Exhibit 10.1
Toll Brothers Finance Corp.
$300,000,000
6.875% Senior Notes Due 2012
Guaranteed on a Senior Basis by Toll Brothers, Inc. and
Certain of Its Subsidiaries
Purchase Agreement
New York, New York
November 15, 2002
Salomon Smith Barney Inc.
Banc of America Securities LLC
Banc One Capital Markets, Inc.
As Representatives of the Initial Purchasers
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Toll Brothers Finance Corp. a corporation organized under the laws of
Delaware (the "Issuer"), proposes to issue and sell to the several parties named
in Schedule I hereto (the "Initial Purchasers"), for whom you (the
"Representatives") are acting as representatives, $300,000,000 principal amount
of its 6.875% Senior Notes Due November 15, 2012 (the "Notes"). The Notes are to
be issued under an indenture (the "Indenture") dated as of November 15, 2002
among the Issuer, the guarantors named therein (the "Guarantors"), including
Toll Brothers, Inc. (the "Company"), and Bank One Trust Company, NA, as trustee
(the "Trustee"). The Notes are, and the notes exchanged therefor pursuant to the
Registration Rights Agreement (as defined herein) will be, fully and
unconditionally guaranteed (the "Guarantees," and together with the Notes, the
"Securities")) by the Guarantors to be named in the Indenture. The Securities
will have the benefit of a registration rights agreement (the "Registration
Rights Agreement") dated as of November 22, 2002 among the Issuer, the Company
and the Initial Purchasers, pursuant to which the Company has agreed to register
the Securities under the Act subject to the terms and conditions specified in
the Registration Rights Agreement. The use of the neuter in this Agreement shall
include the feminine and masculine wherever appropriate. Certain terms used
herein are defined in Section 16 hereof.
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The sale of the Securities to the Initial Purchasers will be made
without registration of the Securities under the Act in reliance upon exemptions
from the registration requirements of the Act.
In connection with the sale of the Securities, the Issuer and the
Guarantors have prepared a preliminary offering memorandum, dated November 15,
2002 (as amended or supplemented at the Execution Time, including any
information incorporated by reference therein, the "Preliminary Memorandum"),
and a final offering memorandum, dated November 15, 2002 (as amended or
supplemented at the Execution Time, including any information incorporated by
reference therein, the "Final Memorandum"). Each of the Preliminary Memorandum
and the Final Memorandum sets forth certain information concerning the Issuer,
the Guarantors and the Securities. The Issuer and the Guarantors hereby confirm
that they have authorized the use of the Preliminary Memorandum and the Final
Memorandum, and any amendment or supplement thereto, in connection with the
offer and sale of the Securities by the Initial Purchasers. Unless stated to the
contrary, any references herein to the terms "amend," "amendment" or
"supplement" with respect to the Final Memorandum shall be deemed to refer to
and include any information filed under the Exchange Act subsequent to the
Execution Time which is incorporated by reference therein.
1. Representations and Warranties. Each of the Issuer and the Company
represents and warrants to each Initial Purchaser as set forth below in this
Section 1.
(a) The Preliminary Memorandum, at the date thereof, did not
contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. At the
Execution Time, on the Closing Date and on any settlement date, the
Final Memorandum did not, and will not (and any amendment or supplement
thereto, at the date thereof, at the Closing Date and on any settlement
date, will not), contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Issuer and the Company make
no representation or warranty as to the information contained in or
omitted from the Preliminary Memorandum or the Final Memorandum, or any
amendment or supplement thereto, in reliance upon and in conformity
with information furnished in writing to the Issuer and the Company by
or on behalf of the Initial Purchasers through the Representatives
specifically for inclusion therein.
(b) The documents incorporated by reference in the Preliminary
Memorandum or the Final Memorandum, when they became effective or were
filed with the Commission, as the case may be, under the Exchange Act,
conformed, and any documents so filed and incorporated by reference
after the date of this Agreement and on or prior to the Closing Date
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will conform, when they are filed with the Commission, in all material
respects to the requirements of the Act and the Exchange Act, as
applicable.
(c) Since the respective dates as of which information is
given in the Preliminary Memorandum and Final Memorandum, 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 the Company 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 the Company on any class of its capital stock.
(d) Neither the Issuer and the Company, nor any of their
respective Affiliates, nor any person acting on its or their behalf
has, directly or indirectly, made offers or sales of any security, or
solicited offers to buy any security, under circumstances that would
require the registration of the Securities under the Act.
(e) Neither the Issuer and the Company, nor any of their
respective Affiliates, nor any person acting on its or their behalf has
engaged in any form of general solicitation or general advertising
(within the meaning of Regulation D) in connection with any offer or
sale of the Securities in the United States.
(f) The Securities satisfy the eligibility requirements of
Rule 144A(d)(3) under the Act.
(g) Neither the Issuer nor the Company is, and after giving
effect to the offering and sale of the Securities and the application
of the proceeds thereof as described in the Final Memorandum neither
will be, an "investment company" within the meaning of the Investment
Company Act, without taking account of any exemption arising out of the
number of holders of the Issuer or the Company's securities.
(h) The Company is subject to and in full compliance with the
reporting requirements of Section 13 or Section 15(d) of the Exchange
Act.
(i) Neither the Issuer nor the Company has paid or agreed to
pay to any person any compensation for soliciting another to purchase
any securities of the Issuer or the Company (except as contemplated by
this Agreement).
(j) None of the Issuer, the Guarantors or their respective
Affiliates has taken, directly or indirectly, any action designed to
cause or which has constituted or which might reasonably be expected to
cause or result, under the Exchange Act or otherwise, in the
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stabilization or manipulation of the price of any security of the
Issuer or the Company to facilitate the sale or resale of the
Securities.
(k) The information prepared and provided by the Issuer and/or
Company pursuant to Section 5(g) hereof will not, at the date thereof,
contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(l) Each of the Company and its subsidiaries has been duly
incorporated (if a corporation) or formed (if a partnership, limited
liability corporation or trust) and is validly existing as a
corporation, partnership, limited liability company or trust, as the
case may be, in good standing (if applicable) under the laws of its
jurisdiction of incorporation or formation, as the case may be (except
where the failure to be in good standing would not result, individually
or in the aggregate, in a Material Adverse Change). Each of the Company
and its subsidiaries has full corporate or other organizational power
and authority to own or lease, as the case may be (except where the
failure to be in good standing would not result, individually or in the
aggregate, in a Material Adverse Change), and to operate its properties
and conduct its business as described in the Final Memorandum, and is
duly qualified to do business as a foreign corporation, partnership,
limited liability company or trust, as the case may be, and is in good
standing (if applicable) under the laws of each jurisdiction which
requires such qualification (except where the failure to so qualify
would not result, individually or in the aggregate, in a Material
Adverse Change).
(m) All the outstanding shares of capital stock or outstanding
interests of each subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and nonassessable, and, except
as otherwise set forth in the Final Memorandum, all outstanding shares
of capital stock or outstanding interests of such subsidiaries are
owned by the Company either directly or through wholly owned
subsidiaries free and clear of any perfected security interest or any
other security interests, claims, liens or encumbrances.
(n) This Agreement has been duly authorized, executed and
delivered by the Issuer and the Guarantors; the Indenture has been duly
authorized and, assuming due authorization, execution and delivery
thereof by the Trustee, when executed and delivered by the Issuer and
the Guarantors, will constitute a legal, valid, binding instrument
enforceable against the Issuer and the Guarantors in accordance with
its terms (subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect and
to general principles of equity); the Securities have been duly
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authorized, and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Initial Purchasers, will have been duly executed and delivered by the
Issuer and the Guarantors and will constitute the legal, valid and
binding obligations of the Issuer and the Guarantors, and be entitled
to the benefits of the Indenture (subject, as to the enforcement of
remedies, to applicable bankruptcy, insolvency, moratorium or other
laws affecting creditors' rights generally from time to time in effect
and to general principles of equity); and the Registration Rights
Agreement has been duly authorized and, when executed and delivered by
the Issuer and the Guarantors, will constitute the legal, valid,
binding and enforceable instrument of the Issuer and the Guarantor
(subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity).
(o) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein or in the Indenture or the
Registration Rights Agreement, except such as will be 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 Securities by the Initial Purchasers in the
manner contemplated herein and in the Final Memorandum and the
Registration Rights Agreement.
(p) None of the execution and delivery of the Indenture, this
Agreement or the Registration Rights Agreement, the issue and sale of
the Securities, or the consummation of any other of the transactions
herein or therein contemplated, nor the fulfillment of the terms hereof
or thereof will conflict with, result in a breach or violation of, or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, (i) the
charter, by-laws or other organizational documents of the Company or
any of its subsidiaries; (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the
Company or any of its subsidiaries is a party or bound or to which its
or their property is subject; or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any
of its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its subsidiaries or any of its
respective properties (except in the cases of clauses (ii) and (iii)
for such conflicts, breaches, violations, liens, charges or
encumbrances that would not result, individually or in the aggregate,
in a Material Adverse Change).
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(q) The consolidated historical financial statements and
schedules of the Company and its consolidated and consolidating
subsidiaries incorporated by reference in the Final Memorandum present
fairly in all material respects the financial condition, results of
operations and cash flows of the Company as of the dates and for the
periods indicated, comply as to form with the applicable accounting
requirements of the Act and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted therein);
the selected financial data set forth under the caption "Selected
Consolidated Financial Information and Operating Data" in the Final
Memorandum fairly present, on the basis stated in the Final Memorandum,
the information included therein.
(r) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property is pending
or, to the best knowledge of the Company, threatened that (i) could
reasonably be expected to have a material adverse effect on the
performance of this Agreement, the Indenture or the Registration Rights
Agreement, or the consummation of any of the transactions contemplated
hereby or thereby; or (ii) could reasonably be expected to result,
individually or in the aggregate, in a Material Adverse Change, except
as set forth, incorporated by reference in or contemplated in the Final
Memorandum (exclusive of any amendment or supplement thereto).
(s) Each of the Company and each of its subsidiaries owns or
leases all such properties as are necessary to the conduct of its
operations as presently conducted.
(t) Neither the Company nor any subsidiary is in violation or
default of (i) any provision of its charter or bylaws; (ii) the terms
of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which it is a party or bound or to which its
property is subject; or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over the Company or such subsidiary or any of its properties, as
applicable (except in the cases of clauses (ii) and (iii) for such
violations or defaults that would not result, individually or in the
aggregate, in a Material Adverse Change).
(u) Ernst & Young LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and
delivered their report with respect to the audited consolidated
financial statements and schedules included in the Final Memorandum,
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are independent public accountants with respect to the Company within
the meaning of the Act and the applicable published rules and
regulations thereunder.
(v) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested
extensions thereof (except in any case in which the failure so to file
would not result, individually or in the aggregate, in a Material
Adverse Change), whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Final Memorandum (exclusive of any amendment or supplement thereto)
and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any
of the foregoing is due and payable, except for any such assessment,
fine or penalty that is currently being contested in good faith or as
would not result, individually or in the aggregate, in a Material
Adverse Change, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Final Memorandum (exclusive of any amendment or supplement
thereto).
(w) No labor problem or dispute with the employees of the
Company or any of its subsidiaries exists or, to the best knowledge of
the Company, is threatened or imminent, and the Company is not aware of
any existing or imminent labor disturbance by the employees of any of
its or its subsidiaries' principal suppliers, contractors or customers,
which problem, dispute or labor could result, individually or in the
aggregate, in a Material Adverse Change, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Final Memorandum (exclusive of any amendment or
supplement thereto).
(x) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; all policies of insurance and
fidelity or surety bonds insuring the Company or any of its
subsidiaries or their respective businesses, assets, employees,
officers and directors are in full force and effect; the Company and
its subsidiaries are in compliance with the terms of such policies and
instruments in all material respects; and there are no claims by the
Company or any of its subsidiaries under any such policy or instrument
as to which any insurance company is denying liability or defending
under a reservation of rights clause, which denials or defenses if
resolved adversely to the Company would result, individually or in the
aggregate, in a Material Adverse Change; neither the Company nor any
such subsidiary has been refused any insurance coverage sought or
applied for; and neither the Company nor any such subsidiary has any
reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not result, individually or in the
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aggregate, in a Material Adverse Change, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Final Memorandum (exclusive of any amendment or
supplement thereto).
(y) Except for minimum capital requirements of law or
contract, no subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on such subsidiary's capital stock, from
repaying to the Company any loans or advances to such subsidiary from
the Company or from transferring any of such subsidiary's property or
assets to the Company or any other subsidiary of the Company, except as
described in or contemplated by the Final Memorandum (exclusive of any
amendment or supplement thereto).
(z) The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities necessary
to conduct their respective businesses (except where the failure to
possess such licenses, certificates, permits or other authorizations
would not result, individually or in the aggregate, a Material Adverse
Change) and neither the Company nor any such subsidiary has received
any notice of proceedings relating to the revocation or modification of
any such certificate, authorization or permit which, if the subject of
an unfavorable decision, ruling or finding, would result, individually
or in the aggregate, in a Material Adverse Change, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Final Memorandum (exclusive of any
amendment or supplement thereto).
(aa) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that, in reference
to the Company and its subsidiaries on a consolidated basis, (i)
transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
Any certificate signed by any officer of the Issuer and the Guarantors
and delivered to the Representatives or counsel for the Underwriters in
connection with the offering of the Securities shall be deemed a representation
and warranty by the Issuer and the Guarantors, as to matters covered thereby, to
each Initial Purchaser.
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2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Issuer
agrees to sell to each Initial Purchaser, and each Initial Purchaser agrees,
severally and not jointly, to purchase from the Issuer, at a purchase price of
99.295% of the principal amount thereof, plus accrued interest, if any, from
November 22, 2002 to the Closing Date, the principal amount of Notes set forth
opposite such Initial Purchaser's name in Schedule I hereto, which Notes shall
be endorsed with the Guarantees.
(b) Delivery and Payment. Delivery of and payment for the Securities
shall be made at 10:00 A.M., New York City time, on November 22, 2002, or at
such time on such later date (not later than November 29, 2002) as the
Representatives shall designate, which date and time may be postponed by
agreement between the Representatives and the Issuer and the Company or as
provided in Section 8 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Initial Purchasers against payment by the several Initial Purchasers through the
Representatives of the purchase price thereof to or upon the order of the Issuer
and the Company by wire transfer payable in same-day funds to the account
specified by the Issuer and the Company. Delivery of the Securities shall be
made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
3. Offering by Initial Purchasers. Each Initial Purchaser, severally
and not jointly, represents and warrants to and agrees with the Issuer and the
Company that:
(a) It is an "accredited investor" as that term is defined in
Regulation D under the Act.
(b) It has not offered or sold, and will not offer or sell,
any Securities except to those it reasonably believes to be qualified
institutional buyers (as defined in Rule 144A under the Act) and that,
in connection with each such sale, it has taken or will take reasonable
steps to ensure that the purchaser of such Securities is aware that
such sale is being made in reliance on Rule 144A. In the case of a
non-bank purchaser of a Security acting as a fiduciary for one or more
third parties, in connection with an offer and sale to such purchaser
pursuant, such party or parties shall be a qualified institutional
buyer(s).
(c) No sale of the Securities to any one purchaser will be for
less than U.S. $100,000 principal amount. If the purchaser is a
non-bank fiduciary acting on behalf of others, each person for whom it
is acting must purchase at least $100,000 principal amount of the
Securities.
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(d) Neither it nor any person acting on its behalf has made or
will make offers or sales of the Securities in the United States by
means of any form of general solicitation or general advertising
(within the meaning of Regulation D) in the United States.
4. Agreements. Each of the Issuer and the Company agrees with each
Initial Purchaser that:
(a) The Issuer and the Company will furnish to each Initial
Purchaser and to counsel for the Initial Purchasers, without charge,
during the period referred to in paragraph (c) below, as many copies of
the Final Memorandum and any amendments and supplements thereto as they
may reasonably request.
(b) The Issuer and the Guarantors will not amend or supplement
the Final Memorandum, other than by filing documents under the Exchange
Act that are incorporated by reference therein, without the prior
written consent of the Representatives, which consent shall not be
unreasonably withheld or delayed; provided, however, that, prior to the
completion of the distribution of the Securities by the Initial
Purchasers (as determined by the Initial Purchasers), the Company will
not file any document under the Exchange Act that is incorporated by
reference in the Final Memorandum unless, prior to such proposed
filing, the Company has furnished the Representatives with a copy of
such document for their review and consent to such filing, which
consent shall not be unreasonably withheld or delayed. The Company will
promptly advise the Representatives when any document filed under the
Exchange Act that is incorporated by reference in the Final Memorandum
shall have been filed with the Commission.
(c) If at any time prior to the completion of the sale of the
Securities by the Initial Purchasers (as determined by the
Representatives), any event occurs as a result of which the Final
Memorandum, as then amended or supplemented, would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
should be necessary to amend or supplement the Final Memorandum to
comply with applicable law, the Issuer and the Guarantors promptly (i)
will notify the Representatives of any such event; (ii) subject to the
requirements of paragraph (b) of this Section 4, will prepare an
amendment or supplement that will correct such statement or omission or
effect such compliance; and (iii) will supply any supplemented or
amended Final Memorandum to the several Initial Purchasers and counsel
for the Initial Purchasers without charge in such quantities as they
may reasonably request.
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(d) The Issuer and the Guarantors will use their best efforts,
in cooperation with the Initial Purchasers, to arrange, if necessary,
for the qualification of the Securities for sale by the Initial
Purchasers under the laws of such jurisdictions as the Initial
Purchasers may designate and will maintain such qualifications in
effect so long as required for the sale of the Securities; provided
that in no event shall the Issuer and the Guarantors be obligated to
qualify to do business in any jurisdiction where they are not now so
qualified or to take any action that would subject them to service of
process in suits, other than those arising out of the offering or sale
of the Securities, in any jurisdiction where they are not now so
subject. The Issuer and the Company will promptly advise the
Representatives of the receipt by the Issuer or any of the Guarantors
of any notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
(e) Neither the Issuer nor the Company will resell any
Securities that have been acquired by either of them; the Issuer and
the Company will not permit any of their respective Affiliates to
resell any Securities that have been acquired by any of them until the
completion of the Exchange Offer (as defined in the Registration Rights
Agreement).
(f) None of the Company, the Guarantors, or any of their
respective Affiliates, nor any person acting on its or their behalf
will, directly or indirectly, make offers or sales of any security, or
solicit offers to buy any security, under circumstances that would
require the registration of the Securities under the Act.
(g) None of the Company, the Guarantors, or any of their
respective Affiliates, nor any person acting on its or their behalf
will engage in any form of general solicitation or general advertising
(within the meaning of Regulation D) in connection with any offer or
sale of the Securities in the United States.
(h) So long as any of the Securities are "restricted
securities" within the meaning of Rule 144(a)(3) under the Act, the
Company will, during any period in which it is not subject to and in
compliance with Section 13 or 15(d) of the Exchange Act or it is not
exempt from such reporting requirements pursuant to and in compliance
with Rule 12g3-2(b) under the Exchange Act, provide to each holder of
such restricted securities and to each prospective purchaser (as
designated by such holder) of such restricted securities, upon the
request of such holder or prospective purchaser, any information
required to be provided by Rule 144A(d)(4) under the Act. This covenant
is intended to be for the benefit of the holders, and the prospective
purchasers designated by such holders, from time to time of such
restricted securities.
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(i) The Issuer and the Guarantors will cooperate with the
Representatives and use its and their best efforts to permit the
Securities to be eligible for clearance and settlement through The
Depository Trust Company.
(j) Neither the Issuer nor any of the Guarantors will for a
period of ten business days following the Closing Date, without the
prior written consent of Salomon Smith Barney, offer, sell or contract
to sell, or otherwise dispose of (or enter into any transaction which
is designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Issuer or the
Guarantors or any of their respective Affiliates or any person in
privity with the Issuer or the Guarantors or any of their respective
Affiliates), directly or indirectly, or announce the offering of, any
debt securities issued or guaranteed by the Issuer or the Guarantors
(other than the Securities). Notwithstanding anything in this Section
to the contrary, the Company directly or indirectly through a
subsidiary, may (i) make borrowings under the Bank Credit Facilities
(as defined in the Indenture) pursuant to the terms and conditions of
such agreement, (ii) enter into purchase money mortgage transactions,
(iii) obtain letters of credit and (iv) enter into such other
commercial lending transactions consistent with the Company's business.
(k) The Issuer and the Guarantors will not take, directly or
indirectly, any action designed to or which has constituted or which
might reasonably be expected to cause or result, under the Exchange Act
or otherwise, in stabilization or manipulation of the price of any
security of the Issuer and the Guarantors to facilitate the sale or
resale of the Securities.
(l) The Issuer and the Company agree to pay all expenses
incident to the performance of their obligations under this Agreement,
including (i) the costs of the preparation and printing of the
Preliminary Memorandum and Final Memorandum and each amendment or
supplement thereto, (ii) the costs of printing and distributing to the
Initial Purchasers and any selected dealers the Final Memorandum, and
all amendments or supplements thereto, as provided in this Agreement,
(iii) the costs of typing, printing and reproducing this Agreement, the
Indenture and the Registration Rights Agreement, (iv) the fees paid to
rating agencies in connection with the rating of the Securities, (v)
the fees and expenses of qualifying the Securities under the securities
laws of the several jurisdictions as provided in Section 4(d) hereof
and of preparing, printing, reproducing and distributing a Blue Sky
Memorandum (including the reasonable fees and disbursements of counsel
for the Initial Purchasers in connection therewith), (vi) the fees and
disbursements of the counsel and accountants for the Issuer and the
Guarantors and (vii) the fees of the Trustee, and (viii) the cost of
printing and engraving certificates representing the Securities.
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5. Conditions to the Obligations of the Initial Purchasers. The
obligations of the Initial Purchasers to purchase the Securities shall be
subject to the accuracy of the representations and warranties on the part of the
Issuer and the Guarantors contained herein at the Execution Time, the Closing
Date and any settlement date pursuant to Section 3 hereof, to the accuracy of
the statements of the Issuer and the Guarantors made in any certificates
pursuant to the provisions hereof, to the performance by the Issuer and the
Guarantors of their respective obligations hereunder and to the following
additional conditions:
(a) The Issuer and the Company shall have requested and caused
Wolf, Block, Schorr and Solis-Cohen LLP, counsel for the Issuer and the
Guarantors, and the General Counsel of the Company,(1) to furnish to
the Representatives their opinions, dated the Closing Date and
addressed to the Representatives, to the effect that:
(i) each of the Issuer, the Company and the
subsidiaries named in Schedule II hereto (the "Subsidiaries"
or, in the singular, the "Subsidiary") has been duly
incorporated (if a corporation) or formed (if a partnership or
limited liability corporation) and is validly existing as a
corporation, partnership or limited liability company, as the
case may be, in good standing (if applicable) (based solely
upon review of certificates issued by a governmental agency,
authority or body or, in the absence of such certificates, to
the knowledge of such counsel) under the laws of its
jurisdiction of incorporation or formation, as the case may be
(except where the failure to so be in good standing would not
have, individually or in the aggregate, a material adverse
effect on the condition (financial or otherwise) or earnings
of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), with full corporate or
other organizational power and authority to own or lease, as
the case may be, and to operate its properties and conduct its
business as described in the Final Memorandum, and is duly
qualified (based solely upon review of certificates issued by
a governmental agency, authority or body or, in the absence of
such certificates, to the knowledge of such counsel) to do
business as a foreign corporation, partnership, limited
liability company or trust, as the case may be, and is in good
standing (if applicable) under the laws of each jurisdiction
which requires such qualification (except where the failure to
so qualify would not have, individually or in the aggregate,
in a Material Adverse Effect);
- ----------------
(1) Opinions to be split as appropriate.
-14-
(ii) all the outstanding shares of capital stock or
outstanding interests of the Issuer and the Company and, to
the best knowledge of such counsel, each Subsidiary of the
Company have been duly and validly authorized and issued and
are fully paid and nonassessable, and, except as otherwise set
forth in the Final Memorandum, all outstanding shares of
capital stock or outstanding interests of the Subsidiaries are
owned by the Company 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;
(iii) the Company's authorized equity capitalization
is as set forth in the Final Memorandum;
(iv) the Indenture has been duly authorized, executed
and delivered, and (assuming due authorization, execution and
delivery by the Trustee) constitutes a legal, valid and
binding instrument enforceable against the Issuer and the
Guarantors in accordance with its terms (subject, as to the
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to
general principles of equity); the Securities have been duly
and validly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture (assuming due
authorization, execution and delivery by the Trustee) and
delivered to and paid for by the Initial Purchasers under this
Agreement, will constitute legal, valid, binding and
enforceable obligations of the Issuer and the Guarantors
entitled to the benefits of the Indenture (subject, as to the
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to
general principles of equity); the Registration Rights
Agreement has been duly authorized, executed and delivered and
(assuming the due authorization, execution and delivery by the
Initial Purchasers) constitutes the legal, valid, binding and
enforceable instrument of the Issuer and the Guarantors
(subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other
laws affecting creditors' rights generally from time to time
in effect and to general principles of equity); and the
Securities, the Indenture and the Registration Rights
Agreement conform in all material respects to the descriptions
thereof in the Final Memorandum;
(v) based solely upon review of certificates executed
by an officer or officers of the Issuer and the Company, to
the extent of the actual knowledge of such counsel, there is
no pending or threatened action, suit or proceeding by or
-15-
before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its
Subsidiaries that is not adequately disclosed in the Final
Memorandum, except in each case for such proceedings that, if
the subject of an unfavorable decision, ruling or finding
would not have, individually or in the aggregate, in a
Material Adverse Effect; and the information in the Final
Memorandum under the heading "Certain United States Federal
Income Tax Considerations," insofar as such information
constitutes matters of law, summaries of legal matters or
legal conclusions, has been reviewed by such counsel and is
correct in all material respects;
(vi) this Agreement has been duly authorized,
executed and delivered by each of the Issuer and the
Guarantors;
(vii) the Issuer and the Guarantors have all
requisite corporate power and authority, has taken all
requisite corporate action, and has received and is in
compliance with all governmental, judicial and other
authorizations, approvals and orders, if any, necessary to
enter into and perform this Agreement, the Indenture, the
Registration Rights Agreement and the Securities, and no
consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection
with the transactions contemplated herein or in the Indenture
and the Registration Rights Agreement, except such as will be
obtained under the Act and the Trust Indenture Act and such as
may be required under the blue sky or securities laws of any
jurisdiction in connection with the purchase and sale of the
Securities by the Initial Purchasers (as to which such counsel
need express no opinion) in the manner contemplated in this
Agreement and the Final Memorandum and the Registration Rights
Agreement and such other approvals (specified in such opinion)
as have been obtained;
(viii) none of the execution and delivery of the
Indenture, this Agreement or the Registration Rights
Agreement, the issue and sale of the Securities, or the
consummation of any other of the transactions herein or
therein contemplated, nor the fulfillment of the terms hereof
or thereof will conflict with, result in a breach or violation
of, or constitute a default under, (i) the charter, by-laws or
other organization documents of the Company or its
Subsidiaries; (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement
or other agreement, obligation, condition, covenant or
instrument to which the Issuer, the Company or any of the
Subsidiaries is a party or bound and is known to such counsel;
or (iii) any statute, law, rule, regulation, judgment, order
or decree applicable to the Issuer, the Company or any of the
Subsidiaries of any court, regulatory body, administrative
-16-
agency, governmental body, arbitrator or other authority
having jurisdiction over the Issuer, the Company or any of the
Subsidiaries (except in the cases of clauses (ii) and (iii)
for such conflicts, breaches, defaults or violations that
would not have, individually or in the aggregate, in a
Material Adverse Effect);
(ix) assuming the accuracy of the representations and
warranties and compliance with the agreements contained
herein, no registration of the Securities under the Act, and
no qualification of an indenture under the Trust Indenture
Act, are required for the offer and sale by the Initial
Purchasers of the Securities in the manner contemplated by
this Agreement; and
(x) none of the Issuer or the Guarantors is and,
after giving effect to the offering and sale of the Securities
and the application of the proceeds thereof as described in
the Final Memorandum, none will be an "investment company" as
defined in the Investment Company Act without taking account
of any exemption arising out of the number of holders of the
Issuer's or the Guarantors' securities.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the jurisdiction of incorporation of the Issuer or the Guarantors,
the State of New York or the Federal laws 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 satisfactory to counsel for the Initial Purchasers; and (B) as
to matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Issuer or the Guarantors and public
officials. References to the Final Memorandum in this Section 5(a)
include any amendment or supplement thereto at the Closing Date. Such
opinion shall state that no facts have come to the attention of such
counsel which leads such counsel to believe that either the Preliminary
Memorandum or the Final Memorandum, as of their respective dates and
the Final Memorandum as of the Closing Date, 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 the light of the circumstances under which they were made,
not misleading; provided, further, that such counsel need not express
any comment with respect to the financial statements, including the
notes thereto and supporting schedules, the Management's Discussion and
Analysis of Financial Condition and Results of Operations or any other
financial or statistical data set forth, incorporated in or referred to
in either the Preliminary Memorandum or the Final Memorandum.
(b) The Representatives shall have received from Cahill Gordon
& Reindel, counsel for the Initial Purchasers, such opinion or
opinions, dated the Closing Date and addressed to the Representatives,
-17-
with respect to the issuance and sale of the Securities, the Indenture,
the Registration Rights Agreement, the Final Memorandum (as amended or
supplemented at the Closing Date) (it being understood that such
counsel need not express any comment with respect to the financial
statements, including the notes thereto, or any other financial data
that is found in or derived from the internal accounting or other
records of the Company and its subsidiaries set forth or referred to in
the Final Memorandum) and other related matters as the Representatives
may reasonably require, and the Issuer and the Guarantors shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(c) The Issuer and the Company shall have furnished to the
Representatives a certificate of the Issuer and the Company, signed by
the President or an Executive or Senior Vice President and the
principal financial or accounting officer of each of the Issuer and the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Final Memorandum, any amendment
or supplement to the Final Memorandum and this Agreement and that:
(i) the representations and warranties of the Issuer
and the Guarantors 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 each of the
Issuer and the Guarantors has complied with all the agreements
and satisfied all the conditions on its part to be performed
or satisfied hereunder at or prior to the Closing Date; and
(ii) since the date of the most recent financial
statements included in the Final Memorandum (exclusive of any
amendment or supplement thereto), there has been no Material
Adverse Change, whether or not arising from transactions in
the ordinary course of business, except as set forth in or
contemplated by the Final Memorandum (exclusive of any
amendment or supplement thereto).
(d) At the Closing Date, the Company shall have requested and
caused Ernst & Young LLP to furnish to the Representatives a letter,
dated as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the applicable
rules and regulations thereunder, that they have performed a review of
the unaudited interim financial information of the Company for the
nine-month period ended July 31, 2002 and as at July 31, 2002
-18-
(i) in their opinion the audited financial statements
and financial statement schedules incorporated in the Final
Memorandum and reported on by them comply as to form in all
material respects with the applicable accounting requirements
of the Exchange Act and the related published rules and
regulations thereunder;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries; their limited review in accordance with
the standards established under Statement on Auditing
Standards No. 71, of the unaudited interim financial
information for the nine-month period ended July 31, 2002 and
as at July 31, 2002 as indicated in their report incorporated
in the Final Memorandum; 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, the board directors and all
committees of the board of directors of the Company and its
subsidiaries; and inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions
and events subsequent to October 31, 2001 nothing came to
their attention which caused them to believe that:
(1) any unaudited consolidated financial
statements incorporated in the Final Memorandum do
not comply in form in all material respects with
applicable accounting requirements 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
Final Memorandum; or
(2) with respect to the period subsequent to
July 31, 2002, at a specified date not more than five
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 the Company and
its subsidiaries or any decreases in the total
consolidated assets of the Company and its
subsidiaries as compared with the amounts shown on
the July 31, 2002 consolidated balance sheet
incorporated in the Final Memorandum, or for the
period from August 1, 2002 to such specified date
there were any decreases, as compared with April 30,
2002, in income before income taxes, in consolidated
-19-
net revenues or income before income taxes or in
total or per share amounts of net income of the
Company and its subsidiaries, except in all instances
for changes or decreases set forth in such letter, in
which case the letter shall be accompanied by an
explanation by the Company as to the significance
thereof unless said explanation is not deemed
necessary by the Representatives; or
(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 the
Company and its subsidiaries) set forth in the Final
Memorandum, including the information set forth under the
captions "Selected Consolidated Financial Information and
Operating Data" in the Final Memorandum, the information
included or incorporated in Items 1, 2, 6, 7 and 11 of the
Company's Annual Report on Form 10-K for the fiscal year ended
October 31, 2001, as amended, incorporated in the Final
Memorandum and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated in the Company's
Quarterly Reports on Form 10-Q, incorporated for the fiscal
quarters ended July 31, 2002, April 30, 2002 and July 31, 2002
in the Final Memorandum and the information included in the
Company's Current Reports on Form 8-K filed with the
Commission on July 2, 2002 and November 15, 2002 agrees with
the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation.
References to the Final Memorandum in this Section 5(d)
include any amendment or supplement thereto at the date of the
applicable letter.
(e) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Final Memorandum (exclusive of
any amendment or supplement thereto), there shall not have been (i) any
change or decrease specified in the letter referred to in paragraph (d)
of this Section 5; or (ii) any Material Adverse Change, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Final Memorandum (exclusive of any
amendment or supplement thereto) the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the sole judgment of
the Representatives, so material and adverse as to make it impractical
or inadvisable to market the Securities as contemplated by the Final
Memorandum (exclusive of any amendment or supplement thereto).
-20-
(f) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the debt securities of Toll
Corp. by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act) or any notice
given of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction
of the possible change.
(g) Prior to the Closing Date, the Issuer and the Guarantors
shall have furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Initial Purchasers,
this Agreement and all obligations of the Initial Purchasers hereunder may be
canceled at, or at any time prior to, the Closing Date by the Representatives.
Notice of such cancellation shall be given to the Issuer and the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 5 will be
delivered at the office of counsel for the Initial Purchasers, at 80 Pine
Street, New York, New York 10005, on the Closing Date.
6. Reimbursement of Expenses. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the
Initial Purchasers set forth in this Section 5 hereof is not satisfied, because
of any termination pursuant to Section 9 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Initial Purchasers, the Issuer and the Company will reimburse the Initial
Purchasers severally through Salomon Smith Barney on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
7. Indemnification and Contribution. (a) Each of the Issuer and the
Guarantors agrees to indemnify and hold harmless each Initial Purchaser, the
directors, officers, employees and agents of each Initial Purchaser and each
person who controls any Initial Purchaser within the meaning of either the Act
or the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
-21-
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Preliminary Memorandum, the Final Memorandum (or in any supplement or amendment
thereto) or any information provided by the Issuer or any of the Guarantors to
any holder or prospective purchaser of Securities pursuant to Section 5(h), or
in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Issuer and the Guarantors will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made in the Preliminary Memorandum or the Final Memorandum, or
in any amendment thereof or supplement thereto, in reliance upon and in
conformity with written information furnished to the Issuer or any of the
Guarantors by or on behalf of any Initial Purchasers through the Representatives
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Issuer and the Guarantors may otherwise have.
(b) Each Initial Purchaser severally and not jointly agrees to
indemnify and hold harmless the each of the Issuer and the Guarantors, each of
its directors, each of its officers, and each person who controls the Issuer and
the Guarantors within the meaning of either the Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Issuer and the Guarantors to
each Initial Purchaser, but only with reference to written information relating
to such Initial Purchaser furnished to the Issuer and the Guarantors by or on
behalf of such Initial Purchaser through the Representatives specifically for
inclusion in the Preliminary Memorandum or the Final Memorandum (or in any
amendment or supplement thereto). This indemnity agreement will be in addition
to any liability which any Initial Purchaser may otherwise have. The Issuer and
the Guarantors acknowledge that the statements set forth in the last paragraph
of the cover page regarding the delivery of the Securities and paragraph 6 under
the heading "Plan of Distribution" in the Preliminary Memorandum and the Final
Memorandum, constitute the only information furnished in writing by or on behalf
of the Initial Purchasers for inclusion in the Preliminary Memorandum or the
Final Memorandum (or in any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
-22-
indemnifying party of substantial rights and defenses; and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. An indemnifying party may participate in its own expense in
the defense of any action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying parties be
liable for the fees and expenses or 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.
An indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 7 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Issuer and the Guarantors and the Initial Purchasers
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Issuer or
the Guarantors and one or more of the Initial Purchasers may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and by the Initial Purchasers on the other from the
offering of the Securities; provided, however, that in no case shall any Initial
Purchaser (except as may be provided in any agreement among the Initial
Purchasers relating to the offering of the Securities) be responsible for any
amount in excess of the purchase discount or commission applicable to the
Securities purchased by such Initial Purchaser hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the Issuer and the Guarantors and the Initial Purchasers shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Issuer and the Guarantors on the one hand and of
the Initial Purchasers on the other in connection with the statements or
omissions which resulted in such Losses, as well as any other relevant equitable
considerations. Benefits received by the Issuer and the Guarantors shall be
deemed to be equal to the total net proceeds from the offering (before deducting
-23-
expenses) received by it, and benefits received by the Initial Purchasers shall
be deemed to be equal to the total purchase discounts and commissions in each
case set forth on the cover of the Final Memorandum. Relative fault shall be
determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Issuer and the
Guarantors on the one hand or the Initial Purchasers on the other, the intent of
the parties and their relative knowledge, information and opportunity to correct
or prevent such untrue statement or omission. The Issuer and the Guarantors and
the Initial Purchasers agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person 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 guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person who
controls an Initial Purchaser within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an Initial
Purchaser shall have the same rights to contribution as such Initial Purchaser,
and each person who controls any of the Issuer and the Guarantors within the
meaning of either the Act or the Exchange Act and each officer and director of
the Issuer and the Guarantors shall have the same rights to contribution as the
Issuer and the Guarantors, subject in each case to the applicable terms and
conditions of this paragraph (d).
8. Default by an Initial Purchaser. If any one or more Initial
Purchasers shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Initial Purchaser hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Initial Purchasers shall be obligated severally to take
up and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Initial Purchasers)
the Securities which the defaulting Initial Purchaser or Initial Purchasers
agreed but failed to purchase; provided, however, that in the event that the
aggregate amount of Securities which the defaulting Initial Purchaser or Initial
Purchasers agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule I hereto, the remaining Initial
Purchasers shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such nondefaulting Initial
Purchasers do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Initial Purchaser or the Issuer and the
Guarantors. In the event of a default by any Initial Purchaser as set forth in
this Section 8, the Closing Date shall be postponed for such period, not
exceeding five Business Days, as the Representatives shall determine in order
that the required changes in the Final Memorandum or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Initial Purchaser of its liability, if any, to the Issuer and the
Guarantors or any nondefaulting Initial Purchaser for damages occasioned by its
default hereunder.
-24-
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Issuer and
the Company prior to delivery of and payment for the Securities, if at any time
prior to such time (i) trading in the Company's Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange, or the NASDAQ National Market shall have been suspended or limited or
minimum prices shall have been established on such exchanges or the NASDAQ
National Market; (ii) a banking moratorium shall have been declared either by
Federal or New York State authorities; (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war, or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of the
Representatives, impracticable or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Final Memorandum (exclusive of
any amendment or supplement thereto); or (iv) since the respective dates as of
which information is given in the Preliminary Memorandum and the Final
Memorandum, there has been a Material Adverse Change.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Issuer and the Guarantors or their respective officers and of the Initial
Purchasers set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of the
Initial Purchasers or the Issuer and the Guarantors or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections 6
and 7 hereof shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Salomon Smith Barney General Counsel (fax no.:
(212) 816-7912) and confirmed to the General Counsel, Salomon Smith Barney at
388 Greenwich Street, New York, New York 10013, Attention: General Counsel; or,
if sent to the Issuer and the Company, will be mailed, delivered or telefaxed to
Toll Brothers Finance Corp./Toll Brothers, Inc. Chairman of the Board and Chief
Executive Officer (fax no.: 215-938-8255) and confirmed to it 3103 Philmont
Avenue, Huntington Valley, Pennsylvania 19006, Attention: Robert I. Toll,
Chairman of the Board and Chief Executive Officer.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and,
except as expressly set forth in Section 4(h) hereof, no other person will have
any right or obligation hereunder.
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13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
15. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
16. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Affiliate" shall have the meaning specified in Rule 501(b) of
Regulation D.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in The City of New York.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean, the date and time that this Agreement is
executed and delivered by the parties hereto.
"Investment Company Act" shall mean the Investment Company Act of 1940,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Regulation D" shall mean Regulation D under the Act.
"Salomon Smith Barney" shall mean Salomon Smith Barney Inc.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Agreement and your acceptance shall represent a binding agreement
among the Issuer, Company and the several Initial Purchasers.
Very truly yours,
TOLL BROTHERS FINANCE CORP.,
As Issuer
By: /s/ Kenneth J. Gary
Name: Kenneth J. Gary
Title: Senior Vice President
TOLL BROTHERS, INC.,
As a Guarantor
By: /s/ Kenneth J. Gary
Name: Kenneth J. Gary
Title: Senior Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
SALOMON SMITH BARNEY INC.
BANC OF AMERICA SECURITIES LLC
BANC ONE CAPITAL MARKETS, INC.
By: Salomon Smith Barney Inc.
By: /s/ Richard L. Moriarty
Name: Richard L. Moriarty
Title: Managing Director
For themselves and the other several Initial
Purchasers named in Schedule I to the foregoing Agreement.
SCHEDULE I
Principal Amount of
Notes
Initial Purchasers to Be Purchased
------------------ --------------------
Salomon Smith Barney Inc. ................................... $117,000,000
Banc of America Securities LLC............................... 99,000,000
Banc One Capital Markets, Inc. .............................. 45,000,000
Wachovia Securities ......................................... 15,000,000
BNP Paribas Securities Corp. ................................ 6,000,000
Comerica Securities, Inc. ................................... 6,000,000
Credit Lyonnais Securities (USA) Inc. ....................... 6,000,000
SunTrust Capital Markets, Inc. .............................. 6,000,000
------------
Total............................................... $300,000,000
SCHEDULE II
SUBSIDIARY STATE/DATE FORMED
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Corporations
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Toll Holdings, Inc. DE-08/01/89
Amwell Chase, Inc. DE-03/23/89
BBCC Investments, Inc. PA-08/12/00
Bunker Hill Estates, Inc. DE-11/21/88
Chesterbrooke, Inc. DE-08/24/87
Connecticut Land Corp. DE-11/10/88
Daylesford Development Corp. DE-12/02/87
Eastern States Engineering, Inc. DE-10/22/86
Fairway Valley, Inc. DE-10/22/86
First Brandywine Finance Corp. DE-06/30/93
First Brandywine Investment Corp. II DE-06/28/93
First Brandywine Investment Corp. III DE-08/31/95
First Brandywine Management Del. Corp. DE-09/28/95
First Huntingdon Finance Corp. DE-07/14/87
Franklin Farms G.P., Inc. DE-09/30/87
MA Limited Land Corporation DE-08/08/88
Maple Point, Inc. DE-03/20/89
Maryland Limited Land Corporation DE-11/25/87
Polekoff Farm, Inc. PA-06/30/86
Springfield Chase, Inc. DE-12/22/88
Stewarts Crossing, Inc. DE-02/17/89
TB Proprietary Corp. DE-07/14/87
TB Proprietary LP, Inc. DE-10/31/00
Tenby Hunt, Inc. DE-04/02/92
Toll AZ GP Corp. DE-07/26/95
Toll Bros., Inc. PA-06/30/86
Toll Bros., Inc. DE-01/01/90
Toll Bros. of Tennessee, Inc. DE-11/12/98
Toll Brothers Real Estate, Inc. PA-03/13/86
Toll Corp. DE-07/14/87
Toll Land Corp. No. 6 PA-06/30/86
Toll Land Corp. No. 10 DE-03/20/89
Toll Land Corp. No. 20 DE-03/20/89
Toll Land Corp. No. 43 DE-06/30/93
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Toll Land Corp. No. 45 DE-06/30/93
Toll Land Corp. No. 46 DE-06/30/93
Toll Land Corp. No. 47 DE-06/30/93
Toll Land Corp. No. 48 DE-08/28/96
Toll Land Corp. No. 49 DE-08/28/96
Toll Land Corp. No. 50 DE-08/28/96
Toll Land Corp. No. 51 DE-09/10/97
Toll Land Corp. No. 52 DE-09/10/97
Toll Land Corp. No. 53 DE-10/01/98
Toll Land Corp. No. 55 DE-10/01/98
Toll Land Corp. No. 56 DE-10/01/98
Toll Land Corp. No. 58 DE-10/23/01
Toll Land Corp. No. 59 DE-10/23/01
Toll Land Corp. No. 60 DE-10/23/01
Toll Naval Associates PA-07/01/86
Toll Management VA Corp. DE-10/30/98
Toll PA GP Corp. PA-05/19/92
Toll PA II GP Corp. PA-1/29/02
Toll Philmont Corporation DE-09/16/88
Toll Realty Holdings Corp. I DE 03/11/98
Toll Realty Holdings Corp. II DE-03/11/98
Toll Realty Holdings Corp. III DE-03/11/98
Toll Special Realty Corp. DE-3/12/98
Toll Turf, Inc. DE-10/04/99
Toll TX GP Corp. DE-11/01/94
Toll VA GP Corp. DE-03/20/89
Toll VA Member Two, Inc. DE-10/30/98
Toll Wood Corporation DE-11/09/88
Valley Forge Conservation Holding GP Corp. PA-3/18/02
Warren Chase, Inc. DE-07/01/88
Westminster Abstract Company PA-01/22/92
Westminster Insurance Agency, Inc. PA-06/24/98
Westminster Mortgage Corporation DE-06/06/88
Windsor Development Corp. PA-07/31/86
Limited Partnerships
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Advanced Broadband, L.P. DE-10/04/99
Advanced Broadband, L.P. PA-12/09/99
Afton Chase, L.P. PA-02/15/94
Audubon Ridge, L.P. PA-12/30/91
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BBCC Golf, L.P. PA-02/25/92
BBCC Investments, LP PA-08/12/00
Beaumont Chase, L.P. PA-06/24/97
Belmont Land, L.P. VA-02/01/95
Blue Bell Country Club, L.P. PA-12/18/91
Brandywine River Estates, L.P. PA-12/21/95
Bridle Estates, L.P. PA-04/30/96
Broad Run Associates, L.P. PA-10/16/98
Buckingham Woods, L.P. PA-06/09/92
Bucks County Country Club, L.P. PA-01/23/97
Cobblestones at Thornbury, L.P. PA-03/17/94
Cold Spring Hunt, L.P. PA-10/20/92
Concord Chase, L.P. PA-04/24/97
Dolington Estates, L.P. PA-03/17/94
Edmunds-Toll Limited Partnership AZ-07/28/95
Estates at Autumnwood, L.P. DE-11/06/92
First Brandywine Partners, L.P. DE-10/30/98
Greens at Waynesborough, L.P. PA-09/27/93
Hockessin Chase, L.P. DE-01/16/98
Knolls of Birmingham, L.P. PA-07/19/96
Lakeridge, L.P. Partnership PA-9/27/93
Marshallton Chase, L.P. PA-07/17/96
Mill Road Estates, L.P. PA-05/04/94
Northampton Crest, L.P. PA-09/05/97
Northampton Preserve, L.P. PA-05/07/97
Providence Hunt, L.P. PA-01/28/92
River Crossing, L.P. PA-04/30/96
Rose Hollow Crossing Associates PA-12/16/80
Rose Tree Manor, L.P. PA-09/10/92
Springton Pointe, L.P. PA-05/04/95
Stone Mill Estates, L.P. PA-08/31/99
Stoney Ford Estates, L.P. PA-01/30/97
Swedesford Chase, L.P. PA-12/11/97
TB Proprietary, L.P. DE-10/31/00
Tenby Hunt, L.P. DE-04/02/92
Thornbury Knoll, L.P. PA-12/05/91
Toll Brothers Realty LP DE-3/13/98
Toll Brothers Realty Parallel LP DE-01/02/01
Toll CA II, L.P. CA-11/21/95
Toll CA III, L.P. CA-01/04/01
Toll Land XXVII Limited Partnership DE-02/16/99
Toll PA, L.P. PA-11/01/95
Toll PA II, L.P. PA-11/02/00
Toll PA III, L.P. PA-10/12/01
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Toll PA IV, L.P. PA-10/12/01
Toll PA V, L.P. PA-1/29/02
Toll PA VI, L.P. PA-3/25/02
Toll PA VII, L.P. PA-10/16/02
Toll Realty Holdings LP DE-3/12/98
Toll Reston Associates, L.P. DE-09/08/99
Uwchlan Woods, L.P. PA-02/28/96
Valley Forge Conservation Holding, L.P. PA-3/25/02
Valley Forge Woods, L.P. PA-09/10/92
Walton Road Associates, L.P. PA-1/7/99
Warwick Greene, L.P. PA-02/05/98
Warwick Woods, L.P. PA-03/05/96
Whiteland Woods, L.P. PA-09/27/95
Willowdale Crossing, L.P. PA-08/21/96
Wrightstown Hunt, L.P. PA-12/06/95
Yardley Estates, L.P. PA-06/24/92
Limited Liability Companies
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Buckwalter JV, LLC DE-09/27/01
C.B.A.Z. Holding Company LLC DE-10/30/98
First Brandywine LLC I DE-10/28/99
First Brandywine LLC II DE-10/28/99
HOA Broadband I, LLC DE-09/06/01
HOA Broadband I, LLC PA-09/17/01
HOA Broadband II, LLC DE-09/06/01
Integrity Management Services LLC PA-1/17/02
RiverCrest Sewer Company, LLC PA-04/22//02
STBI-Warrenton, LLC DE-05/24/02
Toll Equipment, L.L.C. DE-01/19/00
Toll Landscape, L.L.C. DE-05/15/00
Toll Landscape, L.L.C. PA-06/05/00
Toll Nursery, L.L.C. DE-05/15/00
Toll Nursery, L.L.C. PA-06/05/00
Toll Reston Associates, L.L.C. DE-09/08/99
Toll Technology Investments, L.L.C. DE-03/24/00
Toll Turf Management, L.L.C. DE-05/15/00
Toll Turf Management, L.L.C. PA-06/05/00
Toll VA L.L.C. DE-10/30/98
Town Suites LLC PA-5/24/01
Toll Brothers Realty Pennsylvania, L.L.C. DE-1/7/99
Toll Realty Operating VIC LLC PA-3/12/98
Toll Realty Operating VIP LLC PA-3/12/98
Toll Trust Parallel LLC DE-12/27/01