Exhibit 1.1
iStar Financial
Inc.
$350,000,000
4.875% Senior Notes due
2009
PURCHASE AGREEMENT
January 15, 2004
DEUTSCHE BANK SECURITIES
INC.
BANC OF AMERICA SECURITIES,
LLC
BEAR, STEARNS & CO.
INC.
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES
INC.
LEHMAN BROTHERS INC.
c/o Deutsche Bank Securities
Inc.
60 Wall Street
New York, New York 10005
Ladies and Gentlemen:
iStar Financial Inc., a Maryland
corporation (the “ Company ”), hereby confirms
its agreement with you (the “ Initial Purchasers
”), as set forth below.
Section 1.
The
Securities . Subject to the terms
and conditions herein contained, the Company proposes to issue and
sell to the Initial Purchasers $350,000,000 aggregate principal
amount of its 4.875% Senior Notes due 2009, Series A (the “
Notes ”). The Notes are to be issued under an
indenture (the “ Indenture ”) to be dated as of
January 23, 2004 by and between the Company and US Bank Trust
National Association, as Trustee (the “ Trustee
”).
The Notes will be offered and sold
to the Initial Purchasers without being registered under the
Securities Act of 1933, as amended (the “ Act
”), in reliance on exemptions therefrom.
In connection with the sale of the
Notes, the Company has prepared a preliminary offering memorandum
dated January 15, 2004 (the “ Preliminary
Memorandum ”) and a final offering memorandum dated
January 15, 2004 (the “ Final Memorandum ”;
the Preliminary Memorandum and the Final Memorandum each herein
being referred to as a “ Memorandum ”) setting
forth or including a description of the terms of the Notes, the
terms of the offering of the Notes, a description of the Company
and any material developments relating to the Company occurring
after the date of the most recent historical
financial statements included
therein. Any reference herein to the Preliminary Memorandum
or the Final Memorandum shall be deemed to refer to and include the
documents incorporated by reference therein.
The Initial Purchasers and their
direct and indirect transferees of the Notes will be entitled to
the benefits of the Registration Rights Agreement, substantially in
the form attached hereto as Exhibit A (the “
Registration Rights Agreement ”), pursuant to which
the Company has agreed, among other things, to file a registration
statement with the Securities and Exchange Commission (the “
Commission ”) registering the Notes or the Exchange
Notes (as defined in the Registration Rights Agreement) under the
Act.
Section 2.
Representations and
Warranties . The Company
represents and warrants to and agrees with each of the Initial
Purchasers as follows:
(a)
Neither the Preliminary Memorandum
as of the date thereof nor the Final Memorandum nor any amendment
or supplement thereto as of the date thereof and at the Closing
Date (as defined in Section 3 below) contained or contains any
untrue statement of a material fact or omitted or omits 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 Section 2(a) do not apply to statements or
omissions made in reliance upon and in conformity with information
relating to any of the Initial Purchasers furnished to the Company
in writing by the Initial Purchasers expressly for use in the
Preliminary Memorandum, the Final Memorandum or any amendment or
supplement thereto.
(b)
Subsequent to the respective dates
as of which information is given in the Final Memorandum (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 Final
Memorandum.
(c)
Each document, if any, filed or to
be filed pursuant to the Exchange Act and incorporated by reference
in either the Preliminary Memorandum or the Final Memorandum (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.
(d)
The Company has an authorized,
issued and outstanding capitalization as set forth in the Final
Memorandum. All of the issued shares of capital stock of the
Company have been duly authorized and validly issued and are fully
paid and nonassessable.
2
(e)
The execution and delivery of the
Notes, the Exchange Notes and the Private Exchange Notes (as
defined in the Registration Rights Agreement) have been duly
authorized by all necessary corporate action of the Company and, on
and as of the Closing Date, the Notes 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. The Exchange Notes
and the Private Exchange Notes, when duly executed 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.
(f)
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 Final Memorandum.
(g)
None of the Company or any of its
subsidiaries has taken, nor will any of them take, directly or
indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of
the price of the Notes.
(h)
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 Final
Memorandum, 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 Notes, the
Exchange Notes and the Private Exchange Notes; each subsidiary of
the Company is duly organized and validly existing and in good
standing under the laws of its jurisdiction of organization and is
duly qualified to transact business and is in good standing in each
jurisdiction in which its ownership, leasing or operation of its
properties or assets or the conduct of its business requires such
qualification, except where the failure to be so qualified does not
amount to a material liability or disability to the Company and its
subsidiaries, taken as a whole, and each has full power and
authority to own, lease and operate its properties and assets and
conduct its business as described in the Final Memorandum; 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 Final Memorandum, are owned beneficially by the
Company free and clear of any security interests, liens,
encumbrances, equities or claims.
3
(i)
The execution and delivery of this
Agreement and the issuance and sale of the Notes, the Exchange
Notes and the Private Exchange Notes 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.
(j)
The execution and delivery of the
Indenture have been duly authorized by the Company and, when
executed and delivered by the Company (assuming the due
authorization, execution and delivery by the Trustee), the
Indenture will constitute a legal, valid and binding agreement of
the Company, enforceable against the Company in accordance with its
terms. The Indenture meets the requirements for qualification
under the Trust Indenture Act of 1939, as amended (the “
TIA ”).
(k)
The Company has all requisite
corporate power and authority to execute, deliver and perform its
obligations under the Registration Rights Agreement. The
Registration Rights Agreement has been duly authorized by the
Company and, when executed and delivered by the Company (assuming
the due authorization, execution and delivery by the Initial
Purchasers), will constitute a valid and legally binding agreement
of the Company enforceable against the Company in accordance with
its terms.
(l)
The execution and delivery by the
Company of, and the performance by the Company of its obligations
under, this Agreement, the Registration Rights Agreement, the
Indenture, the Notes, the Exchange Notes and the Private Exchange
Notes, the issuance, offering and sale of the Notes to the Initial
Purchasers by the Company pursuant to this Agreement, the
compliance by the Company with the other provisions of this
Agreement and the consummation of the other transactions herein
contemplated do not (x) require the consent, approval,
authorization, registration or qualification of or with any
governmental authority, except such as have been obtained or made
or such as may be required by the state securities or Blue Sky laws
of the various states of the United States of America or other U.S.
jurisdictions in connection with the offer and sale of the Notes by
the Initial Purchasers, and except with respect to the registration
of the Exchange Notes and Private Exchange Notes, if applicable,
pursuant to the Registration Rights Agreement and the qualification
of the Indenture under the TIA, 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.
(m)
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
4
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 ”).
(n)
The Company is not an
“investment company” and, after giving effect to the
offering of the Notes 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 ”).
(o)
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 Final
Memorandum.
(p)
The Company and its subsidiaries own
or possess, or can acquire on reasonable terms, all material
patents, patent applications, trademarks, service marks, trade
names, licenses, know-how, copyrights, trade secrets and
proprietary or other confidential information necessary to operate
the business now operated by them, and neither the Company nor any
such subsidiary has received any notice of infringement of or
conflict with asserted rights of any third party with respect to
any of the foregoing which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect, except as described in or contemplated by
the Final Memorandum.
(q)
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 Final Memorandum.
5
(r)
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 Final Memorandum, are independent
public accountants as required by the Act and the applicable rules
and regulations thereunder.
(s)
The consolidated financial
statements and schedules of the Company and its consolidated
subsidiaries included or incorporated in the Final Memorandum 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.
(t)
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.
(u)
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 would be required to be
described in a prospectus pursuant to the Act that are not
described in the Final Memorandum; and no statutes, regulations,
contracts or other documents that would be required to be described
in a prospectus pursuant to the Act that are not described or
incorporated in the Final Memorandum.
(v)
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.
(w)
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
6
described in the Final Memorandum will enable it
to continue to meet the requirements for taxation as a real estate
investment trust under the Code.
(x)
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 Final
Memorandum.
(y)
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 Final Memorandum.
(z)
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.
(aa)
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 Final Memorandum.
(bb)
Except as described in or
contemplated by the Final Memorandum, 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
7
liability under applicable Environmental Laws
(as defined below), (B) the Company and each of its subsidiaries
has made all filings and provided all notices required under any
applicable Environmental Law, (C) there is no civil, criminal or
administrative action, suit, demand, claim, hearing, notice of
violation, investigation, proceeding, notice or demand letter or
request for information pending or, to the best knowledge of the
Company, threatened against the Company or any of its subsidiaries
under any Environmental Law, (D) no lien, charge, encumbrance or
restriction has been recorded under any Environmental Law with
respect to any assets, facility or property owned, operated or
leased by the Company or any of its subsidiaries, (E) neither the
Company nor any of its subsidiaries has received notice that it has
been identified as a potentially responsible party under the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (“CERCLA”), or any comparable
law, (F) no property owned or operated by the Company or any of its
subsidiaries is (i) listed or, to the best knowledge of the
Company, proposed for listing on the National Priorities List under
CERCLA or (ii) listed in the Comprehensive Environmental Response,
Compensation and Liability Information System List promulgated
pursuant to CERCLA, or on any comparable list maintained by any
governmental authority, (G) neither the Company nor any of its
subsidiaries is subject to any order, decree or agreement
requiring, or otherwise obligated or required to perform any
response or corrective action under any Environmental Law, (H)
there are no past or present actions, occurrences or operations
which could reasonable be expected to prevent or interfere with
compliance by the Company with any applicable Environmental Law or
to result in liability under any applicable Environmental
Law. For purposes of this Agreement, “ Environmental
Laws ” means the common law and all applicable foreign,
federal, provincial, state and local laws or regulations, codes,
orders, decrees, judgments or injunctions issued, promulgated,
approved or entered thereunder, relating to pollution or protection
of public or employee health and safety or the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata), including, without
limitation, laws 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.
(cc)
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.
(dd)
Subsequent to the date as of which
information is given in the Final Memorandum, neither the Company
nor any of its subsidiaries has sustained any material
loss
8
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
Final Memorandum (exclusive of any amendments or supplements
thereto).
(ee)
No receiver or liquidator (or
similar person) has been appointed in respect of the Company or any
subsidiary of the Company or in respect of any part of the assets
of the Company or any subsidiary of the Company; no resolution,
order of any court, regulatory body, governmental body or
otherwise, or petition or application for an order, has been
passed, made or presented for the winding up of the Company or any
subsidiary of the Company or for the protection of the Company or
any such subsidiary from its creditors; and the Company has not,
and no subsidiary of the Company has, stopped or suspended payments
of its debts, become unable to pay its debts or otherwise become
insolvent.
(ff)
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 Notes).
(gg)
No holder of securities of the
Company or any of its subsidiaries will be entitled to have such
securities registered under the registration statements required to
be filed by the Company pursuant to the Registration Rights
Agreement other than (i) as expressly permitted thereby (ii) with
respect to rights that have been fully exercised or
waived.
(hh)
None of the Company, or any of its
subsidiaries or any of their respective Affiliates (as defined in
Rule 501(b) of Regulation D under the Act) has directly, or
through any agent, (i) sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of, any
“security” (as defined in the Act) that is or could be
integrated with the sale of the Notes in a manner that would
require the registration under the Act of the Notes or
(ii) engaged in any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act)
in connection with the offering of the Notes or in any manner
involving a public offering within the meaning of Section 4(2)
of the Act. Assuming the accuracy of the representations and
warranties of the Initial Purchasers in Section 8 hereof, it
is not necessary in connection with the offer, sale and delivery of
the Notes to the Initial Purchasers in the manner contemplated by
this Agreement to register any of the Notes under the Act or to
qualify the Indenture under the TIA.
(ii)
No securities of the Company or any
of its subsidiaries are of the same class (within the meaning of
Rule 144A under the Act) as the Notes and listed on a
national
9
securities exchange registered under
Section 6 of the Exchange Act, or quoted in a U.S. automated
inter-dealer quotation system.
(jj)
None of the Company, any of its
subsidiaries, any of their respective Affiliates or any person
acting on its or their behalf (other than the Initial Purchasers)
has engaged in any directed selling efforts (as that term is
defined in Regulation S under the Act (“
Regulation S ”)) with respect to the Notes; the
Company, its subsidiaries and their respective Affiliates and any
person acting on its or their behalf (other than the Initial
Purchasers) have complied with the offering restrictions
requirement of Regulation S.
Any certificate signed by any
officer of the Company or any of its subsidiaries and delivered to
any Initial Purchaser or to counsel for the Initial Purchasers
shall be deemed a joint and several representation and warranty by
the Company and each of its subsidiaries to each Initial Purchaser
as to the matters covered thereby.
Section 3.
Purchase, Sale
and Delivery of the Notes . 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 Initial Purchasers, and
the Initial Purchasers, acting severally and not jointly, agree to
purchase the Notes in the respective amounts set forth on
Schedule 1 hereto from the Company at 98.392% of their
principal amount. One or more certificates in definitive form
for the Notes that the Initial Purchasers have agreed to purchase
hereunder, and in such denomination or denominations and registered
in such name or names as the Initial Purchasers request upon notice
to the Company at least 48 hours prior to the Closing Date, shall
be delivered by or on behalf of the Company to the Initial
Purchasers, against payment by or on behalf of the Initial
Purchasers of the purchase price therefor by wire transfer (same
day funds), to such account or accounts as the Company shall
specify prior to the Closing Date, or by such means as the parties
hereto shall agree prior to the Closing Date. Such delivery
of and payment for the Notes shall be made at the offices of Cahill
Gordon & Reindel LLP, 80 Pine Street, New York, New York at
10:00 A.M., New York time, on January 23, 2004, or at such
other place, time or date as the Initial Purchasers, on the one
hand, and the Company, on the other hand, may agree upon, such time
and date of delivery against payment being herein referred to as
the “ Closing Date .” The Company will
make such certificate or certificates for the Notes available for
checking and packaging by the Initial Purchasers at the offices of
Deutsche Bank Securities Inc. in New York, New York, or at such
other place as Deutsche Bank Securities Inc. may designate, at
least 24 hours prior to the Closing Date.
Section 4.
Offering by
the Initial Purchasers . The Initial
Purchasers propose to make an offering of the Notes at the price
and upon the terms set forth in the Final Memorandum as soon as
practicable after this Agreement is entered into and as in the
judgment of the Initial Purchasers is advisable.
Section 5.
Covenants of
the Company . The Company covenants
and agrees with each of the Initial Purchasers as
follows:
10
(a)
The Company will not amend or
supplement the Final Memorandum or any amendment or supplement
thereto of which the Initial Purchasers shall not previously have
been advised and furnished a copy for a reasonable period of time
prior to the propos
