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EXHIBIT 1
U.S. HOME CORPORATION
8.25% Senior Notes due 2004
8.88% Senior Subordinated Notes due 2007
UNDERWRITING AGREEMENT
Dated August 25, 1997
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UNDERWRITING AGREEMENT
August 25, 1997
XXXXXX, READ & CO. INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
U.S. Home Corporation (hereinafter the "COMPANY"), proposes to sell to
you $100,000,000 aggregate principal amount of its 8.25% Senior Notes due 2004
(the "SENIOR NOTES") and $125,000,000 aggregate principal amount of its 8.88%
Senior Subordinated Notes due 2007 (the "SENIOR SUBORDINATED NOTES", together
with the Senior Notes, the "NOTES"), each issued pursuant to an indenture
(together, the "INDENTURES") to be dated as of August 28, 1997, between the
Company and IBJ Xxxxxxxx Bank & Trust Company, as trustee (the "TRUSTEE").
1. Representations and Warranties of the Company: The Company
represents and warrants to you that:
(a) the Company meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (collectively, the "ACT"), and has filed with
the Securities and Exchange Commission (the "COMMISSION") a
registration statement on such form, which has become effective, for
the registration under the Act of the Notes. Such registration
statement, as amended at the date of this Agreement, meets the
requirements set forth in Rule 415(a)(1)(x) under the Act and complies
in all other material respects with said Rule. The Company proposes to
file with the Commission pursuant to Rule 424(b) under the Act a
supplement to the form of prospectus included in such registration
statement relating to the Notes and the plan of distribution thereof
and has previously advised you of all further information (financial
and other) with respect to the Company to be set forth therein. Such
registration statement, including the exhibits thereto, as amended at
the date of this Agreement, is hereinafter called the "REGISTRATION
STATEMENT"; the prospectus dated August 25, 1997 is hereinafter called
the "BASIC PROSPECTUS"; and the Prospectus Supplement
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to the Basic Prospectus dated August 25, 1997 in the form in which it
shall be filed by the Company with the Commission pursuant to Rule
424(b) (including the Basic Prospectus as so supplemented) is
hereinafter called the "FINAL PROSPECTUS". Any reference herein to the
Registration Statement, the Basic Prospectus, or the Final Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein (the "INCORPORATED DOCUMENTS") pursuant to Item 12 of
Form S-3 which were filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder
(collectively, the "EXCHANGE ACT") on or before the date of this
Agreement, or the issue date of the Basic Prospectus, or the Final
Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, or the Final Prospectus shall be
deemed to refer to and include the filing of any document under the
Exchange Act after the date of this Agreement, or the issue date of the
Basic Prospectus, or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference;
(b) as of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424(b) under the Act, when, prior to the time of
purchase, any amendment to the Registration Statement becomes effective
(including the filing of any Incorporated Documents), when any
supplement to the Final Prospectus is filed with the Commission and at
the time of purchase, (i) the Registration Statement, as amended as of
any such time, and the Final Prospectus, as amended or supplemented as
of any such time, and the Indentures will comply in all material
respects with the applicable requirements of the Act, the Trust
Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"), and the
Exchange Act and the respective rules thereunder and (ii) neither the
Registration Statement, as amended as of any such time, nor the Final
Prospectus, as amended or supplemented as of any such time, will
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading; provided, that the Company
makes no representations or warranties as to (i) that part of the
Registration Statement which constitutes the Statement of Eligibility
and Qualification of the Trustee (Form T-1) under the Trust Indenture
Act or (ii) the information contained in or omitted from the
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Registration Statement or the Final Prospectus or any amendment thereof
or supplement thereto in reliance upon and in conformity with
information furnished in writing to the Company by you specifically for
use in connection with the preparation of the Registration Statement or
the Final Prospectus;
(c) all of the issued and outstanding shares of capital stock
of the Company have been duly and validly authorized and issued and are
fully paid and non-assessable; the Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the State of Delaware, with full corporate power and authority
to (i) own its properties and conduct its business as described in the
Final Prospectus, (ii) execute and deliver this Agreement and the
Indentures and (iii) issue, sell and deliver the Notes as herein
contemplated;
(d) each of the Company and its subsidiaries (the
"SUBSIDIARIES") is duly qualified or licensed by and is in good
standing in, each jurisdiction in which it conducts its respective
businesses and in which the failure, individually or in the aggregate,
to be so licensed or qualified would have a material adverse effect on
the condition (financial or other), business, properties, net worth or
results of operations of the Company and its Subsidiaries taken as a
whole; each of the Company and its Subsidiaries is in compliance in all
respects with the laws, orders, rules, regulations and directives
issued or administered by each such jurisdiction, except to the extent
the failure to so comply would not have a material adverse effect on
the condition (financial or other), business, properties, net worth or
results of operations of the Company and its Subsidiaries taken as a
whole;
(e) neither the Company nor any Subsidiary is in breach of, or
in default under (nor has any event occurred which with notice, lapse
of time or both would constitute a breach of, or default under), its
respective charter, by-laws, partnership agreements, or other
organizational documents or in the performance or observance of any
obligation, agreement, covenant or condition contained in any license,
indenture, mortgage, deed of trust, bank loan or credit agreement or
other agreement or instrument to which the Company or any Subsidiary is
a party or by which any of them is bound, except to the extent such
breach or default would not have a material adverse effect on the
condition (financial or other), business, properties, net worth or
results of operations of the Company and its Subsidiaries, taken as a
whole; and the execution, delivery and performance of this Agreement
and the Indentures, the
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issuance of the Notes and the consummation of the transactions
contemplated hereby and thereby will not conflict with, or result in
any breach of, or constitute a default under (nor constitute an event
which with notice, lapse of time or both would constitute a breach of,
or default under), any provisions of the charter or by-laws of the
Company or any of its Subsidiaries or under any provision of any
license, indenture, mortgage, deed of trust, bank loan or credit
agreement or other agreement or instrument to which the Company or any
Subsidiary is a party or by which any of them or their respective
properties may be bound or affected, or under any federal, state, local
or foreign law, regulation or rule or any decree, judgment or order
applicable to the Company or any Subsidiary;
(f) the Indentures have been duly authorized by the Company
and, when executed and delivered by the Company and the Trustee, will
be legal, valid and binding agreements of the Company enforceable in
accordance with their respective terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting creditors' rights
generally and general principles of equity;
(g) the Notes have been duly authorized by the Company and,
when executed and authenticated in accordance with the terms of the
Indentures and delivered to and paid for by you, will constitute legal,
valid and binding obligations of the Company, enforceable in accordance
with their terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or affecting creditors' rights generally and general
principles of equity;
(h) this Agreement has been duly authorized, executed and
delivered by the Company;
(i) the Notes and the Indentures conform in all material
respects to the description thereof contained in the Final Prospectus;
(j) no approval, authorization, consent or order of or filing
with any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency is required in connection
with the issuance and sale of the Notes other than approvals,
authorizations, consents, orders or filings which have already been
obtained or made and registration of the Notes under the Act,
qualification of the Indentures and the Trustee under the Trust
Indenture Act, and any necessary qualification
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under the securities or blue sky laws of the various jurisdictions in
which the Notes are being offered by you;
(k) Xxxxxx Xxxxxxxx LLP, whose report on the consolidated
financial information of the Company is included in the Registration
Statement and Final Prospectus, are independent public accountants with
respect to the Company, as required by the Act and the applicable
published rules and regulations thereunder;
(l) each of the Company and its Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all
necessary filings required under any federal, state, local or foreign
law, regulation or rule, and has obtained all necessary authorizations,
consents and approvals from other persons, in order to conduct its
respective business except to the extent the absence thereof would not
have a material adverse effect on the condition (financial or other),
business, properties, prospects, net worth or results of operations of
the Company and its Subsidiaries taken as a whole; neither the Company
nor any Subsidiary is in violation of, or in default under, any such
license, authorization, consent or approval or any federal, state,
local or foreign law, regulation or rule or any decree, order or
judgment applicable to the Company or any of its Subsidiaries, the
result of which would have a material adverse effect on the condition
(financial or other), business, net worth or results of operations of
the Company and its Subsidiaries taken as a whole;
(m) all legal or governmental proceedings, contracts or
documents of a character required to be described in the Registration
Statement or the Final Prospectus or to be filed as an exhibit to the
Registration Statement have been so described or filed as required;
(n) except as set forth in the Final Prospectus, there are no
actions, suits or proceedings pending or, to the knowledge of the
Company, threatened against the Company or any of its Subsidiaries or
any of their respective properties, at law or in equity, or before or
by any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency that could result in a
judgment, decree or order having a material adverse effect on the
condition (financial or other), business, properties, net worth or
results of operations of the Company and its Subsidiaries taken as a
whole;
(o) the audited financial statements included in the
Registration Statement and the Final Prospectus present fairly in all
material respects
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the consolidated financial position of the Company and its Subsidiaries
as of the dates indicated and the consolidated results of operations
and cash flows of the Company and its Subsidiaries for the periods
specified; such financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis during the periods involved;
(p) subsequent to the respective dates as of which information
is given in the Registration Statement and Final Prospectus, and except
as may be otherwise described or referred to in the Registration
Statement or Final Prospectus, there has not been (A) any material and
adverse change in the condition (financial or other), business,
properties, net worth or results of operations, regulatory environment,
present or prospective of the Company and its Subsidiaries taken as a
whole, (B) any transaction, which is material to the Company and its
Subsidiaries taken as a whole, contemplated or entered into by the
Company or any of its Subsidiaries except transactions entered into in
the ordinary course of business or (C) any obligation, contingent or
otherwise, directly or indirectly, incurred by the Company or any of
its Subsidiaries that is material to the Company and its Subsidiaries
taken as a whole;
(q) there is no claim pending or, to the knowledge of the
Company, threatened or contemplated under any Environmental Law (as
defined below) against the Company or any of its Subsidiaries which, if
adversely determined, would have a material adverse effect on the
condition (financial or other), business, properties, net worth or
results of operations of the Company and its Subsidiaries taken as a
whole; there are no past or present actions or conditions including,
without limitation, the release of any hazardous substance or waste
regulated under any Environmental Law that are likely to form the basis
of any such claim under existing law against the Company or any of its
Subsidiaries which, if adversely determined, would have a material
adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Company and its
Subsidiaries taken as a whole. The term "ENVIRONMENTAL LAW" means any
federal, state, local or foreign law, rule or regulation now in effect
governing pollution or protection of the environment; and
(r) the Company and its Subsidiaries have good title to all
properties and assets owned or leased by them, in each case free and
clear of all liens, security interests, pledges, charges, encumbrances,
mortgages and defects (other than those set forth in the Final
Prospectus, including,
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without limitation, the financial statements and the notes thereto or
such as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company and its Subsidiaries) except to the extent that would not
have a material adverse effect on the condition (financial or other),
business, properties, net worth or results of operations of the Company
and its Subsidiaries taken as a whole.
2. Sale and Purchase: Upon the basis of the warranties and
representations and the other terms and conditions herein set forth, the Company
agrees to sell to you and you agree to purchase from the Company, the aggregate
principal amount of the Senior Notes at a purchase price of 98.75% of the
principal amount thereof and the aggregate principal amount of the Senior
Subordinated Notes at a purchase price of 97.75% of the principal amount
thereof. You shall release the Notes for public sale promptly after this
Agreement becomes effective. You may from time to time increase or decrease the
public offering price after the initial public offering to such extent as you
may determine.
3. Payment and Delivery: Payment of the purchase price for the Notes
shall be made to the Company by wire transfer of immediately available funds to
an account or accounts designated by the Company against delivery of the
certificates for the Notes to you or for your account. Such payment and delivery
shall be made at 10:00 A.M., New York City time, on August 28, 1997 (unless
another time shall be agreed to by you and the Company). The time at which such
payment and delivery are actually made is hereinafter sometimes called the "time
of purchase." The Notes shall be issued to you in book-entry form in such names
and in such denominations as you shall specify.
4. Certain Covenants of the Company: The Company hereby agrees:
(a) to furnish such information as may be required and
otherwise to qualify the Notes for offering and sale under the
securities or blue sky laws of such states as you may designate and to
maintain such qualifications in effect as long as required for the
distribution of the Notes; provided that the Company shall not be
required to qualify as a foreign corporation or to consent to the
service of process under the laws of any such state (except service of
process with respect to the offering and sale of the Notes); to advise
you promptly of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Notes for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to make every reasonable effort to obtain
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the withdrawal of any order or suspension at the earliest practicable
moment;
(b) to furnish to you and your counsel, as many copies of the
Final Prospectus and any amendments thereof and supplements thereto as
you may reasonably request;
(c) to advise you promptly within the time during which a
prospectus to the Notes is required to be delivered under the Act,
confirming such advice in writing, of any request by the Commission for
amendments or supplements to the Registration Statement or Final
Prospectus or for additional information with respect thereto, or of
notice of institution of proceedings for, or the entry of a stop order
suspending the effectiveness of the Registration Statement and, if the
Commission should enter a stop order suspending the effectiveness of
the Registration Statement, to make every reasonable effort to obtain
the lifting or removal of such order as soon as possible; and to advise
you promptly within the time during which a prospectus to the Notes is
required to be delivered under the Act of any proposal to amend or
supplement the Registration Statement or Basic Prospectus, including by
filing any Incorporated Documents, and to file no such amendment or
supplement to which you shall reasonably object in writing;
(d) to furnish to you for the period when the Notes are
outstanding (i) copies of any reports or other communications that the
Company shall send to its stockholders generally or holders of the
Notes or shall from time to time publish or publicly disseminate and
(ii) copies of all annual, quarterly and current reports filed with the
Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as
may be designated by the Commission;
(e) to advise you promptly of the happening of any event known
to the Company within the time during which a prospectus relating to
the Notes is required to be delivered under the Act which would, in the
reasonable judgment of the Company, require the making of any change in
the Final Prospectus, as then supplemented, then being used, or in the
information incorporated therein by reference, so that the Final
Prospectus would not include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which they are made, not
misleading, and, during such time, to prepare and furnish, at the
Company's expense, to you
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promptly such amendments or supplements to such Final Prospectus as may
be necessary to reflect any such change and to furnish to you a copy of
such proposed amendment or supplement before filing any such amendment
or supplement with the Commission;
(f) to make generally available to its holders of Notes, and
to deliver to you, an earnings statement of the Company (which will
satisfy the provisions of Section 11(a) of the Act) covering a period
of twelve months beginning after the date of this Agreement as soon as
is reasonably practicable after the termination of such twelve-month
period but not later than 15 months thereafter;
(g) to furnish to each of you and your counsel signed copies
of the Registration Statement (in such quantities as you may reasonably
request), as initially filed with the Commission, all amendments
thereto (including the exhibits thereto) and all documents incorporated
by reference therein;
(h) to furnish to you as early as practicable prior to the
time of purchase, but no later than two business days prior thereto, a
copy of the latest available unaudited interim consolidated financial
statements, if any, of the Company and its Subsidiaries that have been
read by the Company's independent certified public accountants, as
stated in their letter to be furnished pursuant to Section 6(c) of this
Agreement;
(i) to apply the net proceeds from the sale of the Notes in
the manner set forth under the caption "Use of Proceeds" in the Final
Prospectus;
(j) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement otherwise becomes effective
or is terminated, to pay all out-of-pocket expenses, fees and taxes
(other than (x) any transfer taxes and (y) fees and disbursements of
your counsel, except as set forth under Section 5 hereof and clauses
(iii) and (iv) below) in connection with (i) the preparation and filing
of the Registration Statement, the Final Prospectus, and any amendments
or supplements thereto, and the printing and furnishing of copies of
each thereof to you (including costs of mailing and shipment), (ii) the
preparation, issuance, execution, authentication and delivery of the
Notes, (iii) the word processing and/or printing of this Agreement, and
the Indentures and the reproduction and/or printing and furnishing of
copies of each thereof to you (including costs of mailing and
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shipment), (iv) the qualification of the Notes for offering and sale
under state laws and the determination of their eligibility for
investment under state law as aforesaid (including, if any, the legal
fees, filing fees and other disbursements of your counsel) and the
printing and furnishing of copies of any blue sky surveys or legal
investment surveys to you, (v) any registration of the Notes under the
Exchange Act, (vi) obtaining an investment rating for the Notes
(including fees payable to investment rating agencies), (vii) any
filing for review of the public offering of the Notes by the NASD and
(viii) the performance of the Company's other obligations hereunder;
(k) to furnish to you, contemporaneously with any filing with
the Commission subsequent to the effective date of the Registration
Statement and during the period referred to in paragraph (e) above, a
copy of any document filed pursuant to Sections 13, 14 or 15(d) of the
Exchange Act; and
(l) until the time of purchase, not to sell, contract to sell,
grant any option to sell or otherwise dispose of, directly or
indirectly, any debt securities of the Company which mature more than
one year following the time of purchase and which are substantially
similar to the Notes, without your prior written consent.
5. Reimbursement of Underwriter's Expenses: If the Notes are not
delivered for any reason other than as a result of a default by you of your
obligations hereunder, the Company shall reimburse you for all of your
out-of-pocket expenses, including the reasonable fees and disbursements of your
counsel but without any further obligation on the part of the Company for loss
of profits or otherwise.
6. Conditions of Underwriter's Obligations: Your obligations hereunder
are subject to the accuracy of the representations and warranties on the part of
the Company on the date hereof and at the time of purchase, unless previously
waived, the performance by the Company of its obligations hereunder and to the
following additional conditions:
(a) The Company shall furnish to you at the time of purchase
an opinion of Xxxx, Xxxxxxx, Xxxxxxx, Xxxx & Handler, LLP, counsel for
the Company, addressed to you and dated as of the time of purchase and
in form reasonably satisfactory to your counsel, Xxxxx Xxxx & Xxxxxxxx,
stating that:
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(i) the Company has been duly incorporated and is
validly existing and in good standing under the laws of the
State of Delaware. The Company has corporate power and
authority to (A) own its properties and conduct its business
as described in the Final Prospectus and (B) execute and
deliver this Agreement and the Indentures and to issue, sell
and deliver the Notes as described in the Final Prospectus;
(ii) U.S. Home Mortgage Corporation ("U.S. HOME
MORTGAGE") has been duly incorporated and is validly existing
and in good standing under the laws of the State of Florida.
U.S. Home Mortgage has corporate power and authority to own
its properties and to conduct its business as described in the
Final Prospectus;
(iii) the Company and U.S. Home Mortgage are duly
qualified as foreign corporations and are in good standing in
each jurisdiction set forth in Schedule 1 to such opinion;
(iv) this Agreement has been duly authorized,
executed and delivered by the Company;
(v) the Indentures have been duly authorized by the
Company and, when executed and delivered by the Company, and
assuming the authorization, execution and delivery by the
Trustee, will be legal, valid and binding agreements of the
Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws affecting the enforcement of
creditors' rights in general and to general principles of
equity (regardless whether considered in a proceeding at law
or in equity);
(vi) the Notes have been duly authorized by the
Company and, when executed and authenticated in accordance
with the terms of the Indentures and delivered to and paid for
by you in accordance with the terms of this Agreement, will be
legal, valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws relating to or affecting the
enforcement of creditors' rights in general and to general
principles of equity (regardless whether considered in a
proceeding at law or in equity);
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(vii) the Notes and the Indentures conform in all
material respects to the descriptions thereof contained in the
Registration Statement and the Final Prospectus (except that
in so opining such counsel need not express an opinion as to
any financial or statistical data included in the description
thereof);
(viii) the Registration Statement and the Final
Prospectus (except as to the financial statements and
schedules and other financial and statistical data contained
or incorporated by reference therein and the Trustee's
Statement of Eligibility on Form T-1, as to which such counsel
need not express an opinion) comply as to form in all material
respects with the requirements of the Act and the Trust
Indenture Act;
(ix) the Registration Statement has become effective
under the Act and, to the best of such counsel's knowledge, no
stop order proceedings with respect thereto are pending or
threatened by the Commission;
(x) except for approvals, authorizations, consents
and filings which have been made and obtained, no approval,
authorization, consent or order of or filing with any federal,
state or local governmental or regulatory commission, board,
body, authority or agency is required for the valid issue or
sale of the Notes as contemplated hereby, other than
registration of the Notes under the Act and qualification of
the Trustee and the Indentures under the Trust Indenture Act
and those required under state securities or "blue sky" laws
in connection with the purchase and distribution of the Notes
by you;
(xi) the execution, delivery and performance of this
Agreement and the Indentures and the issuance of the Notes and
the consummation of the transactions contemplated hereby and
thereby do not and will not result in any breach of, or
constitute a default under (nor constitute any event which
with notice, lapse of time, or both would constitute a breach
of, or default under), any provisions of the charter or
by-laws of the Company or U.S. Home Mortgage or under any
provision of any license, indenture, mortgage, deed of trust,
bank loan or credit agreement or other agreement or instrument
to which the Company or U.S. Home Mortgage is a party or by
which any of them or their respective properties may be bound,
identified in a schedule to such opinion,
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or under any law, regulation or rule of any governmental
authority of the State of New York or the federal government
of the United States of America or any decree, judgment or
order applicable to the Company or U.S. Home Mortgage,
identified in a schedule to such opinion;
(xii) to the best of such counsel's knowledge, there
are no contracts, licenses, agreements, leases or documents of
a character which are required to be filed as exhibits to the
Registration Statement or to be summarized or described in the
Final Prospectus which have not been so filed, summarized or
described;
(xiii) to the best of such counsel's knowledge, there
are no actions, suits or proceedings pending or threatened
against the Company or any of its Subsidiaries or any of their
respective properties, at law or in equity or before or by any
federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency which are
required to be described in the Final Prospectus but are not
so described;
(xiv) the Indentures have been duly qualified under
the Trust Indenture Act; and
(xv) the Incorporated Documents, when they were filed
(or, if an amendment with respect to any such document was
filed, when such amendment was filed), complied as to form in
all material respects with the Exchange Act (except as to the
financial statements and schedules and other financial and
statistical data contained or incorporated by reference
therein as to which such counsel need express no opinion).
In addition, such counsel shall state that such counsel have
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants of the Company
and your representatives at which the contents of the Registration Statement and
Final Prospectus were discussed and, although such counsel is not passing upon
and does not assume responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or Final Prospectus, on
the basis of the foregoing, nothing has come to the attention of such counsel
that causes them to believe that the Registration Statement or any amendment
thereto at the time such Registration Statement or amendment became effective
contained an untrue statement of a material fact or omitted to state a material
fact required to
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be stated therein or necessary to make the statements therein not misleading, or
that the Final Prospectus or any supplement thereto at the date of such Final
Prospectus or such supplement, and at all times thereafter up to and including
the time of purchase, 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, in light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
belief with respect to the financial statements and schedules and other
financial and statistical data included in the Registration Statement or Final
Prospectus or with respect to the Trustee's Statement of Eligibility and
Qualification on Form T-1).
In rendering their opinion, such counsel may rely, as to factual
matters, on certificates of public officials and officers of the Company;
provided that copies of such certificates shall be forwarded to you and provided
further, that in the case of any such reliance (other than reliance on the
certificates of governmental authorities).
(b) The Company shall furnish to you at the time of purchase
an opinion of Xxxxxx Xxxx, Director -- Legal of the Company, addressed
to you and dated as of the time of purchase, and in form reasonably
satisfactory to your counsel, Xxxxx Xxxx & Xxxxxxxx, stating that:
(i) the Company and U.S. Home Mortgage are duly
qualified or licensed or in good standing, by or in each
jurisdiction in which they conduct their respective businesses
and in which the failure to be so licensed or qualified or in
good standing could have a material adverse effect on the
condition (financial or other), business, properties, net
worth, or results of operations of the Company and U.S. Home
Mortgage taken as a whole;
(ii) to the best of such counsel's knowledge, neither
the Company nor U.S. Home Mortgage is in breach of, or in
default under (nor has any event occurred which with notice,
lapse of time, or both would constitute a breach of, or
default under), any license, indenture, mortgage, deed of
trust, bank loan or credit agreement or any other agreement or
instrument to which the Company or U.S. Home Mortgage is a
party or by which either of them or their respective
properties may be bound or affected or under any law,
regulation or rule or any decree, judgment or order applicable
to the Company or any of its Subsidiaries except for such
matters as
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could not have a material adverse effect on the condition
(financial or other), business, properties, net worth or
results of operations of the Company and U.S. Home Mortgage,
individually or taken as a whole; and
(iii) the execution, delivery and performance of this
Agreement and the Indentures and the issuance of the Notes and
the consummation of the transactions contemplated hereby and
thereby do not and will not result in any breach of, or
constitute a default under any law, regulation or rule or any
decree, judgment or order applicable to the Company or U.S.
Home Mortgage.
(c) You shall have received from Xxxxxx Xxxxxxxx LLP, a letter
dated as of the date of this Agreement and addressed to you in the form
heretofore approved by you.
(d) You shall have received at the time of purchase an opinion
from Xxxxx Xxxx & Xxxxxxxx in form and substance reasonably
satisfactory to you.
(e) The Final Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) under the Act not later than 5:00
P.M., New York City time, on the second full business day after the
date of this Agreement.
(f) Prior to the time of purchase, (i) no stop order with
respect to the effectiveness of the Registration Statement shall have
been issued under the Act or proceedings initiated under Section 8(d)
or 8(e) of the Act, (ii) the Registration Statement and all amendments
thereto, or modifications thereof, if any, shall not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading and (iii) the Final Prospectus and all amendments or
supplements thereto, or modifications thereof, if any, shall not
contain any untrue statement of a material fact or omit to state a
material fact or necessary to make the statements therein, in the light
of the circumstances under which they are made, not misleading.
(g) Between the time of execution of this Agreement and the
time of purchase, there has not been (i) any material and adverse
change in the condition (financial or other), business, properties, net
worth or results of operations, present or prospective, of the Company
and its Subsidiaries
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taken as a whole, other than as described or referred to in the
Registration Statement and the Final Prospectus, (ii) any transaction
that is material to the Company and its Subsidiaries, taken as a whole,
contemplated or entered into by the Company or any of its Subsidiaries,
other than as described or referred to in the Registration Statement
and the Final Prospectus or (iii) any obligation, contingent or
otherwise, directly or indirectly incurred by the Company or any of its
Subsidiaries that is material to the Company and its Subsidiaries taken
as a whole, other than as described or referred to in the Registration
Statement and the Final Prospectus.
(h) The Company will, at the time of purchase, deliver to you
a certificate of two of its executive officers to the effect that the
representations and warranties of the Company set forth in this
Agreement are, in all material respects, true and correct as of such
date and the conditions set forth in paragraph (f) and paragraph (g) of
this Section 6 have been met.
(i) The Company shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement and the Final Prospectus as of
the time of purchase as you may reasonably request.
(j) The Company shall perform such of its obligations under
this Agreement as are to be performed by the terms hereof at or before
the time of purchase.
(k) Between the time of execution of this Agreement and the
time of purchase, there shall not have occurred any downgrading, nor
shall any notice have been given of (i) any intended or potential
downgrading or (ii) any review or possible change that does not
indicate an improvement or maintenance, in the rating, if any, accorded
any securities of the Company by any "nationally recognized statistical
rating organization", as that term is defined in Rule 436(g)(2)
promulgated under the Act.
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7. Effective Date of Agreement; Termination: This Agreement shall
become effective when the parties hereto have executed and delivered this
Agreement.
Your obligations hereunder shall be subject to termination in your
absolute discretion if, at any time prior to the time of purchase, trading in
securities on the New York Stock Exchange shall have been suspended or minimum
prices shall have been established on the New York Stock Exchange, or if a
banking moratorium shall have been declared either by the United States or New
York State authorities, or if the United States shall have declared war in
accordance with its constitutional processes or there shall have occurred any
material outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on the
financial markets of the United States, as in your judgment, to make it
impracticable to market the Notes.
If you elect to terminate this Agreement as provided in this Section 7,
you will promptly notify the Company by letter or telegram.
If the sale to you of the Notes, as contemplated by this Agreement, is
not carried out by you for any reason permitted under this Agreement or if such
sale is not carried out because the Company shall be unable to comply with any
of the terms of this Agreement, the Company shall not be under any obligation or
liability under this Agreement (except to the extent provided in Sections 4(j),
5 and 8 hereof), and you shall be under no obligation or liability to the
Company under this Agreement (except to the extent provided in Section 8
hereof).
8. Indemnity by the Company and the Underwriter: (a) The Company
agrees to indemnify and hold harmless you, each person that controls you within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, your
agents, employees, officers and directors and the agents, employees, officers
and directors of any such controlling person (collectively, the "XXXXXX, READ
INDEMNIFIED PARTIES") from and against any and all losses, claims, damages,
judgments, liabilities and expenses (including the reasonable fees and expenses
of counsel and other expenses in connection with investigating, defending or
settling any such action or claim) as they are incurred (and regardless of
whether the Xxxxxx, Read indemnified party is a party to the litigation, if any)
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement (as amended) or the
Final Prospectus (as amended or supplemented) or the Preliminary Final
Prospectus, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not
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misleading, except insofar as such losses, claims, damages, judgments,
liabilities or expenses arise out of, or are based upon, any such untrue
statement or omission or alleged untrue statement or omission based upon and in
conformity with information concerning you and furnished in writing by you to
the Company expressly for use therein.
(b) If any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against any
Xxxxxx, Read indemnified party, with respect to which indemnity may be sought
against the Company pursuant to this Section 8, such Xxxxxx, Read indemnified
party shall promptly notify the Company in writing, and the Company shall assume
the defense thereof, including the employment of counsel satisfactory to the
Xxxxxx, Read indemnified party and payment of all fees and expenses. A Xxxxxx,
Read indemnified party shall have the right to employ separate counsel in any
such action or proceeding and to assume the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Xxxxxx, Read
indemnified party unless (i) the employment of such counsel has been
specifically authorized in writing by the Company, (ii) the Company has failed
promptly to assume the defense and employ counsel satisfactory to the Xxxxxx,
Read indemnified party, or (iii) the named parties to any such action or
proceeding (including any impleaded parties) include both a Xxxxxx, Read
indemnified party and a Company indemnified party and such Xxxxxx, Read
indemnified party shall have reasonably concluded that there may be one or more
legal defenses available to it that are different from or additional to those
available to the Company (in which case the Company shall not have the right to
assume the defense of such action on behalf of such Xxxxxx, Read indemnified
party), in any of which events, such fees and expenses shall be borne by the
Company and reimbursed as they are incurred. It is understood, however, that the
Company shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) at any time for all such Xxxxxx, Read indemnified parties, which firm
shall be designated in writing by you, and that all such fees and expenses shall
be reimbursed as they are incurred. The Company shall not be liable for any
settlement of any such action effected without the written consent of the
Company (which consent shall not be unreasonably withheld or delayed), but if
settled with the written consent of the Company, or if there is a final judgment
with respect thereto, the Company agrees to indemnify and hold harmless each
Xxxxxx, Read indemnified party from and against any loss or liability by reason
of such settlement or judgment.
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(c) You agree to indemnify and hold harmless the Company, its
directors, its officers, its agents, and any person that controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
(collectively, the "COMPANY INDEMNIFIED PARTIES") to the same extent as the
foregoing indemnity from the Company to the Xxxxxx, Read indemnified parties,
but only with respect to information concerning you and furnished in writing by
you to the Company expressly for use in the Registration Statement or the Final
Prospectus. In case any action shall be brought against any Company indemnified
party based on the Registration Statement or the Final Prospectus and in respect
of which indemnity may be sought against you pursuant to this Section 8(c), you
shall have the rights and duties given to the Company by Section 8(b) hereof
(except that if the Company shall have assumed the defense thereof you shall not
be required to do so, but may employ separate counsel therein and participate in
the defense thereof; provided that the fees and expenses of such separate
counsel shall be at your expense), and the Company indemnified parties shall
have the rights and duties given to the Xxxxxx, Read indemnified parties by
Section 8(b) hereof.
(d) If the indemnification provided for in this Section 8 is
unavailable to any Xxxxxx, Read indemnified party or any Company indemnified
party otherwise entitled thereto under Section 8(a) or 8(c), as the case may be,
then the party required to indemnify such indemnified party under this Section 8
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, judgments, liabilities and expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and you on the other from the offering of the Notes, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and you on the other in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and you on the other shall be deemed to be in the
same proportions as the total net proceeds from the offering (net of
underwriting discounts and commissions, but before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by you, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company on the one hand and you on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
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or by you, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, claims, damages,
judgments, liabilities and expenses referred to above shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any claim or action.
The Company and you agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this subsection (d), no Xxxxxx, Read
indemnified party shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes underwritten by you and
distributed to the public were offered to the public exceeds the amount of any
damages which you have otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person found
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not found
guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in this Section
8 and the covenants, warranties and representations of the Company contained in
this Agreement shall remain in full force and effect, regardless of any
investigation made by or on behalf of any Xxxxxx, Read indemnified party or by
or on behalf of any Company indemnified party, and shall survive any termination
of this Agreement or the issuance and delivery of the Notes. Subject to
paragraphs (b) and (c) of this Section 8, the Company and you agree to promptly
notify the other of the commencement of any litigation or proceeding against it
in connection with the issuance and sale of the Notes or in connection with the
Registration Statement or Final Prospectus.
9. Notices: Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
you, shall be sufficient in all respects if delivered or sent to Xxxxxx, Read &
Co. Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate
Department and, if to the Company, shall be sufficient in all respects if
delivered to the Company at 0000 Xxxx Xxxx Xxxxx, Xxxxxxx, Xxxxx 00000,
Attention: President and Chief Operating Officer.
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10. CONSTRUCTION: THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW. THE SECTION HEADINGS IN THIS AGREEMENT HAVE BEEN INSERTED
AS A MATTER OF CONVENIENCE OF REFERENCE AND ARE NOT A PART OF THIS AGREEMENT.
11. Parties at Interest: The Agreement herein set forth has been and is
made solely for the benefit of you, the Company, and the other Xxxxxx, Read
indemnified parties and Company indemnified parties, and their respective
successors, assigns, executors and administrators. No other person, partnership,
association or corporation (including a purchaser of the Notes, as such
purchaser) shall acquire or have any right under or by virtue of this Agreement.
12. Counterparts: This Agreement may be signed by the parties in
counterparts, which together shall constitute one and the same Agreement between
the parties.
If the foregoing correctly sets forth the understanding between the
Company and you, please so indicate in the space provided below for the purpose,
whereupon this Agreement and your acceptance shall constitute a binding contract
between the Company and you.
Very truly yours,
U.S. HOME CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President-Finance
and Treasurer
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Agreed to and accepted as of the date
first above written:
XXXXXX, READ & CO. INC.
By: /s/ Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
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