EXHIBIT 1.1
$75,000,000
XXXXX HOMES, INC.
% Senior Notes due 2008
UNDERWRITING AGREEMENT
January , 1998
SALOMON BROTHERS INC
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxx Homes, Inc., a Florida corporation (the "Company"), proposes,
upon the terms and conditions set forth herein, to issue and sell $75,000,000
aggregate principal amount of its % Senior Notes due 2008 (the "Notes") to
Salomon Brothers Inc (the "Underwriter"). The Notes will be guaranteed (the
"Guarantees"), on a joint and several basis, by all of the Company's
subsidiaries which are signatories hereto (the "Guarantors"). The Notes and the
Guarantees are collectively referred to herein as the "Securities." The
Securities will be issued pursuant to the provisions of an Indenture to be dated
as of January , 1998 (the "Indenture") among the Company, the Guarantors and
American Stock Transfer & Trust Company, as Trustee (the "Trustee").
Concurrently with the issuance and sale of the Securities contemplated hereby
(the "Notes Offering"), the Company is offering 2,700,000 shares of Common Stock
(the "Equity Offering") by means of a separate prospectus. The consummation of
the Notes Offering and the consummation of the Equity Offering are not
conditioned on each other.
The Company and the Guarantors wish to confirm as follows their
agreement with you in connection with the purchase of the Securities by you.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company and the
Guarantors have 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
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(collectively, the "Act"), a registration statement on Form S-2 File No.
333-40741 under the Act (the "registration statement"), including a prospectus
subject to completion relating to the Securities. The term "Registration
Statement" as used in this Agreement means the registration statement (including
all financial schedules and exhibits), as amended at the time it becomes
effective, or, if the registration statement became effective prior to the
execution of this Agreement, as supplemented or amended prior to the execution
of this Agreement. If it is contemplated, at the time this Agreement is
executed, that a post-effective amendment to the registration statement will be
filed and must be declared effective before the offering of the Securities may
commence, the term "Registration Statement" as used in this Agreement means the
registration statement as amended by said post-effective amendment. The term
"Prospectus" as used in this Agreement means the prospectus in the form included
in the Registration Statement, or, if the prospectus included in the
Registration Statement omits information in reliance on Rule 430A under the Act
and such information is included in a prospectus filed with the Commission
pursuant to Rule 424(b) under the Act, the term "Prospectus" as used in this
Agreement means the prospectus in the form included in the Registration
Statement as supplemented by the addition of the Rule 430A information contained
in the prospectus filed with the Commission pursuant to Rule 424(b). The term
"Prepricing Prospectus" as used in this Agreement means the prospectus subject
to completion in the form included in the registration statement at the time of
the initial filing of the registration statement with the Commission, and as
such prospectus shall have been amended from time to time prior to the date of
the Prospectus. If the Company elects to rely on Rule 434 under the Act, all
references to the Prospectus shall be deemed to include, without limitation, the
form of prospectus and the terms sheet contemplated by Rule 434, taken together,
provided to the Underwriters by the Company in reliance on Rule 434 under the
Act (the "Rule 434 Prospectus"). If the Company has filed or files another
registration statement with the Commission to register a portion of the
Securities pursuant to Rule 462(b) under the Act (the "Rule 462 Registration
Statement"), then any reference to "Registration Statement" herein shall be
deemed to include the Registration Statement on Form S-2 (File No. 333-40741)
and the Rule 462 Registration Statement, as each such registration statement may
be amended pursuant to the Act. Any reference in this Agreement to the
registration statement, the Registration Statement, any Prepricing Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-2 under the Act.
As used herein, the
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term "Incorporated Documents" means the documents which are incorporated by
reference in the registration statement, the Registration Statement, any
Prepricing Prospectus, the Prospectus, or any amendment or supplement thereto.
2. AGREEMENT TO SELL AND PURCHASE. The Company hereby agrees, subject
to all the terms and conditions set forth herein, to issue and sell to you and,
upon the basis of the representations, warranties and agreements of the Company
and the Guarantors herein contained and subject to all the terms and conditions
set forth herein, you agree to purchase from the Company, at a purchase price of
% of the principal amount thereof, $75,000,000 aggregate principal amount of
Securities.
3. TERMS OF PUBLIC OFFERING. The Company has been advised by you that
you propose to make a public offering of the Securities as soon after the
Registration Statement and this Agreement have become effective as in your
judgment is advisable and initially to offer the Securities upon the terms set
forth in the Prospectus.
4. DELIVERY OF THE SECURITIES AND PAYMENT THEREFOR. Delivery to you of
and payment for the Securities shall be made at the office of Salomon Brothers
Inc, Seven Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00 A.M., New York City
time, on January , 1998 (the "Closing Date"). The place of closing for the
Securities and the Closing Date may be varied by agreement between you and the
Company.
The Securities will be delivered to you against payment of the purchase
price therefor in immediately available funds by wire transfer to the Company's
account specified in writing to you by the Company and registered in such names
and in such denominations as you shall request prior to 9:30 A.M., New York City
time, on the second business day preceding the Closing Date. The Securities to
be delivered to you shall be made available to you in New York City for
inspection and packaging not later than 9:30 A.M., New York City time, on the
business day next preceding the Closing Date.
5. AGREEMENTS OF THE COMPANY AND THE GUARANTORS. The Company and each
of the Guarantors, jointly and severally, agree with the Underwriter as follows:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or a post-effective
amendment thereto to be declared ef-
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fective before the offering of the Securities may commence, the Company
and the Guarantors will endeavor to cause the Registration Statement or
such post-effective amendment to become effective as soon as possible
and will advise you promptly and, if requested by you, will confirm
such advice in writing, when the Registration Statement or such
post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by
you, will confirm such advice in writing: (i) of any request by the
Commission for amendment of or a supplement to the Registration
Statement, any Prepricing Prospectus or 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
purpose; and (iii) within the period of time referred to in paragraph
(f) below, of any change in the Company's condition (financial or
other), business, prospects, properties, net worth or results of
operations, or of the happening of any event, which makes any statement
of a material fact made in the Registration Statement or the Prospectus
(as then amended or supplemented) untrue or which requires the making
of any additions to or changes in the Registration Statement or the
Prospectus (as then amended or supplemented) in order to state a
material fact required by the Act or the regulations thereunder to be
stated therein or necessary in order to make the statements therein not
misleading, or of the necessity to amend or supplement the Prospectus
(as then amended or supplemented) to comply with the Act or any other
law. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company
will make every reasonable effort to obtain the withdrawal of such
order at the earliest possible time.
(c) The Company will furnish to you, without charge (i) two
signed copies of the registration statement as originally filed with
the Commission and of each amendment thereto, including financial
statements and all exhibits to the registration statement, (ii) such
number of conformed copies of the registration statement as originally
filed and of each amendment thereto, but without exhib-
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its, as you may request, (iii) such number of copies of the Indenture
and of the Incorporated Documents, without exhibits, as you may
request, and (iv) two copies of the exhibits to the Incorporated
Documents.
(d) The Company and the Guarantors will not file any amendment
to the Registration Statement or make any amendment or supplement to
the Prospectus of which you shall not previously have been advised or
to which, after you shall have received a copy of the document proposed
to be filed, you shall reasonably object.
(e) Prior to the execution and delivery of this Agreement, the
Company has delivered to you, without charge, in such quantities as you
have requested, copies of each form of the Prepricing Prospectus. The
Company consents to the use, in accordance with the provisions of the
Act and with the securities or Blue Sky laws of the jurisdictions in
which the Securities are offered by you and by dealers, prior to the
date of the Prospectus, of each Prepricing Prospectus so furnished by
the Company.
(f) As soon after the execution and delivery of this Agreement
as possible and thereafter from time to time for such period as in the
opinion of counsel for the Underwriter a prospectus is required by the
Act to be delivered in connection with sales by the Underwriter or any
dealer, the Company will expeditiously deliver to the Underwriter and
each dealer, without charge, as many copies of the Prospectus (and of
any amendment or supplement thereto) as you may request. The Company
and each of the Guarantors consent to the use of the Prospectus (and of
any amendment or supplement thereto) in accordance with the provisions
of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Securities are offered by the Underwriter
and by all dealers to whom Securities may be sold, both in connection
with the offering and sale of the Securities and for such period of
time thereafter as the Prospectus is required by the Act to be
delivered in connection with sales by the Underwriter or any dealer. If
during such period of time any event shall occur that in the judgment
of the Company or in the reasonable opinion of counsel for the
Underwriter is required to be set forth in the Prospectus (as then
amended or supplemented) or should be set forth therein in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary to
supplement or amend the Prospectus in order to comply with the Act or
any other law, the Company will forthwith prepare and, subject to the
provisions of para-
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graph (d) above, file with the Commission an appropriate supplement or
amendment thereto, and will expeditiously furnish to the Underwriter
and dealers a reasonable number of copies thereof. In the event that
the Company and you agree that the Prospectus should be amended or
supplemented, the Company, if requested by you, will promptly issue a
press release announcing or disclosing the matters to be covered by the
proposed amendment or supplement.
(g) The Company and the Guarantors will cooperate with you and
with counsel for the Underwriter in connection with the registration or
qualification of the Securities for offering and sale by the
Underwriter and by dealers under the securities or Blue Sky laws of
such jurisdictions as you may designate and will file such consents to
service of process or other documents necessary or appropriate in order
to effect such registration or qualification; provided that in no event
shall the Company or any Guarantor be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to
take any action which would subject it to service of process in suits,
other than those arising out of the offering or sale of the Securities,
or to taxation in any jurisdiction where it is not now so subject.
(h) The Company will make generally available to its security
holders a consolidated earnings statement, which need not be audited,
covering a twelve-month period commencing after the effective date of
the Registration Statement and ending not later than 15 months
thereafter, as soon as practicable after the end of such period, which
consolidated earnings statement shall satisfy the provisions of Section
11(a) of the Act.
(i) During the period of three years hereafter, the Company
will furnish to you (i) as soon as available, a copy of each report of
the Company mailed to stockholders or filed with the Commission, and
(ii) from time to time such other information concerning the Company as
you may reasonably request.
(j) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provisions hereof (otherwise than by
notice given by you terminating this Agreement pursuant to Section 10
or Section 11 hereof) or if this Agreement shall be terminated by you
because of any failure or refusal on the part of the Company to comply
with the terms or fulfill any of the condi-
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tions of this Agreement, the Company agrees to reimburse you for all
out-of-pocket expenses (including fees and expenses of counsel for the
Underwriter) incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of
the Securities substantially in accordance with the description set
forth in the Prospectus.
(l) If Rule 430A of the Act is employed, the Company will
timely file the Prospectus pursuant to Rule 424(b) under the Act and
will advise you of the time and manner of such filing.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE GUARANTORS.
The Company and each of the Guarantors, jointly and severally, represent and
warrant to you that:
(a) Each Prepricing Prospectus included as part of the
registration statement as originally filed or as part of any amendment
or supplement thereto, or filed pursuant to Rule 424 under the Act,
complied when so filed in all material respects with the provisions of
the Act. The Commission has not issued any order preventing or
suspending the use of any Prepricing Prospectus.
(b) The Company and the Guarantors have reasonable grounds to
believe that they meet all of the requirements for using Form S-2 under
the Act. The Registration Statement in the form in which it became or
becomes effective and also in such form as it may be when any
post-effective amendment thereto shall become effective and the
Prospectus and any supplement or amendment thereto when filed with the
Commission under Rule 424(b) under the Act, complied or will comply in
all material respects with the provisions of the Act and will not at
any such times 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 not misleading, except that this
representation and warranty does not apply to statements in or
omissions from the Registration Statement or the Prospectus made in
reliance upon and in conformity with (i) information relating to the
Underwriter furnished to the Company in writing by the Underwriter
expressly for use therein, or (ii) the Trustee's Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act
of 1939, as amended (the "1939 Act").
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(c) The Incorporated Documents heretofore filed, when they
were filed (or, if any amendment with respect to any such document was
filed, when such amendment was filed), conformed in all material
respects with the requirements of the Exchange Act and the rules and
regulations thereunder; and no such document when it was filed (or, if
an amendment with respect to any such document was filed, when such
amendment was filed), contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading.
(d) The execution and delivery of, and the performance by the
Company and each of the Guarantors of their respective obligations
under this Agreement have been duly and validly authorized by the
Company and each of the Guarantors, as the case may be, and this
Agreement has been duly executed and delivered by the Company and each
of the Guarantors and constitutes the valid and legally binding
agreement of the Company and each of the Guarantors, enforceable
against the Company and each of the Guarantors in accordance with its
terms, except to the extent enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to creditors' rights generally or by general equitable
principles, and except as rights to indemnity and contribution
hereunder may be limited by federal or state securities laws or other
applicable laws or public policy.
(e) The Indenture has been duly and validly authorized by the
Company and each of the Guarantors and, upon its execution and delivery
by the Company and each of the Guarantors and assuming due execution
and delivery by the Trustee, will be a valid and binding agreement of
the Company and each of the Guarantors, enforceable against the Company
and each of the Guarantors in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and by general equitable principles; and has been (or
will have been) duly qualified under the 1939 Act and conforms to the
description thereof in the Registration Statement and the Prospectus.
(f) The Securities have been duly authorized by the Company
and each of the Guarantors and, when executed by the Company and each
of the Guarantors and authenticated by the Trustee in accordance with
the Indenture and deliv-
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ered to you against payment therefor in accordance with the terms
hereof, will have been validly issued and delivered, and will
constitute valid and binding obligations of the Company and each of the
Guarantors entitled to the benefits of the Indenture and enforceable
against the Company and each of the Guarantors in accordance with their
terms, except as enforcement thereof may be limited by (1) bankruptcy,
fraudulent conveyance, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles; and the Securities will conform to
the description thereof in the Registration Statement and the
Prospectus.
(g) The authorized and outstanding capital stock of the
Company is as set forth under the captions "Capitalization" and
"Description of Capital Stock" in the Prospectus.
(h) The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Florida with
full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus, and is duly registered and qualified to
conduct its business and is in good standing in each jurisdiction or
place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure
so to register or qualify does not have a material adverse effect on
the condition (financial or other), business, properties, net worth or
results of operations of the Company and the Subsidiaries (as
hereinafter defined) taken as a whole (a "Material Adverse Effect").
(i) All of the Company's subsidiaries (collectively, the
"Subsidiaries") are listed in an exhibit to the Company's Annual Report
on Form 10-K which is incorporated by reference into the Registration
Statement. Each Subsidiary is a corporation duly organized, validly
existing and in good standing in the jurisdiction of its incorporation,
with full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus, and is duly registered and qualified to
conduct its business and is in good standing in each jurisdiction or
place where the nature of its properties or the conduct of its business
requires such registration or qualification, ex-
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cept where the failure so to register or qualify does not have a
Material Adverse Effect; all the outstanding shares of capital stock of
each of the Subsidiaries have been duly authorized and validly issued,
are fully paid and nonassessable, and are owned by the Company
directly, or indirectly through one of the other Subsidiaries, free and
clear of any lien, adverse claim, security interest, equity or other
encumbrance.
(j) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened, against the Company or any
of the Subsidiaries, or to which the Company or any of the
Subsidiaries, or to which any of their respective properties is
subject, that are required to be described in the Registration
Statement or the Prospectus but are not described as required, and
there are no agreements, contracts, indentures, leases or other
instruments that are required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement or any Incorporated Document that are not
described or filed as required by the Act or the Exchange Act.
(k) Neither the Company nor any of the Subsidiaries is in
violation of its certificate or articles of incorporation or by-laws,
or other organizational documents, or of any law, ordinance,
administrative or governmental rule or regulation applicable to the
Company or any of the Subsidiaries or of any decree of any court or
governmental agency or body having jurisdiction over the Company or any
of the Subsidiaries, or in default in any material respect in the
performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any
material agreement, indenture, lease or other instrument to which the
Company or any of the Subsidiaries is a party or by which any of them
or any of their respective properties may be bound, other than any such
violations or defaults that have not had and will not have,
individually or in the aggregate, a Material Adverse Effect.
(l) Neither the issuance and sale of the Securities, the
execution, delivery or performance of this Agreement and the Indenture
by the Company and the Guarantors, nor the consummation by the Company
and the Guarantors of the transactions contemplated hereby and thereby
(i) requires any consent, approval, authorization or other order of or
registration or filing with, any court, regulatory body,
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administrative agency or other governmental body, agency or official
(except such as may be required for the registration of the Securities
under the Act and the Exchange Act, qualification of the Indenture
under the 1939 Act, and compliance with the securities or Blue Sky laws
of various jurisdictions, all of which have been or will be effected in
accordance with this Agreement) or conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, the
certificate or articles of incorporation or bylaws, or other
organizational documents, of the Company or any of the Subsidiaries or
(ii) conflicts or will conflict with or constitutes or will constitute
a breach of, or a default under, any agreement, indenture, lease or
other instrument to which the Company or any of the Subsidiaries is a
party or by which any of them or any of their respective properties may
be bound, or violates or will violate any statute, law, regulation or
filing or judgment, injunction, order or decree applicable to the
Company or any of the Subsidiaries or any of their respective
properties, other than any such conflicts, breaches, defaults or
violations that have not had and will not have a Material Adverse
Efect, or will result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any of the
Subsidiaries pursuant to the terms of any agreement or instrument to
which any of them is a party or by which any of them may be bound or to
which any of the property or assets of any of them is subject.
(m) The accountants, BDO Xxxxxxx, LLP, who have certified the
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus (or any amendment or
supplement thereto) are independent public accountants as required by
the Act.
(n) The financial statements, together with related schedules
and notes, included or incorporated by reference in the Registration
Statement and the Prospectus (and any amendment or supplement thereto),
present fairly the consolidated financial position, results of
operations and shareholders' equity and cash flows of the Company and
the Subsidiaries on the basis stated in the Registration Statement at
the respective dates or for the respective periods to which they apply;
such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed therein;
and the other financial and statistical informa-
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tion and data included or incorporated by reference in the Registration
Statement and the Prospectus (and any amendment or supplement thereto)
are accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company and the
Subsidiaries.
(o) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the
Registration Statement and the Prospectus (or any amendment or
supplement thereto), neither the Company nor any of the Subsidiaries
has incurred any liability or obligation, direct or contingent, or
entered into any transaction, not in the ordinary course of business,
that is material to the Company and the Subsidiaries taken as a whole,
and there has not been any material change in the capital stock or
material increase, on a consolidated basis, in the short-term debt or
long-term debt, of the Company and the Subsidiaries taken as a whole,
or any material adverse change, or any development involving or which
may reasonably be expected to involve, a prospective material adverse
change, in the condition (financial or other), business, net worth or
results of operations of the Company and the Subsidiaries taken as a
whole (a "Material Adverse Change").
(p) Each of the Company and the Subsidiaries has good and
marketable title to all property (real and personal) described in the
Prospectus as being owned by it, free and clear of all liens, claims,
security interests or other encumbrances except such as are described
in the Registration Statement and the Prospectus or in a document filed
as an exhibit to the Registration Statement, and except for other
encumbrances including purchase money liens entered into in the
ordinary course of business which are not required to be described in
the Registration Statement, and all the property described in the
Prospectus as being held under lease by the Company or any Subsidiary
is held by it under valid, subsisting and enforceable leases.
(q) None of the Company and the Guarantors have distributed
and, prior to the later to occur of (i) the Closing Date and (ii)
completion of the distribution of the Securities, will distribute any
offering material in connection with the offering and sale of the
Securities other than the Registration Statement, the Prepricing
Prospec-
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tus, the Prospectus or other materials, if any, permitted by the Act.
(r) The Company and each of the Subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits") as are necessary to own its respective
properties and to conduct its business in the manner described in the
Prospectus, subject to such qualifications as may be set forth in the
Prospectus, except such permits as may be necessary for the development
and construction on specific properties or where the failure to have
any such permits has not had and will not have a Material Adverse
Effect; the Company and each of the Subsidiaries has fulfilled and
performed all its material obligations with respect to such permits and
no event has occurred which allows, or after notice or lapse of time
would allow, revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such permit,
subject in each case to such qualification as may be set forth in the
Prospectus and except to the extent that any such revocation or
termination would not have a Material Adverse Effect; and, except as
described in the Prospectus, none of such permits contains any
restriction that is materially burdensome to the Company or any of the
Subsidiaries except such restrictions that will not have a Material
Adverse Effect.
(s) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(t) To the Company's knowledge, neither the Company nor any of
its Subsidiaries nor any employee or agent of the Company or any
Subsidiary has made any payment of funds of the Company or any
Subsidiary or received or retained any funds in violation of any law,
rule or regula-
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tion, which payment, receipt or retention of funds is of a character
required to be disclosed in the Prospectus.
(u) The Company and each of the Subsidiaries have filed all
tax returns required to be filed under applicable law, which returns
are complete and correct in all material respects, and neither the
Company nor any Subsidiary is in default in the payment of any taxes
which were payable pursuant to said returns or any assessments with
respect thereto.
(v) Except as described in the Registration Statement, no
holder of any security of the Company has any right to require
registration of shares of Common Stock or any other security of the
Company because of the filing of the registration statement or
consummation of the transactions contemplated by this Agreement.
(w) The Company and the Subsidiaries own all patents,
trademarks, trademark registration, service marks, service xxxx
registrations, trade names, copyrights, licenses, inventions, trade
secrets and rights described in the Prospectus as being owned or
possessed by them or any of them or necessary for the conduct of their
respective businesses, and the Company is not aware of any claim to the
contrary or any challenge by any other person to the rights of the
Company and the Subsidiaries with respect to the foregoing.
(x) The Company has complied with all provisions of Florida
Statutes, ss.517.075, relating to issuers doing business with Cuba.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and each of the Guarantors, jointly and
severally, agree to indemnify and hold harmless the Underwriter and
each person, if any, who controls the 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 expenses
(including reasonable costs of investigation) arising out of or based
upon any untrue statement or alleged untrue statement of a material
fact contained in any Prepricing Prospectus or in the Registration
Statement or the Prospectus or in any amendment or supplement thereto,
or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be
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stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities
or expenses arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission which has been made
therein or omitted therefrom in reliance upon and in conformity with
the information relating to the Underwriter furnished in writing to the
Company by the Underwriter expressly for use in connection therewith;
provided, however, that the indemnification contained in this paragraph
(a) with respect to any Prepricing Prospectus shall not inure to the
benefit of the Underwriter (or to the benefit of the person controlling
the Underwriter) on account of any such loss, claim, damage, liability
or expense arising from the sale of the Securities by the Underwriter
to any person if a copy of the Prospectus shall not have been delivered
or sent to such person within the time required by the Act and the
regulations thereunder, and the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact contained
in such Prepricing Prospectus was corrected in the Prospectus, provided
that the Company has delivered the Prospectus to the Underwriter in
requisite quantity on a timely basis to permit such delivery or
sending. The foregoing indemnity agreement shall be in addition to any
liability which the Company or the Guarantors may otherwise have.
(b) If any action, suit or proceeding shall be brought against
the Underwriter or any person controlling the Underwriter in respect of
which indemnity may be sought against the Company and the Guarantors,
the Underwriter or such controlling person shall promptly notify the
Company and the Guarantors and the Company shall assume the defense
thereof, including the employment of counsel and payment of all fees
and expenses. The Underwriter or any such controlling person shall have
the right to employ separate counsel in any such action, suit or
proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of the Underwriter or
such controlling person unless (i) the Company has agreed in writing to
pay such fees and expenses, (ii) the Company has failed to assume the
defense and employ counsel, or (iii) the named parties to any such
action, suit or proceeding (including any impleaded parties) include
both the Underwriter or such controlling person and one or more of the
Company and the Guarantors and the Underwriter or such controlling
person shall have been advised by its counsel that representation
-16-
of such indemnified party and the Company or the Guarantors party
thereto by the same counsel would be inappropriate under applicable
standards of professional conduct (whether or not such representation
by the same counsel has been proposed) due to actual or potential
differing interests between them (in which case the Company shall not
have the right to assume the defense of such action, suit or proceeding
on behalf of the Underwriter or such controlling person). It is
understood, however, that the Company shall, in connection with any one
such action, suit or proceeding or separate but substantially similar
or related actions, suits or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable
for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for the
Underwriter and all such controlling persons not having actual or
potential differing interests with you or among themselves, which firm
shall be designated in writing by Salomon Brothers Inc, and that all
such fees and expenses shall be reimbursed as they are incurred. The
Company and the Guarantors shall not be liable for any settlement of
any such action, suit or proceeding effected without the Company's
written consent, but if settled with such written consent, or if there
be a final judgment for the plaintiff in any such action, suit or
proceeding, the Company and the Guarantors agree to indemnify and hold
harmless the Underwriter, to the extent provided in the preceding
paragraph, and any such controlling person from and against any loss,
claim, damage, liability or expense by reason of such settlement or
judgment.
(c) The Underwriter agrees to indemnify and hold harmless the
Company, the Guarantors, their directors, their officers who sign the
Registration Statement, and any person 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 and the
Guarantors to the Underwriter, but only with respect to information
relating to the Underwriter furnished in writing by the Underwriter
expressly for use in the Registration Statement, the Prospectus or any
Prepricing Prospectus, or any amendment or supplement thereto. If any
action, suit or proceeding shall be brought against the Company, the
Guarantors, any of their directors, any such officer, or any such
controlling person, based on the Registration Statement, the Prospectus
or any Prepricing Prospectus, or any amendment or supple-
-17-
ment thereto, and in respect of which indemnity may be sought against
the Underwriter pursuant to this paragraph (c), the Underwriter shall
have the rights and duties given to the Company by paragraph (b) above
(except that if the Company shall have assumed the defense thereof the
Underwriter shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the Underwriter's expense),
and the Company, the Guarantors, their directors, any such officer, and
any such controlling person, shall have the rights and duties given to
the Underwriter by paragraph (b) above. The foregoing indemnity
agreement shall be in addition to any liability which the Underwriter
may otherwise have.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof
in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then an 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 or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company
and the Guarantors on the one hand and the Underwriter on the other
hand from the offering of the Securities, or (ii) if the allocation
provided by clause (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 (i) above but also the relative fault of
the Company and the Guarantors on the one hand and the Underwriter on
the other in connection with the statements or omissions that resulted
in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative benefits
received by the Company and the Guarantors on the one hand and the
Underwriter on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriter, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault of
the Company and the Guarantors on the one hand and the Underwriter 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 sup-
-18-
plied by the Company and the Guarantors on the one hand or by the
Underwriter on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The Company, the Guarantors and the Underwriter agree that
it would not be just and equitable if contribution pursuant to this
Section 7 were determined by a pro rata allocation or by any other
method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages, liabilities and expenses referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating any claim or defending any such
action, suit or proceeding. Notwithstanding the provisions of this
Section 7, the Underwriter shall not be required to contribute any
amount in excess of the amount by which the total price of the
Securities underwritten by it and distributed to the public exceeds the
amount of any damages which the 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.
(f) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such
action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or
contribution under this Section 7 shall be paid by the indemnifying
party to the indemnified party as such losses, claims, damages,
liabilities or expenses are incurred. The indemnity and contribution
agreements contained in this Section 7 and the representations and
-19-
warranties of the Company and the Guarantors set forth in this
Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of the
Underwriter or any person controlling the Underwriter, the Company, the
Guarantors, their directors or officers or any person controlling the
Company, (ii) acceptance of any Securities and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to
the Underwriter or any person controlling the Underwriter, or to the
Company, the Guarantors, their directors or officers, or any person
controlling the Company, shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this
Section 7.
8. CONDITIONS OF UNDERWRITER'S OBLIGATION. The obligation of the
Underwriter to purchase the Securities hereunder is subject to the following
conditions:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the registration statement or a post-effective
amendment thereto to be declared effective before the offering of the
Securities may commence, the registration statement or such
post-effective amendment shall have become effective not later than
5:30 P.M., New York City time, on the date hereof, or at such later
date and time as shall be consented to in writing by you, and all
filings, if any, required by Rules 424 and 430A under the Act shall
have been timely made; no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceeding for
that purpose shall have been instituted or, to the knowledge of the
Company or the Underwriter, threatened by the Commission, and any
request of the Commission for additional information (to be included in
the Registration Statement or the Prospectus or otherwise) shall have
been complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change or any development involving a
prospective change, in or affecting the condition (financial or other),
business, properties, net worth, or results of operations of the
Company and the Subsidiaries, taken as a whole, not contemplated by the
Prospectus, which in your opinion would materially adversely affect the
market for the Securities, or (ii) any event or development relating to
or involving the Company or any officer or director of the Company
which makes
-20-
any statement made in the Prospectus untrue or which, in the opinion of
the Company and its counsel or the Underwriter and its counsel,
requires the making of any addition to or change in the Prospectus in
order to state a material fact required by the Act or any other law to
be stated therein or necessary in order to make the statements therein
not misleading, if amending or supplementing the Prospectus to reflect
such event or development would, in your opinion, materially adversely
affect the market for the Securities.
(c) You shall have received on the Closing Date, an opinion of
Greenberg, Traurig, Hoffman, Lipoff, Xxxxx & Xxxxxxx, P.A., Miami,
Florida, counsel for the Company, dated the Closing Date and addressed
to you to the effect that:
(i) The Company is a corporation duly incorporated
and validly existing in good standing under the laws of the
State of Florida with full corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the
Prospectus (and any amendment or supplement thereto);
(ii) Each of the Subsidiaries is a corporation
validly existing in good standing under the laws of the
jurisdiction of its organization, with full corporate power
and authority to own, lease, and operate its properties and to
conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement
thereto); and all the outstanding shares of capital stock of
each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable, and are owned of
record by the Company directly, or indirectly through one of
the other Subsidiaries, and to such counsel's knowledge, free
and clear of any perfected security interest, or, to the
knowledge of such counsel after reasonable inquiry, any other
security interest, lien, adverse claim or other encumbrance;
(iii) The authorized and outstanding capital stock of
the Company was as set forth under the captions
"Capitalization--Actual" in the Prospectus and as of the
applicable date indicated therein and the authorized capital
stock of the Company conforms in
-21-
all material respects as to legal matters to the description
thereof contained in the Prospectus under the caption
"Description of Capital Stock";
(iv) The Company and each Guarantor has corporate
power and authority to enter into this Agreement and to issue,
sell and deliver the Securities to the Underwriter as provided
herein, and this Agreement has been duly authorized, executed
and delivered by the Company and each of the Guarantors and is
a valid, legal and binding agreement of the Company and each
of the Guarantors, enforceable against the Company and each of
the Guarantors in accordance with its terms, except as
enforcement of rights to indemnity and contribution hereunder
may be limited by Federal or state securities or other
applicable laws or principles of public policy and subject to
the qualification that the enforceability of the Company's and
each Guarantor's obligations hereunder may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium, and other laws relating to or affecting creditors'
rights generally and by general equitable principles;
(v) The Indenture has been duly and validly
authorized, executed and delivered by the Company and each of
the Guarantors and, assuming due execution and delivery by the
Trustee, is a valid and binding agreement of the Company and
each of the Guarantors, enforceable against the Company and
each of the Guarantors in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors' rights generally and
by general equitable principles, and has been duly qualified
under the 1939 Act;
(vi) The Securities have been duly and validly
authorized and executed by the Company and each of the
Guarantors and, assuming due authentication of the Securities
by the Trustee in accordance with the Indenture, upon delivery
to the Underwriter against payment therefor in accordance with
the terms hereof, will have been validly issued and delivered,
and will constitute valid and binding obligations of the
Company and each of the Guarantors entitled to the benefits of
the Indenture and enforceable against the
-22-
Company and each of the Guarantors in accordance with their
terms and the Indenture except as enforcement thereof may be
limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable
principles;
(vii) Based solely on telephonic advice from the
Commission, the Registration Statement and all post-effective
amendments, if any, have become effective under the Act and,
to the knowledge of such counsel after reasonable inquiry, no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
are pending before or contemplated by the Commission; and any
required filing of the Prospectus pursuant to Rule 424(b) has
been made in accordance with Rule 424(b);
(viii) Neither the Company nor any of the
Subsidiaries is (A) in violation of its respective certificate
or articles of incorporation or bylaws, or other
organizational documents, or (B) to the knowledge of such
counsel after reasonable inquiry, is in default in the
performance of any material obligation, agreement or condition
contained in any bond, debenture, note or other evidence of
indebtedness, except as may be disclosed in the Prospectus,
other than any such violations or defaults that have not had
and will not have, individually or in the aggregate, a
Material Adverse Effect;
(ix) Neither the offer, sale or delivery of the
Securities, the execution, delivery or performance of this
Agreement and the Indenture, compliance by the Company and the
Guarantors with the provisions hereof and thereof, nor
consummation by the Company and the Guarantors of the
transactions contemplated hereby and thereby, (A) conflicts or
will conflict with or constitutes or will constitute a breach
of, or a default under, the certificate or articles of
incorporation or bylaws, or other organizational documents, of
the Company or any of the Subsidiaries or any agreement,
indenture, lease or other instrument to which the Company or
any of the Subsidiaries is a party or by which any of them or
any of their respective properties is bound that is an exhibit
to the Registration Statement or to any Incorporated Docu-
-23-
ment, or other material agreements known to such counsel after
reasonable inquiry, or (B) will result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of the Subsidiaries,
nor (C) will any such action result in any violation of any
existing law, regulation, ruling (assuming compliance with all
applicable state securities and Blue Sky laws and all
applicable rules and regulations of the National Association
of Securities Dealers, Inc. (the "NASD")), judgment,
injunction, order or decree known to such counsel after
reasonable inquiry, applicable to the Company, the
Subsidiaries or any of their respective properties, except, in
each case, as has not had and will not have a Material Adverse
Effect;
(x) No consent, approval, authorization or other
order of, or registration or filing with, any court,
regulatory body, administrative agency or other governmental
body, agency, or official is required on the part of the
Company or the Guarantors (except (A) as have been obtained
under the Act, the Exchange Act and the 1939 Act, and (B) as
may be required under state securities or Blue Sky laws and
the rules and regulations of the NASD, as to which such
counsel need not express any opinion) for the valid issuance
and sale of the Securities to the Underwriter as contemplated
by this Agreement;
(xi) The Registration Statement and the Prospectus
and any supplements or amendments thereto (except for the
financial statements and the notes thereto and the schedules
and other financial and statistical data included therein, as
to which such counsel need not express any opinion) comply as
to form in all material respects with the requirements of the
Act; and each of the Incorporated Documents (except for the
financial statements and the notes thereto and the schedules
and other financial and statistical data included therein, as
to which counsel need not express any opinion), when filed
with the Commission under the Exchange Act, complied as to
form in all material respects with the Exchange Act and the
rules and regulations of the Commission thereunder;
(xii) The statements in the Registration Statement
and Prospectus, insofar as they are descriptions of contracts,
agreements or other legal documents, or
-24-
refer to statements of law or legal conclusions, are accurate
and present fairly the information required to be shown;
(xiii) To the knowledge of such counsel after
reasonable inquiry, (A) other than as described or
contemplated in the Prospectus (or any supplement thereto),
there are no legal or governmental proceedings pending or
threatened against the Company or any of the Subsidiaries, or
to which the Company or any of the Subsidiaries, or any of
their property, is subject, which are required to be described
in the Registration Statement or Prospectus (or any amendment
or supplement thereto) and (B) there are no agreements,
contracts, indentures, leases or other instruments, that are
required to be described in the Registration Statement or the
Prospectus (or any amendment or supplement thereto) or to be
filed as an exhibit to the Registration Statement or any
Incorporated Document that are not described or filed as
required, as the case may be;
(xiv) To the knowledge of such counsel after
reasonable inquiry, neither the Company nor any of the
Subsidiaries is in violation of any law, ordinance,
administrative or governmental rule or regulation applicable
to the Company or any of the Subsidiaries or of any decree of
any court or governmental agency or body having jurisdiction
over the Company or any of the Subsidiaries, other than any
such violations that have not had and are not reasonably
expected to have a Material Adverse Effect;
(xv) Although counsel has not undertaken, except as
otherwise indicated in their opinion, to determine
independently, and does not assume any responsibility for, the
accuracy or completeness of the statements in the Registration
Statement, such counsel has participated in the preparation of
the Registration Statement and the Prospectus, including
review and discussion of the contents thereof (including
review and discussion of the contents of all Incorporated
Documents), and nothing has come to the attention of such
counsel that has caused them to believe that the Registration
Statement (including the Incorporated Documents) at the time
the Registration Statement became effective, contained an
untrue statement of a material fact or omitted to state a
material fact re-
-25-
quired to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or
any amendment or supplement to the Prospectus, as of its
respective date, and as of the Closing Date contained any
untrue statement of a material fact or omitted 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 (it being understood that such
counsel need express no opinion with respect to the financial
statements and the notes thereto and the schedules and other
financial and statistical data included in the Registration
Statement or the Prospectus or any Incorporated Document or
the Trustee's Statement of Eligibility on Form T-1).
In rendering their opinion as aforesaid, counsel may rely upon
an opinion or opinions, each dated the Closing Date, of other counsel
retained by them or the Company as to laws of any jurisdiction other
than the United States or the State of Florida or the State of New
York, provided that (1) each such local counsel is acceptable to the
Underwriter, (2) such reliance is expressly authorized by each opinion
so relied upon and a copy of each such opinion is delivered to the
Underwriter and is, in form and substance satisfactory to the
Underwriter and its counsel, and (3) such counsel shall state in their
opinion that they believe that they and the Underwriter are justified
in relying thereon. In rendering such opinion, such counsel may rely,
to the extent they deem proper, as to matters of fact upon certificates
of officers of the Company and of government officials, provided that a
copy of any such certificate is delivered to the Underwriter.
(d) You shall have received on the Closing Date, an opinion of
Xxxxx Xxxxxx, Esq., corporate counsel for the Company, dated the
Closing Date and addressed to you to the effect that:
(i) The Company and each of the Subsidiaries has full
corporate power and authority, and all necessary governmental
authorizations, approvals, orders, licenses, certificates,
franchises and permits of and from all governmental regulatory
officials and bodies (except where the failure to so have any
such authorizations, approvals, orders, licenses,
certificates, franchises or permits, individually or in the
aggregate, would not have a Material Adverse Effect,
-26-
to own their respective properties and to conduct their
respective businesses as now being conducted, as described in
the Prospectus; and the Company and each of the Subsidiaries
are duly registered and qualified to conduct its business and
is in good standing in each jurisdiction or place where the
nature of its properties or the conduct of its business
requires such registration or qualification, except where the
failure so to register or qualify does not have a Material
Adverse Effect;
(ii) Except as disclosed in the Prospectus, the
Company owns of record, directly or indirectly, all the
outstanding shares of capital stock of each of the
Subsidiaries free and clear of any lien, adverse claim,
security interest, equity, or other encumbrance;
(iii) The Company and the Subsidiaries own all
patents, trademarks, trademark registrations, service marks,
service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets and rights described in the
Prospectus as being owned by them or any of them or necessary
for the conduct of their respective businesses, and such
counsel is not aware of any claim to the contrary or any
challenge by any other person to the rights of the Company and
the Subsidiaries with respect to the foregoing;
(iv) Neither the Company nor any of the Subsidiaries
is in violation of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or
any of the Subsidiaries or of any decree of any court or
governmental agency or body having jurisdiction over the
Company or any of the Subsidiaries; and
(v) Except as described in the Prospectus, there is
no holder of any security of the Company or the Guarantors or
any other person who has the right, contractual or otherwise,
to cause the Company or the Guarantors to sell or otherwise
issue to them, or to permit them to underwrite the sale of,
the Securities or the right to have any Common Stock or other
securities of the Company or the Guarantors included in the
registration statement or the right, as a result of the filing
of the registration statement, to require registration under
the Act of any shares of
-27-
Common Stock or other securities of the Company or the
Guarantors.
(e) You shall have received on the Closing Date an opinion of
Xxxxxx Xxxxxx & Xxxxxxx (a partnership including a professional
corporation), New York, New York, counsel for the Underwriter, dated
the Closing Date and addressed to you with respect to the matters
referred to in clauses (iv) (assuming due authorization), (v) (assuming
due authorization), (vi) (assuming due authorization) (vii), (xi), and
(xv) of the foregoing paragraph (c) and such other related matters as
you may request.
(f) You shall have received letters addressed to you and dated
the date hereof and the Closing Date from BDO Xxxxxxx, LLP, independent
certified public accountants, substantially in the forms heretofore
approved by you.
(g) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been taken or, to the knowledge of the Company,
shall be contemplated by the Commission at or prior to the Closing
Date; (ii) there shall not have been any change in the capital stock of
the Company or the Guarantors nor any material increase in the
short-term or long-term debt of the Company and the Guarantors on a
consolidated basis (other than in the ordinary course of business) from
that set forth or contemplated in the Registration Statement or the
Prospectus (or any amendment or Supplement thereto); (iii) there shall
not have been, since the respective dates as of which information is
given in the Registration Statement and the Prospectus (or any
amendment or supplement thereto), except as may otherwise be stated in
the Registration Statement and Prospectus (or any amendment or
supplement thereto), any Material Adverse Change; (iv) the Company and
the Subsidiaries shall not have any liabilities or obligations, direct
or contingent (whether or not in the ordinary course of business), that
are material to the Company and the Subsidiaries, taken as a whole,
other than those reflected in the Registration Statement or the
Prospectus (or any amendment or supplement thereto); and (v) all the
representations and warranties of the Company and the Guarantors
contained in this Agreement shall be true and correct in all material
respects on and as of the date hereof and on and as of the Closing Date
as if made on and as of the Closing Date, and you shall have received a
certificate, dated the Closing Date and signed by the chief
-28-
executive officer and the chief financial officer of the Company and
the Guarantors (or such other officers as are acceptable to you), to
the effect set forth in this Section 8(g) and in Section 8(h) hereof.
(h) The Company and the Guarantors shall not have failed at or
prior to the Closing Date to have performed or complied in all material
respects with any of its agreements herein contained and required to be
performed or complied with by it hereunder at or prior to the Closing
Date.
(i) There shall not have been any announcement by any
"nationally recognized statistical rating organization", as defined for
purposes of Rule 436(g) under the Act, that (i) it is downgrading its
rating assigned to any debt securities of the Company, or (ii) it is
reviewing its rating assigned to any debt securities of the Company
with a view to possible downgrading, or with negative implications, or
direction not determined.
(j) The Company and the Guarantors shall have furnished or
caused to be furnished to you such further certificates and documents
as you shall have reasonably requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and your counsel.
Any certificate or document signed by any officer of the Company or the
Guarantors and delivered to you or to counsel for the Underwriter, each in
connection with the purchase and sale of Securities hereunder shall be deemed a
representation and warranty by the Company or the Guarantors to the Underwriter
as to the statements made therein.
9. EXPENSES. The Company agrees to pay the following costs and expenses
and all other costs and expenses incident to the performance by it of its
obligations hereunder: (i) the preparation, printing (or reproduction), and
filing with the Commission of the registration statement (including financial
statements and exhibits thereto), each Prepricing Prospectus, the Prospectus,
each amendment or supplement to any of them, this Agreement, the Indenture and
the Statement of Eligibility and Qualification of the Trustee; (ii) the printing
(or reproduction) and delivery (including postage, air freight
-29-
charges and charges for counting and packaging) of such copies of the
registration statement, each Prepricing Prospectus, the Prospectus, the
Incorporated Documents, and all amendments or supplements to any of them, as may
be reasonably requested for use in connection with the offering and sale of the
Securities; (iii) the preparation, printing (or reproduction), execution and
delivery of the Indenture and the preparation, printing, authentication,
issuance and delivery of the Securities, including any stamp taxes in connection
with the original issuance of the Securities; (iv) the printing (or
reproduction) and delivery of this Agreement, the preliminary and supplemental
Blue Sky Memoranda and all other agreements or documents printed (or reproduced)
and delivered in connection with the offering of the Securities; (v) the
registration or qualification of the Securities for offer and sale under the
securities or Blue Sky laws of the several states as provided in Section 5(g)
hereof (including the reasonable fees, expenses and disbursements of counsel for
the Underwriter relating to the preparation, printing (or reproduction), and
delivery of the preliminary and supplemental Blue Sky Memoranda and such
registration and qualification); (vi) the filing fees in connection with any
filings required to be made with the National Association of Securities Dealers,
Inc.; (vii) the fees and expenses of the Trustee; (viii) the fees and expenses
associated with obtaining ratings for the Securities from nationally recognized
statistical rating organizations; (ix) the transportation and other expenses
incurred by or on behalf of Company representatives in connection with
presentations to prospective purchasers of the Securities; and (x) the fees and
expenses of the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company.
10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become effective:
(i) upon the execution and delivery hereof by the parties hereto; or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
registration statement or a post-effective amendment thereto to be declared
effective before the offering of the Securities may commence, when notification
of the effectiveness of the registration statement or such post-effective
amendment has been released by the Commission. Until such time as this Agreement
shall have become effective, it may be terminated by the Company, by notifying
you, or by the Underwriter, by notifying the Company.
Any notice under this Section 10 may be made by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
-30-
11. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of the
Underwriter to the Company or the Guarantors by notice to the Company, if prior
to the Closing Date (i) trading in the Common Stock of the Company shall be
suspended or subject to any restriction or limitation not in effect on the date
of this Agreement; (ii) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq National Market shall have
been suspended or materially limited, (iii) a general moratorium on commercial
banking activities in New York or Florida shall have been declared by either
federal or state authorities, or (iv) there shall have occurred any outbreak or
escalation of hostilities or other international or domestic calamity, crisis or
change in political, financial or economic conditions, the effect of which on
the financial markets of the United States is such as to make it, in your
judgment, impracticable or inadvisable to commence or continue the offering of
the Securities on the terms set forth on the cover page of the Prospectus or to
enforce contracts for the resale of the Securities by the Underwriter. Notice of
such termination may be given to the Company by telegram, telecopy or telephone
and shall be subsequently confirmed by letter.
12. INFORMATION FURNISHED BY THE UNDERWRITER. The statements set forth
in the last paragraph on the cover page, the stabilization legend on the inside
cover page, and the statements in the second and fifth under the caption
"Underwriting" in any Prepricing Prospectus and in the Prospectus, constitute
the only information furnished by or on behalf of the Underwriter through you as
such information is referred to in Sections 6(b) and 7 hereof.
13. MISCELLANEOUS. Except as otherwise provided in Sections 5, 10 and
11 hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company or the Guarantors, at the
office of the Company at 000 X.X. 00xx Xxxxxx, Xxxx Xxxxx, Xxxxxxx 00000,
Attention: Xxxxx Xxxxxxx, Vice-President - Finance, with a copy to Greenberg,
Traurig, Hoffman, Lipoff, Xxxxx & Quentel, P.A., 0000 Xxxxxxxx Xxxxxx, Xxxxx,
Xxxxxxx 00000, Attention: Xxxxx X. Xxxxx, Esq.; or (ii) if to the Underwriter at
Xxxxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager,
Investment Banking Division.
This Agreement has been and is made solely for the benefit of the
Underwriter, the Company, the Guarantors, their directors and officers, and the
other controlling persons re-
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ferred to in Section 7 hereof and their respective successors and assigns, to
the extent provided herein, and no other person shall acquire or have any right
under or by virtue of this Agreement. Neither the term "successor" nor the term
"successors and assigns" as used in this Agreement shall include a purchaser
from the Underwriter of any of the Securities in his status as such purchaser.
14. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company, the Guarantors and the Underwriter.
Very truly yours,
XXXXX HOMES, INC.
BANYAN TRAILS, INC.
XXXXX HOMES/ARIZONA, INC.
XXXXX HOMES/ATLANTA, INC.
XXXXX HOMES/BROWARD, INC.
XXXXX HOMES/COLORADO, INC.
XXXXX HOMES/GULF COAST, INC.
XXXXX HOMES/XXXX XXXXXXXXXX, INC.
XXXXX HOMES/NORTH CAROLINA, INC.
XXXXX HOMES/ORLANDO, INC.
XXXXX HOMES/PALM BEACH, INC.
XXXXX HOMES/PEMBROKE, INC.
XXXXX HOMES/SOUTHWEST FLORIDA, INC.
XXXXX HOMES/TEXAS, INC.
XXXXX HOMES/VIRGINIA, INC.
XXXXXXXXX HOMES, INC.
PEMBROKE FALLS REALTY, INC.
PREFERRED BUILDERS REALTY, INC.
PREFERRED HOME MORTGAGE COMPANY
ST. TROPEZ AT BOCA GOLF, INC.
UNIVERSAL LAND TITLE, INC.
XXXXX HOMES/ARIZONA CONSTRUCTION, INC.
UNIVERSAL LAND TITLE OF COLORADO, INC.
By
--------------------------------
Name:
Title:
Confirmed as of the date first
above mentioned.
SALOMON BROTHERS INC
By
---------------------------------
Name:
Title:
