EXHIBIT 1.4
XXXXXXX AND BROAD HOME CORPORATION
(a Delaware corporation)
$125,000,000
9-5/8% Senior Subordinated Notes due 2006
PURCHASE AGREEMENT
November 14, 1996
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
World Financial Center, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
Xxxxxxx and Broad Home Corporation, a Delaware corporation (the
"Company"), confirms its agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated (the "Underwriter"), with respect to the
sale by the Company and the purchase by the Underwriter of $125,000,000
aggregate principal amount of the Company's 9-5/8% Senior Subordinated Notes
due 2006 (the "Securities"). The Securities are to be issued pursuant to an
indenture dated as of November 19, 1996 (the "Indenture", which term as used
herein includes the instrument establishing the form and terms of the
Securities) between the Company and SunTrust Bank, Atlanta, as trustee (the
"Trustee").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-50732) (the "Prior
Registration Statement") for the registration under the Securities Act of 1933
(the "1933 Act") of debt securities, which registration statement was declared
effective by the Commission on August 20, 1992 and copies of which have
heretofore been delivered to you. The Company has also filed with the
Commission a registration statement on Form S-3 (No. 333-14977) (the "Current
Registration Statement") for the registration under the 1933 Act of additional
debt securities, which registration statement was declared effective on
November 12, 1996 and copies of which have heretofore been delivered to you.
The Current Registration Statement also constituted post-effective amendment
no. 1 to the Prior Registration Statement. The Indenture has been qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act"). Each of
the Prior Registration Statement and the Current Registration Statement, as
amended at the date of this Agreement and including all documents incorporated
or deemed to be incorporated by reference therein, is hereinafter referred to
as, individually, a "Registration Statement" and, collectively, the
"Registration Statements". The Company proposes to file with the Commission
pursuant to Rule 424(b) of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations") the Prospectus Supplement (as
defined in Section 3(i) hereof) and the related prospectus dated November 12,
1996 (the "Base Prospectus"), and has previously advised you of all further
information (financial and other) with respect to the Company set forth
therein. The Base Prospectus together with the Prospectus Supplement, in
their respective forms on the date hereof (being the forms in which they are
to be filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations), including all documents incorporated or deemed to be incorporated
by reference therein through the date hereof, are hereinafter referred to as,
collectively, the "Prospectus", except that if any revised prospectus or
prospectus supplement shall be provided to the Underwriter by the Company for
use in connection with the offering and sale of the Securities which differs
from the Prospectus (whether or not such revised prospectus or prospectus
supplement is required to be filed by the Company pursuant to Rule 424(b) of
the 1933 Act Regulations), the term "Prospectus" shall refer to such revised
prospectus or prospectus supplement, as the case may be, from and after the
time it is first provided to the Underwriter for such use. Unless the context
otherwise requires, all references in this Agreement to documents, financial
statements and schedules and other information which is "contained",
"included", "stated", "described in" or "referred to" in any Registration
Statement or the Prospectus (and all other references of like import) shall be
deemed to mean and include all such documents, financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in such Registration Statement or the Prospectus, as the case may
be; and all references in this Agreement to amendments or supplements to any
Registration Statement or the Prospectus shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of 1934 (the
"1934 Act") after the date of this Agreement which is or is deemed to be
incorporated by reference in such Registration Statement or the Prospectus, as
the case may be.
The Company understands that the Underwriter proposes to make a public
offering of the Securities as soon as the Underwriter deems advisable after
this Agreement has been executed and delivered.
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to the Underwriter as of the
date hereof (such date being hereinafter referred to as the "Representation
Date") as follows:
(i) The Company meets the requirements for use of Form S-3
under the 1933 Act and the 1933 Act Regulations. The Prior Registration
Statement, at the time it became effective, and the Registration
Statements and the Base Prospectus, at the time the Current Registration
Statement became effective and as of the Representation Date, complied
and comply in all material respects with the requirements of the 1933
Act, the 1933 Act Regulations (including Rule 415(a) of the 1933 Act
Regulations), the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations"), and did not
and as of the Representation Date do not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus, at the Representation Date (unless the term "Prospectus"
refers to a prospectus which has been provided to the Underwriter by the
Company for use in connection with the offering of the Securities which
differs from the Prospectus filed with the Commission pursuant to Rule
424(b) of the 1933 Act Regulations, in which case at the time it is
first provided to the Underwriter for such use) and at the Closing Time
referred to in Section 2 hereof, does not and will not include an untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this subsection (a) shall not apply to
statements in or omissions from any Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by the Underwriter expressly for use
in such Registration Statement or the Prospectus or the information
contained in any Statement of Eligibility of a trustee under the 1939
Act filed or incorporated by reference as an exhibit to any Registration
Statement (a "Form T-1").
(ii) Ernst & Young LLP, whose reports are incorporated by
reference into the Registration Statements, are independent public
accountants with respect to the Company and its subsidiaries and were
also independent public accountants with respect to Rayco, Ltd.
("Rayco"), in each case as required by the 1933 Act and the 1933 Act
Regulations.
(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 and of Rayco, respectively, as at the dates indicated and
the results of operations of the Company and its consolidated
subsidiaries and of Rayco, respectively, 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; the Company's ratios of earnings to fixed charges and of
earnings to combined fixed charges and preferred stock dividends
(including the amounts the ratios would have been were interest on the
outstanding collateralized mortgage obligations of the Company's wholly
owned limited purpose financing subsidiaries included in such ratios'
calculation) included in the Prospectus Supplement under the caption
"Selected Consolidated Financial Data," in the Base Prospectus under the
caption "Consolidated Ratios of Earnings to Fixed Charges and of
Earnings to Combined Fixed Charges and Preferred Stock Dividends" and in
Exhibit 12 to the Current Registration Statement have been calculated in
compliance with Item 503(d) of Regulation S-K of the Commission; and the
pro forma financial statements and related notes thereto included in the
Registration Statements and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
(iv) Since the respective dates as of which information is
given in the Registration Statements and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries (which
term, as used in this Agreement, includes without limitation
consolidated joint ventures in which the Company or any of its other
subsidiaries is a participant and limited and general partnerships in
which the Company or any of its other subsidiaries owns partnership
interests (such joint ventures and limited and general partnerships
being hereinafter called, collectively, the "Partnerships"))
considered as one enterprise, whether or not arising in the ordinary
course of business, (B) there have been no transactions entered into
by the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise, and (C)
except for regular quarterly dividends in customary amounts per share
on the common stock, par value $1.00 per share (the "Common Stock"),
of the Company or its Series B Mandatory Conversion Premium Dividend
Preferred Stock, par value $1.00 per share, 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 or limited
partnership, as the case may be, in good standing under the laws of the
jurisdiction of its organization, has power and authority to own, lease
and operate its properties and to conduct its business as described in
the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct
of business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; all of the issued and
outstanding capital stock of each Significant Subsidiary which is a
corporation has been duly authorized and validly issued, is fully paid
and non-assessable and is owned (except for directors qualifying shares
and a nominal number of shares held by affiliated parties) by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity;
and all of the outstanding equity interests in each Significant
Subsidiary which is a Partnership have been duly authorized (if
applicable) and validly issued, are fully paid and non-assessable and
are owned by the Company (except to the extent that a minority interest
in the Partnership is reflected in the Company's consolidated financial
statements included or incorporated by reference in the Prospectus),
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity. For
purposes of this Agreement, "Significant Subsidiaries" means the
corporations and limited partnerships identified on Schedule A hereto
which (A) on the basis of the Company's financial statements as of
August 31, 1996, represented 90% or more of the consolidated assets of
the Company and its subsidiaries and (B) includes 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 under "Capitalization"
(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; the
Common Stock, the Company's authorized but unissued special common
stock, par value $1.00 per share (the "Special Common Stock"), and the
Company's authorized and unissued preferred stock, par value $1.00 per
share (the "Preferred Stock"), conform to the respective statements
relating thereto included in the Prospectus; the Securities have been
duly authorized for issuance and sale to the Underwriter pursuant to
this Agreement and, when issued by the Company, authenticated by the
Trustee and delivered pursuant to the provisions of the Indenture and
this Agreement against payment of the consideration set forth herein,
the Securities will constitute valid and binding obligations of the
Company enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles, and will be entitled to the benefits of the Indenture; the
Indenture has been duly authorized by the Company and, at Closing Time,
will have been duly executed and delivered by the Company and will
constitute a valid and binding agreement of the Company enforceable in
accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally or by general
equitable principles; the Securities and the Indenture conform in all
material respects to the descriptions thereof contained in the
Prospectus; and, after giving effect to the sale of Securities and the
sale of any other securities registered pursuant to any Registration
Statement to be issued prior to the delivery of the Securities, the
aggregate amount of Securities which have been issued and sold by the
Company will not exceed the amount of theretofore unsold securities
registered pursuant to the Registration Statements.
(viii) Neither the Company nor any of its Significant
Subsidiaries is in violation of its charter or in default in the
performance or observance of (A) any obligation, agreement, covenant or
condition contained in the Company's Fourth Amended and Restated Loan
Agreement dated as of February 28, 1996 (the "Loan Agreement") with Bank
of America National Trust and Savings Association, as administrative
agent, and the other parties thereto, the Company's 10-3/8% Senior Notes
due 1999 (the "Senior Notes") or the Indenture dated as of September 1,
1992 between the Company and NBD Bank, N.A. pursuant to which the Senior
Notes were issued, including the instrument establishing the form and
terms of the Senior Notes (the "Senior Indenture"), or the Company's
9-3/8% Senior Subordinated Notes due 2003 (the "Senior Subordinated
Notes") or the Indenture dated as of May 1, 1993 between the Company and
The First National Bank of Boston pursuant to which the Senior
Subordinated Notes were issued (the "Senior Subordinated Indenture")
(the Loan Agreement, the Senior Notes, the Senior Indenture, the Senior
Subordinated Notes and the Senior Subordinated Indenture are hereinafter
called, collectively, the "Subject Instruments" and, individually, a
"Subject Instrument") or (B) any obligation, agreement, covenant or
condition contained in any other contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any
of the Significant Subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of the Company
or any of the Significant Subsidiaries is subject, which default or
violation would have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise; and the execution, delivery and performance of this
Agreement, the Indenture and the Securities and the consummation of the
transactions contemplated herein and therein and compliance by the
Company with its obligations hereunder and thereunder, have been duly
authorized by all necessary corporate action and will not conflict with
or constitute a breach of, or default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of the Significant Subsidiaries pursuant
to, any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of the Significant
Subsidiaries is a party or by which it or any of them may be bound
(including, without limitation, the Subject Instruments), or to which
any of the property or assets of the Company or any of the Significant
Subsidiaries is subject, except (other than in the case of the Subject
Instruments) for a conflict, breach, default, lien, charge or
encumbrance which would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, nor will such action result in any violation of the
provisions of the charter, by-laws or other corresponding organizational
documents of the Company or any of the Significant Subsidiaries or any
applicable law, administrative regulation or administrative or court
order or decree.
(ix) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened, against or affecting
the Company or any of its subsidiaries, which is required to be
disclosed in the Registration Statements (other than as disclosed
therein), or which is not so disclosed and (net of reserves and
insurance) the Company believes might result in any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, or which might materially and
adversely affect the properties or assets thereof or which might
materially and adversely affect the consummation of this Agreement; all
pending legal or governmental proceedings to which the Company or any
subsidiary is a party or of which any of their respective property or
assets is the subject which are not described in or incorporated by
reference in the Registration Statements, including ordinary routine
litigation incidental to the business, are, considered in the aggregate
and net of reserves and insurance, not material to the Company and its
subsidiaries considered as one enterprise; and there are no contracts or
documents of the Company or any of its subsidiaries which are required
to be filed as exhibits to, or incorporated by reference in, the
Registration Statements by the 1933 Act or by the 1933 Act Regulations
which have not been so filed or incorporated by reference.
(x) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
issuance and sale of the Securities hereunder or the consummation by the
Company of any of the other transactions contemplated hereby, except
such as may be required and have been obtained under the 1933 Act, the
1933 Act Regulations and the 1939 Act and such as may be required under
state securities laws.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) The documents incorporated or deemed to be incorporated
by reference in the Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act and the 1934 Act
Regulations, and, when read together with the other information in the
Prospectus, at the respective times the Registration Statements and any
amendments thereto became effective, at the Representation Date and at
Closing Time did not, do not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(xiii) The Company has complied with, and is and will be in
compliance with, the provisions of that certain Florida act relating to
disclosure of doing business with Cuba, codified as Section 517.075 of
the Florida statutes, and the rules and regulations thereunder
(collectively, the "Cuba Act") or is exempt therefrom.
(xiv) The Securities and the Indenture conform in all material
respects to the respective statements relating thereto contained in the
Prospectus.
(xv) The Securities are pari passu in right of payment with
the Senior Subordinated Notes and are subordinate in right of payment to
the Senior Notes.
(xvi) There are no holders of securities of the Company with
currently exercisable registration rights who have any securities
registered as part of the Registration Statements or included in the
offering contemplated by this Agreement.
(xvii) The Company and each of the Significant Subsidiaries have
good and marketable title to all of their respective properties, in each
case free and clear of all liens, encumbrances and defects, except (i)
customary liens and encumbrances arising in the ordinary course of the
Company's construction and development business and the financing
thereof, (ii) as stated or incorporated by reference in the Prospectus
or (iii) such as do not materially affect the value of such properties
in the aggregate to the Company and its subsidiaries considered as one
enterprise and do not materially interfere with the use made and
proposed to be made of such properties.
(xviii) The Company and its Significant Subsidiaries possess such
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or 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.
(xix) No default or event of default with respect to any
Indebtedness (as such term is defined the Prospectus) of the Company or
any of its Significant Subsidiaries entitling, or which, with notice or
lapse of time or both, would entitle, the holders thereof to accelerate
the maturity thereof exists or will exist as a result of the execution
and delivery of this Agreement or the Indenture, the issuance and sale
of the Securities or the consummation of the transactions contemplated
hereby or thereby.
(xx) The Company and each of the Significant Subsidiaries have
filed all tax returns required to be filed, which returns, as amended,
are complete and correct in all material respects, and neither the
Company nor any Significant Subsidiary is in default in the payment of
any taxes which were payable pursuant to said returns or any assessments
with respect to said returns which would materially and adversely affect
the condition, financial or otherwise, or the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as
one enterprise.
(xxi) The Company and its Significant Subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with
management's general or specific authorization; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets; (C) access to assets is permitted only in
accordance with management's general or specific authorization; and (D)
the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(b) Any certificate signed by any officer of the Company and delivered
to the Underwriter or to counsel for the Underwriter shall be deemed a
representation and warranty by the Company to the Underwriter as to the
matters covered thereby.
SECTION 2. Sale and Delivery to Underwriter; Closing.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to the Underwriter, and the Underwriter agrees to
purchase from the Company, at 99.525% of the principal amount thereof,
$125,000,000 aggregate principal amount of Securities.
(b) Payment of the purchase price for the Securities shall be made at
the offices of the Company, 00000 Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx,
or at such other place as shall be agreed upon by the Underwriter and the
Company, at 6:00 a.m., California time, on November 19, 1996, or such other
time not later than ten business days after such date as shall be agreed upon
by the Underwriter and the Company (such time and date of payment and delivery
of the Securities being herein called "Closing Time"). Payment shall be made
to the Company by wire transfer of immediately available funds to a bank
account designated by the Company, against delivery of the Securities to the
Underwriter. Certificates for the Securities shall be in such denominations
and registered in such names as the Underwriter may request in writing at
least one full business day before Closing Time. The certificates for the
Securities will be made available for examination and packaging by the
Underwriter not later than 10:00 a.m. (New York City time) on the last
business day prior to Closing Time in New York, New York.
SECTION 3. Covenants of the Company. The Company covenants with the
Underwriter as follows:
(a) The Company will notify the Underwriter immediately, and
confirm the notice in writing, (i) of the effectiveness of any
post-effective amendment to any Registration Statement, (ii) of the
mailing or the delivery to the Commission for filing of the Prospectus
or any amendment to any Registration Statement or amendment or
supplement to the Prospectus or any document to be filed pursuant to the
1934 Act during any period when the Prospectus is required to be
delivered under the 1933 Act, (iii) of the receipt of any comments or
inquiries from the Commission relating to any Registration Statement or
Prospectus, (iv) of any request by the Commission for any amendment to
any Registration Statement or any amendment or supplement to the
Prospectus or for additional information and (v) of the issuance by the
Commission of any stop order suspending the effectiveness of any
Registration Statement or the initiation of any proceedings for that
purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
(b) The Company will give the Underwriter notice of its
intention to file or prepare any post-effective amendment to any
Registration Statement or any amendment or supplement to the Prospectus
(including any revised prospectus which the Company proposes for use by
the Underwriter in connection with the offering of the Securities which
differs from the Prospectus filed with the Commission pursuant to Rule
424(b) of the 1933 Act Regulations, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the 1933
Act Regulations), will furnish the Underwriter 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
Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has delivered to the Underwriter one signed copy
of each Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein and documents incorporated or deemed to be incorporated by
reference therein) and will also deliver to the Underwriter as many
conformed copies of the Registration Statements as originally filed and
of each amendment thereto (without exhibits) as the Underwriter may
reasonably request.
(d) The Company will furnish to the 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 the 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 Underwriter, 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 Underwriter and
counsel for the Underwriter) 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 Underwriter a reasonable number of copies of such amendment or
supplement.
(f) The Company will endeavor, in cooperation with the
Underwriter, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of the
United States as the Underwriter 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 Underwriter of the receipt by the Company of any notification with
respect to the suspension of qualification of the Securities for sale in
any state or jurisdiction or the initiating or threatening of any
proceeding for such purpose.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 60 days after the
close of the period covered thereby (or 120 days in the case of the
close of the Company's fiscal year), an earnings statement (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations)
covering a twelve month period beginning not later than the first day
of the Company's fiscal quarter next following the "effective date" (as
defined in said Rule 158) of the Current Registration Statement.
(h) The Company will use the net proceeds received by it from
the sale of the Securities in the manner to be specified in the
Prospectus Supplement under "Use of Proceeds".
(i) Immediately following the execution of this Agreement, the
Company will prepare a prospectus supplement, dated the date hereof (the
"Prospectus Supplement"), containing the terms of the Securities, the
plan of distribution thereof and such other information as may be
required by the 1933 Act or the 1933 Act Regulations or as the
Underwriter and the Company deem appropriate, and will file or transmit
for filing with the Commission in accordance with such Rule 424(b) of
the 1933 Act Regulations copies of the Prospectus (including such
Prospectus Supplement).
(j) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, will file
all documents required to be filed with the Commission pursuant to
Sections 13, 14 or 15 of the 1934 Act within the time periods required
by the 1934 Act and the 1934 Act Regulations. For a period of five
years after the Closing Time, the Company will furnish to the
Underwriter copies of all reports and communications delivered to the
Company's stockholders or to holders of the Securities as a class and
will also furnish copies of all reports (excluding exhibits) filed
with the Commission on forms 8-K, 10-Q and 10-K, and all other
reports and information furnished to its stockholders generally, not
later than the time such reports are first furnished to its
stockholders generally.
(k) During a period from the date of this Agreement through
December 31, 1996, the Company will not, without the Underwriter's prior
written consent, directly or indirectly, sell, offer to sell, grant any
option for the sale of, or otherwise dispose of, any debt securities or
any securities convertible into or exchangeable or exercisable for any
debt securities (except for the Securities sold to the Underwriter
pursuant to this Agreement); provided that the foregoing shall not
prevent the Company from making borrowings under the Loan Agreement or
under bank credit lines.
(l) In accordance with the Cuba Act and without limitation to
the provisions of Sections 6 and 7 hereof, the Company agrees to
indemnify and hold harmless the Underwriter from and against any and all
loss, liability, claim, damage and expense whatsoever (including fees
and disbursements of counsel), as incurred, arising out of any
violation by the Company of the Cuba Act.
SECTION 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of each Registration Statement as originally filed
and of each amendment thereto, (ii) the printing or reproduction of this
Agreement and the Indenture (iii) the preparation, issuance and delivery of
the certificates for the Securities to the Underwriter, (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 Underwriter in connection therewith and in
connection with the preparation of the Blue Sky Survey, (vi) the printing and
delivery to the Underwriter of copies of each Registration Statement as
originally filed and of each amendment thereto, of the preliminary
prospectuses and any preliminary prospectus supplements, and of the Prospectus
and any amendments or supplements thereto, (vii) the printing and delivery to
the Underwriter of copies of the Blue Sky Survey, (viii) the fees and expenses
of the Trustee, including the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Securities, (ix) any fees
payable in connection with the rating of the Securities; and (x) any fees and
expenses of a depositary in connection with holding the Securities in
book-entry form. Concurrently with the purchase of the Securities at the
Closing Time pursuant to Section 2(a) hereto, the Underwriter will pay the
Company $101,250 (by wire transfer of immediately available funds) as
reimbursement for a portion of the Company's expenses in connection with the
offering of the Securities.
If this Agreement is terminated by the Underwriter in accordance with
the provisions of Section 5 or Section 9(a)(i), the Company shall reimburse
the Underwriter for all of its out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriter.
SECTION 5. Conditions of Underwriter's Obligations. The obligations of
the Underwriter hereunder are subject to the accuracy of the representations
and warranties of the Company herein contained, to the performance by the
Company of its obligations hereunder, and to the following further conditions:
(a) At Closing Time no stop order suspending the effectiveness
of any Registration Statement shall have been issued under the 1933 Act
or proceedings therefor initiated or threatened by the Commission. The
Prospectus (including the Prospectus Supplement referred to in Section
3(i) hereof) shall have been filed or transmitted for filing with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations within
the prescribed time period, and prior to Closing Time the Company shall
have provided evidence satisfactory to the Underwriter of such timely
filing or transmittal.
(b) At Closing Time the Underwriter shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxx
Xxxx & Xxxxxxxx, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriter, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware.
(ii) The Indenture 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 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 the Indenture and delivered
pursuant to the provisions of the Indenture and this Agreement
against payment of the purchase price therefor specified herein,
will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting enforcement of creditors' rights
generally or by general equitable principles, and will be entitled
to the benefits of the Indenture.
(iv) The issuance and delivery of the Securities, the
execution and delivery of this Agreement and the Indenture, and
the consummation of the transactions contemplated herein and
therein, will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Company or any of its Significant Subsidiaries pursuant to, the
Senior Notes, the Senior Indenture, the Senior Subordinated Notes
or the Senior Subordinated Indenture.
(v) The Indenture has been qualified under the 1939 Act.
(vi) This Agreement has been duly authorized, executed and
delivered by the Company.
(vii) The Securities and the Indenture conform in all
material respects to the descriptions thereof contained in the
Prospectus.
(viii) Each Registration Statement is effective under the
1933 Act and, to the best of such counsel's knowledge and
information, no stop order suspending the effectiveness of any
Registration Statement has been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission.
(ix) At the respective times the Registration Statements
became effective and at the Representation Date, the Registration
Statements (other than the financial statements and supporting
schedules included or incorporated by reference therein, as to
which no opinion need be rendered) complied as to form in all
material respects with the requirements of the 1933 Act and the
1933 Act Regulations.
(2) The favorable opinion, dated as of Closing Time, of Xxxxxx
X. Xxxxxxx, Esq., Senior Vice President and General Counsel of the
Company, in form and substance satisfactory to counsel for the
Underwriter, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus.
(ii) To the best of such counsel's knowledge and
information, the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, except where
the failure to so qualify would not have a material adverse effect
on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its
subsidiaries (as such term is defined in this Agreement)
considered as one enterprise.
(iii) Each of the Company's Significant Domestic
Subsidiaries (as defined below) has been duly organized and is
validly existing as a corporation or limited partnership, as the
case may be, in good standing under the laws of the jurisdiction
of its incorporation or formation, as the case may be, has power
and authority as a corporation or limited partnership, as the case
may be to own, lease and operate its properties and to conduct its
business as described in the Prospectus and, to the best of such
counsel's knowledge and information, is duly qualified to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect on
the Company and its subsidiaries considered as one enterprise or on
their consolidated financial condition or earnings; to the best of
such counsel's knowledge and information, all of the issued and
outstanding capital stock of each such Significant Domestic
Subsidiary which is a corporation has been duly authorized and
validly issued, is fully paid and non-assessable and is owned
(except for directors qualifying shares and a nominal number of
shares held by affiliated parties) by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; and to the
best of such counsel's knowledge and information, all of the issued
and outstanding partnership interests in each such Significant
Domestic Subsidiary which is a limited partnership have been duly
authorized (if applicable) and validly issued, are fully paid and
non-assessable and are owned by the Company (except to the extent
that a minority interest in such limited partnership is reflected
in the Company's consolidated financial statements included or
incorporated by reference in the Prospectus), directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity. As used in this
Agreement, the term "Significant Domestic Subsidiaries" means the
Significant Subsidiaries set forth in subsections (A), (B), (C),
(D), (E), (F) and (G) of Schedule B hereto, other than those
Significant Subsidiaries whose names are marked with an
asterisk on Schedule A hereto.
(iv) The authorized, issued and outstanding capital stock
of the Company is as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any,
pursuant to the exercise of options issued under employee benefit
plans referred to in the Prospectus or in the documents
incorporated by reference therein); and the shares of issued and
outstanding Common Stock have been duly authorized and validly
issued and are fully paid and non-assessable.
(v) To the best of such counsel's knowledge and
information, there are no statutes or regulations required to be
described in the Registration Statements or the Prospectus or in
the documents incorporated by reference therein which are not
described as required and there are no legal or governmental
proceedings pending or threatened which are required to be
disclosed in the Registration Statements or in the documents
incorporated by reference therein, other than those disclosed
therein, and all pending legal or governmental proceedings to
which the Company or any subsidiary is a party or to which any of
their property is subject which are not described in or
incorporated by reference in the Registration Statements,
including ordinary routine litigation incidental to the
business, are, considered in the aggregate and net of reserves
and insurance, not material to the Company and its subsidiaries
considered as one enterprise.
(vi) The information under "Item 1. Business--Regulation
and Environmental Matters" in the Company's 1995 Annual Report and
in Item 15 in Part II of the Registration Statements, to the
extent that such information constitutes matters of law, summaries
of legal matters, summaries of securities, instruments, agreements
or other documents or legal conclusions, has been reviewed by such
counsel and is correct in all material respects.
(vii) To the best of such counsel's knowledge and
information, there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statements or to be
filed or incorporated by reference as exhibits thereto other than
those described or referred to or filed as exhibits thereto, the
descriptions thereof or references thereto are correct, and, to
the best of such counsel's knowledge, no default exists in the due
performance or observance of any obligation, agreement, covenant
or condition contained in (A) any Subject Instrument or (B) any
other contract, indenture, mortgage, loan agreement, note, lease
or other instrument so described, referred to or filed or
incorporated by reference, which default (other than in the case
of the Subject Instruments) could have a material adverse effect
on the Company and its subsidiaries considered as one enterprise
or on their consolidated financial condition or earnings.
(viii) No authorization, approval, consent or order of any
court or governmental authority or agency is required in
connection with the sale of the Securities to the Underwriter,
except such as may be required under the 1933 Act, the 1933 Act
Regulations, the 1939 Act, the 1939 Act Regulations or state
securities laws.
(ix) The issuance and delivery of the Securities, the
execution and delivery of this Agreement and the Indenture, and
the consummation of the transactions contemplated herein and
therein, will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Company or any of its Significant Subsidiaries pursuant to, (A)
any Subject Instrument or (B) to the best of such counsel's
knowledge and information, any other contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which
the Company or any of its Significant Subsidiaries is a party or
by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of its Significant
Subsidiaries is subject, nor will such action result in any
violation of the provisions of the charter or by-laws of the
Company, or any applicable law, administrative regulation or
administrative or court decree.
(x) The documents incorporated or deemed to be
incorporated by reference in the Prospectus (other than the
financial statements and supporting schedules included or
incorporated by reference therein, as to which no opinion need be
rendered), at the time they were filed with the Commission,
complied as to form in all material respects with the requirements
of the 1934 Act and the 1934 Act Regulations.
(xi) To the best of such counsel's knowledge and
information, no default with respect to any Indebtedness (as such
term is defined in the Prospectus) of the Company or any of its
subsidiaries entitling, or which, with notice or lapse of time or
both, would entitle, the holders thereof to accelerate the
maturity thereof exists or will exist as a result of the execution
and delivery of this Agreement or the Indenture, the issuance and
sale of the Securities or the consummation of the transactions
contemplated hereby or thereby.
In giving such opinion, such counsel may rely, as to matters
governed by laws other than the laws of the States of California
and Delaware and the federal law of The United States of America,
on an opinion or opinions of local counsel satisfactory to the
Underwriter, so long as each such opinion shall be dated as of the
Closing Time and in form and substance satisfactory to the
Underwriter, and shall expressly permit the Underwriter to rely
thereon as if such opinion were addressed to the Underwriter.
(3) The favorable opinion, dated as of Closing Time, of
Xxxxx & Xxxx llp, counsel for the Underwriter, with respect to the
matters set forth in (i) through (iii) and (v) through (ix) 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, Xxxxx
Xxxx & Xxxxxxxx, Xxxxxx X. Xxxxxxx and Xxxxx & Xxxx llp shall each
additionally state that nothing has come to their attention that
would lead them to believe that either Registration Statement
(except for financial statements and schedules and other financial
data included therein and 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 Prospectus (except
for financial statements and schedules and other financial data
included therein, as to which counsel need make no statement), at
the Representation Date (unless the term "Prospectus" refers to a
prospectus which has been provided to the Underwriter by the
Company for use in connection with the offering of the Securities
which differs from the Prospectus filed with at the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations, in which case
at the time it is first provided to the Underwriter for such use)
or at Closing Time, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(c) At Closing Time, there shall not have been, since the date
hereof or since the respective dates as of which information is given in
the Registration Statements and the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Underwriter shall have received a
certificate of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company, dated as
of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1 are
true and correct with the same force and effect as though expressly made
at and as of Closing Time, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, (iv) no stop order suspending the
effectiveness of any Registration Statement has been issued and, to the
best of such officer's knowledge and information, no proceedings for
that purpose have been initiated or threatened by the Commission and (v)
the rating assigned by any nationally recognized statistical rating
organization to any debt securities of the Company has not been lowered
and no such rating agency has publicly announced that it has placed any
debt securities of the Company on what is commonly termed a "watch list"
for a possible downgrading. As used in this Section 5(c), the term
"Prospectus" means the Prospectus in the form first used to confirm
sales of the Securities.
(d) At the Closing Time, the Underwriter shall have received
from Ernst & Young LLP a letter dated such date, in form and substance
satisfactory to the Underwriter, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and financial
information included and incorporated by reference in the Registration
Statements and the Prospectus (including, without limitation, the pro
forma financial statements).
(e) At Closing Time, the Securities shall have a rating of at
least Ba3 from Moody's Investor's Service Inc. and B+ from Standard &
Poor's Corporation, and the Company shall have delivered to the
Underwriter a letter from each such rating agency or other evidence
satisfactory to the Underwriter, confirming that the Securities have
such ratings.
(f) At Closing Time, counsel for the Underwriter 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 Underwriter and counsel for the Underwriter.
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 Underwriter by notice to the Company at any time at or prior
to Closing Time, and such termination shall be without liability of any party
to any other party except as provided in Section 4 hereof. Notwithstanding
any such termination, the provisions of Sections 4, 6, 7 and 8 shall remain in
effect.
SECTION 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Underwriter
and each person, if any, who controls the Underwriter within the meaning of
Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, any preliminary
prospectus supplement or the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements
of counsel chosen by the Underwriter), 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 the Underwriter expressly
for use in a Registration Statement (or any amendment thereto) or any
preliminary prospectus, preliminary prospectus supplement or the
Prospectus (or any amendment or supplement thereto) or (2) in the Form
T-1; and (B) the foregoing indemnity agreement with respect to any
preliminary prospectus or preliminary prospectus supplement shall not
inure to the benefit of the Underwriter from whom the person asserting any
such losses, claims, damages or liabilities purchased Securities, or any
person controlling such Underwriter, if a copy of the Prospectus (as may
then be amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) 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) The Underwriter agrees to indemnify and hold harmless the Company,
its directors, each of its officers who signed any Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in any Registration Statement (or any
amendment thereto) or any preliminary prospectus, preliminary prospectus
supplement or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use in such Registration Statement
(or any amendment thereto) or such preliminary prospectus, such preliminary
prospectus supplement or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give written notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense
in the defense of any such action. In no event shall the indemnifying parties
be liable for fees and expenses of 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
Underwriter shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and the Underwriter, as incurred, in such proportions
that the Underwriter is responsible for that portion represented by the
percentage that the underwriting discount (calculated as described below) with
respect to the Securities bears to the public offering price (calculated as
described below) of the Securities and the Company is responsible for the
balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of the preceding sentence, the
public offering price of the Securities shall be deemed to be equal to 100% of
the principal amount thereof and the underwriting discount shall be deemed to
be equal to 1.75% of the principal amount thereof. For purposes of this
Section, each person, if any, who controls the Underwriter within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as
the Underwriter, and each director of the Company, each officer of the Company
who signed any Registration Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act shall have the
same rights to contribution as the Company.
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 the Underwriter or any
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities to the Underwriter.
SECTION 9. Termination of Agreement.
(a) The Underwriter may terminate this Agreement, by notice to the
Company, at any time at or prior to Closing Time (i) if there has been, since
the date of this Agreement or since the respective dates as of which
information is given in any Registration Statement, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of business,
or (ii) if there has occurred any material adverse change in the financial
markets in the United States or any outbreak of hostilities or escalation
thereof or other calamity or crisis the effect of which is such as to make it,
in the judgment of the Underwriter, impracticable to market the Securities or
to enforce contracts for the sale of the Securities, or (iii) if trading in
the securities of the Company has been suspended by the Commission or a
national securities exchange, or if trading generally on either the American
Stock Exchange or the New York Stock Exchange has been suspended, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices
for securities have been required, by either of said Exchanges or by order of
the Commission or any other governmental authority, or if a banking moratorium
has been declared by either federal, New York or California authorities, (iv)
if the rating assigned by any nationally recognized statistical rating
organization to any debt securities of the Company shall have been lowered or
if any such rating agency shall have publicly announced that it has placed any
debt securities of the Company on what is commonly termed a "watch list" for a
possible downgrading. As used in this Section 9(a), the term "Prospectus"
means the Prospectus in the form first used to confirm sales of the
Securities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except
as provided in Section 4 hereof. Notwithstanding any such termination, the
provisions of Sections 4, 6, 7 and 8 shall remain in effect.
SECTION 10. 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
Underwriter shall be directed to it at 00000 Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, attention of Xxxxxx X. Xxxxx, Director; 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 11. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriter and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriter
and the Company and their respective successors and the controlling persons
and officers and directors referred to in Sections 6 and 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision contained herein. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriter 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 the Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 12. 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.
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 Underwriter and the Company in accordance with its
terms.
Very truly yours,
XXXXXXX AND BROAD HOME CORPORATION
By: ________________________________
Xxxxxxx X. Xxxx
Senior Vice President and
Chief Financial Officer
CONFIRMED AND ACCEPTED
as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: _____________________________
Authorized Signatory
Schedule A
Significant Subsidiaries
A. California Corporations:
KBASW Mortgage Acceptance Corporation ("KBASW")*
KBI/Mortgage Acceptance Corporation ("KBI")*
KBRAC IV Mortgage Acceptance Corporation ("KBRAC")*
Xxxxxxx and Broad - Central Valley, Inc.
Xxxxxxx and Broad Coastal, Inc.
Xxxxxxx and Broad International, Inc.
Xxxxxxx and Broad of Northern California, Inc.
Xxxxxxx and Broad of San Diego, Inc.
Xxxxxxx and Broad - South Bay, Inc.
Xxxxxxx and Broad of Southern California, Inc.
Xxxxxxx and Broad of Texas, Inc.*
Xxxxxxx and Broad of Utah, Inc.*
B. Colorado Corporation:
Xxxxxxx and Broad of Colorado, Inc.
C. Delaware Corporations:
Xxxxxxx and Broad Development Company*
Xxxxxxx and Broad Limited*
D. Illinois Corporations:
Xxxxxxx and Broad Mortgage Company
E. Nevada Corporations:
Xxxxxxx and Broad of Nevada, Inc.
F. New Mexico Corporation:
Xxxxx Xxxxxxx of Albuquerque, Inc.
G. Texas Corporation and Limited Partnership:
Xxxxxxx and Broad of San Antonio, Inc.
Rayco, Ltd.
H. French Corporations:
Bati Service Development S.A.R.L.
Bati Service Promotion X.X.
Xxxxxxx and Broad Developpement
Xxxxxxx and Broad, France
Xxxxxxx and Broad Maisons Individuelles S.A.
__________
* See Section 5(b)(2)(iii)
