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EXHIBIT 1
U.S. HOME CORPORATION
_____% Senior Notes due 2001
UNDERWRITING AGREEMENT
Dated February __, 1996
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UNDERWRITING AGREEMENT
February __, 1996
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 $75,000,000 aggregate principal amount of its _____% Senior Notes
due 2001 (the "Notes") issued pursuant to an indenture (the "Indenture") dated
as of February __, 1996, 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 February __, 1996 is hereinafter
called the "Basic Prospectus"; and the Prospectus Supplement to the
Basic Prospectus dated February __, 1996 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
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called the "Final Prospectus". Any preliminary form of the Final
Prospectus which has heretofore been filed pursuant to Rule 424(b) is
hereinafter called the "Preliminary Final Prospectus". Any reference
herein to the Registration Statement, the Basic Prospectus, any
Preliminary Final 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, any Preliminary Final 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, any Preliminary Final
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, any
Preliminary Final 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 Indenture 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
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omitted from the 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 Indenture 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,
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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 Indenture, the 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 Indenture has been duly authorized by the Company
and, when executed and delivered by the Company and the Trustee, will
be a legal, valid and binding agreement of the Company enforceable in
accordance with its 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 Indenture 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 Indenture 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,
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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 Indenture
and the Trustee under the Trust Indenture Act, and any necessary
qualification 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
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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 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
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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, 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 Notes at a purchase price of _____% 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 certified or official bank check
in New York Clearing House Funds, at the office of Xxxxxx, Read & Co. Inc., in
New York City (or such other place as may be agreed), 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 February __, 1996 (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.
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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 the
withdrawal of any order or suspension at the earliest practicable
moment;
(b) to furnish to you and your counsel, as many copies of
any Preliminary Final Prospectus and 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
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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 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;
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(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, each Preliminary Final Prospectus, 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 Indenture and the
reproduction and/or printing and furnishing of copies of each thereof
to you (including costs of mailing and 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.
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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, Scholer, Fierman, 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:
(i) the Company has been duly incorporated and
is validly existing and in good standing under the laws of the
State of Delaware, with 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 Indenture and to issue, sell and deliver the
Notes as herein contemplated;
(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
with 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 A to such opinion;
(iv) this Agreement has been duly authorized,
executed and delivered by the Company;
(v) the Indenture has been duly authorized by
the Company and, when executed and delivered by the Company,
and assuming the authorization,
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execution and delivery by the Trustee, will be a legal, valid
and binding agreement of the Company enforceable in accordance
with its 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 Indenture 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);
(vii) the Notes and the Indenture 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) no approval, authorization, consent or order
of or filing with any federal, state or local governmental or
regulatory commission,
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board, body, authority or agency is required for the valid
issue or sale of the Notes as contemplated hereby, except such
approvals, authorizations, consents and filings which have
been made and obtained, other than registration of the Notes
under the Act and qualification of the Trustee and the
Indenture 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 Indenture 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, 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 Indenture has been duly qualified under
the Trust Indenture Act; and
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(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 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), such counsel shall state that it
believes the sources for such certificates are appropriate and that such counsel
has no actual knowledge that any factual matters set forth in any such
certificates are false.
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(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 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 Indenture 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.
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(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 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.
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(i) The Company shall have obtained all consents and
approvals necessary in connection with the Credit Agreement dated as of
September 29, 1995 among the Company, the Lenders listed on the signature pages
thereto and The First National Bank of Chicago, as Agent, for the issuance, sale
and delivery of the Notes and the consummation of the transactions contemplated
hereby, in form and substance reasonably satisfactory to you.
(j) 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.
(k) 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.
(l) 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.
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.
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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 misleading, except (A) 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 or
(B) to the extent any such statement or omission in a Preliminary Final
Prospectus is corrected in the Final Prospectus.
(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
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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.
(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, the Final Prospectus or the Preliminary Final Prospectus. In case any
action shall be brought against any Company indemnified party based on the
Registration Statement, the Final Prospectus or the Preliminary Final Prospectus
and in respect of which indemnity may be sought
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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
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
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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.
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
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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.
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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:________________________
Name:
Title:
Agreed to and accepted as of
the date first above written:
XXXXXX, READ & CO. INC.
By:___________________________
Name:
Title:
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