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EXHIBIT 1.4
XXXXXXX AND BROAD HOME CORPORATION
(A DELAWARE CORPORATION)
$175,000,000
7-3/4% SENIOR NOTES DUE OCTOBER 15, 2004
UNDERWRITING AGREEMENT
October 8, 1997
Xxxxxxx, Sachs & Co.
NationsBanc Xxxxxxxxxx Securities, Inc.
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxxx and Broad Home Corporation, a Delaware corporation (the
"Company"), confirms its agreement with Xxxxxxx, Sachs & Co. and each of the
other Underwriters named in Schedule A hereto (collectively, the
"Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom Xxxxxxx, Xxxxx & Co. and
NationsBanc Xxxxxxxxxx Securities, Inc. are acting as representatives (in such
capacity, the "Representatives"), with respect to the sale by the Company and
the purchase by the Underwriters, acting severally and not jointly, of
$175,000,000 aggregate principal amount of the Company's 7-3/4% Senior Notes
due October 15, 2004 (the "Securities"). The Securities are to be issued
pursuant to an indenture dated as of October 14, 1997 (the "Indenture", which
term as used herein includes the instrument establishing the form and terms of
the Securities) between the Company and SunTrust Bank, Atlanta, as trustee (the
"Trustee").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-50732) (the "Prior
Registration Statement") for the registration under the Securities Act of 1933
(the "1933 Act") of debt securities, which registration statement was
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declared effective by the Commission on August 20, 1992 and copies of which
have heretofore been delivered to you. The Company has also filed with the
Commission a registration statement on Form S-3 (No. 333-14977) (the "Current
Registration Statement") for the registration under the 1933 Act of additional
debt securities, which registration statement was declared effective on
November 12, 1996 and copies of which have heretofore been delivered to you.
The Current Registration Statement also constituted post-effective amendment
no. 1 to the Prior Registration Statement. The Indenture has been qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act"). Each of
the Prior Registration Statement and the Current Registration Statement, as
amended at the date of this Agreement and including all documents incorporated
or deemed to be incorporated by reference therein, is hereinafter referred to
as, individually, a "Registration Statement" and, collectively, the
"Registration Statements". The Company proposes to file with the Commission
pursuant to Rule 424(b) of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations") the Prospectus Supplement (as defined
in Section 3(i) hereof) and the related prospectus dated October 8, 1997 (the
"Base Prospectus"), and has previously advised you of all further information
(financial and other) with respect to the Company set forth therein. The Base
Prospectus together with the Prospectus Supplement, in their respective forms
on the date hereof (being the forms in which they are to be filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations), including all
documents incorporated or deemed to be incorporated by reference therein
through the date hereof, are hereinafter referred to as, collectively, the
"Prospectus", except that if any revised prospectus or prospectus supplement
shall be provided to the Underwriters by the Company for use in connection with
the offering and sale of the Securities which differs from the Prospectus
(whether or not such revised prospectus or prospectus supplement is required to
be filed by the Company pursuant to Rule 424(b) of the 1933 Act Regulations),
the term "Prospectus" shall refer to such revised prospectus or prospectus
supplement, as the case may be, from and after the time it is first provided to
the Underwriters for such use. Unless the context otherwise requires, all
references in this Agreement to documents, financial statements and schedules
and other information which is "contained", "included", "stated", "described
in" or "referred to" in any Registration Statement or the Prospectus (and all
other references of like import) shall be deemed to mean and include all such
documents, financial statements and schedules and other information which is or
is deemed to be incorporated by reference in such Registration Statement or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to any Registration Statement or the Prospectus shall
be deemed to mean and include the filing of any document under the Securities
Exchange Act of 1934 (the "1934 Act") after the date of this Agreement which is
or is deemed to be incorporated by reference in such Registration Statement or
the Prospectus, as the case may be.
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The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered.
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to each Underwriter as of
the date hereof (such date being hereinafter referred to as the "Representation
Date") as follows:
(i) The Company meets the requirements for use of
Form S-3 under the 1933 Act and the 1933 Act Regulations. The Prior
Registration Statement, at the time it became effective, and the
Registration Statements and the Base Prospectus, at the time the
Current Registration Statement became effective and as of the
Representation Date, complied and comply in all material respects with
the requirements of the 1933 Act, the 1933 Act Regulations (including
Rule 415(a) of the 1933 Act Regulations), the 1939 Act and the rules
and regulations of the Commission under the 1939 Act (the "1939 Act
Regulations"), and did not and as of the Representation Date do 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 not misleading. The Prospectus, at the
Representation Date (unless the term "Prospectus" refers to a
prospectus which has been provided to the Underwriters by the Company
for use in connection with the offering of the Securities which
differs from the Prospectus filed with the Commission pursuant to Rule
424(b) of the 1933 Act Regulations, in which case at the time it is
first provided to the Underwriters for such use) and at the Closing
Time referred to in Section 2 hereof, does not and will not include an
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; provided,
however, that the representations and warranties in this subsection
(a) shall not apply to statements in or omissions from any
Registration Statement or the Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through the Representatives expressly for use in such
Registration Statement or the Prospectus or the information contained
in any Statement of Eligibility of a trustee under the 1939 Act filed
or incorporated by reference as an exhibit to any Registration
Statement (a "Form T-1").
(ii) Ernst & Young LLP, whose reports are
incorporated by reference into the Registration Statements, are
independent public accountants with respect to the
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Company and its subsidiaries as required by the 1933 Act and the 1933
Act Regulations.
(iii) The financial statements included or
incorporated by reference in the Registration Statements and the
Prospectus present fairly the financial position of the Company and
its consolidated subsidiaries as at the dates indicated and the
results of operations of the Company and its consolidated subsidiaries
for the periods specified; except as otherwise stated in the
Registration Statements, said financial statements have been prepared
in conformity with generally accepted accounting principles in the
United States applied on a consistent basis; the supporting schedules
included or incorporated by reference in the Registration Statements
present fairly the information required to be stated therein; the
Company's ratios of earnings to fixed charges and of earnings to
combined fixed charges and preferred stock dividends (including the
amounts the ratios would have been were interest on the outstanding
collateralized mortgage obligations of the Company's wholly owned
limited purpose financing subsidiaries included in such ratios'
calculation) included in the Prospectus Supplement under the caption
"Selected Consolidated Financial Data," in the Base Prospectus under
the caption "Consolidated Ratios of Earnings to Fixed Charges and of
Earnings to Combined Fixed Charges and Preferred Stock Dividends" and
in Exhibit 12 to the Current Registration Statement have been
calculated in compliance with Item 503(d) of Regulation S-K of the
Commission; and the pro forma financial statements, if any, and
related notes thereto included in the Registration Statements and the
Prospectus present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in
the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(iv) Since the respective dates as of which
information is given in the Registration Statements and the
Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or
in the earnings, business affairs or business prospects of the Company
and its subsidiaries (which term, as used in this Agreement, includes
without limitation consolidated joint ventures in which the Company or
any of its other subsidiaries is a participant and limited and general
partnerships in which the Company or any of its other subsidiaries
owns partnership interests (such joint ventures and limited and
general partnerships being hereinafter called, collectively, the
"Partnerships")) considered as one enterprise, whether or not arising
in the
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ordinary course of business, (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise, and (C) except for regular quarterly dividends in
customary amounts per share on the common stock, par value $1.00 per
share (the "Common Stock"), there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its
capital stock.
(v) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise.
(vi) Each Significant Subsidiary (as defined below)
is either a corporation or a limited partnership. Each Significant
Subsidiary has been duly organized and is validly existing as a
corporation or limited partnership, as the case may be, in good
standing under the laws of the jurisdiction of its organization, has
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise; all of the issued
and outstanding capital stock of each Significant Subsidiary which is
a corporation has been duly authorized and validly issued, is fully
paid and non-assessable and is owned (except for directors qualifying
shares and a nominal number of shares held by affiliated parties) by
the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity; and all of the outstanding equity interests in each
Significant Subsidiary which is a Partnership have been duly
authorized (if applicable) and validly issued, are fully paid and
non-assessable and are owned by the Company (except to the extent that
a minority interest in the
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Partnership is reflected in the Company's consolidated financial
statements included or incorporated by reference in the Prospectus),
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity. For
purposes of this Agreement, "Significant Subsidiary" means any
subsidiary of the Company (including, without limitation, any
Partnership) that is a "significant subsidiary" as defined in Rule
1-02 of Regulation S-X (as in effect on January 1, 1996), but
substituting "5%" for "10%" wherever "10%" appears in such definition.
(vii) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any, pursuant to
reservations, agreements, employee benefit plans referred to or
incorporated by reference in the Prospectus); the shares of issued and
outstanding Common Stock have been duly authorized and validly issued
and are fully paid and non-assessable; the Common Stock, the Company's
authorized but unissued special common stock, par value $1.00 per
share (the "Special Common Stock"), and the Company's authorized and
unissued preferred stock, par value $1.00 per share (the "Preferred
Stock"), conform to the respective statements relating thereto
included in the Prospectus; the Securities have been duly authorized
for issuance and sale to the Underwriters pursuant to this Agreement
and, when issued by the Company, authenticated by the Trustee and
delivered pursuant to the provisions of the Indenture and this
Agreement against payment of the consideration set forth herein, the
Securities will have been duly executed and delivered by the Company
and will constitute valid and binding obligations of the Company
enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors'
rights generally or by general equitable principles, and will be
entitled to the benefits of the Indenture; the Indenture has been duly
authorized by the Company and, at Closing Time, will have been duly
executed and delivered by the Company and will constitute a valid and
binding agreement of the Company enforceable in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting creditors' rights generally or by general equitable
principles; the Securities and the Indenture conform in all material
respects to the descriptions thereof contained in the Prospectus; and,
after giving effect to the sale of Securities and the sale of any
other securities registered pursuant to any Registration Statement to
be issued prior to the delivery of the Securities, the aggregate
amount of Securities which will have been issued and sold by the
Company will not exceed the amount of theretofore unsold
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securities registered pursuant to the Registration Statements.
(viii) Neither the Company nor any of its Significant
Subsidiaries is in violation of its charter or in default in the
performance or observance of (A) any obligation, agreement, covenant
or condition contained in the Company's 1997 Revolving Loan Agreement
dated as of April 21, 1997 (the "Loan Agreement") with Bank of America
National Trust and Savings Association, as administrative agent, and
the other parties thereto, the Company's 9-3/8% Senior Subordinated
Notes due 2003 (the "9-3/8% Senior Subordinated Notes") or the
Indenture dated as of May 1, 1993 between the Company and The First
National Bank of Boston pursuant to which the 9-3/8% Senior
Subordinated Notes were issued (the "9-3/8% Senior Subordinated
Indenture"), or the Company's 9-5/8% Senior Subordinated Notes due
2007 (the "9-5/8% Senior Subordinated Notes") or the Indenture dated
as of November 19, 1996 between the Company and Suntrust Bank, Atlanta
pursuant to which the 9-5/8% Senior Subordinated Notes were issued,
including the instrument establishing the form and terms of the 9-5/8%
Senior Subordinated Notes (the "9-5/8% Senior Subordinated Indenture")
(the Loan Agreement, the 9-3/8% Senior Subordinated Notes, the 9-3/8%
Senior Subordinated Indenture, the 9-5/8% Senior Subordinated Notes
and the 9-5/8% Senior Subordinated Indenture are hereinafter called,
collectively, the "Subject Instruments" and, individually, a "Subject
Instrument") or (B) any obligation, agreement, covenant or condition
contained in any other contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company or any of the
Significant Subsidiaries is a party or by which it or any of them may
be bound, or to which any of the property or assets of the Company or
any of the Significant Subsidiaries is subject, which default or
violation would have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise; and the execution, delivery and performance of this
Agreement, the Indenture and the Securities and the consummation of
the transactions contemplated herein and therein and compliance by the
Company with its obligations hereunder and thereunder, have been duly
authorized by all necessary corporate action and will not conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of the Significant
Subsidiaries pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any
of the Significant Subsidiaries is a party or by which it or any of
them may be bound (including, without limitation, the Subject
Instruments), or to which any of the property or assets of the Company
or any of the Significant Subsidiaries is
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subject, except (other than in the case of the Subject Instruments)
for a conflict, breach, default, lien, charge or encumbrance which
would not have a material adverse effect on the condition, financial
or otherwise, or the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise, nor
will such action result in any violation of the provisions of the
charter, by-laws or other corresponding organizational documents of
the Company or any of the Significant Subsidiaries or any applicable
law, administrative regulation or administrative or court order or
decree.
(ix) There is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened, against or
affecting the Company or any of its subsidiaries, which is required to
be disclosed in the Registration Statements (other than as disclosed
therein), or which is not so disclosed and (net of reserves and
insurance) the Company believes might result in any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, or which might materially
and adversely affect the properties or assets thereof or which might
materially and adversely affect the consummation of this Agreement;
all pending legal or governmental proceedings to which the Company or
any subsidiary is a party or of which any of their respective property
or assets is the subject which are not described in or incorporated by
reference in the Registration Statements, including ordinary routine
litigation incidental to the business, are, considered in the
aggregate and net of reserves and insurance, not material to the
Company and its subsidiaries considered as one enterprise; and there
are no contracts or documents of the Company or any of its
subsidiaries which are required to be filed as exhibits to, or
incorporated by reference in, the Registration Statements by the 1933
Act or by the 1933 Act Regulations which have not been so filed or
incorporated by reference.
(x) No authorization, approval or consent of any
court or governmental authority or agency is necessary in connection
with the issuance and sale of the Securities hereunder or the
consummation by the Company of any of the other transactions
contemplated hereby, except such as may be required and have been
obtained under the 1933 Act, the 1933 Act Regulations and the 1939 Act
and such as may be required under state securities laws.
(xi) This Agreement has been duly authorized, executed
and delivered by the Company.
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(xii) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1934 Act and the
1934 Act Regulations, and, when read together with the other
information in the Prospectus, at the respective times the
Registration Statements and any amendments thereto became effective,
at the Representation Date and at Closing Time did not, do not and
will 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.
(xiii) The Company has complied with, and is and will
be in compliance with, the provisions of that certain Florida act
relating to disclosure of doing business with Cuba, codified as
Section 517.075 of the Florida statutes, and the rules and regulations
thereunder (collectively, the "Cuba Act") or is exempt therefrom.
(xiv) The Securities and the Indenture conform in all
material respects to the respective statements relating thereto
contained in the Prospectus.
(xv) The Securities rank and will rank pari passu in
right of payment with all other unsecured, unsubordinated indebtedness
of the Company, including, without limitation, borrowings under the
Loan Agreement.
(xvi) There are no holders of securities of the
Company with currently exercisable registration rights to have any
securities registered as part of the Registration Statements or
included in the offering contemplated by this Agreement.
(xvii) The Company and each of the Significant
Subsidiaries have good and marketable title to all of their respective
properties, in each case free and clear of all liens, encumbrances and
defects, except (i) customary liens and encumbrances arising in the
ordinary course of the Company's construction and development business
and the financing thereof, (ii) as stated or incorporated by reference
in the Prospectus or (iii) such as do not materially affect the value
of such properties in the aggregate to the Company and its
subsidiaries considered as one enterprise and do not materially
interfere with the use made and proposed to be made of such
properties.
(xviii) The Company and its Significant Subsidiaries
possess such certificates, authorities and permits issued by the
appropriate state, federal and foreign regulatory agencies or bodies
necessary to conduct all material aspects
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of the business now operated by them, and neither the Company nor any
of its Significant Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would materially and
adversely affect the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
(xix) No default or event of default with respect to
any Indebtedness (as such term is defined the Prospectus) of the
Company or any of its Significant Subsidiaries entitling, or which,
with notice or lapse of time or both, would entitle, the holders
thereof to accelerate the maturity thereof exists or will exist as a
result of the execution and delivery of this Agreement or the
Indenture, the issuance and sale of the Securities or the consummation
of the transactions contemplated hereby or thereby.
(xx) The Company and each of the Significant
Subsidiaries have filed all tax returns required to be filed, which
returns, as amended, are complete and correct in all material
respects, and neither the Company nor any Significant Subsidiary is in
default in the payment of any taxes which were payable pursuant to
said returns or any assessments with respect to said returns which
would materially and adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise.
(xxi) The Company and its Significant Subsidiaries
maintain a system of internal accounting controls sufficient to
provide reasonable assurances that (A) transactions are executed in
accordance with management's general or specific authorization; (B)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with 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 assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(b) Any certificate signed by any officer of the Company and
delivered to the Representatives or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company to each Underwriter as to
the matters covered thereby.
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SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter, severally and not
jointly, agrees to purchase from the Company, at 98.39% of the principal amount
thereof, the aggregate principal amount of Securities set forth in Schedule A
opposite the name of such Underwriter, plus any additional aggregate principal
amount of Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
(b) Payment of the purchase price for the Securities shall be made
at the offices of the Company, 00000 Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx, or at such other place as shall be agreed upon by the
Representatives and the Company, at 7:00 a.m., California time, on October 14,
1997, or such other time not later than ten business days after such date as
shall be agreed upon by the Representatives and the Company (such time and date
of payment and delivery of the Securities being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately available
funds to a bank account designated by the Company, against delivery to the
Representatives for the respective accounts of the several Underwriters of
certificates for the Securities to be purchased by them. Certificates for the
Securities shall be in such denominations and registered in such names as the
Representatives may request in writing at least one full business day before
Closing Time. It is understood that each Underwriter has authorized the
Representatives, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Securities which it has agreed to
purchase. Xxxxxxx, Xxxxx & Co., individually and not as a representative of
the Underwriters, may (but shall not be obligated to) make payment of the
purchase price for any Securities to be purchased by any Underwriter whose
payment therefor has not been received by the Closing Time, but such payment
shall not relieve such Underwriter from its obligations hereunder. The
certificates for the Securities will be made available for examination and
packaging by the Representatives not later than 10:00 a.m. (New York City time)
on the last business day prior to Closing Time in New York, New York.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) The Company will notify the Representatives
immediately, and confirm the notice in writing, (i) of the
effectiveness of any post-effective amendment to any Registration
Statement, (ii) of the mailing or the delivery to the Commission for
filing of the Prospectus or any amendment to any Registration
Statement or amendment or
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supplement to the Prospectus or any document to be filed pursuant to
the 1934 Act during any period when the Prospectus is required to be
delivered under the 1933 Act, (iii) of the receipt of any comments or
inquiries from the Commission relating to any Registration Statement
or Prospectus, (iv) of any request by the Commission for any amendment
to any Registration Statement or any amendment or supplement to the
Prospectus or for additional information and (v) of the issuance by
the Commission of any stop order suspending the effectiveness of any
Registration Statement or the initiation of any proceedings for that
purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
(b) The Company will give the Representative notice of
its intention to file or prepare any post-effective amendment to any
Registration Statement or any amendment or supplement to the
Prospectus (including any revised prospectus which the Company
proposes for use by the Underwriters in connection with the offering
of the Securities which differs from the Prospectus filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations,
whether or not such revised prospectus is required to be filed
pursuant to Rule 424(b) of the 1933 Act Regulations), will furnish the
Representatives with copies of any such amendment or supplement a
reasonable amount of time prior to such proposed filing or use, as the
case may be, and will not file any such amendment or supplement or use
any such prospectus to which the Representatives or counsel for the
Underwriters shall reasonably object.
(c) The Company has delivered to the Representatives one
signed copy of each Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed
to be incorporated by reference therein) and will also deliver to the
Representatives as many conformed copies of the Registration
Statements as originally filed and of each amendment thereto (without
exhibits) as the Representatives may reasonably request.
(d) The Company will furnish to each Underwriter, from
time to time during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of copies of
the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request for the purposes contemplated by the 1933 Act or
the 1934 Act or the respective applicable rules and regulations of the
Commission thereunder.
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(e) If any event shall occur as a result of which it is
necessary, in the opinion of counsel for the Underwriters, to amend or
supplement the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances existing at the time it
is delivered to a purchaser, the Company will forthwith amend or
supplement the Prospectus (in form and substance satisfactory to the
Representatives and counsel for the Underwriters) so that, as so
amended or supplemented, the Prospectus will not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a purchaser, not
misleading, and the Company will furnish to the Underwriters a
reasonable number of copies of such amendment or supplement.
(f) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions
of the United States as the Representatives may designate; provided,
however, that the Company shall not be obligated to qualify as a
foreign corporation in any jurisdiction in which it is not so
qualified. In each jurisdiction in which the Securities have been so
qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such
qualification in effect for so long as may be required by applicable
law. The Company will promptly advise the Representatives of the
receipt by the Company of any notification with respect to the
suspension of qualification of the Securities for sale in any state or
jurisdiction or the initiating or threatening of any proceeding for
such purpose.
(g) The Company will make generally available to its
security holders as soon as practicable, but not later than 60 days
after the close of the period covered thereby (or 120 days in the case
of the close of the Company's fiscal year), an earnings statement (in
form complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering a twelve month period beginning not later than
the first day of the Company's fiscal quarter next following the date
of this Agreement.
(h) The Company will use the net proceeds received by it
from the sale of the Securities in the manner to be specified in the
Prospectus Supplement under "Use of Proceeds".
(i) Immediately following the execution of this
Agreement, the Company will prepare a prospectus supplement, dated the
date hereof (the "Prospectus Supplement"), containing the terms of the
Securities, the plan of distri-
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bution thereof and such other information as may be required by the
1933 Act or the 1933 Act Regulations or as the Representatives and the
Company deem appropriate, and will file or transmit for filing with
the Commission in accordance with such Rule 424(b) of the 1933 Act
Regulations copies of the Prospectus (including such Prospectus
Supplement).
(j) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, will file
all documents required to be filed with the Commission pursuant to
Sections 13, 14 or 15 of the 1934 Act within the time periods required
by the 1934 Act and the 1934 Act Regulations.
(k) During a period from the date of this Agreement
through November 14, 1997, the Company will not, without the prior
written consent of Xxxxxxx, Xxxxx & Co., directly or indirectly, sell,
offer to sell, grant any option for the sale of, or otherwise dispose
of, any debt securities or any securities convertible into or
exchangeable or exercisable for any debt securities (except for the
Securities sold to the Underwriters pursuant to this Agreement);
provided that the foregoing shall not prevent the Company from making
borrowings under the Loan Agreement or under bank credit lines.
(l) In accordance with the Cuba Act, if applicable, and
without limitation to the provisions of Sections 6 and 7 hereof, the
Company agrees to indemnify and hold harmless the Underwriters from
and against any and all loss, liability, claim, damage and expense
whatsoever (including fees and disbursements of counsel), as incurred,
arising out of any violation by the Company of the Cuba Act, if
applicable.
SECTION 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of each Registration Statement as originally filed
and of each amendment thereto, (ii) the printing or reproduction of this
Agreement and the Indenture (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel and accountants, (v) the qualification
of the Securities under securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey, (vi) the printing and
delivery to the Underwriters of copies of each Registration Statement as
originally filed and of each amendment thereto, of the preliminary prospectuses
and any preliminary prospectus supplements, and of the Prospectus and any
amendments or supple-
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ments thereto, (vii) the printing and delivery to the Underwriters of copies of
the Blue Sky Survey, (viii) the fees and expenses of the Trustee, including the
fees and disbursements of counsel for the Trustee in connection with the
Indenture and the Securities, (ix) any fees payable in connection with the
rating of the Securities; and (x) any fees and expenses of a depositary in
connection with holding the Securities in book-entry form.
If this Agreement is terminated by the Representatives in accordance
with the provisions of Section 5 or Section 9(a)(i), the Company shall
reimburse the Underwriters for all of its out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriter's Obligations. The obligations
of the Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company herein contained, to the
performance by the Company of its obligations hereunder, and to the following
further conditions:
(a) At Closing Time no stop order suspending the
effectiveness of any Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or threatened by
the Commission. The Prospectus (including the Prospectus Supplement
referred to in Section 3(i) hereof) shall have been filed or
transmitted for filing with the Commission pursuant to Rule 424(b) of
the 1933 Act Regulations within the prescribed time period, and prior
to Closing Time the Company shall have provided evidence satisfactory
to the Representatives of such timely filing or transmittal.
(b) At Closing Time the Representatives shall have
received:
(1) The favorable opinion, dated as of Closing Time, of
Xxxxxx, Xxxxxx & Xxxxx LLP, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, to the effect
that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware.
(ii) The Indenture (which term, as used in such
opinion, shall include the Officer's Certificate establishing
the form and terms of the Notes) has been duly authorized,
executed and delivered by the Company and (assuming the due
authorization, execution and delivery thereof by the Trustee)
constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms,
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except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting enforcement of
creditors' rights generally or by general equitable
principles.
(iii) The Securities are in the form established
pursuant to the Indenture, have been duly authorized for
issuance and sale by the Company and, when executed by the
Company and authenticated by the Trustee in the manner
provided for in the Indenture and delivered pursuant to the
provisions of the Indenture and this Agreement against payment
of the purchase price therefor specified herein, will
constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting enforcement of
creditors' rights generally or by general equitable
principles, and will be entitled to the benefits of the
Indenture.
(iv) The issuance and delivery of the Securities,
the execution and delivery of this Agreement and the
Indenture, and the consummation of the transactions
contemplated herein and therein, will not conflict with or
constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its
Significant Subsidiaries pursuant to, the 9-3/8% Senior
Subordinated Notes, the 9-3/8% Senior Subordinated Indenture,
the 9-5/8% Senior Subordinated Notes or the 9-5/8% Senior
Subordinated Indenture.
(v) The Indenture has been qualified under the
1939 Act.
(vi) This Agreement has been duly authorized,
executed and delivered by the Company.
(vii) The Securities and the Indenture conform in
all material respects to the descriptions thereof contained in
the Prospectus.
(viii) Each Registration Statement is effective
under the 1933 Act and, to the best of such counsel's
knowledge and information, no stop order suspending the
effectiveness of any Registration Statement has been issued
under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
In rendering such opinion, such counsel shall state that,
insofar as such opinion concerns the Indenture, the Securities or this
Agreement (all of which are governed by
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the laws of the State of New York), such counsel has assumed without
investigation that the law of the State of New York is the same as the
law of the State of California.
(2) The favorable opinion, dated as of Closing Time, of
Xxxxxxxx X. Xxxx, Esq., Associate Counsel of the Company, in form and
substance satisfactory to counsel for the Underwriters, to the effect
that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus.
(ii) To the best of such counsel's knowledge and
information, the Company is duly qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required,
except where the failure to so qualify would not have a
material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries (as such term is
defined in this Agreement) considered as one enterprise.
(iii) Each of the Company's Significant Domestic
Subsidiaries (as defined below) has been duly organized and is
validly existing as a corporation or limited partnership, as
the case may be, in good standing under the laws of the
jurisdiction of its incorporation or formation, as the case
may be, has power and authority as a corporation or limited
partnership, as the case may be to own, lease and operate its
properties and to conduct its business as described in the
Prospectus and, to the best of such counsel's knowledge and
information, is duly qualified to transact business and is in
good standing in each jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure
to so qualify would not have a material adverse effect on the
Company and its subsidiaries considered as one enterprise or
on their consolidated financial condition or earnings; to the
best of such counsel's knowledge and information, all of the
issued and outstanding capital stock of each such Significant
Domestic Subsidiary which is a corporation has been duly
authorized and validly issued, is fully paid and
non-assessable and is owned (except for directors qualifying
shares and a nominal number of shares held by affiliated
parties) by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge,
lien,
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encumbrance, claim or equity; and to the best of such
counsel's knowledge and information, all of the issued and
outstanding partnership interests in each such Significant
Domestic Subsidiary which is a limited partnership have been
duly authorized (if applicable) and validly issued, are fully
paid and non-assessable and are owned by the Company (except
to the extent that a minority interest in such limited
partnership is reflected in the Company's consolidated
financial statements included or incorporated by reference in
the Prospectus), directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. As used in this Agreement, the
term "Significant Domestic Subsidiaries" means all Significant
Subsidiaries other than any Significant Subsidiaries organized
and existing under the laws of any jurisdiction other than the
United States of America, any State thereof or the District of
Columbia.
(iv) The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus
under "Capitalization" (except for subsequent issuances, if
any, pursuant to the exercise of options issued under employee
benefit plans referred to in the Prospectus or in the
documents incorporated by reference therein); and the shares
of issued and outstanding Common Stock have been duly
authorized and validly issued and are fully paid and
non-assessable.
(v) To the best of such counsel's knowledge and
information, there are no statutes or regulations required to
be described in the Registration Statements or the Prospectus
or in the documents incorporated by reference therein which
are not described as required and there are no legal or
governmental proceedings pending or threatened which are
required to be disclosed in the Registration Statements or in
the documents incorporated by reference therein, other than
those disclosed therein, and all pending legal or governmental
proceedings to which the Company or any subsidiary is a party
or to which any of their property is subject which are not
described in or incorporated by reference in the Registration
Statements, including ordinary routine litigation incidental
to the business, are, considered in the aggregate and net of
reserves and insurance, not material to the Company and its
subsidiaries considered as one enterprise.
(vi) The information under "Item 1.
Business--Regulation and Environmental Matters" and "Item 3.
Legal Proceedings" in the Company's 1996 Annual Report and in
Item 15 in Part II of the Registration Statements, to the
extent that such information
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constitutes matters of law, summaries of legal matters,
summaries of securities, instruments, agreements or other
documents or legal conclusions, has been reviewed by such
counsel and is correct in all material respects.
(vii) To the best of such counsel's knowledge and
information, there are no contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments required
to be described or referred to in the Registration Statements
or to be filed or incorporated by reference as exhibits
thereto other than those described or referred to or filed as
exhibits thereto, the descriptions thereof or references
thereto are correct, and, to the best of such counsel's
knowledge, no default exists in the due performance or
observance of any obligation, agreement, covenant or condition
contained in (A) any Subject Instrument or (B) any other
contract, indenture, mortgage, loan agreement, note, lease or
other instrument so described, referred to or filed or
incorporated by reference, which default (other than in the
case of the Subject Instruments) could have a material adverse
effect on the Company and its subsidiaries considered as one
enterprise or on their consolidated financial condition or
earnings.
(viii) No authorization, approval, consent or order
of any court or governmental authority or agency is required
in connection with the sale of the Securities to the
Underwriters, except such as may be required under the 1933
Act, the 1933 Act Regulations, the 1939 Act, the 1939 Act
Regulations or state securities laws.
(ix) The issuance and delivery of the Securities,
the execution and delivery of this Agreement and the Indenture
(which term, as used in such opinion, shall include the
Officer's Certificate establishing the form and terms of the
Securities), and the consummation of the transactions
contemplated herein and therein, will not conflict with or
constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its
Significant Subsidiaries pursuant to, (A) any Subject
Instrument or (B) to the best of such counsel's knowledge and
information, any other contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the
Company or any of its Significant Subsidiaries is a party or
by which it or any of them may be bound, or to which any of
the property or assets of the Company or any of its
Significant Subsidiaries is subject, nor will such action
result in any violation of the provisions of the charter or
by-laws of the Company, or any applicable
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law, administrative regulation or administrative or court
decree.
(x) The documents incorporated or deemed to be
incorporated by reference in the Prospectus (other than the
financial statements and supporting schedules included or
incorporated by reference therein, as to which no opinion need
be rendered), at the time they were filed with the Commission,
complied as to form in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations.
(xi) At the respective times the Registration
Statements became effective, the Registration Statements
(other than the financial statements and supporting schedules
included or incorporated by reference therein and any Form
T-1, as to which no opinion need be rendered) complied as to
form in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations.
(xii) To the best of such counsel's knowledge and
information, no default with respect to any Indebtedness (as
such term is defined in the Prospectus) of the Company or any
of its subsidiaries entitling, or which, with notice or lapse
of time or both, would entitle, the holders thereof to
accelerate the maturity thereof exists or will exist as a
result of the execution and delivery of this Agreement or the
Indenture, the issuance and sale of the Securities or the
consummation of the transactions contemplated hereby or
thereby.
In rendering such opinion, such counsel shall state
that, insofar as such opinion concerns the Indenture, the
Securities or this Agreement (all of which are governed by the
laws of the State of New York), such counsel has assumed
without investigation that the law of the State of New York is
the same as the law of the State of California. In addition,
in rendering such opinion, such counsel may, as to other
matters governed by the law of any jurisdiction other than the
law of the State of California, the General Corporation Law of
the State of Delaware and the federal law of the United States
of America, either (a) assume without any investigation that
the law of the State of California is the same as the law
governing such other matters for all purposes relevant to such
opinion or (b) rely on an opinion or opinions of local counsel
satisfactory to the Representatives, so long as each such
opinion shall be dated as of the Closing Time and in form and
substance satisfactory to the Representatives, and shall
expressly permit the Underwriters to rely thereon as if such
opinion were addressed to the Underwriter.
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(3) The favorable opinion, dated as of Closing Time,
of Xxxxx & Xxxx LLP, counsel for the Underwriters, with
respect to the matters set forth in (i) through (iii) and (v)
through (viii) of subsection (b)(1) of this Section and in
(xi) of subsection (b)(2) of this Section.
(4) In giving their opinions required by subsections
(b)(1), (b)(2) and (b)(3), respectively, of this Section,
Xxxxxx, Xxxxxx & Xxxxx LLP, Xxxxxx X. Xxxxxxx and Xxxxx & Xxxx
LLP shall each additionally state that nothing has come to
their attention that would lead them to believe that either
Registration Statement (except for financial statements and
schedules and other financial data included therein and any
Form T-1, as to which counsel need make no statement), at the
time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading or that the Prospectus (except for financial
statements and schedules and other financial data included
therein, as to which counsel need make no statement), at the
Representation Date (unless the term "Prospectus" refers to a
prospectus which has been provided to the Underwriters by the
Company for use in connection with the offering of the
Securities which differs from the Prospectus filed with at the
Commission pursuant to Rule 424(b) of the 1933 Act
Regulations, in which case at the time it is first provided to
the Underwriters for such use) or at Closing Time, included or
includes an 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.
(c) At Closing Time, there shall not have been, since the
date hereof or since the respective dates as of which information is
given in the Registration Statements and the Prospectus, any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business, and the Representatives shall have
received a certificate of the President or a Vice President of the
Company and of the chief financial or chief accounting officer of the
Company, dated as of Closing Time, to the effect that (i) there has
been no such material adverse change, (ii) the representations and
warranties in Section 1 are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (iii) the
Company has complied with all agreements and satisfied all conditions
on its part to be performed or
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satisfied at or prior to Closing Time, (iv) no stop order suspending
the effectiveness of any Registration Statement has been issued and,
to the best of such officer's knowledge and information, no
proceedings for that purpose have been initiated or threatened by the
Commission and (v) the rating assigned by any nationally recognized
statistical rating organization to any debt securities of the Company
has not been lowered and no such rating agency has publicly announced
that it has placed any debt securities of the Company on what is
commonly termed a "watch list" for a possible downgrading. As used in
this Section 5(c), the term "Prospectus" means the Prospectus in the
form first used to confirm sales of the Securities.
(d) At the Closing Time, the Representatives shall have
received from Ernst & Young LLP a letter dated such date, in form and
substance satisfactory to the Underwriter, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
financial information included and incorporated by reference in the
Registration Statements and the Prospectus (including, without
limitation, any pro forma financial statements).
(e) At Closing Time, the Securities shall have a rating
of at least Ba2 from Moody's Investor's Service Inc. and BB from
Standard & Poor's, and the Company shall have delivered to the
Representatives a letter from each such rating agency or other
evidence satisfactory to the Underwriter, confirming that the
Securities have such ratings.
(f) Prior to the Closing Time, the Company shall have
filed a listing application with the New York Stock Exchange (the
"NYSE") to list the Securities on the NYSE and, at the Closing Time,
either (i) the Securities shall have been approved for listing on the
NYSE, subject to official notice of issuance, or (ii) nothing shall
have come to the attention of the Representatives which shall have
caused them to believe that the Securities will not be approved for
listing on the NYSE promptly after the Closing Time.
(g) At Closing Time, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may
require for the purpose of enabling them to pass upon the issuance and
sale of the Securities as herein contemplated and related proceedings,
or in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Securities as herein contemplated shall
be satisfactory in form and substance to the Representatives and
counsel for the Underwriters.
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If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Representatives by notice to the Company at any time at or
prior to Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof.
Notwithstanding any such termination, the provisions of Sections 4, 6, 7 and 8
shall remain in effect.
SECTION 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
any Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, any preliminary
prospectus supplement or the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to Section 6(c) hereof, the fees and
disbursements of counsel chosen by Xxxxxxx, Sachs & Co.), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
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provided, however, that (A) the foregoing indemnity agreement shall not apply
to any loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or omission (1)
made in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through the Representatives expressly for use in
a Registration Statement (or any amendment thereto) or any preliminary
prospectus, preliminary prospectus supplement or the Prospectus (or any
amendment or supplement thereto) or (2) in the Form T-1; and (B) the foregoing
indemnity agreement with respect to any preliminary prospectus or preliminary
prospectus supplement shall not inure to the benefit of the Underwriter from
whom the person asserting any such losses, claims, damages or liabilities
purchased Securities, or any person controlling such Underwriter, if a copy of
the Prospectus (as may then be amended or supplemented if the Company shall
have furnished any amendments or supplements thereto, but excluding documents
incorporated by reference therein) was not sent or given by or on behalf of
such Underwriter to such person, if such is required by law, at or prior to the
written confirmation of the sale of such Securities to such person and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage, liability or expense, except that this clause
(B) shall not be applicable if such defect shall have been corrected in a
document which is incorporated or deemed to be incorporated by reference in the
Prospectus.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed any
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in any
Registration Statement (or any amendment thereto) or any preliminary
prospectus, preliminary prospectus supplement or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the
Representative expressly for use in such Registration Statement (or any
amendment thereto) or such preliminary prospectus, such preliminary prospectus
supplement or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give written notice as promptly
as reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense
in the defense of any such action. In no event shall the indemnifying parties
be liable for fees and expenses of
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more than one counsel (in addition to any local counsel) separate from their
own counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and one or more of the Underwriters, as incurred, in
such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount (calculated as
described below) with respect to the Securities bears to the public offering
price (calculated as described below) of the Securities and the Company is
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of the preceding sentence, the
public offering price of the Securities shall be deemed to be equal to 100% of
the principal amount thereof and the underwriting discount shall be deemed to
be equal to 1.61% of the principal amount thereof. For purposes of this
Section, each person, if any, who controls an Underwriter within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed any Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the aggregate principal amount of Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or any
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
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(a) The Representatives may terminate this Agreement, by notice to
the Company, at any time at or prior to Closing Time (i) if there has been,
since the date of this Agreement or since the respective dates as of which
information is given in any Registration Statement, any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States or any outbreak of hostilities or escalation thereof or other
calamity or crisis the effect of which is such as to make it, in the judgment
of the Representatives, impracticable to market the Securities or to enforce
contracts for the sale of the Securities, or (iii) if trading in the securities
of the Company has been suspended by the Commission or a national securities
exchange, or if trading generally on either the American Stock Exchange or the
New York Stock Exchange has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by either of said Exchanges or by order of the Commission or any
other governmental authority, or if a banking moratorium has been declared by
either federal, New York or California authorities, (iv) if the rating assigned
by any nationally recognized statistical rating organization to any debt
securities of the Company shall have been lowered or if any such rating agency
shall have publicly announced that it has placed any debt securities of the
Company on what is commonly termed a "watch list" for a possible downgrading.
As used in this Section 9(a), the term "Prospectus" means the Prospectus in the
form first used to confirm sales of the Securities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except
as provided in Section 4 hereof. Notwithstanding any such termination, the
provisions of Sections 4, 6, 7 and 8 shall remain in effect.
SECTION 10. Default by One of the Underwriters. If one of the
Underwriters shall fail at Closing Time to purchase the Securities which it is
obligated to purchase under this Agreement (the "Defaulted Securities"), the
non-defaulting Underwriter shall have the right, within 24 hours thereafter, to
make arrangements for such non-defaulting Underwriter or any other underwriters
to purchase all, but not less than all, of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms herein set forth; if, however,
the non-defaulting Underwriter shall not have completed such arrangements
within such 24-hour period, then:
(a) if the aggregate principal amount of the Defaulted
Securities does not exceed 10% of the aggregate principal amount of
Securities to be purchased at Closing Time, the
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non-defaulting Underwriter shall be obligated to purchase all of the
Securities, or
(b) if the Defaulted Securities exceeds 10% of the
aggregate principal amount of Securities to be purchased at Closing
Time, this Agreement shall terminate without liability on the part of
the non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement either the non-defaulting Underwriter or the
Company shall have the right to postpone Closing Time for a period not
exceeding seven days in order to effect any required changes in the
Registration Statements or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to them at Xxxxxxx, Xxxxx & Co., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department; notices
to the Company shall be directed to it at 00000 Xxxxxxxx Xxxxxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000 attention of Xxxxxxx X. Xxxx, Senior Vice President
and Chief Financial Officer.
SECTION 12. Parties. This Agreement shall inure to the benefit of
and be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters and the Company
and their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. Governing Law and Time. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be
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performed in said State. Unless otherwise set forth herein, specified times of
day refer to New York City time.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its
terms.
Very truly yours,
XXXXXXX AND BROAD HOME CORPORATION
By:_________________________________
Name:
Title:
CONFIRMED AND ACCEPTED
as of the date first above written:
XXXXXXX, SACHS & CO.
NATIONSBANC XXXXXXXXXX SECURITIES, INC.
By:________________________________
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Underwriters
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SCHEDULE A
Aggregate
Principal
Amount
Name of Underwriter of Securities
------------------- -------------
Xxxxxxx, Xxxxx & Co. . . . . . . . . . . . . . . . . . . . . . . . . . $148,750,000
NationsBanc Xxxxxxxxxx Securities, Inc. . . . . . . . . . . . . . . . . 26,250,000
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . $175,000,000
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