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EXHIBIT 1.1
XXXXXXX AND BROAD HOME CORPORATION
(a Delaware corporation)
Debt Securities
UNDERWRITING AGREEMENT
_______, 199_
Ladies and Gentlemen:
Xxxxxxx and Broad Home Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell from time to time certain of its debt
securities ("Debt Securities"), consisting of debentures, notes or other
evidences of indebtedness representing unsecured obligations of the Company,
which may be either senior Debt Securities, senior subordinated Debt Securities
or subordinated Debt Securities. The Debt Securities will be issued, in the case
of Debt Securities that will be senior debt, under a senior indenture (the
"Senior Debt Indenture"), in the case of Debt Securities that will be senior
subordinated debt, under a senior subordinated indenture (the "Senior
Subordinated Debt Indenture"), and, in the case of Debt Securities that will be
subordinated debt, under a subordinated indenture (the "Subordinated Debt
Indenture"), each such indenture to be executed by the Company and one or more
trustees (each a "Trustee"). The Senior Debt Indenture, the Senior Subordinated
Debt Indenture and the Subordinated Debt Indenture are sometimes hereinafter
referred to individually as an "Indenture" and collectively as the "Indentures."
The Debt Securities are registered under the registration statement referred to
below. The Securities will be issued in one or more series, which series may
vary as to interest rates, maturities, redemption provisions, selling prices and
other terms, with all such terms for any particular series of the Debt
Securities being determined at the time of sale.
Particular series of the Debt Securities will be sold pursuant to a
Terms Agreement referred to in Section 2 in the form of Annex A attached hereto,
for resale in accordance with the terms of offering determined at the time of
sale. The Debt Securities involved in any such offering are hereinafter referred
to as the "Securities". The firm or firms which agree to purchase the Securities
are hereinafter referred to as the "Underwriters" of such Securities, and the
representative or representatives of the Underwriters, if any, specified in the
Terms Agreement
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referred to in Section 2 are hereinafter referred to as the "Representative(s)";
provided, however, that if the Terms Agreement does not specify any
representative of the Underwriters, the term "Representative(s)", as used in
this Agreement shall mean the Underwriters.
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to each Underwriter as
follows:
(i) A registration statement (No. 333-_____), including a
prospectus, relating to the Debt Securities has been filed with the
Securities and Exchange Commission (the "Commission") and has become
effective. Such registration statement, as amended at the time of any
Terms Agreement referred to in Section 2, is hereinafter referred to
as the "Registration Statement", and the prospectus included in such
Registration Statement, as supplemented as contemplated by Section 2
to reflect the terms of the Securities and the terms of offering
thereof, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") of the rules and
regulations of the Commission under the Securities Act of 1933, as
amended (the "1933 Act") (the "1933 Act Regulations"), including all
material incorporated by reference therein, is hereinafter referred to
as the "Prospectus". At the time the Registration Statement became
effective, the Registration Statement complied in all material
respects with the requirements of the 1933 Act, the 1933 Act
Regulations, the Trust Indenture Act of 1939, as amended (the "1939
Act") and the rules and regulations of the Commission under the 1939
Act (the "1939 Act Regulations"), and did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and on the date of each Terms Agreement referred to in
Section 2, the Registration Statement and the Prospectus will comply
in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations, and neither of such documents will include an
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading; provided, however, that
the representations and warranties in this subsection (i) shall not
apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through the
Representative(s) expressly for use in the Registration Statement or
the Prospectus or the information contained in any Statement of
Eligibility of the Trustee under the 1939 Act filed as an exhibit to
the Registration Statement or in accordance with Section 305(b)(2) of
the 1939 Act (the "Form T-1").
(ii) Ernst & Young LLP, whose report is incorporated by
reference into the Registration Statement, are independent public
accountants with respect to the Company and with respect to the
Company's subsidiaries, in each case as required by the 1933 Act and
the 1933 Act Regulations.
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(iii) The financial statements included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the financial position of the Company and its consolidated
subsidiaries as of 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 Statement,
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 Statement present fairly
the information required to be stated therein; and the Company's
ratios of earnings to fixed charges and 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 under the caption "Consolidated Ratios of Earnings
to Fixed Charges and of Earnings to Combined Fixed Charges and
Preferred Stock Dividends" in Exhibit 12 to the Registration Statement
have been calculated in compliance with Item 503(d) of Regulation S-K
of the Commission.
(iv) Since the date of the latest audited financial
statements included or incorporated by reference in the Registration
Statement 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 and partnerships (collectively, the "Joint Ventures") in
which the Company is a participant) considered as one enterprise,
whether or not arising in the 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 of the
Company, 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) has
been duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
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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 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 one of its other 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 Joint Venture 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 Joint Ventures 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 Subsidiaries" means the subsidiaries and Joint Ventures
identified on Annex B hereto which subsidiaries and Joint Ventures (A)
on the basis of the Company's most recent audited financial statements
included or incorporated by reference in the Registration Statement,
represent 90% or more of the total assets of the Company and its
Subsidiaries and (B) include all "significant subsidiaries" of the
Company, as such term is defined in Rule 405 of the 1933 Act
Regulations.
(vii) The authorized, issued and outstanding capital stock
of the Company is as set forth in the Prospectus (except for
subsequent issuances, if any, pursuant to reservations, agreements,
employee benefit plans or the exercise of convertible securities
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;
and the Common Stock conforms to the statements relating thereto
referred to or incorporated by reference 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 applicable Indenture and this Agreement against
payment of the consideration set forth herein, the Securities 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 applicable Indenture; the applicable Indenture has been duly
authorized by the Company and, at the Closing Date (as hereinafter
defined), 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
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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 applicable 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 the Registration
Statement to be issued prior to the delivery of the Securities, the
aggregate amount of Securities which have been issued and sold by the
Company will not exceed the amount of theretofore unsold securities
registered pursuant to the Registration Statement.
(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 any obligation, agreement, covenant or
condition contained in 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, 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 and the Terms Agreement, 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, or to which any of the property or assets of the
Company or any of the Significant Subsidiaries is subject, except 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 Statement (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
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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 Statement, 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 Statement 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 and the 1933 Act Regulations for the Securities and the
qualification of the applicable Indenture under 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.
(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 Statement became effective, at the date of the Terms
Agreement and at the Closing Date did 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) There are no holders of securities of the Company
with currently exercisable registration rights who have any securities
registered as part of the Registration Statement or included in the
offering contemplated by this Agreement.
(xiv) 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
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and its subsidiaries considered as one enterprise and do not
materially interfere with the use made and proposed to be made of such
properties.
(xv) The Company and its Significant Subsidiaries possess
such certificates, authorities and permits issued by the appropriate
state, federal and foreign regulatory agencies and bodies necessary to
conduct all material aspects 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.
(xvi) No default or event of default with respect to any
Indebtedness (as such term is defined in 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 applicable
Indenture, the issuance and sale of the Securities or the consummation
of the transactions contemplated hereby or thereby.
(xvii) 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.
(xviii) 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 Representative(s) 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.
SECTION 2. Purchase and Offering of Securities. The obligation of the
Company to issue and
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sell any Securities and the obligation of the Underwriters to purchase the
Securities will be set forth in a Terms Agreement (the "Terms Agreement") which
shall be in the form of an executed writing (which may be handwritten), and may
be evidenced by an exchange of telegraphic or any other rapid transmission
device designed to produce a written record of communications transmitted at
the time the Company determines to sell the Securities. The Terms Agreement
will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the following: the firm or firms
which will be Underwriters; the names of any Representative(s); the aggregate
principal amount of the Securities; the principal amount of Securities to be
purchased by each Underwriter; the initial public offering price of the
Securities; the purchase price to be paid by the Underwriters and the terms of
the Securities not already specified in the applicable Indenture. The Terms
Agreement will also specify the place of delivery and payment for the
Securities and any details of the terms of the offering that should be
reflected in the prospectus supplement relating to the offering of the
Securities.
The time and date of delivery and payment of the Securities will be
the time and date specified in the Terms Agreement, or such other time
thereafter as the Representative(s) and the Company agree as the time for
payment and delivery of the Securities (such time and date, being herein and in
the Terms Agreement referred to as the "Closing Date"). The obligations of
the Underwriters to purchase the Securities will be several and not joint. It
is understood that the Underwriters propose to offer the Securities for sale as
set forth in the Prospectus. The Securities delivered to the Underwriters on
the Closing Date will be in such denominations and registered in such names as
the Underwriters may request.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter that, in connection with each offering of Securities:
(a) The Company will notify the Representative(s) promptly (i) of
the effectiveness of any post-effective amendment to the Registration
Statement, (ii) of the mailing or the delivery to the Commission for filing of
the Prospectus or any amendment to the Registration Statement or amendment or
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 the Registration Statement or Prospectus, (iv) of any request by
the Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, (v) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for that
purpose and (vi) of the issuance by any state securities commission or other
regulatory authority of any order suspending the qualification or the exemption
from qualification of the Debt Securities or the Securities under state
securities or Blue Sky laws or the initiation of any proceeding 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(s) notice of its
intention to file or
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prepare any amendment to the Registration Statement (including any
post-effective amendment thereto) 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 Securities which differs from the
Prospectus on file at the Commission at the time the Registration Statement
becomes effective, whether or not such revised prospectus is required to be
filed pursuant to Rule 424(b) of the 1933 Act Regulations), will furnish the
Representative(s) 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 Representative(s) or counsel for the Underwriters shall reasonably
object.
(c) The Company will deliver to the Representative(s) as many
conformed copies of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) as the Representative(s) 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.
(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 Representative(s) 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 applicable
securities laws of such states and other jurisdictions of the United States as
the Representative(s) 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 Representative(s) 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
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practicable, but not later than 50 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 "effective
date" (as defined in said Rule 158) of the Registration Statement.
(h) The Company will use the net proceeds received by it from the
sale of the Securities in the manner specified in the Prospectus under "Use of
Proceeds."
(i) Following the execution of the applicable Terms Agreement, the
Company will prepare, and file or transmit for filing copies of the Prospectus
with the Commission in accordance with Rule 424(b).
(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) If and to the extent so provided in the applicable Terms
Agreement, the Company, for the period therein provided, will not, directly or
indirectly, sell, contract to sell or otherwise dispose of certain of its
securities as specified in such Terms Agreement.
SECTION 4. Payment of Expenses. The Company will pay the following
expenses incident to the performance of its obligations under this Agreement:
(i) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto; (ii) the printing or reproduction of this
Agreement and the Indentures; (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 the Registration Statement as
originally filed and of each amendment thereto, of the preliminary
prospectuses, and of the Prospectus and any amendments or supplements thereto;
(vii) the printing and delivery to the Representative(s) of copies of the Blue
Sky Survey; (viii) any fees payable in connection with the rating of the
Securities; (ix) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee in connection with the applicable
Indenture and the Securities; and (x) any fees and expenses of a depositary in
connection with holding the Securities in book entry form. The Company will
not be responsible for any other expenses, including (without limitation) the
fees and disbursements of counsel for the Underwriters (except as provided in
Section 4(v) hereof).
If this Agreement is terminated by the Representative(s) in accordance
with the provisions of Section 5 or Section 9(a)(i), the Company shall
reimburse the Underwriters for all of their
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out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for the Securities on the Closing Date
will be 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) The Prospectus shall have been filed in accordance with the
1933 Act Regulations and Section 3(i) of this Agreement; and no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or threatened by
the Commission.
(b) At the Closing Date the Representative(s) shall have received:
(1) The favorable opinion, dated as of the Closing Date,
of Xxxxxx, Xxxxxx & Xxxxx LLP, special counsel for the Company, in
form and substance satisfactory to counsel for the Underwriters, to
the effect (to the extent applicable to the Securities) 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 applicable Indenture 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, 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 applicable Indenture, have been duly
authorized for issuance and sale by the Company and, when
issued by the Company, authenticated by the Trustee in the
manner provided for in such Indenture and delivered pursuant
to the provisions of such Indenture and this Agreement against
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 applicable Indenture.
(iv) The applicable Indenture has been qualified
under the 1939 Act.
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(v) The Securities and the applicable Indenture
conform in all material respects to the descriptions thereof
contained in the Prospectus.
(vi) The information in the Prospectus relating
to the description of the capital stock of the Company and
relating to Federal income tax considerations (if any), to the
extent that it constitutes summaries of legal matters or
documents, has been reviewed by such counsel and is correct in
all material respects.
(vii) The 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 the
Registration Statement has been issued under the 1933 Act or
proceedings therefor initiated or threatened by the
Commission.
(viii) The Registration Statement, at the time it
became effective, and the Registration Statement and the
Prospectus at the date of the applicable Terms Agreement
(other than the financial statements and supporting schedules
included or incorporated by reference therein, as to which no
opinion need be rendered) complied and complies as to form in
all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations.
(ix) The Terms Agreement (including the provisions
of this Agreement) has been duly authorized, executed and
delivered by the Company.
In giving the opinions in paragraphs (ii) and (iii), such counsel shall be
entitled to assume without any investigation that California law is the same as
New York law for all purposes relevant to the determination of the
enforceability of agreements governed by New York law.
(2) The favorable opinion, dated as of the Closing Date,
of the General Counsel or 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 considered as
one enterprise.
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(iii) Each of the Company's Significant Domestic
Subsidiaries (as defined below) has been duly incorporated and
is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has
corporate power and authority 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 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 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 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. As used
in this Agreement, the term "Significant Domestic
Subsidiaries" means the Significant Subsidiaries set forth in
Annex B hereto.
(iv) The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus
(except for subsequent issuances, if any, pursuant to
reservations, agreements or employee benefit plans or the
exercise of convertible securities referred to or incorporated
by reference in the Prospectus); and the shares of issued and
outstanding capital stock of the Company 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 Statement or the Prospectus
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 Statement, 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 Statement, 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" in the most recent
Annual Report on Form 10-K incorporated by reference in the
Registration Statement and in Item 15 in Part II of the
Registration Statement, to the extent that it constitutes
matters of law,
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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 Statement
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 any contract, indenture, mortgage, loan
agreement, note, lease or other instrument so described,
referred to or filed or incorporated by reference, which
default 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 the Terms Agreement (including
the provisions of this Agreement) and the applicable 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, to the best of such counsel's knowledge and information,
any 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 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.
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(xi) 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
applicable Indenture, the issuance and sale of the Securities
or the consummation of the transactions contemplated hereby or
thereby.
In giving such opinion, as to matters governed by laws 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, such counsel may, at such
counsel's option, either (A) assume without any investigation that the law of
the State of California (or, if appropriate, the General Corporation Law of the
State of Delaware or the federal law of the United States) 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
Representative(s) so long as each such opinion shall be dated as of the Closing
Date and in form and substance reasonably satisfactory to the
Representative(s), and shall expressly permit the Underwriters to rely thereon
as if such opinion were addressed to the Underwriters.
(3) The favorable opinion, dated as of the Closing Date,
of counsel for the Underwriters, with respect to the matters set forth
in (ii) through (v) and (vii) through (ix) (but not with respect to
any documents incorporated by reference) of subsection (b)(1) 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, the General Counsel or Associate Counsel of the
Company (as the case may be) and counsel for the Underwriters shall
each additionally state that nothing has come to their attention that
has led them to believe that the Registration Statement (except for
financial statements and schedules and other financial data included
therein and the 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 Registration Statement or the Prospectus
(except for financial statements and other financial data included
therein and the Form T-1, as to which counsel need make no statement),
at the date of the Terms Agreement, or any such amendment or
supplement, as of its date, included an untrue statement of a material
fact or omitted to state a material fact necessary in order to make
the statements therein (in the case of the Prospectus, in the light of
the circumstances under which they were made) not misleading.
(c) At the Closing Date, there shall not have been, since the date
of the Terms Agreement, any material adverse change in the condition, financial
or otherwise, or in the
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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 Representative(s) 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 such
Closing Date, 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
the Closing Date; (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior
to the Closing Date; (iv) no stop order suspending the effectiveness of the
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.
(d) At the Closing Time, the Representative(s) shall have received
from Ernst & Young LLP a letter dated such date, in form and substance
satisfactory to the Representative(s), 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 Statement and the Prospectus.
(e) At the Closing Date, 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
Representative(s) and counsel for the Underwriters.
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 Representative(s) by notice to the Company at any time at or
prior to the Closing Date, 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
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contained in the 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
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 the Representative(s)), 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;
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 Representative(s) expressly for use
in the Registration Statement (or any amendment thereto) or any preliminary
prospectus 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 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) 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.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 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
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untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus 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(s) expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus 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 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 Underwriters, as incurred, in such
proportions that the Underwriters are responsible for that portion represented
by the percentage that the underwriting discount appearing on the cover page of
the Prospectus bears to the initial public offering price appearing thereon and
the Company is responsible for the balance; provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of Section ll(f) of
the 0000 Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. 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 the 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.
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
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 Representative(s) may terminate this Agreement and the
applicable Terms Agreement, by notice to the Company, at any time at or prior
to the Closing Date (i) if there has been, since the date of this Agreement and
the applicable Terms Agreement or since the respective dates as of which
information is given in the 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; (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 Representative(s), impracticable to market the Securities or to enforce
contracts for the sale of the Securities; (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 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 said Exchange 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; or (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.
(b) If this Agreement and the applicable Terms Agreement are
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 or More of the Underwriters. If any one or
more Underwriters shall fail to purchase and pay for any of the Securities
agreed to be purchased by such Underwriter or Underwriters under this Agreement
and the applicable Terms Agreement and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the Representative(s) may make arrangements satisfactory to the
Company for the purchase of such Securities by other persons (including any of
the Underwriters) but if no arrangements are made by the Closing Date the
remaining Underwriters shall be obligated severally to take up and pay for (in
the respective proportions which the amount of Securities set forth opposite
their names in the Terms Agreement bear to the aggregate amount of Securities
set opposite the names of all the remaining Underwriters) the Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event the aggregate amount of Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10 percent of the aggregate amount of Securities set forth in such Terms
Agreement, the Representative(s) may make arrangements satisfactory to the
Company for the purchase of such Securities by other persons (including any of
the Underwriters) but if no arrangements are made by the Closing Date the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
non-defaulting Underwriters do not purchase all the Securities, this Agreement
will terminate
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without liability to any non-defaulting Underwriter or the Company. In the
event of a default by any Underwriter as set forth in this Section 10, the
Closing Date shall be postponed for such period, not exceeding seven days, as
the Representative(s) shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
non-defaulting Underwriter for damages occasioned by its default hereunder.
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 the Representative(s) at ________________,
attention of ___________________; 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 and the applicable Terms 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 or such Terms 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 the applicable Terms Agreement or any provision
herein or therein contained. This Agreement and such Terms Agreement and all
conditions and provisions hereof and thereof 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 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:
[NAMES OF UNDERWRITERS]
By: [Representative(s)]
By:
-------------------------------
Name:
Title:
For itself and as Representative(s) of the other
Underwriters.
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ANNEX A
XXXXXXX AND BROAD HOME CORPORATION
(a Delaware Corporation)
Debt Securities
TERMS AGREEMENT
_______, 199_
[Names and Addresses of
Representatives]
Dear Sirs:
Xxxxxxx and Broad Home Corporation, a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated ________, 199_ (the "Underwriting
Agreement"), between the Company on the one hand and ___________, on the other
hand, to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the securities specified in Schedule II hereto (the
"Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Terms
Agreement, except that, if this Terms Agreement and the Underwriting Agreement
are dated different dates, each representation and warranty with respect to the
Prospectus in Section 1 of the Underwriting Agreement shall be deemed to be a
representation and warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined) and also a representation and
warranty as of the date of this Terms Agreement in relation to the Prospectus
as amended or supplemented relating to the Securities which are the subject of
the Terms Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of each of the underwriters of Securities are set
forth in Schedule II hereto.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the
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Underwriters' and each of the Underwriters agrees, severally and not jointly,
to purchase from the Company, at the time and place and at a purchase price to
the Underwriters set forth in Schedule II hereto, the amount of Securities set
forth opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us ________ counterparts hereof, and upon acceptance hereof by
you, on behalf of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination upon request.
Very truly yours,
XXXXXXX AND BROAD HOME CORPORATION
By
-------------------------------
Name:
Title:
Accepted as of the date hereof:
By:
-------------------------------
On behalf of each of the Underwriters
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SCHEDULE I
Amount of Designated
Securities to be
Underwriter Purchased `
--------------------
Total
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SCHEDULE II
Title of Securities:
Aggregate principal amount:
Price to Public:
Purchase Price by Underwriters:
Specified funds for payment of purchase price:
Closing Date:
Closing Location:
Black Out Period:
Names and addresses of Representatives:
Listings(s):
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Address for Notices, etc.:
Other Terms:
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ANNEX B
XXXXXXX AND BROAD HOME CORPORATION
List of Significant Subsidiaries
27
