event that the Company shall have failed, refused or
been unable to perform all obligations and satisfy all conditions on its part to
be performed or satisfied hereunder at or prior thereto or, if at or prior to
the Closing Date, (a) trading in securities generally on the New York Stock
Exchange or the Nasdaq National Market shall have been suspended or materially
limited or minimum or maximum prices shall have been established by or on, as
the case may be, the Commission or the New York Stock Exchange or the Nasdaq
National Market; (b) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market; (c) a general
moratorium on commercial banking activities shall have been declared by either
Federal or New York State authorities; (d) there shall have occurred (i) an
outbreak or escalation of hostilities between the United States and any foreign
power, (ii) an outbreak or escalation of any other insurrection or armed
conflict involving the United States, or (iii) any other national or
international calamity, crisis or emergency or materially adverse change in
general economic, political or financial conditions having an effect on the U.S.
financial markets that, in the judgment of the Underwriter, makes it impractical
or inadvisable to proceed with the public offering or the delivery of the
Securities as contemplated by the Registration Statement, as amended as of the
date hereof; or (e) the Company or any of its subsidiaries shall have, in the
sole judgment of the Underwriter, sustained any material loss or interference
with their respective businesses or properties from fire, flood, hurricane,
accident or other calamity, whether or not covered by insurance, or from any
labor dispute or any legal or governmental proceeding, or there shall have been
any materially adverse change (including, without limitation, a change in
management or control), or constitute a development involving a prospective
materially adverse change, in the condition (financial or otherwise),
management, earnings, properties, business affairs or business prospects,
stockholders' equity, net worth or results of operations of the Company or any
of its subsidiaries, except in each case as described in or contemplated by the
Prospectus (exclusive of any amendment or supplement thereto). Termination of
this Agreement pursuant to this Section 8 shall be without liability of any
party to any other party except for the liability of the Company in relation to
expenses as provided in Sections 4 and 9 hereof, the indemnity and contribution
provisions provided in Section 6 hereof and any liability arising before or in
relation to such termination.
Section 9. REIMBURSEMENT OF EXPENSES. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriter set forth in Section 7 hereof is not satisfied or
because of any termination pursuant to Section 8 hereof (other than by reason of
a default by the Underwriter), the Company shall reimburse the Underwriter, upon
demand, for all out-of-pocket expenses (including fees and disbursements of
counsel) that shall have been incurred by it in connection with the proposed
purchase and sale of the Securities.
Section 10. INFORMATION SUPPLIED BY UNDERWRITER. The
statements set forth in the last paragraph on the front cover page and under the
heading "Underwriting" in any Preliminary Prospectus or the Prospectus (to the
extent such statements relate to the Underwriter)
-24-
constitute the only information furnished by the Underwriter to the Company for
the purposes of Section 5(a)(ii) and Section 6 hereof. The Underwriter confirms
that such statements (to such extent) are correct.
Section 11. NOTICES. Any notice or notification in any
form to be given under this Agreement may be delivered in person or sent by
telex, facsimile or telephone (subject in the case of a communication by
telephone to confirmation by telex or facsimile) addressed to:
in the case of the Company:
iStar Financial Inc.
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
with a copy to: General Counsel
in the case of the Underwriter:
Deutsche Bank Securities Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxx
Any notice under this Section 11 shall take effect, in the case of delivery, at
the time of delivery and, in the case of telex or facsimile, at the time of
dispatch.
Section 12. MISCELLANEOUS.
(a) Time shall be of the essence of this Agreement.
(b) The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect, the meaning or
interpretation of this Agreement.
(c) For purposes of this Agreement, (a) "business day"
means any day on which the New York Stock Exchange is open for trading, and (b)
"subsidiary" has the meaning set forth in Rule 405 under the Securities Act.
(d) This Agreement may be executed in any number of
counterparts, all of which, taken together, shall constitute one and the same
Agreement and any party may enter into this Agreement by executing a
counterpart.
-25-
(e) This Agreement shall inure to the benefit of and shall
be binding upon the Underwriter, the Company and their respective successors and
legal representatives, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person, except that (i) the indemnities of the
Company contained in Section 6 hereof shall also be for the benefit of any
person or persons who control the Underwriter within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act and (ii) the indemnities
of the Underwriter contained in Section 6 hereof shall also be for the benefit
of the directors of the Company, the officers of the Company who have signed the
Registration Statement and any person or persons who control the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act. No purchaser of Securities from the Underwriter shall be deemed a successor
because of such purchase.
(f) The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company, its officers and the
Underwriter set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement shall remain in full force and effect,
regardless of (i) any investigation made by or on behalf of the Company, any of
its officers, directors, employees or agents, the Underwriter or any controlling
person referred to in Section 6 hereof and (ii) delivery of and payment for the
Securities. The respective agreements, covenants, indemnities and other
statements set forth in Sections 4, 6 and 9 hereof shall remain in full force
and effect, regardless of any termination or cancellation of this Agreement.
Section 13. SEVERABILITY. It is the desire and intent of
the parties that the provisions of this Agreement be enforced to the fullest
extent permissible under the law and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, in the event that any
provision of this Agreement would be held in any jurisdiction to be invalid,
prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
Section 14. GOVERNING LAW. The validity and interpretation
of this Agreement, and the terms and conditions set forth herein, shall be
governed by and construed in accordance with the laws of the State of New York,
without giving effect to any provisions relating to conflicts of laws.
If the foregoing is in accordance with your understanding, please
sign and return to us seven counterparts hereof, and upon the acceptance hereof
by you, this letter and such acceptance hereof shall constitute a binding
agreement between the Underwriter and the Company.
-26-
Very truly yours,
iSTAR FINANCIAL INC.
By /s/ Xxxxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxxxx X. Xxxx
Title: Chief Financial Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date specified in Schedule I hereto.
DEUTSCHE BANK SECURITIES INC.
By /s/ Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: Director
By /s/ Xxxxxxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Managing Director
SCHEDULE I
Underwriting Agreement dated: March 11, 2003
Underwriter:
Deutsche Bank Securities Inc.
Type of Offering: Rule 415 Offering
Title, Purchase Price and Description of Securities:
Title: Senior Notes
Principal Amount: $150,000,000
Purchase price (include accrued interest or amortization, if any): 100%
Closing Date and Location:
March 14, 2003 at the offices of Xxxxxx Xxxxxx & Xxxxxxx located at 00
Xxxx Xxxxxx, Xxx Xxxx, XX 00000.
Registration Statement No. 333-83646
