EXHIBIT 1
TOLL BROTHERS, INC.
Common Stock
Preferred Stock
TOLL CORP.
Debt Securities
Guaranteed by Toll Brothers, Inc.
UNDERWRITING AGREEMENT BASIC PROVISIONS
________________, 200__
To the Representative or Representatives
named in the Terms Agreement referred to
below
Toll Brothers, Inc., a Delaware corporation ("TB"), may issue and sell
from time to time shares of its equity securities consisting of common stock,
par value $.01 per share ("Common Stock"), or preferred stock, par value $.01
per share ("Preferred Stock"; the Common Stock and the Preferred Stock are
hereinafter referred to collectively as the "Equity Securities"). Toll Corp., a
Delaware corporation and wholly-owned subsidiary of TB ("TC"; TC and TB are
hereinafter referred to collectively as the "Registrants"), may issue and sell
from time to time its debt securities consisting of senior debt securities
("Senior Debt Securities"), senior subordinated debt securities ("Senior
Subordinated Debt Securities") or subordinated debt securities ("Subordinated
Debt Securities") the Senior Debt Securities, the Senior Subordinated Debt
Securities and the Subordinated Debt Securities are hereinafter referred to
collectively as the "Debt Securities"). The Equity Securities and the Debt
Securities are registered under the registration statement referred to in
Section 2(a) hereof. The Equity Securities may have varying designations,
dividend rates, redemption provisions and selling prices. The Preferred Stock
may be convertible, as described in its certificate of designation, into shares
of Common Stock. The Debt Securities may have varying designations,
denominations, interest rates and payment dates, maturities, redemption
provisions and selling prices. The Debt Securities may be convertible or
exchangeable, as described in the Indenture (as defined below), into or for
shares of Common Stock. The Debt Securities will be issued under an indenture
(the "Indenture") to be entered into among the Registrants and one or more
trustees (the "Trustee"). Pursuant to the terms of the Indenture, TC's
obligations under the Indenture and the Debt Securities will be unconditionally
guaranteed (the "Guarantee") by TB. The basic provisions set forth herein are
intended to be incorporated by reference in a terms agreement of the type
referred to in Section 1 hereof relating to the type, designation and series of
securities to be issued and sold by either TB or the Registrants pursuant
thereto (the "Offered Securities") to the several underwriters named therein
(the "Underwriters"). The terms agreement relating to the Offered Securities
(the "Terms Agreement"), together with the provisions hereof incorporated
therein by reference (which provisions shall not become effective until so
incorporated by reference), is herein referred to as this "Agreement". If the
Underwriters consist only of the firm or firms referred to in the Terms
Agreement as Representative or Representatives, then the terms "Underwriters"
and "Representatives," as used herein, shall each be deemed to refer to such
firm or firms. The Equity Securities, the Debt Securities and the Guarantee are
hereinafter referred to collectively as the "Securities".
1. Terms Agreement. The obligation of the Underwriters to purchase, and
TB or the Registrants, as the case may be, to sell, the Offered Securities is
evidenced by the Terms Agreement delivered at the time TB or the Registrants, as
the case may be, determines to sell the Offered Securities. The Terms Agreement
specifies the firm or firms which will be Underwriters, the amount of the
Offered Securities to be purchased by each Underwriter, the purchase price to be
paid by the Underwriters for the Offered Securities, the public offering price,
if any, of the Offered Securities, whether the Underwriters are authorized to
solicit institutional investors to purchase Offered Securities pursuant to
Delayed Delivery Contracts (as hereinafter defined), certain terms thereof and
the Underwriters' compensation therefor and any terms of the Offered Securities
not otherwise specified in the Indenture or, in the case of Preferred Stock,
certificate of designation (including, but not limited to, designations,
denominations, conversion or exchange provisions, covenants, interest rates and
payment dates, dividend rates and payment dates, maturity, redemption provisions
and sinking fund requirements). The Terms Agreement specifies any details of the
terms of the offering that should be reflected in a post-effective amendment to
the Registration Statement or the Prospectus Supplement (each as hereinafter
defined).
2. Representations and Warranties of the Registrants. The Registrants
jointly and severally represent and warrant to and agree with each Underwriter
that:
(a) The Registrants meet the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and have filed with
the Securities and Exchange Commission (the "Commission") a registration
statement on such form, including a prospectus, with respect to the Securities,
which (i) has been prepared by the Registrants in conformity with the
requirements of the Act and the rules and regulations (the "Rules and
Regulations") of the Commission thereunder and (ii) has become effective. Such
registration statement and prospectus may have been amended or supplemented from
time to time prior to the date of this Agreement; any such amendment to the
registration statement was so prepared and filed and any such amendment has
become effective. A prospectus supplement, including a prospectus, relating to
the Offered Securities (the "Prospectus Supplement") has been so prepared. The
Prospectus Supplement and, if not previously filed, such prospectus will be
filed pursuant to Rule 424 under the Act. Copies of such registration statement
and prospectus, any such amendment or supplement, the Prospectus Supplement and
all documents incorporated by reference therein which were filed with the
Commission on or prior to the date of the Terms Agreement have been delivered to
you (including one fully executed copy of the registration statement and of each
amendment thereto for counsel for the Underwriters). Such registration statement
and prospectus, as amended or supplemented to the date of the Terms Agreement
and as supplemented by the Prospectus Supplement are herein referred to as the
"Registration Statement" and the "Prospectus", respectively. Any reference
herein to the Registration Statement or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein which were filed
with the Commission on or prior to the date of the Terms Agreement and any
reference to the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement or the Prospectus shall be deemed to refer to and include
the filing of any document with the Commission deemed to be incorporated by
reference therein after the date of the Terms Agreement and on or prior to the
Closing Date (as hereinafter defined).
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(b) The Registration Statement, at the time it became
effective, any post-effective amendment thereto, at the time it became
effective, the Registration Statement and the Prospectus, as of the date of the
Terms Agreement and at the Closing Date, and any amendment or supplement
thereto, conformed or will conform in all material respects to the requirements
of the Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the Rules and Regulations; and no such document included or will
include an untrue statement of a material fact or omitted or will omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, that the Registrants make no
representation or warranty as to information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and in conformity with
written information furnished to the Registrants by or on behalf of any
Underwriter specifically for inclusion therein.
(c) The documents incorporated by reference in the
Registration Statement or the Prospectus, when they became effective or were
filed with the Commission, as the case may be, under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), conformed, and any documents so filed
and incorporated by reference after the date of the Terms Agreement and on or
prior to the Closing Date will, when they are filed with the Commission,
conform, in all material respects to the requirements of the Act and the
Exchange Act, as applicable, and the Rules and Regulations.
(d) The accountants who have certified or shall certify the
financial statements filed or to be filed with the Commission as parts of the
Registration Statement and the Prospectus are independent accountants as
required by the Act.
(e) The Registrants have been duly incorporated and are
validly existing as corporations in good standing under the laws of the State of
Delaware and have all requisite power and authority, and all necessary material
authorizations, approvals, orders, licenses, certificates and permits of and
from regulatory or governmental officials, bodies and tribunals, to own or lease
their respective properties and to conduct their respective businesses as now
being conducted and as described in the Prospectus, and the Registrants have not
received any notice of proceedings relating to the revocation or modification of
any such authorizations, approvals, orders, licenses, certificates and permits
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a materially adverse effect on the condition
(financial or otherwise), earnings, business affairs or business prospects of TB
and its subsidiaries considered as one enterprise, whether or not occurring in
the ordinary course of business (a "Material Adverse Effect"); and the
Registrants and each of their subsidiaries are complying with all applicable
laws, the violation of which would have a Material Adverse Effect.
(f) Since the respective dates as of which information is
given in the Registration Statement and in the Prospectus, except as otherwise
specifically stated therein, (a) there has been no material adverse change in
the condition (financial or otherwise), earnings, business affairs or business
prospects of TB and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business (a "Material Adverse Change"),
and (b) there has been no dividend or distribution of any kind declared, paid or
made by TB on any class of its capital stock.
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(g) The authorized, issued and outstanding capital stock of TB
is as set forth in the Prospectus; all of the outstanding shares of Common Stock
and Preferred Stock of TB and all other equity securities of TB have been duly
authorized and are validly issued, fully paid and non-assessable; the
stockholders of TB have no preemptive rights with respect to the Common Stock or
Preferred Stock; no person has any rights to the registration of securities by
reason of the Registrants filing the Registration Statement with the Commission
or otherwise; and the Common Stock and Preferred Stock conform to the
descriptions thereof in the Prospectus.
(h) Neither TB nor any of its subsidiaries is in violation of
its charter or by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which TB or any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets of TB or any
of its subsidiaries is subject, the effect of which default in performance or
observance would have a Material Adverse Effect.
(i) If Debt Securities are being offered, the Indenture has
been duly authorized by the Registrants and, upon execution and delivery by the
Registrants (assuming the due authorization, execution and delivery by the
appropriate Trustee), will constitute a valid and binding agreement of each of
the Registrants enforceable against each of the Registrants in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally
and subject, as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law) .
(j) If Debt Securities are being offered, such Debt
Securities, when executed by TC and authenticated by the appropriate Trustee in
accordance with the terms of the Indenture (assuming the due authorization,
execution and delivery of such Indenture by the appropriate Trustee), and
delivered to and paid for by you in accordance with the terms of this Agreement
(and, in the case of any Contract Securities (as hereinafter defined), as
contemplated by the Delayed Delivery Contracts with respect thereto), will
constitute valid and binding obligations of TC enforceable against TC in
accordance with their terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law).
(k) If Debt Securities are being offered, the Guarantee, upon
endorsement on any such Debt Securities by TB and upon the execution of such
Debt Securities by TC and authentication thereof by the appropriate Trustee in
accordance with the terms of the Indenture (assuming the due authorization,
execution and delivery of such Indenture by the appropriate Trustee), and
delivery of such Debt Securities to, and payment therefor by, the Underwriters
in accordance with the terms of this Agreement (and, in the case of any Contract
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Securities, as contemplated by the Delayed Delivery Contracts with respect
thereto), will constitute a valid and binding obligation of TB enforceable
against TB in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(1) Any Offered Securities and, if Debt Securities are being
offered, the Indenture have been duly authorized by TB or the Registrants, as
the case may be, and will conform to the descriptions thereof in the Prospectus.
(m) If convertible or exchangeable Debt Securities or
convertible Preferred Stock is being offered, the shares of Common Stock
issuable upon conversion or exchange of any convertible or exchangeable Offered
Securities have been duly and validly authorized and reserved for issuance upon
such conversion or exchange by all necessary corporate action and such shares,
when issued upon such conversion or exchange, will be duly authorized and
validly issued, fully paid and non-assessable, and the issuance of such shares
upon such conversion or exchange will not be subject to preemptive or similar
rights.
(n) If Common Stock or Preferred Stock is being offered, such
shares of Common Stock or Preferred Stock, as the case may be, have been duly
authorized and are validly issued, fully paid and non-assessable, and the
issuance of such shares is not subject to preemptive or similar rights.
3. Purchase, Sale and Delivery of Securities. The Offered Securities to
be purchased by the Underwriters will be delivered by either TB or the
Registrants, as the case may be, to you for the accounts of the several
Underwriters at the office specified in the Terms Agreement against payment of
the purchase price therefor by certified or official bank check or checks in New
York Clearing House funds (or as otherwise specified in the Terms Agreement)
payable to the order of TB or TC, as the case may be, on the date and at the
times specified in the Terms Agreement, or at such other time not later than
eight full business days thereafter as you and either TB or the Registrants, as
the case may be, determine, such time being herein referred to as the "Closing
Date." The Offered Securities will be prepared in definitive form and in such
authorized amounts or denominations and registered in such names as you may
require upon at least two business days' prior notice to TB or the Registrants,
as the case may be, and will be made available for checking and packaging at the
office at which they are to be delivered on the Closing Date (as specified for
that purpose in the Terms Agreement) at least one business day prior to the
Closing Date.
It is understood that you, acting individually and not in a
representative capacity, may (but shall not be obligated to) make payment to TB
or TC, as the case may be, on behalf of any other Underwriter for the Offered
Securities to be purchased by such Underwriter. Any such payment by you shall
not relieve any such Underwriter of any of its obligations hereunder.
TB or TC, as the case may be, will pay you on the Closing Date for the
accounts of the Underwriters any fee, commission or other compensation specified
in the Terms Agreement. Such payment will be made by certified or official bank
check in New York Clearing House funds (or by such other method specified in the
Terms Agreement).
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If so authorized in the Terms Agreement, the Underwriters may solicit
offers from investors of the types set forth in the Prospectus to purchase
Offered Securities from TB or the Registrants, as the case may be, pursuant to
delayed delivery contracts ("Delayed Delivery Contracts"). Such contracts shall
be substantially in the form of Exhibit I hereto but with such changes therein
as TB or the Registrants, as the case may be, may approve. Offered Securities to
be purchased pursuant to Delayed Delivery Contracts are herein called "Contract
Securities." When Delayed Delivery Contracts are authorized in the Terms
Agreement, TB or the Registrants, as the case may be, will enter into a Delayed
Delivery Contract in each case where a sale of Contract Securities arranged
through you has been approved by TB or the Registrants, as the case may be, but,
except as TB or the Registrants, as the case may be, may otherwise agree, such
Delayed Delivery Contracts must be for at least the minimum amount of Contract
Securities set forth in the Terms Agreement, and the aggregate amount of
Contract Securities may not exceed the amount set forth in the Terms Agreement.
You will advise TB or the Registrants, as the case may be, of the proposed sales
of the Contract Securities not later than 10:00 A.M., New York City time, on the
third full business day preceding the Closing Date (or at such later time as TB
or the Registrants, as the case may be, may otherwise agree). TB or the
Registrants, as the case may be, will advise you not later than 10:00 A.M., New
York City time, the second full business day preceding the Closing Date (or at
such later time as you may otherwise agree) of the sales of the Contract
Securities which have been so approved. You and the other Underwriters will not
have any responsibility in respect of the validity or performance of Delayed
Delivery Contracts.
The amount of Offered Securities to be purchased by each Underwriter as
set forth in the Terms Agreement shall be reduced by an amount which shall bear
the same proportion to the total amount of Contract Securities as the amount of
Offered Securities set forth opposite the name of such Underwriter bears to the
total amount of Offered Securities set forth in the Terms Agreement, except to
the extent that you determine that such reduction shall be otherwise than in
such proportion and so advise TB or the Registrants, as the case may be;
provided, however, that the total amount of Offered Securities to be purchased
by all Underwriters shall be the total amount of Offered Securities set forth in
the Terms Agreement less the aggregate amount of Contract Securities.
4. Substitution of Underwriters.
(a) TB or the Registrants, as the case may be, shall not be
obligated to deliver any Offered Securities except upon payment for all the
Offered Securities to be purchased hereunder or as hereinafter provided.
(b) If any Underwriter or Underwriters shall fail to take up
and pay for the amount of Offered Securities agreed to by such Underwriter or
Underwriters to be purchased hereunder, upon tender of such Offered Securities
in accordance with the terms hereof, and the amount of Offered Securities not
purchased does not aggregate more than 10% of the total amount of the Offered
Securities set forth in the Terms Agreement, the remaining Underwriters shall be
obligated to take up and pay for (in proportion to their respective underwriting
obligations hereunder as set forth in the Terms Agreement, except as may
otherwise be determined by you) the Offered Securities which the withdrawing or
defaulting Underwriters agreed but failed to purchase.
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(c) If any Underwriter or Underwriters shall fail to take up
and pay for the amount of Offered Securities agreed by such Underwriter or
Underwriters to be purchased hereunder, upon tender of such Offered Securities
in accordance with the terms hereof, and the amount of Offered Securities not
purchased aggregates more than 10% of the total amount of Offered Securities set
forth in the Terms Agreement, and arrangements satisfactory to you and TB or the
Registrants, as the case may be, for the purchase of such Offered Securities by
other persons are not made within 36 hours thereafter, this Agreement shall
terminate.
(d) In the event of a default by any Underwriter as set forth
in this Section 4, the Closing Date shall be postponed for such period, not to
exceed seven full business days, as you shall determine in order that the
required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. In the event of any such
termination, TB or the Registrants, as the case may be, shall not be under any
liability to any Underwriter (except to the extent provided in Sections 5(j), 6
and 9 hereof) nor shall any Underwriter (other than an Underwriter who shall
have failed, otherwise than for some reason permitted under this Agreement, to
purchase the amount of Offered Securities agreed by such Underwriter to be
purchased under this Agreement) be under any liability to TB or the Registrants,
as the case may be (except to the extent provided in Section 6 hereof). Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to TB or the Registrants, as the case may be, and any
non-defaulting Underwriter for damages occasioned by its default hereunder.
5. Covenants. The Registrants jointly and severally agree:
(a) To furnish promptly to you and to counsel for the
Underwriters a signed copy of the Registration Statement and the Prospectus
(including all documents incorporated by reference therein) as originally filed,
and each amendment thereto filed with the Commission, including all consents and
exhibits filed therewith and all documents incorporated by reference therein.
(b) To deliver promptly to you and to each Underwriter such
number of conformed copies of the Registration Statement as originally filed and
each amendment thereto (excluding exhibits other than this Agreement), the
Prospectus and any amended or supplemented Prospectus as you may reasonably
request.
(c) To cause the Prospectus Supplement to be filed pursuant to
Rule 424 under the Act and to notify you promptly of such filing.
(d) Prior to filing with the Commission any amendment to the
Registration Statement or subsequent supplement to the Prospectus, or to filing
any prospectus pursuant to Rule 424 of the Act, to furnish a copy thereof to you
and counsel for the Underwriters and obtain your consent to the filing.
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(e) To advise you promptly (i) when any amendment to the
Registration Statement has become effective or any subsequent supplement to the
Prospectus has been filed, (ii) of any request or proposed request by the
Commission for an amendment to the Registration Statement, a supplement to the
Prospectus or for any additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation or threat of any stop order proceedings, (iv) of
receipt by the Registrants of any notification with respect to the suspension of
the qualification of the Offered Securities for sale in any jurisdiction or the
initiation or threat of any proceeding for that purpose, and (v) of the
happening of any event which makes untrue any statement of a material fact made
in the Registration Statement or the Prospectus, or which requires the making of
a change in the Registration Statement in order to make any material statement
therein not misleading or in the Prospectus in order to make any material
statement therein, in light of the circumstances then existing, not misleading.
(f) Within the time during which a prospectus relating to the
Offered Securities is required to be delivered under the Act, to comply as far
as they are able with all requirements imposed upon them by the Act, as now and
hereafter amended, and by the Rules and Regulations, as from time to time in
force, so far as necessary to permit the continuance of sales of or dealings in
the Offered Securities as contemplated by the provisions hereof and the
Prospectus. If during such period any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances then existing, not
misleading, or if during such period it is necessary to amend or supplement the
Registration Statement or the Prospectus to comply with the Act, the Registrants
will amend or supplement the Registration Statement or the Prospectus (at the
expense of the Registrants) so as to correct such statement or omission or
effect such compliance.
(g) To make generally available to their security holders and
to you as soon as practicable, but in any event not later than 15 months after
the end of TB's current fiscal quarter, an earnings statement of TB and its
subsidiaries (which need not be audited) covering a 12-month period beginning
after the date upon which the Prospectus Supplement is filed pursuant to Rule
424 under the Act which shall satisfy the provisions of Section ll(a) of the
Act.
(h) So long as the Offered Securities are outstanding, to
furnish to you copies of all public reports and all reports and financial
statements furnished by the Registrants to any securities exchange pursuant to
requirements of or agreements with any such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder.
(i) To endeavor in all reasonable respects to qualify the
Offered Securities for offer and sale under the securities laws of such
jurisdictions as you may reasonably request; provided, that in no event shall
either of the Registrants be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to taxation or general service of process in any jurisdiction where
it is not now so subject.
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(j) To pay all expenses incident to the performance of their
obligations under this Agreement, including (i) the costs of the preparation,
printing and filing under the Act of the Registration Statement and any
amendments and exhibits thereto, (ii) the costs of printing and distributing to
the Underwriters and any selected dealers the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including exhibits), the Prospectus and any amendment or supplement to
the Prospectus as provided in this Agreement, (iii) the costs of typing,
printing and reproducing this Agreement and the Indenture, (iv) the fee of any
filings with the National Association of Securities Dealers, Inc., (v) the fees
paid to rating agencies in connection with the rating of the Offered Securities,
(vi) the fees and expenses of qualifying the Offered Securities under the
securities laws of the several jurisdictions as provided in Section 5(i) and of
preparing, printing, reproducing and distributing a Blue Sky Memorandum
(including the reasonable fees and disbursements of counsel for the Underwriters
in connection therewith), (vii) the fees and disbursements of the Registrants
counsel and accountants, (viii) the fees of the Trustee, and (ix) the cost of
printing and engraving the certificates representing the Offered Securities.
(k) If Debt Securities are being offered, TC will not, without
your consent, offer or sell, or publicly announce its intention to offer or sell
any debt securities having a maturity of more than one year (except under prior
contractual commitments) during the period beginning on the date of the Terms
Agreement and ending the business day following the Closing Date. If Equity
Securities or convertible or exchangeable Debt Securities are being offered, TB
will comply with any similar (or additional) restrictions on offers and sales of
its Common Stock and Preferred Stock, or other equity securities or securities
convertible into or exercisable for equity securities that may be specified in
the Terms Agreement. The Registrants have not taken, and will not take, directly
or indirectly, any action which might reasonably be expected to cause or result
in the stabilization or manipulation of the price of any security to facilitate
the sale or resale of the Offered Securities.
(1) If convertible or exchangeable Debt Securities or
convertible Preferred Stock is being offered, TB will reserve and keep available
at all times, free of preemptive rights, sufficient shares of Common Stock for
the purpose of enabling TB to satisfy any obligations to issue shares of Common
Stock upon conversion or exchange of any Offered Securities. TB will use its
best efforts to effect the listing of such shares of Common Stock issuable upon
the conversion or exchange of any Offered Securities on the New York Stock
Exchange and any other national securities exchange on which its Common Stock is
then listed.
6. Indemnification.
(a) TB and, if Debt Securities are offered, the Registrants
jointly and severally agree to indemnify and hold harmless each Underwriter, its
directors, officers and employees, and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or
supplement thereto), or in any related preliminary prospectus
supplement or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading;
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(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Registrants; and
(iii) against any and all expenses whatsoever, as
incurred (including subject to subsection (c) of this Section 6, the
fees and disbursements of counsel chosen by the Underwriters),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information furnished to the Registrants by such
Underwriter in writing expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto),
or in any related preliminary prospectus supplement.
This indemnity agreement is subject to the further condition that,
insofar as it relates to any untrue statement or omission, or any alleged untrue
statement or omission, made in a preliminary prospectus supplement but
eliminated or remedied in the Prospectus, it shall not inure to the benefit of
any Underwriter from whom the person asserting the claim purchased any Offered
Securities (or to the benefit of any person who controls such Underwriter) if a
copy of the Prospectus, excluding documents incorporated therein by reference,
was not sent or given to such person at or prior to the time required by the Act
and the claims asserted by such person do not include allegations of other
untrue statements or omissions made in the Prospectus, which allegations are
upheld by a final judgment.
(b) Each Underwriter severally agrees to indemnify and hold
harmless each of the Registrants, their directors, each of their officers who
signed the Registration Statement, and each person, if any, who controls either
of the Registrants within the meaning of Section l5 of the Act against any and
all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section 6, as incurred, but only with
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respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto), or in any related
preliminary prospectus supplement in reliance upon and in conformity with
written information furnished to the Registrants by such Underwriter (it being
understood that information specifically pertaining to any particular
Underwriter shall be deemed not to have been furnished by the other
Underwriters) expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto), or in any
related preliminary prospectus supplement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of any such action. In no event shall the indemnifying parties be liable
for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 6 is for
any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Registrants and the Underwriters
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the
Registrants and the Underwriters, as incurred, in such proportions that the
Underwriters are responsible for that portion represented by the percentage that
the underwriting discount appearing on the cover page of the Prospectus bears to
the initial public offering price appearing thereon and the Registrants are
jointly and severally responsible for the balance; provided, however, that no
person guilty of fraudulent misrepresentation (within the meaning of Section
ll(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section, each
director, officer and employee of an Underwriter, and each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Act, shall have
the same rights to contribution as such Underwriter, and each director of the
Registrants, each officer of the Registrants who signed the Registration
Statement, and each person, if any, who controls either of the Registrants
within the meaning of Section 15 of the Act, shall have the same rights to
contribution as the Registrants.
(e) All representations, warranties, and agreements contained
in this Agreement, or contained in certificates of officers of the Registrants
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or any
controlling person, or by or on behalf of either of the Registrants, and shall
survive delivery of and payment for any Offered Securities to the Underwriters.
-11-
7. Effective Date of Agreement and Termination.
(a) This Agreement shall become effective on the day on which
this Agreement is executed.
(b) The obligations of the Underwriters hereunder may be
terminated by you, in your absolute discretion, by notice given to and received
by TB or the Registrants, as the case may be, prior to delivery of and payment
for the Offered Securities, if prior to that time (i) since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, there has been a MATERIAL ADVERSE CHANGE, (ii) any outbreak or
escalation of hostilities or other national or international calamity or crises,
if the effect of such outbreak, escalation, calamity, or crisis would, in your
judgment, make the offering or delivery of the Offered Securities impracticable,
(iii) existing financial, political, economic or stock market conditions in
Europe, the United States or elsewhere, or international monetary conditions,
shall have undergone a material change which, in your judgment, materially and
adversely affects the market for the Offered Securities or makes the offering or
delivery of the Offered Securities impracticable; (iv) the suspension or
material limitation of trading in securities on the New York Stock Exchange, the
American Stock Exchange or the NADAQ National Market System or limitation on
prices for securities on any such exchange or National Market System, (v) the
enactment, publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court of other governmental authority
which in your opinion will have a Material Adverse Effect, (vi) the declaration
of a banking moratorium by either federal or New York State authorities or (vii)
the taking of any action by any federal, state or local government or agency in
respect of its monetary or fiscal affairs which in your opinion has a material
adverse effect on the financial markets in the United States.
8. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Offered Securities as provided herein
are subject to the accuracy, as of the date of the Terms Agreement and the
Closing Date (as if made at the Closing Date) of the representations and
warranties of the Registrants contained herein, to performance by the
Registrants of their obligations hereunder and to each of the following
additional terms and conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued, and prior to that time no stop
order proceeding shall have been initiated or threatened (and shall not have
been withdrawn) by the Commission; any request by the Commission for inclusion
of additional information in the Registration Statement or the Prospectus or
otherwise shall have been complied with; and the Registrants shall not have
filed with the Commission the Prospectus or any amendment or supplement to the
Registration Statement or the Prospectus without the consent of the
Representatives.
(b) All corporate proceedings and other legal matters incident
to the authorization and validity of this Agreement, the Terms Agreement, if
Debt Securities are being offered, the Indenture and the authorization, form and
validity of the Offered Securities and the shares of Common Stock issuable upon
the conversion or exchange of any convertible or exchangeable Offered Securities
and the form of the Registration Statement and the Prospectus, other than
financial statements and other financial data, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall be
satisfactory in all respects to Cahill Gordon & Reindel, counsel for the
Underwriters, and the Registrants shall have furnished to such counsel all
documents and information that they may reasonably request to enable them to
pass upon such matters.
-12-
(c) The Registrants shall have furnished to you the opinion of
General Counsel to TB dated the Closing Date, to the effect that:
(i) Each of TC, TB and the subsidiaries listed in
Exhibit 22 to TB's most recent Annual Report has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the jurisdiction in which it is chartered or organized, with
full corporate power and corporate authority to own its properties and
conduct its business as described in the Prospectus, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification and where the failure to so qualify would have a Material
Adverse Effect.
(ii) To the best knowledge of such counsel, all of
the outstanding shares of Common Stock and Preferred Stock of TB and
all other equity securities of TB have been duly authorized and are
validly issued, fully paid and nonassessable; and the stockholders of
TB have no preemptive rights with respect to the Common Stock or
Preferred Stock.
(iii) All the outstanding shares of capital stock of
each subsidiary of TB have been duly and validly authorized and issued
and are fully paid and nonassessable, and, except as otherwise set
forth in the Registration Statement and the Prospectus, all outstanding
shares of capital stock of such subsidiaries are owned by TB either
directly or through wholly owned subsidiaries free and clear of any
perfected security interest and, to the best knowledge of such counsel,
any other security interests, claims, liens or encumbrances.
(iv) There is no pending or, to the best of such
counsel's knowledge, threatened action, suit or proceeding before any
court or governmental agency, authority or body or any arbitrator
involving TC, TB or any of its subsidiaries required to be disclosed in
the Prospectus, which is not adequately disclosed in the Prospectus,
and there is no franchise, contract or other document that is material
to TB and its subsidiaries, considered as one enterprise, and required
to be described in the Registration Statement or Prospectus, or to be
filed as an exhibit, which is not described or filed as required.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
Commonwealth of Pennsylvania or the federal law of the United States, to the
extent such counsel deems proper and specified in such opinion, upon the opinion
of other counsel of good standing whom such counsel believes to be reliable and
who are reasonably satisfactory to counsel for the Underwriters and (B) as to
matters of fact, to the extent such counsel deems proper, on representations or
certificates of responsible officers of the Registrants and certificates of
public officials. References to the Prospectus in this paragraph (c) include any
supplements thereto at or prior to the Closing Date.
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(d) The Registrants shall have furnished to you the opinion of
Wolf, Block, Schorr and Solis-Cohen, counsel for the Registrants, dated the
Closing Date, to the effect that:
(i) Each of TC and TB 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 corporate
authority to own its properties and conduct its business as described
in the Prospectus, and, to the best knowledge of such counsel, is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification and where the failure to so qualify would have a Material
Adverse Effect.
(ii) Based solely upon review of certificates
executed by an officer or officers of the Registrants and to the extent
of the actual knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving TC, TB or any of
its subsidiaries required to be disclosed in the Prospectus, which is
not adequately disclosed in the Prospectus, and there is no franchise,
contract or other document that is material to TB and its subsidiaries,
considered as one enterprise, and required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit,
which is not described or filed as required.
(iii) The Registration Statement has become effective
under the Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); to the best
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued, and no proceedings for
that purpose have been instituted or threatened.
(iv) Based on representations or certificates of
officers of the Registrants regarding the factual matters contained in
General Instruction I.A. and I.B.1 of Form S-3 under the Act, the
Registrants meet the requirements for the use of Form S-3.
(v) The Registration Statement and the Prospectus
(other than the Statement of Eligibility and Qualification on Form T-1
(the "Form T-1") of the appropriate Trustee and the financial
statements and other financial and statistical information contained
therein as to which such counsel need express no opinion) comply as to
form in all material respects with the applicable requirements of the
Act and the Rules and Regulations; and the documents incorporated by
reference therein comply as to form in all material respects with the
requirements of the Exchange Act.
(vi) This Agreement has been duly authorized,
executed and delivered by the Registrants.
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(vii) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation of the transactions contemplated herein, except such as
have been obtained under the Act and the Trust Indenture Act and such
as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Offered Securities
by the Underwriters (as to which such counsel need express no opinion)
and such other approvals (specified in such opinion) as have been
obtained.
(viii) Neither the issue and sale of any Offered
Securities, the issue of shares of Common Stock upon conversion or
exchange of any convertible or exchangeable Offered Securities, nor the
consummation of any of the other transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach of, or constitute a default under the terms of any indenture or
other agreement or instrument known to such counsel and to which either
TC or TB or any of its subsidiaries is a party or bound (where such
conflict, breach or default would have a Material Adverse Effect) or
the charter or by-laws of either TC or TB or any order or regulation
known to such counsel to be applicable to either TC or TB or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over either TC or
TB or any of its subsidiaries.
(ix) The statements in the Prospectus (by
incorporation by reference) relating to laws, regulations, legal or
regulatory proceedings, environmental matters and contractual matters,
insofar as they relate to statements of law or legal conclusions, have
been reviewed by such counsel and are accurate in all material
respects.
(x) If Debt Securities are being offered, such Debt
Securities have been duly authorized by TC for issuance and when
executed by TC and authenticated by the appropriate Trustee in
accordance with the Indenture (assuming the due authorization,
execution and delivery of such Indenture by the appropriate Trustee)
and delivered to and paid for by the Underwriters in accordance with
the terms of this Agreement (and, in the case of any Contract
Securities, as contemplated by the Delayed Delivery Contracts with
respect thereto) will constitute valid and legally binding obligations
of TC enforceable against TC in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally and
subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law).
(xi) If Debt Securities are being offered, the
Guarantee has been duly authorized and, upon endorsement on such Debt
Securities by TB and upon the execution of such Debt Securities by TC
and authentication thereof by the appropriate Trustee in accordance
with the Indenture (assuming the due authorization, execution and
delivery of such Indenture by the appropriate Trustee), and delivery of
-15-
such Debt Securities to and payment therefor by the Underwriters in
accordance with the terms of this Agreement (and, in the case of any
Contract Securities, as contemplated by the Delayed Delivery Contracts
with respect thereto), will be a valid and binding obligation of TB
enforceable against TB in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally and
subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law).
(xii) If Debt Securities are being offered, the
Indenture has been duly authorized by the Registrants and has been duly
qualified under the Trust Indenture Act and, when duly executed and
delivered by the Registrants (assuming the due authorization, execution
and delivery by the appropriate Trustee), will constitute a valid and
legally binding instrument of each of the Registrants enforceable
against each of the Registrants in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally and
subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law).
(xiii) The Offered Securities, the Common Stock
issuable upon conversion or exchange of any convertible or exchangeable
Offered Securities and, if Debt Securities are being offered, the
Indenture and the Guarantee each conform in all material respects to
the description thereof in the Prospectus.
(xiv) If the Offered Securities are convertible or
exchangeable, the shares of Common Stock issuable upon conversion or
exchange of such Offered Securities have been duly and validly
authorized and reserved for issuance upon such conversion or exchange
by all necessary corporate action and such shares, when issued upon
such conversion or exchange, will be duly authorized and validly
issued, fully paid and non-assessable, and the issuance of such shares
upon such conversion or exchange will not be subject to preemptive or
similar rights.
(xv) If Common Stock or Preferred Stock is being
offered, such shares of Common Stock or Preferred Stock, as the case
may be, have been duly authorized and are validly issued, fully paid
and non-assessable, and the issuance of such shares is not subject to
preemptive or similar rights.
In addition such counsel shall state that such counsel has participated
in conferences with representatives of the Underwriters, officers and other
representatives of the Registrants and representatives of the independent
certified public accountants of the Registrants, at which conferences the
contents of the Registration Statement and the Prospectus and related matters
were discussed and, although such counsel does not pass upon and does not assume
any responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus (except and only to
the extent as set forth in clauses (x) and (xiv) of this Section 8(d)), on the
basis of the foregoing (relying as to materiality to a large extent upon the
-16-
discussions with and representations and opinions of officers and other
representatives of the Registrants), no facts have come to the attention of such
counsel which lead such counsel to believe that the Registration statement at
the time it became effective or as of the date of the Terms Agreement contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as of the date of the Terms Agreement or at
the Closing Date, included an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading; provided
further that such counsel does not express any comment with respect to (i) the
Form T-1 and (ii) the financial statements including the notes thereto and
supporting schedules, or any other financial and statistical data set forth or
referred to in the Registration Statement or Prospectus.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
Commonwealth of Pennsylvania or the federal law of the United States, to the
extent they deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are reasonably
satisfactory to counsel for the Underwriters and (B) as to matters of fact, to
the extent they deem proper, on representations or certificates of responsible
officers of the Registrants and certificates of public officials. References to
the Prospectus in this paragraph (d) include any supplements thereto at or prior
to the Closing Date.
(e) The favorable opinion, dated as of the Closing Date, of
Cahill Gordon & Reindel, counsel for the Underwriters, with respect to the
matters set forth in clauses (iii), (v) (first clause only) (vi), (x), (xi),
(xii), (xiii), (xiv) and (xv) of subsection (d) of this Section 8.
In giving its opinion required by subsection (e) of this Section 8,
Cahill Gordon & Reindel shall additionally state that such counsel has
participated in conferences with officers and other representatives of the
Registrants and representatives of the independent public accountants for the
Registrants and representatives of the Underwriters at which the contents of the
Registration Statement and the Prospectus and related matters were discussed
and, although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, on the basis of the
foregoing (relying as to materiality to a large extent upon the opinions of
officers and other representatives of the Registrants), no facts have come to
the attention of such counsel which lead such counsel to believe that the
Registration Statement, at the time it became effective or as of the date of the
Terms Agreement, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus as of the date of the
Terms Agreement or at the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading (it being understood that such
counsel need express no comment with respect to (i) the Form T-1 and (ii) the
financial statements, including the notes thereto, supporting schedules or any
financial or statistical data set forth or referred to in the Registration
Statement or the Prospectus).
-17-
(f) The following conditions contained in clauses (i), (ii)
and (iii) of this subsection (f) shall have been satisfied on and as of the
Closing Date and the Registrants shall have furnished to the Underwriters a
certificate of the Registrants, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of each of the
Registrants, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Prospectus,
any supplement to the Prospectus and this Agreement and that to the best of
their knowledge:
(i) The representations and warranties of the
Registrants in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as if made
on the Closing Date and the Registrants have complied with all the
agreements and satisfied all the conditions under this Agreement on
their part to be performed or satisfied at or prior to the Closing
Date.
(ii) No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened.
(iii) Since the date of the most recent financial
statements included in the Prospectus (exclusive of any supplement
thereto), there has been no Material Adverse Change.
(g) At the Closing Date, Ernst & Young shall have furnished to
the Underwriters a letter, dated as of the Closing Date, in form and substance
reasonably satisfactory to the Underwriters, confirming that they are
independent accountants within the meaning of the Act and the applicable
published rules and regulations thereunder and stating in effect that:
(i) In their opinion the audited financial statements
and financial statement schedules included or incorporated in the
Registration Statement, the Prospectus and the documents incorporated
by reference therein, and reported on by them, comply in form in all
material respects with the applicable accounting requirements of the
Act and the Rules and Regulations.
(ii) On the basis of a reading of the latest
unaudited financial statements made available by TB and its
subsidiaries; carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing standards)
which would not necessarily reveal matters of significance with respect
to the comments set forth in such letter; a reading of the minutes of
the meetings of the stockholders, directors and audit committees of TB
and the subsidiaries; and inquiries of certain officials of TB who have
responsibility for financial and accounting matters of TB and its
subsidiaries as to transactions and events subsequent to the date of
TB's most recent audited balance sheet included or incorporated by
reference in the Prospectus, nothing came to their attention which
caused them to believe that:
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(1) any unaudited consolidated financial
statements included or incorporated by reference in
the Registration Statement and the Prospectus do not
comply in form in all material respects with
applicable accounting requirements of the Act and
with the published rules and regulations of the
Commission with respect to financial statements
included or incorporated in quarterly reports on Form
10-Q under the Exchange Act; and said unaudited
financial statements are not in conformity with
generally accepted accounting principles applied on a
basis substantially consistent with that of the
audited financial statements included or incorporated
in the Registration Statement and the Prospectus; or
(2) with respect to the period subsequent to
the date of TB's most recent balance sheet included
or incorporated by reference in the Prospectus, that
at a specified date not more than five business days
prior to the date of the letter, there were any
decreases in the capital stock or there were any
increases in the long-term debt of TB and its
subsidiaries or any decreases in the total
consolidated assets, as compared with the amounts
shown on such balance sheet, or for the period from
the date of TB's most recent income statement
included or incorporated by reference in the
Prospectus to such specified date there were any
decreases, as compared with the corresponding period
in the preceding year, in consolidated net revenues
or income before income taxes or in total or per
share amounts of net income of TB and its
subsidiaries, except in all instances for increases
or decreases that the Registration Statement
discloses have occurred or may occur;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature (which is
limited to accounting, financial or statistical information derived
from the general accounting records of TB and its subsidiaries) set
forth in the Registration Statement and the Prospectus agrees with the
accounting records of TB and its subsidiaries, or schedules prepared by
TB and its subsidiaries and derived from such accounting records,
excluding any questions of legal interpretation. References to the
Prospectus in this subsection (g) include any supplement thereto at the
date of the letter.
(h) At the Closing Date, counsel for the Underwriters shall
have been furnished with such information, certificates and documents as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Offered Securities as contemplated herein and related
proceedings, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all opinions and certificates mentioned above or elsewhere in this Agreement
shall be reasonably satisfactory in form and substance to the Underwriters and
counsel for the Underwriters.
-19-
9. Expenses of Underwriters. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 7(b)(i) or Section 8,
TB or the Registrants, as the case may be, shall reimburse the Underwriters for
all of their reasonable out-of-pocket expenses, including the reasonable fees
and disbursements of counsel for the Underwriters.
10. Notices. All notices or communications hereunder shall be
sufficient if in writing and if sent to you shall be mailed, delivered or
telegraphed and confirmed to you at your address set forth for that purpose in
the Terms Agreement. Any notice by the Underwriters to the Registrants shall be
sufficient if given in writing or by telegraph addressed to the Registrants c/o
TB at 3103 Philmont Avenue, Huntingdon Valley, Pennsylvania 19006, Attention:
Robert I. Toll, Chairman of the Board and Chief Executive Officer.
11. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Registrants and their respective successors.
This Agreement and the terms and provisions hereof are for the sole benefit of
only those persons, except that (a) the representations, warranties, indemnities
and agreements of the Registrants contained in this Agreement shall also be
deemed to be for the benefit of the person or persons, if any, who control any
Underwriter within the meaning of Section 15 of the Act, and (b) the indemnity
agreement of the Underwriters contained in Section 6 of this Agreement shall be
deemed to be for the benefit of directors of the Registrants, officers of the
Registrants who have signed the Registration Statement and any person
controlling the Registrants. Nothing in this Agreement is intended or shall be
construed to give any person other than the persons referred to in this Section
ll any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
12. Certain Definitions. For purposes of this Agreement, (a) "business
day" means any day on which the New York Stock Exchange, Inc. is open for
trading and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations.
13. Governing Law; Counterparts. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York. This
Agreement may be executed in one or more counterparts, and if executed in more
than one counterpart, the executed counterparts shall together constitute a
single instrument.
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TERMS AGREEMENT
_________________, 200__
[TOLL BROTHERS, INC.]
[TOLL CORP.]
3103 Philmont Avenue
Huntingdon Valley, PA 19006
Attention:
Dear Sirs:
We (the "Representative(s)") understand that [Toll Corp., a Delaware
corporation, proposes to issue and sell $______________ aggregate principal
amount of its debt securities to be guaranteed by Toll Brothers, Inc.] [Toll
Brothers, Inc., a Delaware corporation, proposes to issue and sell
________________ shares of its equity securities] (the "Underwritten
Securities"). Subject to the terms and conditions set forth herein or
incorporated by reference herein, the Underwriters named in the list attached
hereto offer to purchase, severally and not jointly, the Underwritten
Securities. The Closing Date shall be ___________, 200__, at ________A.M. at the
offices of ________________________________.
All the provisions contained in the Underwriting Agreement Basic
Provisions dated _________________, 200__ (the "Basic Provisions"), a copy of
which you have previously received, are herein incorporated by reference in
their entirety and shall be deemed to be a part of this Terms Agreement to the
same extent as if the Basic Provisions had been set forth in full herein. Terms
defined in the Basic Provisions are used herein as therein defined.
If the Underwritten Securities are Debt Securities, they shall have the
following terms:
Title:
Maturity:
Interest Rate:
Interest payment dates:
Redemption provisions:
Purchase Price: _____% of the principal amount thereof
Public Offering Price: _______% of the principal amount thereof
Additional Terms:
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If the Underwritten Securities are Preferred Stock, they shall have the
following terms:
Title:
Liquidation Preference: $____ per share
Dividend Rate: $____ per share
Dividend payment dates:
Redemption provisions:
Purchase Price: $____ per share
Public Offering Price: $____ per share
Additional Terms:
If the Underwritten Securities are Common Stock, they shall have the
following terms:
Purchase Price: $____ per share
Public Offering Price: $____ per share
Please accept this offer no later than _____________ o'clock __.M. on
________________, 200__, by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us, or by sending us a written
acceptance in the following form:
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"We hereby accept your offer, set forth in the Terms Agreement, dated
___________, 200__, to purchase the Securities on the terms set forth therein.
Very truly yours,
By__________________________
Title:
Address:
Accepted:
[TOLL BROTHERS, INC.]
[TOLL CORP.]
By_____________________________
Title:
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EXHIBIT I
[TOLL BROTHERS, INC.]
[TOLL CORP.]
[Insert specific title of securities*]
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering]*
[TOLL BROTHERS, INC.]
[TOLL CORP.]
c/o *
Gentlemen:
The undersigned hereby agrees to purchase from [Toll Brothers, Inc.
(hereinafter called "TB")] [Toll Corp. (hereinafter called "TC")], and [TB] [TC]
agrees to sell to the undersigned. [If one delayed closing, insert -- as of the
date hereof, for delivery on , 20 ("Delivery Date")]
[____________ shares of TB's [title of Securities] (the "Securities"), offered
by TB's Prospectus relating thereto, receipt of a copy of which is hereby
acknowledged, at a purchase price of $________ per share, and on the further
terms and conditions set forth in this contract.]
[$_________________ principal amount of TC's [title of Securities] (the
"Securities"); offered by TC's Prospectus relating thereto, receipt of a copy of
which is hereby acknowledged, at a purchase price of % of the principal amount
thereof plus accrued interest, if any, and on the further terms and conditions
set forth in this contract.]
[If two or more delayed closings, insert the following:
* To be completed when the Terms Agreement is executed by the parties thereto.
-24-
The undersigned will purchase from TC as of the date hereof, for
delivery on the dates set forth below, Securities in the amounts set forth
below:
Delivery Date Amount
------------- ------
----------------------- -------------------------
----------------------- -------------------------
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities which the undersigned has agreed to purchase
for delivery on [the] [each] Delivery Date shall be made to [TB] [TC] or its
order by certified or official bank check in New York Clearing House funds (or
as otherwise specified in the Terms Agreement) at the office of
________________at__ .M., time, on such Delivery Date upon delivery to the
undersigned of the Securities to be purchased by the undersigned for delivery on
such Delivery Date in definitive form and in such denominations and registered
in such names as the undersigned may designate by written or telegraphic
communication addressed to [TB] [TC] not less than five full business days prior
to such Delivery Date. If no designation is received, the securities will be
registered in the name of the undersigned and issued in a denomination equal to
the aggregate amount of Securities to be purchased by the undersigned on such
Delivery Date.
The obligation of the undersigned to take delivery of, and make payment
for, Securities on [the] [each] Delivery Date shall be subject only to the
conditions that (1) investment in the Securities shall not at such Delivery Date
be prohibited under the laws of any jurisdiction in the United States to which
the undersigned is subject, which investment the undersigned represents is not
prohibited on the date hereof and (2) [TB] [TC] shall have delivered to the
Underwriters the amount of the Securities to be purchased by them pursuant to
the Underwriting Agreement referred to in the Prospectus mentioned above and
received payment therefor. The obligation of the undersigned to take delivery of
and make payment for Securities hereunder, and the obligation of [TB] [TC] to
sell and deliver Securities hereunder, shall not be affected by the failure of
any purchaser to take delivery of and make payment for Securities pursuant to
other contracts similar to this contract. As a material inducement to the
acceptance of this offer by [TB] [TC], the undersigned represents and warrants
to you that its investment in the Securities which the undersigned hereby offers
to purchase is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned in subject and which govern such
investment, and the undersigned will, if the Securities are being purchased by
the undersigned under a "basket" clause or similar authorization, use its best
efforts to reserve an amount thereunder sufficient to permit such purchase on
the Delivery Date.
Promptly after completion of the sale to the Underwriters, [TB] [TC]
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for [TB] [TC]
delivered to the Underwriters in connection therewith.
-25-
By the execution hereof, the undersigned represents and warrants to
[TB] [TC] that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities which the
undersigned hereby offers to purchase has been taken by it and no further
authorization or approval of any governmental or other regulatory authority is
required for such execution, delivery, payment or purchase, and that, upon
acceptance hereof by [TB] [TC] and mailing or delivery of a copy as provided
below, this contract will constitute a valid and binding agreement of the
undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of this contract and any other
similar contracts is in [TB's] [TC's] sole discretion and, without limiting the
foregoing, need not be on a first-come, first-served basis. If this contract is
acceptable to [TB] [TC], it is requested that [TB] [TC] sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between [TB] [TC] and the undersigned when such counterpart is mailed or
delivered.
-26-
This contract shall be governed by, and construed in accordance with,
the laws of the State of New York,
Very truly yours,
-----------------------------------
(Name of Purchaser)
By
---------------------------------
-----------------------------------
(Title of Signatory)
-----------------------------------
-----------------------------------
(Address of Purchaser)
Accepted, as of the above date.
[TOLL BROTHERS, INC.]
[TOLL CORP.]
By
-----------------------------
(Title of Signatory)
-27-