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U.S. HOME CORPORATION
7 3/4% Senior Notes due 2005
UNDERWRITING AGREEMENT
Dated January 15, 1998
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UNDERWRITING AGREEMENT
January 15, 0000
XXX XXXXXXX DILLON READ INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
U.S. Home Corporation (hereinafter the "COMPANY"), proposes to sell to
you $100,000,000 aggregate principal amount of its 7 3/4% Senior Notes due 2005
(the "SENIOR NOTES"), issued pursuant to an indenture (the "INDENTURE") dated
as of August 28, 1997, between the Company and IBJ Xxxxxxxx Bank & Trust
Company, as trustee (the "TRUSTEE").
1. Representations and Warranties of the Company: The Company
represents and warrants to you that:
(a) the Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (collectively, the "ACT"), and has filed with
the Securities and Exchange Commission (the "COMMISSION") a
registration statement on such form, which has become effective, for
the registration under the Act of the Senior 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 Senior Notes and the plan of distribution
thereof and has previously advised you of all further information
(financial and other) with respect to the Company to be set forth
therein. Such registration statement, including the exhibits thereto,
as amended at the date of this Agreement, is hereinafter called the
"REGISTRATION STATEMENT"; the prospectus dated August 25, 1997 is
hereinafter called the "BASIC PROSPECTUS"; and the Prospectus
Supplement to the Basic Prospectus dated January 15, 1998 in the form
in which it shall be filed by the Company with the Commission pursuant
to Rule 424(b) (including the Basic Prospectus as so supplemented) is
hereinafter called the "FINAL PROSPECTUS". Any
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reference herein to the Registration Statement, the Basic Prospectus,
or the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein (the "INCORPORATED
DOCUMENTS") pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder (collectively, the "EXCHANGE ACT")
on or before the date of this Agreement, or the issue date of the Basic
Prospectus, or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, or the
Final Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the date of this Agreement,
or the issue date of the Basic Prospectus, or the Final Prospectus, as
the case may be, deemed to be incorporated therein by reference;
(b) as of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424(b) under the Act, when, prior to the time of
purchase, any amendment to the Registration Statement becomes effective
(including the filing of any Incorporated Documents), when any
supplement to the Final Prospectus is filed with the Commission and at
the time of purchase, (i) the Registration Statement, as amended as of
any such time, and the Final Prospectus, as amended or supplemented as
of any such time, and the Indentures will comply in all material
respects with the applicable requirements of the Act, the Trust
Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"), and the
Exchange Act and the respective rules thereunder and (ii) neither the
Registration Statement, as amended as of any such time, nor the Final
Prospectus, as amended or supplemented as of any such time, will
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading; provided, that the Company
makes no representations or warranties as to (i) that part of the
Registration Statement which constitutes the Statement of Eligibility
and Qualification of the Trustee (Form T-1) under the Trust Indenture
Act or (ii) the information contained in or omitted from the
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
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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 Senior Notes as herein
contemplated;
(d) each of the Company and its subsidiaries (the
"SUBSIDIARIES") is duly qualified or licensed by and is in good
standing in, each jurisdiction in which it conducts its respective
businesses and in which the failure, individually or in the aggregate,
to be so licensed or qualified would have a material adverse effect on
the condition (financial or other), business, properties, net worth or
results of operations of the Company and its Subsidiaries taken as a
whole; each of the Company and its Subsidiaries is in compliance in all
respects with the laws, orders, rules, regulations and directives
issued or administered by each such jurisdiction, except to the extent
the failure to so comply would not have a material adverse effect on
the condition (financial or other), business, properties, net worth or
results of operations of the Company and its Subsidiaries taken as a
whole;
(e) neither the Company nor any Subsidiary is in breach of, or in
default under (nor has any event occurred which with notice, lapse of
time or both would constitute a breach of, or default under), its
respective charter, by-laws, partnership agreements, or other
organizational documents or in the performance or observance of any
obligation, agreement, covenant or condition contained in any license,
indenture, mortgage, deed of trust, bank loan or credit agreement or
other agreement or instrument to which the Company or any Subsidiary is
a party or by which any of them is bound, except to the extent such
breach or default would not have a material adverse effect on the
condition (financial or other), business, properties, net worth or
results of operations of the Company and its Subsidiaries, taken as a
whole; and the execution, delivery and performance of this Agreement
and the Indentures, the issuance of the Senior 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;
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(f) the Indenture has been duly authorized by the Company and is 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 Senior 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 Senior 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, authority or agency is required in connection with the
issuance and sale of the Senior Notes other than approvals,
authorizations, consents, orders or filings which have already been
obtained or made and registration of the Senior 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 Senior 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
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adverse effect on the condition (financial or other), business,
properties, prospects, net worth or results of operations of the
Company and its Subsidiaries taken as a whole; neither the Company nor
any Subsidiary is in violation of, or in default under, any such
license, authorization, consent or approval or any federal, state,
local or foreign law, regulation or rule or any decree, order or
judgment applicable to the Company or any of its Subsidiaries, the
result of which would have a material adverse effect on the condition
(financial or other), business, net worth or results of operations of
the Company and its Subsidiaries taken as a whole;
(m) all legal or governmental proceedings, contracts or documents of a
character required to be described in the Registration Statement or the
Final Prospectus or to be filed as an exhibit to the Registration
Statement have been so described or filed as required;
(n) except as set forth in the Final Prospectus, there are no actions,
suits or proceedings pending or, to the knowledge of the Company,
threatened against the Company or any of its Subsidiaries or any of
their respective properties, at law or in equity, or before or by any
federal, state, local or foreign governmental or regulatory commission,
board, body, authority or agency that could result in a judgment,
decree or order having a material adverse effect on the condition
(financial or other), business, properties, net worth or results of
operations of the Company and its Subsidiaries taken as a whole;
(o) the audited financial statements included in the Registration
Statement and the Final Prospectus present fairly in all material
respects 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)
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any obligation, contingent or otherwise, directly or indirectly,
incurred by the Company or any of its Subsidiaries that is material to
the Company and its Subsidiaries taken as a whole;
(q) there is no claim pending or, to the knowledge of the Company,
threatened or contemplated under any Environmental Law (as defined
below) against the Company or any of its Subsidiaries which, if
adversely determined, would have a material adverse effect on the
condition (financial or other), business, properties, net worth or
results of operations of the Company and its Subsidiaries taken as a
whole; there are no past or present actions or conditions including,
without limitation, the release of any hazardous substance or waste
regulated under any Environmental Law that are likely to form the basis
of any such claim under existing law against the Company or any of its
Subsidiaries which, if adversely determined, would have a material
adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Company and its
Subsidiaries taken as a whole. The term "ENVIRONMENTAL LAW" means any
federal, state, local or foreign law, rule or regulation now in effect
governing pollution or protection of the environment; and
(r) the Company and its Subsidiaries have good title to all properties
and assets owned or leased by them, in each case free and clear of all
liens, security interests, pledges, charges, encumbrances, mortgages
and defects (other than those set forth in the Final Prospectus,
including, without limitation, the financial statements and the notes
thereto or such as do not materially affect the value of such property
and do not interfere with the use made and proposed to be made of such
property by the Company and its Subsidiaries) except to the extent that
would not have a material adverse effect on the condition (financial or
other), business, properties, net worth or results of operations of the
Company and its Subsidiaries taken as a whole.
2. Sale and Purchase: Upon the basis of the warranties and
representations and the other terms and conditions herein set forth, the Company
agrees to sell to you and you agree to purchase from the Company, the aggregate
principal amount of the Senior Notes at a purchase price of 98.237% of the
principal amount thereof. You shall release the Senior 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 Senior
Notes shall be made to the Company by wire transfer of immediately available
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funds to an account or accounts designated by the Company against delivery of
the certificates for the Senior Notes to you or for your account. Such payment
and delivery shall be made at 10:00 A.M., New York City time, on January 21,
1998 (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 Senior Notes shall be issued to you in
book-entry form in such names and in such denominations as you shall specify.
4. Certain Covenants of the Company: The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to
qualify the Senior 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 Senior 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 Senior Notes); to advise
you promptly of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Senior 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 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 Senior 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 Senior
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;
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(d) to furnish to you for the period when the Senior Notes are
outstanding (i) copies of any reports or other communications that the
Company shall send to its stockholders generally or holders of the
Senior Notes or shall from time to time publish or publicly disseminate
and (ii) copies of all annual, quarterly and current reports filed with
the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form
as may be designated by the Commission;
(e) to advise you promptly of the happening of any event known to the
Company within the time during which a prospectus relating to the
Senior 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 Senior 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 Senior Notes in the
manner set forth under the caption "Use of Proceeds" in the Final
Prospectus;
(j) whether or not the transactions contemplated in this Agreement are
consummated or this Agreement otherwise becomes effective or is
terminated, to pay all out-of-pocket expenses, fees and taxes (other
than (x) any transfer taxes and (y) fees and disbursements of your
counsel, except as set forth under Section 5 hereof and clauses (iii)
and (iv) below) in connection with (i) the preparation and filing of
the Registration Statement, the Final Prospectus, and any amendments or
supplements thereto, and the printing and furnishing of copies of each
thereof to you (including costs of mailing and shipment), (ii) the
preparation, issuance, execution, authentication and delivery of the
Senior Notes, (iii) the word processing and/or printing of this
Agreement, and the Indentures and the reproduction and/or printing and
furnishing of copies of each thereof to you (including costs of mailing
and shipment), (iv) the qualification of the Senior 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 Senior Notes
under the Exchange Act, (vi) obtaining an investment rating for the
Senior Notes (including fees payable to investment rating agencies),
(vii) any filing for review of the public offering of the Senior 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 Senior Notes, without your prior written consent.
5. Reimbursement of Underwriter's Expenses: If the Senior 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
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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. The Company has corporate power and authority to (A)
own its properties and conduct its business as described in
the Final Prospectus and (B) execute and deliver this
Agreement and the Indentures and to issue, sell and deliver
the Senior Notes as described in the Final Prospectus;
(ii) U.S. Home Mortgage Corporation ("U.S. HOME MORTGAGE")
has been duly incorporated and is validly existing and in good
standing under the laws of the State of Florida. U.S. Home
Mortgage has corporate power and authority to own its
properties and to conduct its business as described in the
Final Prospectus;
(iii) the Company and U.S. Home Mortgage are duly qualified
as foreign corporations and are in good standing in each
jurisdiction set forth in Schedule 1 to such opinion;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the Indenture has been duly authorized by the Company
and is 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);
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(vi) the Senior 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 Senior 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) except for approvals, authorizations, consents and
filings which have been made and obtained, no approval,
authorization, consent or order of or filing with any federal,
state or local governmental or regulatory commission, board,
body, authority or agency is required for the valid issue or
sale of the Senior Notes as contemplated hereby, other than
registration of the Senior 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 Senior Notes by you;
(xi) the execution, delivery and performance of this
Agreement and the Indentures and the issuance of the Senior
Notes and the consummation of the transactions contemplated
hereby and
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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
(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
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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 certificates
are false.
(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
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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 Senior
Notes and the consummation of the transactions contemplated
hereby and thereby do not and will not result in any breach
of, or constitute a default under any law, regulation or rule
or any decree, judgment or order applicable to the Company or
U.S. Home Mortgage.
(c) You shall have received from Xxxxxx Xxxxxxxx LLP, a letter dated
as of the date of this Agreement and addressed to you in the form
heretofore approved by you.
(d) You shall have received at the time of purchase an opinion from
Xxxxx Xxxx & Xxxxxxxx in form and substance reasonably satisfactory to
you.
(e) The Final Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) under the Act not later than 5:00 P.M., New
York City time, on the second full business day after the date of this
Agreement.
(f) Prior to the time of purchase, (i) no stop order with respect to
the effectiveness of the Registration Statement shall have been issued
under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act, (ii) the Registration Statement and all amendments thereto, or
modifications thereof, if any, shall not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading and (iii) the Final Prospectus and all amendments or
supplements thereto, or modifications thereof, if any, shall not
contain any untrue statement of a material fact or omit to state a
material fact or necessary to make the statements therein, in the light
of the circumstances under which they are made, not misleading.
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(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.
(i) The Company shall have furnished to you such other documents and
certificates as to the accuracy and completeness of any statement in
the Registration Statement and the Final Prospectus as of the time of
purchase as you may reasonably request.
(j) The Company shall perform such of its obligations under this
Agreement as are to be performed by the terms hereof at or before the
time of purchase.
(k) Between the time of execution of this Agreement and the time of
purchase, there shall not have occurred any downgrading, nor shall any
notice have been given of (i) any intended or potential downgrading or
(ii) any review or possible change that does not indicate an
improvement or maintenance, in the rating, if any, accorded any
securities of the Company by any "nationally recognized statistical
rating organization", as that term is defined in Rule 436(g)(2)
promulgated under the Act.
7. Effective Date of Agreement; Termination: This Agreement shall
become effective when the parties hereto have executed and delivered this
Agreement.
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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 Senior Notes.
If you elect to terminate this Agreement as provided in this Section 7,
you will promptly notify the Company by letter or telegram.
If the sale to you of the Senior 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 "WARBURG
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 Warburg 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 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 insofar as such losses, claims, damages, judgments, liabilities or
expenses arise out of, or are based upon, any such untrue statement or omission
or alleged untrue statement or omission based upon and in conformity with
information concerning you and furnished in writing by you to the Company
expressly for use therein.
(b) If any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against any
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Warburg indemnified party, with respect to which indemnity may be sought against
the Company pursuant to this Section 8, such Warburg 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 Warburg
indemnified party and payment of all fees and expenses. A Warburg indemnified
party shall have the right to employ separate counsel in any such action or
proceeding and to assume the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Warburg 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 Warburg indemnified party, or (iii) the named
parties to any such action or proceeding (including any impleaded parties)
include both a Warburg indemnified party and a Company indemnified party and
such Warburg 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 Warburg 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 Warburg 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
Warburg 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 Warburg indemnified parties, but
only with respect to information concerning you and furnished in writing by you
to the Company expressly for use in the Registration Statement or the Final
Prospectus. In case any action shall be brought against any Company indemnified
party based on the Registration Statement or the Final Prospectus and in respect
of which indemnity may be sought against you pursuant to this Section 8(c), you
shall have the rights and duties given to the Company by Section 8(b) hereof
(except that if the Company shall have assumed the defense thereof you shall not
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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 Warburg indemnified parties by Section
8(b) hereof.
(d) If the indemnification provided for in this Section 8 is
unavailable to any Warburg 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 Senior 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
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 Warburg indemnified
party shall be required to contribute any amount in excess of the amount by
which the total price at which the Senior 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
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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 Warburg 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 Senior 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 Senior 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 SBC Warburg
Dillon Read 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 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 Warburg
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 Senior 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: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: V.P.-Corporate Finance &
Treasurer
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Agreed to and accepted as of the date first above written:
SBC WARBURG DILLON READ INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Director
