EXHIBIT 1.1
$125,000,000
STANDARD PACIFIC CORP.
7 3/4% Senior Notes due 2013
UNDERWRITING AGREEMENT
March 4, 2003
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
BANC ONE CAPITAL MARKETS, INC.
COMERICA SECURITIES
FLEET SECURITIES, INC.
PNC CAPITAL MARKETS, INC.
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Standard Pacific Corp., a Delaware corporation (the "Company"), proposes to
issue and sell $125,000,000 principal amount of its 7 3/4% Senior Notes due 2013
(the "Securities") to the several underwriters named in Schedule I hereto (the
"Underwriters"). The Securities are to be issued pursuant to the provisions of
an Indenture dated as of April 1, 1999, as supplemented by the First
Supplemental Indenture dated as of April 13, 1999, the Second Supplemental
Indenture dated as of September 5, 2000, the Third Supplemental Indenture dated
as of December 28, 2001 and the Fourth Supplemental Indenture dated as of March
4, 2003 (the "Indenture"), between the Company and Bank One Trust Company, N.A.,
as Trustee (the "Trustee").
SECTION 1. Registration Statement and Prospectus. The Company has prepared
and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), registration statements on Form S-3, including a prospectus, relating to
the Securities. The registration statements, each as amended at the time it
became effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Act, are hereinafter collectively referred to as the "Registration
Statement"; and the prospectus and prospectus supplement in the form first used
to confirm sales of the Securities is hereinafter referred to as the
"Prospectus" (including, in the case of all references to the Registration
Statement or the Prospectus, documents incorporated therein by reference). The
terms "supplement" and "amendment" or "amend" as used in this Agreement with
respect to the Registration Statement or the Prospectus shall include all
documents subsequently filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Exchange Act") that are deemed to
be incorporated by reference in the Prospectus.
SECTION 2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell, and the Underwriters
agree, severally and not jointly, to purchase from the Company, an aggregate
principal amount of $125,000,000 of the Securities at a purchase price equal to
98.141% of the principal amount thereof (the "Purchase Price").
SECTION 3. Terms of Public Offering. The Underwriters have advised the
Company that the Underwriters propose (i) to make a public offering of the
Securities as soon after the execution and delivery of this Agreement as in the
Underwriters' judgment is advisable and (ii) initially to offer the Securities
upon the terms set forth in the Prospectus.
SECTION 4. Delivery and Payment. The Securities shall be represented by a
definitive global security registered in the name of the nominee of The
Depository Trust Company ("DTC"). The Company shall deliver the Securities, with
any transfer taxes thereon duly paid by the Company, to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc. through the facilities of DTC, for the account of the Underwriters, against
payment to the Company of the Purchase Price therefore by wire transfer of
Federal or other funds immediately available in New York City. The certificate
representing the Securities shall be made available for inspection not later
than 9:30 A.M., New York City time, on the business day prior to the Closing
Date (as defined below), at the office of DTC or its designated custodian (the
"Designated Office"). The time and date of delivery and payment for the
Securities shall be 9:00 A.M., New York City time, on March 7, 2003 or such
other time on the same or such other date as the Underwriters and the Company
shall agree in writing. The time and date of such delivery and payment are
hereinafter referred to as the "Closing Date".
The documents to be delivered on the Closing Date on behalf of the parties
hereto pursuant to Section 8 of this Agreement shall be delivered at the offices
of O'Melveny & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and the
Securities shall be delivered at the Designated Office, all on the Closing Date.
SECTION 5. Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice
in writing, (i) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for such purposes, (iii) when any amendment to
the Registration Statement becomes effective, and (iv) of the happening of any
event during the period referred to in Section 5(d) below which makes any
statement of a material fact made in the Registration Statement or the
Prospectus untrue or which requires any additions to or changes in the
Registration Statement or the Prospectus in order to make the statements therein
not misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company will use
its best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time.
(b) To furnish you five conformed copies of the Registration Statement as
first filed with the Commission and of each amendment to it, including all
exhibits and documents incorporated therein by reference, and to furnish to you
such number of conformed copies of the
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Registration Statement as so filed and of each amendment to it, without exhibits
but including documents incorporated therein by reference, as you may reasonably
request.
(c) To prepare the Prospectus, the form and substance of which shall be
satisfactory to you, and to file the Prospectus in such form with the Commission
within the applicable period specified in Rule 424(b) under the Act; from the
date hereof and so long as, in the opinion of counsel for the Underwriters, a
prospectus is required by the Act to be delivered in connection with sales by
the Underwriters or a dealer, not to file any further amendment to the
Registration Statement and not to make any amendment or supplement to the
Prospectus of which you shall not previously have been advised or to which you
shall reasonably object after being so advised; and, during such period, to
prepare and file with the Commission, promptly upon your reasonable request, any
amendment to the Registration Statement or amendment or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Securities by you, and to use its best efforts to cause any
such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the second business day
after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by the Act to be delivered in connection with sales by the Underwriters
or a dealer, to furnish in New York City to the Underwriters and any dealer as
many copies of the Prospectus (and of any amendment or supplement to the
Prospectus and any documents incorporated therein by reference) as the
Underwriters or dealer may reasonably request.
(e) If during the period specified in the second clause of Section 5(c),
any event shall occur or condition shall exist as a result of which, in the
opinion of counsel for the Underwriters, it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with applicable law,
forthwith to prepare and file with the Commission an appropriate amendment or
supplement to the Prospectus so that the statements in the Prospectus, as so
amended or supplemented, will not in the light of the circumstances when it is
so delivered, be misleading, or so that the Prospectus will comply with
applicable law, and to furnish to the Underwriters and to any dealer as many
copies thereof as the Underwriters or dealer may reasonably request.
(f) Prior to any public offering of the Securities, to cooperate with you
and counsel for the Underwriters in connection with the registration or
qualification of the Securities for offer and sale by the Underwriters and by
dealers under the state securities or Blue Sky laws of such jurisdictions as you
may request, to continue such registration or qualification in effect so long as
required for distribution of the Securities and to file such consents to service
of process or other documents as may be necessary in order to effect such
registration or qualification; provided, however, that the Company shall not be
required in connection therewith to qualify as a foreign corporation in any
jurisdiction in which it is not now so qualified or to take any action that
would subject it to general consent to service of process or taxation other than
as to matters and transactions relating to the Prospectus, the Registration
Statement, any preliminary prospectus or the offering or sale of the Securities,
in any jurisdiction in which it is not now so subject.
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(g) To make generally available to its security holders as soon as
practicable an earnings statement covering the twelve-month period ending March
31, 2004 that shall satisfy the provisions of Section 11(a) of the Act.
(h) So long as the Securities are outstanding, to furnish to you as soon as
available copies of all reports or other communications furnished to its
security holders or furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is listed
and such other publicly available information concerning the Company and its
subsidiaries as you may reasonably request.
(i) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Company's counsel and
the Company's accountants in connection with the registration and delivery of
the Securities under the Act and all other fees and expenses in connection with
the preparation, printing, filing and distribution of the Registration Statement
(including financial statements and exhibits), any preliminary prospectus, the
Prospectus and all amendments and supplements to any of the foregoing, including
the mailing and delivering of copies thereof to the Underwriters and dealers in
the quantities specified herein, (ii) all costs and expenses related to the
transfer and delivery of the Securities to the Underwriters, including any
transfer or other taxes payable thereon, (iii) all expenses in connection with
the registration or qualification of the Securities for offer and sale under the
securities or Blue Sky laws of the several states and all costs of producing any
Preliminary and Supplemental Blue Sky Memoranda in connection therewith
(including the filing fees and reasonable fees and disbursements of counsel for
the Underwriters in connection with such registration or qualification and
memoranda relating thereto), (v) the cost of printing certificates representing
the Securities, (vi) the costs and charges of any transfer agent, registrar
and/or depositary (including the Depository Trust Company), (vii) any fees
charged by rating agencies for the rating of the Securities, (viii) the fees and
expenses of the Trustee and the Trustee's counsel in connection with the
Indenture and the Securities and (ix) all other costs and expenses incident to
the performance of the obligations of the Company hereunder for which provision
is not otherwise made in this Section.
(j) During the period beginning on the date hereof and continuing to and
including the Closing Date, not to offer, sell, contract to sell or otherwise
transfer or dispose of any debt securities of the Company or any warrants,
rights or options to purchase or otherwise acquire debt securities of the
Company substantially similar to the Securities (other than (i) the Securities
and (ii) commercial paper issued in the ordinary course of business), without
the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
(k) Not to voluntarily claim, and to actively resist any attempts to claim,
the benefit of any usury laws against the holders of the Securities.
(l) To use its reasonable best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by the
Company prior to the Closing Date and to satisfy all conditions precedent to the
delivery of the Securities.
SECTION 6. Representations and Warranties of the Company. The Company
represents and warrants to the Underwriters that:
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(a) The Registration Statement has become effective and no stop order
suspending the effectiveness of the Registration Statement is in effect, and, to
the best of the knowledge of the Company, no proceedings for such purpose are
pending before or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act; (ii) the
Registration Statement, when it became effective, did not contain and, as
amended, if applicable, does not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iii) the Registration Statement and
the Prospectus complied when filed and, as amended or supplemented, if
applicable, does comply in all material respects with the Act, and (iv) the
Prospectus, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter expressly
for use therein.
(c) Each preliminary prospectus, if any, filed as part of the registration
statement in connection with this offering as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the Act, complied when so
filed in all material respects with the Act, and did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to
statements or omissions in any preliminary prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter expressly for use therein.
(d) The Company has the authorized equity capitalization as set forth in
the Prospectus and, as of the Closing Date, the Company shall have an authorized
equity capitalization as set forth in the Prospectus. The Company has, as of the
date of this Agreement, and as of the Closing Date the Company will have, not
less than 31,000,000 shares of common stock issued and outstanding. All of the
outstanding capital stock of the Company has been duly authorized and validly
issued and is fully paid and nonassessable and was not issued in violation of
any preemptive or similar rights.
(e) The Company owns all of the outstanding capital stock and other
securities evidencing equity ownership of its subsidiaries (other than interests
held by third parties in Homebuilding Joint Ventures (as defined in the
Indenture)) free and clear of any pledge, fiduciary transfer, security interest,
claim, lien, limitation on voting rights or encumbrance, and all such securities
have been duly authorized and validly issued, fully paid and nonassessable and
have not been issued in violation of, or subject to, any preemptive or similar
rights. There are no outstanding rights, warrants or options to acquire, or
instruments convertible into or exchangeable for, any shares of capital stock or
other equity interest of any subsidiary (other than Homebuilding Joint
Ventures).
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(f) The Company and each of its subsidiaries has been duly organized, is
validly existing as a corporation, limited liability company or partnership in
good standing under the laws of its respective jurisdiction of organization and
has all requisite corporate, limited liability company or partnership power and
authority to (a) carry on its business as it is currently being conducted and as
described in the Prospectus and (b) own, lease, license and operate its
respective properties in accordance with its business as currently conducted.
The Company and each of its subsidiaries is duly qualified and in good standing
as a foreign corporation, limited liability company or partnership authorized to
do business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
business, prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole (a "Material Adverse Effect").
(g) The Company has all requisite corporate power and authority to execute,
deliver and perform all of its obligations under, and to consummate the
transactions contemplated by this Agreement, the Securities and the Indenture
(collectively, the "Operative Documents") and, without limitation, the Company
has all requisite corporate power and authority to issue, sell and deliver the
Securities.
(h) This Agreement has been duly and validly authorized, executed and
delivered by the Company.
(i) The Indenture has been duly and validly authorized by the Company, will
be executed and delivered by the Company and, as of the Closing Date, will be a
legal, valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except that enforceability of the
Indenture may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity, regardless of whether considered in a proceeding
in equity or at law. The Indenture will conform in all material respects to the
description thereof in the Prospectus. The Indenture will be duly qualified
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
prior to the Closing Date.
(j) The Securities have been duly and validly authorized for issuance and
sale to the Underwriters by the Company and, when issued, authenticated and
delivered by the Company against payment by the Underwriters in accordance with
the terms of this Agreement and the Indenture, the Securities will be legal,
valid and binding obligations of the Company, entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their terms,
except that enforceability of the Securities may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general principles of equity, regardless
of whether considered in a proceeding in equity or at law. The Securities, when
issued, authenticated and delivered, will conform in all material respects to
the description thereof in the Prospectus.
(k) None of the Company or its subsidiaries is (A) in violation of its
charter, bylaws or other organizational document or (B) in default (or, with
notice or lapse of time or both, would be in default) in the performance or
observance of any obligation, agreement, covenant or condition contained in any
bond, debenture, note, indenture, mortgage, deed of trust, loan agreement,
lease, license, franchise agreement, authorization, permit, certificate or other
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agreement or instrument to which any of them is a party or by which any of them
is bound or to which any of their assets or properties is subject, or (C) in
violation of any law, statute, rule, regulation, judgment, order or decree of
any domestic or foreign court with jurisdiction over any of them or any of their
assets or properties or other governmental or regulatory authority, agency or
other body, that, in the case of clauses (B) and (C) above, would, either
individually or in the aggregate, result in a Material Adverse Effect. There
exists no condition that, with notice or lapse of time or both, would constitute
a default by the Company or any of its subsidiaries under any such document or
instrument or result in the imposition of any penalty or the acceleration of any
indebtedness, other than penalties, defaults or conditions that would not,
either individually or in the aggregate, result in a Material Adverse Effect.
(l) The execution, delivery or performance by the Company of this Agreement
and each of the other Operative Documents does not violate, conflict with or
constitute a breach of any of the terms or provisions of, or a default under (or
an event that with notice or the lapse of time, or both, would constitute a
default), or require consent (except such consents as have been or will be
obtained prior to the Closing) under, or result in the creation or imposition of
a lien, charge or encumbrance on any property or assets of the Company or any of
its subsidiaries pursuant to, (i) the charter, bylaws or other organizational
documents of the Company or any of its subsidiaries, (ii) any bond, debenture,
note, indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, (iii)
any law, statute, rule or regulation applicable to the Company or any of its
subsidiaries or their assets or properties or (iv) any judgment, order or decree
of any domestic or foreign court or governmental agency or authority having
jurisdiction over the Company or any of its subsidiaries or their assets or
properties. No consent, approval, authorization or order of, or filing,
registration, qualification, license or permit of or with, any court or
governmental agency, body or administrative agency, domestic or foreign, is
required to be obtained or made by the Company for the execution, delivery and
performance of this Agreement or any of the other Operative Documents or any of
the transactions contemplated thereby, except (A) such as have been or will be
obtained or made prior to Closing, (B) such as may be required by the NASD or
(C) such as may be required by the securities or blue sky laws of the various
states. No consents or waivers from any other person or entity are required for
the execution, delivery and performance of this Agreement or any of the other
Operative Documents or any of the transactions contemplated hereby or thereby,
except such as have been or will be obtained or made prior to Closing.
(m) There is (i) except as set forth in the Prospectus, no action, suit or
proceeding before or by any court, arbitrator or governmental agency, body or
official, domestic or foreign, now pending or, to the knowledge of the Company
or its subsidiaries, threatened or contemplated, to which the Company or any of
its subsidiaries is or may be a party or to which the business, assets or
property of such person is or may be subject, (ii) except as set forth in the
Prospectus, no statute, rule, regulation or order that has been enacted, adopted
or issued or, to the knowledge of the Company or its subsidiaries, that has been
proposed by any governmental body or agency, domestic or foreign, (iii) no
injunction, restraining order or order of any nature by a federal or state court
or foreign court of competent jurisdiction to which the Company or any of its
subsidiaries is or may be subject that (x) in the case of clause (i) above, is
reasonably likely to, either individually or in the aggregate, (1) result in a
Material Adverse Effect, or (2) interfere with or adversely affect the issuance
of the Securities in any jurisdiction or adversely affect the
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consummation of the transactions contemplated by any of the Operative Documents,
and (y) in the case of clauses (ii) and (iii) above, would, either individually
or in the aggregate, (1) result in a Material Adverse Effect, or (2) interfere
with or adversely affect the issuance of the Securities in any jurisdiction or
adversely affect the consummation of the transactions contemplated by any of the
Operative Documents. Every request of any securities authority or agency of any
jurisdiction for additional information with respect to Securities that has been
received by the Company or its counsel prior to the date hereof has been, or
will prior to the Closing Date be, complied with.
(n) No labor disturbance by the employees of the Company or any of its
subsidiaries exists or, to the actual knowledge of the Company is imminent that
might reasonably be expected to result in a Material Adverse Effect; the Company
and its subsidiaries are in compliance in all respects with, as applicable and
except where a failure to so comply would not have a Material Adverse Effect,
all presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no unwaivable "reportable event" (as defined in ERISA) has
occurred with respect to any "employee pension benefit plan" (as defined in
ERISA) for which the Company or its subsidiaries would have any liability; none
of the Company or its subsidiaries has incurred or expects to incur liability
under (i) Title IV of ERISA with respect to termination of, or withdrawal from,
any "employee pension benefit plan" or (ii) Sections 412, 4971 or 4975 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"); and each "employee pension
benefit plan" that is maintained or contributed to by the Company or its
subsidiaries that is intended to be qualified under Section 401(a) of the Code
has received a determination letter from the Internal Revenue Service to that
effect and nothing has occurred, whether by action or by failure to act, that
would result in the revocation of such determination letter.
(o) Except as set forth in the Prospectus, the Company and each of its
subsidiaries (i) is in compliance with, and not subject to costs or liabilities
under, any and all local, state, provincial, federal and foreign laws,
regulations, rules of common law, orders and decrees, as in effect as of the
date hereof, and any presently effective judgments, decrees, orders and
injunctions issued or promulgated thereunder, in each case, relating to
pollution or protection of public and employee health and safety and the
environment applicable to it or its business or operations or ownership or use
of its property ("Environmental Laws"), other than such noncompliance or costs
or liabilities that would not, either individually or in the aggregate, result
in a Material Adverse Effect, and (ii) possesses all permits, licenses or other
approvals required under applicable Environmental Laws and has no reason to
believe all such permits, licenses and other approvals to expire within the next
five years will not be renewed or otherwise extended or reissued in due course,
in each case, other than such permits, licenses or approvals the lack of which
would not, either individually or in the aggregate, result in a Material Adverse
Effect. All currently pending and, to their knowledge, threatened proceedings,
notices of violation, demands, notices of potential responsibility or liability,
suits and existing environmental conditions with respect to which the Company or
its subsidiaries could reasonably be expected to have any liability are fully
and accurately described in all material respects in the Prospectus except as
would not, either individually or in the aggregate, result in a Material Adverse
Effect.
(p) The Company and each of its subsidiaries has (i) good and marketable
title to all of the properties and assets described in the Prospectus as owned
by it and good and marketable
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title to the leasehold estates in the real and personal property described in
the Prospectus as leased by it, free and clear of all Liens (as defined in the
Indenture), except for Liens described in the Prospectus, Liens permitted under
the Indenture and such Liens as would not, either individually or in the
aggregate, result in a Material Adverse Effect, (ii) all licenses, certificates,
permits, authorizations, approvals, franchises and other rights from, and has
made all declarations and filings with, all federal, state, local and foreign
authorities, all self-regulatory authorities and all courts and other tribunals
(each, an "Authorization") to (a) carry on its business as it is currently being
conducted and as described in the Prospectus and (b) own, lease, license and
operate its respective properties in accordance with its business as currently
conducted, except for such Authorization the failure to maintain would not,
either individually or in the aggregate, result in a Material Adverse Effect and
(iii) no reason to believe that any governmental body or agency, domestic or
foreign, is considering limiting, suspending or revoking any such Authorization.
Except where the failure to be in full force and effect and in compliance would
not, either individually or in the aggregate, result in a Material Adverse
Effect, all such Authorizations are valid and in full force and effect and the
Company and each of its subsidiaries is in compliance with the terms and
conditions of all such Authorizations and with the rules and regulations of the
regulatory authorities having jurisdiction with respect to such Authorizations.
All leases to which the Company or any of its subsidiaries is a party are valid
and binding, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general principles of equity and the
discretion of the court before which any proceedings therefor may be brought and
no default by the Company or any of its subsidiaries or, to the knowledge of the
Company, any other party thereto has occurred and is continuing thereunder,
other than defaults that would not, either individually or in the aggregate,
result in a Material Adverse Effect.
(q) The Company and each of its subsidiaries owns, possesses or has the
right to employ all patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), trademarks,
service marks and trade names (collectively, the "Intellectual Property")
material to the conduct of the businesses operated by it as described in the
Prospectus. The Company has not received any notice of infringement of or
conflict with (and neither knows of any such infringement or a conflict with)
asserted rights of others with respect to any of the foregoing that, if such
assertion of infringement or conflict were sustained, would result in a Material
Adverse Effect. The use of the Intellectual Property in connection with the
business and operations of the Company and its subsidiaries does not infringe on
the rights of any person, except for any infringements that would not result in
a Material Adverse Effect.
(r) All tax returns required to be filed by the Company and each of its
subsidiaries have been filed (or extensions have been obtained) in all
jurisdictions where such returns are required to be filed, other than such
returns the failure of which to file would not have a Material Adverse Effect;
and all taxes, including withholding taxes, penalties and interest, assessments,
fees and other charges due or claimed to be due from such entities or that are
due and payable have been paid, other than those being contested in good faith
and for which reserves have been provided in accordance with generally accepted
accounting principles, those currently payable without penalty or interest and
those the failure of which to pay would not have a Material Adverse Effect. To
the knowledge of the Company there are no material proposed additional tax
assessments against the Company or any of its subsidiaries or their assets or
property.
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(s) None of the Company or its subsidiaries is an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company Act"), or
analogous foreign laws and regulations.
(t) The Company and each of its subsidiaries maintains a system of internal
accounting controls sufficient to provide reasonable assurance that: (A)
transactions are executed in accordance with management's general or specific
authorizations; (B) transactions are recorded as necessary to permit preparation
of its financial statements in conformity with United States generally accepted
accounting principles and to maintain accountability for assets; (C) access to
assets is permitted only in accordance with management's general or specific
authorization; and (D) the recorded accountability for its assets is compared
with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(u) The Company and each of its subsidiaries maintains insurance covering
its properties, assets, operations, personnel and businesses, and such insurance
is of such type and in such amounts in accordance with customary industry
practice to protect the Company and its subsidiaries and their businesses. The
Company has not received notice from any insurer or agent of such insurer that
any material capital improvements or other material expenditures will have to be
made in order to continue any insurance maintained by any of them other than
capital improvements and other expenditures that have been budgeted by the
Company or its subsidiaries, as the case may be.
(v) The accountants who have certified the audited financial statements
included as part of or incorporated by reference in the Prospectus were, at the
dates of their certifications, independent accountants within the meaning of the
Act. The historical financial statements of the Company comply as to form in all
material respects with the requirements applicable to registration statements on
Form S-3 under the Act and present fairly in all material respects the
consolidated financial position and results of operations of the Company at the
respective dates and for the respective periods indicated. Such financial
statements have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods presented
(except as disclosed in the Prospectus) and comply as to form with the rules and
regulations promulgated under the Act. All other financial and statistical
information and data included or incorporated by reference in the Prospectus are
accurately presented in all material respects and prepared on a basis consistent
with the financial statements and the books and records of the Company and its
subsidiaries.
(w) The statistical and market-related data included in the Prospectus are
based on or derived from sources that the Company believes to be reliable and
accurate.
(x) No forward-looking statement (within the meaning of Section 27A of the
Act and Section 21E of the Exchange Act) contained in the Prospectus has been
made or reaffirmed without a reasonable basis or has been disclosed other than
in good faith.
(y) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company to
file a registration statement under the Act with respect to the sale of any debt
securities of the Company or to include for sale
10
any debt securities of the Company with the sale of the Securities under the
Registration Statement.
(z) No "nationally recognized statistical rating organization" as such
term is defined for purposes of Rule 436(g)(2) under the Act has indicated to
the Company that it is considering (i) the downgrading, suspension or withdrawal
of, or any review for a possible change that does not indicate the direction of
the possible change in, any rating assigned to the Company or any securities of
the Company or (ii) any adverse or negative change in the outlook for any rating
of the Company or any securities of the Company.
(aa) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there has not occurred any material adverse change or any development involving
a prospective material adverse change in the condition, financial or otherwise,
or the earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there has not been any material adverse
change or any development involving a prospective material adverse change in the
capital stock or in the long-term debt of the Company or any of its subsidiaries
and (iii) other than in the ordinary course of business, neither the Company nor
any of its subsidiaries has incurred any material liability or obligation,
direct or contingent.
(bb) Each certificate signed by any officer of the Company and delivered to
the Underwriters or counsel for the Underwriters pursuant to, or in connection
with, this Agreement shall be deemed to be a representation and warranty by the
Company to the Underwriters as to the matters covered by such certificate.
SECTION 7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter,
its directors, its officers and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages, liabilities
and judgments (including, without limitation, any legal or other expenses
incurred in connection with investigating or defending any matter, including any
action, that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to any Underwriter furnished in writing to the Company by such Underwriter
expressly for use therein; provided, however, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter or any director or officer of, or person controlling,
such Underwriter who failed to deliver a Prospectus, as then amended or
supplemented, (so long as the Prospectus and any amendment or supplement thereto
was provided by the Company to several Underwriters in the requisite quantity
and on a timely basis to permit proper delivery on or prior to the Closing Date)
to the person asserting any losses, claims, damages, liabilities or judgments
caused by any untrue
11
statement or alleged untrue statement of a material fact contained in the
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, if such material misstatement or omission or
alleged material misstatement or omission was cured in the Prospectus, as so
amended or supplemented, and such Prospectus was required by law to be delivered
at or prior to the written confirmation of sale to such person.
(b) Each Underwriter agrees to indemnify and hold harmless the Company,
its directors, its officers who sign the Registration Statement and each person,
if any, who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as the foregoing indemnity
from the Company to such Underwriter but only with reference to information
relating to such Underwriter furnished in writing to the Company by such
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus.
(c) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to Section 7(a) or 7(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 7(a) and 7(b), the Underwriter shall not be required to assume
the defense of such action pursuant to this Section 7(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
such Underwriter). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. Such separate firm shall be
designated in writing by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., in the case of parties
indemnified pursuant to Section 7(a), and by the Company, in the case of parties
indemnified pursuant to Section 7(b). The indemnifying party shall indemnify and
hold harmless the indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any action (i)
effected with its written consent or (ii) effected without its written consent
if the settlement is entered into more than 60 days after the indemnifying party
shall have received a request from the indemnified party for reimbursement for
the fees and expenses of counsel (in any case where such fees and expenses are
at the expense
12
of the indemnifying party), and, prior to the date of such settlement, the
indemnifying party shall have failed to comply with such reimbursement request
and such indemnified party shall have, on or after such 60th day, given the
indemnifying party at least 30 additional days' notice that the indemnified
party is entitled to settle such action. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of judgment with respect to, any pending
or threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section 7 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Securities or (ii) if the allocation provided by clause 7(d)(i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause 7(d)(i) above but also the
relative fault of the Company on the one hand and the Underwriters on the other
hand in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand shall be deemed to be in the
same proportion as the total net proceeds from the offering (after deducting
underwriting discounts and commissions but before deducting expenses) received
by the Company, and the total underwriting discounts and commissions received by
the Underwriters, bear to the total price to the public of the Securities, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to
13
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 7(d) are several in proportion to the respective principal amount of the
Securities purchased by each of the Underwriters hereunder and not joint.
(e) The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
SECTION 8. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase the Securities under this Agreement are subject to the
satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in
this Agreement shall be true and correct on the Closing Date with the same force
and effect as if made on and as of the Closing Date.
(b) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been commenced or shall be pending before or contemplated by the Commission.
(c) On or after the date hereof, (i) there shall not have occurred any
downgrading, suspension or withdrawal of, nor shall any notice have been given
of any potential or intended downgrading, suspension or withdrawal of, or of any
review (or of any potential or intended review) for a possible change that does
not indicate the direction of the possible change in, any rating of the Company
or any securities of the Company (including, without limitation, the placing of
any of the foregoing ratings on credit watch with negative or developing
implications or under review with an uncertain direction) by any "nationally
recognized statistical rating organization" as such term is defined for purposes
of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change
with negative or uncertain implications, nor shall any notice have been given of
any potential or intended change with negative or uncertain implications, in the
outlook for any rating of the Company or any securities of the Company by any
such rating organization and (iii) no such rating organization shall have given
notice to the Company that it has assigned (or is considering assigning) a lower
rating to the Securities than that existing on the date of this Agreement.
(d) You shall have received on the Closing Date a certificate dated the
Closing Date, signed by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, in their
capacities as the Senior Vice President - Finance and Chief Financial Officer
and Senior Vice President, General Counsel and Secretary of the Company,
confirming the matters set forth in Sections 6(aa), 8(a), 8(b) and 8(c) and that
the Company has complied with all of the agreements and satisfied all of the
conditions herein contained and required to be complied with or satisfied by the
Company on or prior to the Closing Date.
14
(e) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there shall not have occurred any change or any development involving a
prospective change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and its subsidiaries, taken as
a whole, (ii) there shall not have been any change or any development involving
a prospective change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries and (iii) other than in the ordinary course
of business, neither the Company nor any of its subsidiaries shall have incurred
any liability or obligation, direct or contingent, the effect of which, in any
such case described in clause 8(e)(i), 8(e)(ii) or 8(e)(iii), in your judgment,
is material and adverse and, in your judgment, makes it impracticable to market
the Securities on the terms and in the manner contemplated in the Prospectus.
(f) You shall have received on the Closing Date an opinion (satisfactory to
you and counsel for the Underwriters), dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to the effect that:
(i) the Company and each of Family Lending Services, Inc., Standard
Pacific of Texas, L.P., Standard Pacific of Orange County, Inc., Standard
Pacific of Fullerton, Inc., Standard Pacific of Arizona, Inc., Westfield
Homes of the Carolinas, LLC and The Writer Corporation (together, the
"Material Subsidiaries") have been duly organized and are validly existing
as corporations, limited liability companies or partnerships, as
applicable;
(ii) 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;
(iii) the Indenture has been duly and validly authorized, executed and
delivered by the Company, and constitutes the valid and binding agreement
of the Company, enforceable in accordance with its terms, subject (A) to
the effect of any applicable bankruptcy, reorganization, insolvency,
moratorium, arrangement and similar laws of general application relating to
or affecting creditors' rights, including, without limitation, the effect
of statutory or other law regarding fraudulent conveyances, fraudulent
transfers and preferential transfers, and (B) to the limitations imposed by
general principles of equity (regardless of whether considered in a
proceeding at law or in equity);
(iv) the Securities are in the form contemplated by the Indenture,
have been duly and validly authorized by all necessary corporate action
and, when executed and authenticated as specified in the Indenture and
delivered against payment pursuant to this Agreement, will be entitled to
the benefits of the Indenture and will be valid and binding obligations of
the Company enforceable in accordance with their terms, subject (A) to the
effect of any applicable bankruptcy, reorganization, insolvency,
moratorium, arrangement and similar laws of general application relating to
or affecting creditors' rights, including, without limitation, the effect
of statutory or other law regarding fraudulent conveyances, fraudulent
transfers and preferential transfers, and (B) to the limitations imposed by
general principles of equity (regardless of whether considered in a
proceeding at law or in equity); and the purchase and sale of the
Securities in accordance with the terms and
15
provisions of this Agreement and the consummation of the transactions
contemplated under this Agreement, the Indenture and the Securities
will not violate the provisions of Section 1 of Article XV of the
Constitution of the State of California;
(v) the issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance
by the Company with the other provisions of this Agreement and the
other Operative Documents and the consummation of the transactions
herein and therein contemplated do not (A) require the consent,
approval, authorization, registration or qualification of or with any
governmental authority, except such as have been obtained and such as
may be required under state securities or blue sky laws, or (B)
violate any statute, rule or regulation known to such counsel and
applicable to the Company or any of the Material Subsidiaries;
(vi) the Registration Statement has become effective under the
Act, and to such counsel's knowledge no stop order suspending its
effectiveness has been issued and no proceedings for that purpose are
pending before or contemplated by the Commission;
(vii) the statements under the caption "Description of Notes" in
the prospectus supplement constituting part of the Prospectus and the
caption "Description of Debt Securities," in the base prospectus
constituting part of the Prospectus, insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, fairly present the information called for with
respect to such legal matters, documents and proceedings;
(viii) the Company is not or, after giving effect to the offering
and sale of the Securities and the application of the net proceeds
thereof as described in the Prospectus, will not be, an "investment
company" as such term is defined in the Investment Company Act of
1940, as amended;
(ix) the Indenture complies as to form in all material respects
with the requirements of the Trust Indenture Act, and the rules and
regulations of the Commission applicable to an indenture which is
qualified thereunder;
(x) the Company and each of the Material Subsidiaries are in good
standing under the laws of their respective jurisdictions of
organization, and are duly qualified to transact business as foreign
corporations or partnerships and are in good standing under the laws
of each jurisdiction identified in a certificate of the Company,
executed by the Chief Executive Officer and the Senior Vice
President-Finance of the Company (the "Officers' Certificate"), as
being jurisdictions in which any of such entities owns or leases
property, maintains or has an office or is engaged in the business of
developing real property, building and selling homes, except where the
failure to be so qualified would not result in material liability or
disability to the Company and its subsidiaries, taken as a whole;
(xi) the Company and each of the Material Subsidiaries have the
corporate, limited liability company or partnership power to own or
lease their respective properties and conduct their respective
businesses as described in the Prospectus, and the Company
16
has the corporate power to enter into this Agreement and to carry out
all the terms and provisions thereof to be carried out by it;
(xii) the Company's authorized equity capitalization is as set
forth in the Prospectus, the issued shares of capital stock of each of
the Material Subsidiaries (other than the partnerships and limited
liability companies) have been duly authorized and validly issued, are
fully paid and nonassessable, the partnership and member interests in
each of the Material Subsidiaries that are partnerships or limited
liability companies have been duly authorized and validly issued, and
all such shares, partnership interests and member interests are owned
of record by the Company or a wholly owned subsidiary of the Company
and, to the knowledge of such counsel, free and clear of any security
interests, liens, encumbrances or claims;
(xiii) to the knowledge of such counsel without investigation of
court records, no legal or governmental proceedings are pending to
which the Company or any of its Material Subsidiaries is a party or to
which the property of the Company or any of its Material Subsidiaries
is subject that are required to be described in the Prospectus and are
not described therein and no such proceedings have been threatened
against the Company or any of its Material Subsidiaries or with
respect to any of their respective properties, and;
(xiv) the issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance
by the Company with the other provisions of this Agreement and the
other Operative Documents and the consummation of the other
transactions herein and therein contemplated do not (A) conflict with
or result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, lease or other agreement or instrument to which the Company or
any of its Material Subsidiaries is a party or by which the Company or
any of its Material Subsidiaries or any of their respective properties
are bound, which is identified in the Officers' Certificate as being
material to the business of the Company (the "Material Agreements"),
or any judgment, decree or order of any court or other governmental
authority or any arbitrator applicable to the Company or any of the
Material Subsidiaries which is identified in the Officers' Certificate
as being material to the business of the Company, or (B) conflict with
or result in a breach or violation of the charter documents, by-laws
or other organizational documents of the Company or any of its
Material Subsidiaries;
(xv) to such counsel's knowledge, there are no contracts,
agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company or to require the Company to include such securities for
sale with the sale of the Securities hereunder; and
(xvi) (A) each document, if any, filed pursuant to the Exchange
Act and incorporated by reference in the Prospectus (except for
financial statements and other financial data included therein as to
which no opinion need be expressed) complied when so filed as to form
with the Exchange Act in all material respects, (B) the Registration
Statement and the Prospectus and any supplement or amendment thereto
(except for the
17
financial statements and other financial data included therein as to which
no opinion need be expressed) comply as to form with the Act in all
material respects, (C) nothing has come to the attention of such counsel
which causes them to believe that at March 21, 2002 the Registration
Statement and the base prospectus included therein (except for the
financial statements and other financial data as to which such counsel need
not express any belief and except for that part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1) under
the Trust Indenture Act) contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (D) nothing has
come to the attention of such counsel which causes them to believe that the
Prospectus, as amended or supplemented, if applicable (except for the
financial statements and other financial data, as aforesaid), as of its
date or the date of such opinion, contained or contains any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
The opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP described in Section 8(f) above
shall be rendered to you at the request of the Company and shall so state
therein.
(g) You shall have received on the Closing Date an opinion, dated the
Closing Date, of O'Melveny & ▇▇▇▇▇ LLP, counsel for the Underwriters, as to such
matters as are customarily covered in such opinions.
(h) You shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to you, from Ernst & Young LLP, independent
public accountants, containing the information and statements agreed to with the
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Registration
Statement and the Prospectus.
(i) [Intentionally omitted.]
(j) The Securities shall have been rated "BB" by Standard & Poor's
Corporation and "Ba2" by ▇▇▇▇▇'▇ Investors Service, Inc.
(k) The Underwriters shall have received a counterpart, conformed as
executed, of the Indenture which shall have been entered into by the Company and
the Trustee.
(l) The Company shall not have failed on or prior to the Closing Date to
perform or comply with any of the agreements herein contained and required to be
performed or complied with by the Company on or prior to the Closing Date.
SECTION 9. Effectiveness of Agreement and Termination. This Agreement shall
become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by written notice to the Company if any of the following has
occurred: (i) any change, or any development or event involving a prospective
change, in the condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries taken as one
18
enterprise which, in the judgment of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., is material and
adverse and makes it impractical or inadvisable to proceed with completion of
the offering or the sale of and payment for the Securities; (ii) any downgrading
in the rating of any debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of the Company
(other than an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating, or any
announcement by any nationally recognized statistical rating organization that
it intends to issue a liquidity rating without issuing or indicating the rating)
or any announcement that the Company has been placed on negative outlook; (iii)
any change in U.S. or international financial, political or economic conditions
or currency exchange rates or exchange controls as would, in the judgment of
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., be likely to prejudice materially the success of the
proposed issue, sale or distribution of the Securities, whether in the primary
market or in respect of dealings in the secondary market, (iv) any material
suspension or material limitation of trading in securities generally on the New
York Stock Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (v) any banking moratorium declared
by U.S. Federal or New York authorities; (vi) any major disruption of
settlements of securities or clearance services in the United States or (vii)
any attack on, outbreak or escalation of hostilities or act of terrorism
involving the United States, any declaration of war by Congress or any other
national or international calamity or emergency if, in the judgment of ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney Inc., the effect of any such attack, outbreak, escalation, act,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the offering or sale of and payment for the
Securities.
If on the Closing Date any one or more of the Underwriters shall fail
or refuse to purchase the Securities which it or they have agreed to purchase
hereunder on such date and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of
Securities to be purchased on such date by all Underwriters, each non-defaulting
Underwriter shall be obligated severally, in the proportion which the principal
amount of Securities set forth opposite its name in Schedule I bears to the
aggregate principal amount of Securities which all the non-defaulting
Underwriters have agreed to purchase, or in such other proportion as you may
specify, to purchase the Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the aggregate principal amount of Securities which any
Underwriter has agreed to purchase pursuant to Section 2 hereof be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such principal
amount of Securities without the written consent of such Underwriter. If on the
Closing Date any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate principal amount of Securities with respect to
which such default occurs is more than one-tenth of the aggregate principal
amount of Securities to be purchased by all Underwriters and arrangements
satisfactory to you and the Company for purchase of such Securities are not made
within 48 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter and the Company. In any
such case which does not result in termination of this Agreement, either you or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if
19
any, in the Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
any such Underwriter under this Agreement.
SECTION 10. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company, to Standard
Pacific Corp., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention:
Corporate Secretary, with a copy to ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Esq. and (ii) if to the Underwriters or to you, to you c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc. at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate
Department, with a copy to O'Melveny & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., or in any case
to such other address as the person to be notified may have requested in
writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the several Underwriters set
forth in or made pursuant to this Agreement shall remain operative and in full
force and effect, and will survive delivery of and payment for the Securities,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the officers or directors of any
Underwriter, any person controlling any Underwriter, the Company, the officers
or directors of the Company or any person controlling the Company, (ii)
acceptance of the Securities and payment for them hereunder and (iii)
termination of this Agreement.
If for any reason the Securities are not delivered by or on behalf of
the Company as provided herein (other than as a result of any termination of
this Agreement pursuant to Section 9), the Company agrees to reimburse the
several Underwriters for all out-of-pocket expenses (including the reasonable
fees and disbursements of counsel) incurred by it. Notwithstanding any
termination of this Agreement, the Company shall be liable for all expenses
which it has agreed to pay pursuant to Section 5(i) hereof. The Company agrees
to reimburse the several Underwriters, their directors and officers and any
persons controlling any of the Underwriters, and the Underwriters agree to
reimburse the Company, its directors, its officers who sign the Registration
Statement and any person who controls the Company, in each case for any and all
fees and expenses (including, without limitation, the reasonable fees
disbursements of counsel) incurred by them in connection with enforcing their
rights hereunder (including, without limitation, pursuant to Section 7 hereof).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, the Underwriters' directors and officers, any controlling persons
referred to herein, the Company's directors and the Company's officers who sign
the Registration Statement and their respective successors and assigns, all as
and to the extent provided in this Agreement, and no other person shall acquire
or have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Securities from any of the
Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
20
The term "subsidiary" as used in this Agreement means a corporation, a
majority of the capital stock with voting power to elect directors of which is
directly or indirectly owned by the Company or any of its subsidiaries, or any
person in which the Company and its subsidiaries have at least a majority
ownership interest.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
21
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
STANDARD PACIFIC CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President, General
Counsel and Secretary
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
BANC ONE CAPITAL MARKETS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
COMERICA SECURITIES
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
FLEET SECURITIES, INC.
By: /s/ ▇. ▇▇▇▇▇ Wall
---------------------------
Name: ▇. ▇▇▇▇▇ Wall
Title: Vice President
PNC CAPITAL MARKETS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
22
SCHEDULE I
Principal Amount of
Underwriters Securities to Be Purchased
------------ --------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ............. $ 75,000,000
Banc One Capital Markets, Inc. ........ 12,500,000
Comerica Securities ................... 12,500,000
Fleet Securities, Inc. ................ 12,500,000
PNC Capital Markets, Inc. ............. 12,500,000
-----------
Total ................................. $125,000,000
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