Exhibit 4.17
BEAZER HOMES USA, INC.
$100,000,000 8 7/8% Senior Notes due 2008
PURCHASE AGREEMENT
March 20, 1998
SBC WARBURG DILLON READ INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
SALOMON SMITH BARNEY
as Initial Purchasers
c/o SBC Warburg Dillon Read Inc.
535 Madison Avenue
New York, New York 10022
Dear Sirs:
Beazer Homes USA, Inc. (the "Company"), a Delaware corporation,
proposes to issue and sell to SBC Warburg Dillon Read Inc., Donaldson, Lufkin &
Jenrette Securities Corporation and Salomon Smith Barney (the "Initial
Purchasers") $100,000,000 aggregate principal amount of its 8 7/8% Senior Notes
due 2008 (the "Notes"). The Notes will be issued pursuant to an indenture (the
"Indenture"), to be dated the Closing Date (as defined below), by and among the
Company, the guarantors listed on the signature pages hereto (collectively, the
"Guarantors") and First Trust National Association, as trustee (the "Trustee").
The Company's obligations under the Notes and the Exchange Notes (as defined
below) will be unconditionally guaranteed on an unsecured basis by each of the
Guarantors pursuant to each of their guarantees (the "Guarantees") and the Notes
and the Guarantees will rank pari passu with the Company's $115,000,000 9%
Senior Notes due 2004 (the "2004 Notes") and the guarantees of the 2004 Notes,
respectively. All references herein to the Notes or the Exchange Notes include
the related guarantees, unless the context otherwise requires. Capitalized terms
used but not
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otherwise defined herein shall have the meanings given to such terms in the
Indenture or the Offering Memorandum (as defined below).
The Notes will be offered and sold to the Initial Purchasers (the
"Offering") pursuant to an exemption from the registration requirements under
the Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Act"). The Company has prepared a preliminary offering
memorandum, dated March 10, 1998 (the "Preliminary Offering Memorandum"), and a
final offering memorandum, dated and available for distribution on the date
hereof (the "Offering Memorandum"), relating to the Company, the Guarantors and
the Notes.
The Initial Purchasers have advised the Company that the Initial
Purchasers intend, as soon as they deem advisable after this Purchase Agreement
has been executed and delivered, to resell (the "Exempt Resales") the Notes
purchased by the Initial Purchasers under this Purchase Agreement (this
"Agreement") in private sales exempt from registration under the Act on the
terms set forth in the Offering Memorandum, as amended or supplemented, solely
to (i) persons whom the Initial Purchasers reasonably believe to be "qualified
institutional buyers," as defined in Rule 144A under the Act ("QIBs"), in
compliance with Rule 144A and (ii) other eligible purchasers pursuant to offers
and sales that occur outside the U.S. within the meaning of Regulation S under
the Act ("Regulation S"); the persons specified in clauses (i)-(ii) are
sometimes collectively referred to herein as the "Eligible Purchasers."
Holders (including subsequent transferees) of the Notes will have
the registration rights set forth in the registration rights agreement (the
"Registration Rights Agreement"), to be dated the Closing Date, substantially in
the form of Exhibit A to this Agreement, for so long as such Notes constitute
"Transfer Restricted Securities" (as defined in the
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Registration Rights Agreement). Pursuant to the Registration Rights Agreement,
the Company and the Guarantors will agree to (A) file with the Securities and
Exchange Commission (the "Commission"), under the circumstances set forth in the
Registration Rights Agreement, (i) a registration statement under the Act (the
"Exchange Offer Registration Statement") relating to the Company's 8 7/8% Senior
Notes due 2008 to be offered in exchange (the "Exchange Notes") for the Notes
(the "Exchange Offer") and/or (ii) a shelf registration statement pursuant to
Rule 415 under the Act (the "Shelf Registration Statement" and, together with
the Exchange Offer Registration Statement, the "Registration Statements")
relating to the resale by certain holders of the Notes, and (B) use their best
efforts to cause such Registration Statements to be declared effective as soon
as practicable. This Agreement, the Notes, the Exchange Notes, the Indenture and
the Registration Rights Agreement are hereinafter sometimes referred to
collectively as the "Operative Documents."
Upon original issuance of the Notes and until such time as the same
is no longer required under the applicable requirements of the Act, the Notes
shall bear the legend provided in the Offering Memorandum.
The net proceeds from the Offering will be used by the Company to
repay indebtedness outstanding under its Credit Facility (as defined in the
Preliminary Offering Memorandum) and to pay any related fees and expenses in
connection therewith.
The Company, each of the Guarantors, and the Initial Purchasers
agree as follows:
1. SALE AND PURCHASE. Upon the basis of the representations,
warranties and covenants contained in this Agreement, and subject to the other
terms and conditions herein set forth, the Company agrees to issue and sell to
the Initial
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Purchasers, and the Initial Purchasers agree to purchase from the Company, the
aggregate principal amount of the Notes set forth opposite the name of such
Initial Purchaser on Exhibit B hereto. The purchase price for the Notes shall be
96.933% of their principal amount. The Company shall cause each Guarantor to
unconditionally guarantee on an unsecured basis by such Guarantor the Company's
obligations under the Notes and the Exchange Notes.
2. PAYMENT AND DELIVERY. Payment of the purchase price for the Notes
shall be made to the Company by wire transfer of immediately available funds, to
an account of the Company designated by the Company at least two business days
prior to the payment date, against delivery of the certificates for the Notes
for the account of the Initial Purchasers. Delivery of, and payment of the
purchase price for, the Notes shall be made at 9:00 a.m., New York City time, on
the third business day following the date of this Agreement (the "Closing Date")
at the offices of Cahill Gordon & Reindel, 80 Pine Street, New York, New York
10005. The Closing Date, and the location of delivery of, and the form of
payment for, the Notes may be varied by mutual agreement between the Initial
Purchasers and the Company.
One or more of the Notes in global form or certificated form, as the
case may be, registered in such names as the Initial Purchasers may request upon
at least one business day's notice prior to the Closing Date, having an
aggregate principal amount corresponding to the aggregate principal amount of
the Notes sold pursuant to Exempt Resales to QIBs, in the case of the Notes in
global form, and to other Eligible Purchasers, in the case of Notes in
certificated form sold pursuant to Regulation S, shall be delivered by the
Company to the Initial Purchasers (or as the Initial Purchasers direct), against
payment by the Initial Purchasers of the purchase price therefor by means of
transfer of immediately available funds (including book transfer) reasonably
acceptable
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to the Initial Purchasers and the Company to the order of the Company. The Notes
in global form shall be made available to the Initial Purchasers for inspection
not later than 9:30 a.m. on the business day immediately preceding the Closing
Date.
3. AGREEMENTS OF THE ISSUERS. The Company and the Guarantors
covenant and agree with the Initial Purchasers as follows:
(a) To furnish such information as may be required and otherwise to
cooperate with the Initial Purchasers and counsel to the Initial
Purchasers in qualifying the Notes and Exchange Notes for offering and
sale under the securities or blue sky laws of such jurisdictions as the
Initial Purchasers may request and to maintain such qualification in
effect so long as required by such laws for the Exempt Resales, provided
that neither the Company nor any Guarantor shall be required to qualify as
a foreign corporation in any jurisdiction in which it is not so qualified
or to file a general consent to service of process in any such
jurisdiction or subject itself to taxation in any jurisdiction in which it
is not then so subject (except service of process with respect to the
offering and sale of the Notes and Exchange Notes); and to promptly advise
the Initial Purchasers of the receipt by the Company or any Guarantor of
any notification with respect to the suspension of the qualification of
the Notes or Exchange Notes for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose.
(b) To furnish the Initial Purchasers and those persons identified
by the Initial Purchasers, without charge, with such number of copies of
the Preliminary Offering Memorandum and the Offering Memorandum, and any
amendments or supplements thereto, as the Initial Purchasers may
reasonably request for purposes
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contemplated by the Act. The Company consents to the use of the
Preliminary Offering Memorandum and the Offering Memorandum, and any
amendments and supplements thereto required pursuant to this Agreement, by
the Initial Purchasers in connection with Exempt Resales that are in
compliance with Section 4(B) of this Agreement.
(c) From and after the Closing Date, for so long as any of the Notes
remain outstanding, to deliver without charge to the Initial Purchasers,
promptly upon their becoming available, copies of (i) all reports and
other communications (financial or otherwise) that the Company shall mail
or otherwise make available to its securityholders, (ii) all reports or
financial statements furnished to or filed by the Company and each of the
Guarantors with the Commission or any national securities exchange and
(iii) such other information as the Initial Purchasers may reasonably
request regarding the Company or the Subsidiaries.
(d) To advise the Initial Purchasers promptly of the happening of
any event known to the Company prior to the Closing Date which, in the
judgment of the Company, would require the making of any change in the
Preliminary Offering Memorandum or the Offering Memorandum then being
used, so that the Preliminary Offering Memorandum or the Offering
Memorandum would not include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they are made, not misleading,
and, during such time, to prepare and furnish, at the Company's expense,
to the Initial Purchasers promptly such amendments or supplements to the
Preliminary Offering Memorandum or the Offering Memorandum as may be
necessary to reflect any such change and to furnish the Initial Purchasers
a copy of such proposed amendment or supplement. The Company shall
promptly prepare, upon the
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Initial Purchasers' reasonable request, any amendment or supplement to the
Offering Memorandum that may be necessary or advisable in connection with
Exempt Resales.
(e) To furnish to the Initial Purchasers as early as practicable
prior to the time of purchase, but not later than two business days prior
thereto, a copy of the latest available unaudited interim consolidated
financial statements, if any, of the Company and the Subsidiaries which
have been read by the Company's independent certified public accountants,
as stated in their letter to be furnished pursuant to Section 6(c) of this
Agreement.
(f) To apply the net proceeds from the sale of the Notes in the
manner set forth under the caption "Use of Proceeds" in the Offering
Memorandum.
(g) Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement becomes effective or is terminated, to
pay all costs, expenses, fees and taxes (other than any transfer taxes and
other than fees and disbursements of counsel to the Initial Purchasers,
except as may be required by clause (iv) below) incident to and in
connection with: (i) the preparation, printing, filing and distribution of
the Preliminary Offering Memorandum and the Offering Memorandum and all
amendments and supplements thereto, (ii) the preparation and delivery of
the Operative Documents and all other agreements, memoranda,
correspondence and documents prepared and delivered in connection with
this Agreement and with the Exempt Resales, (iii) the issuance, transfer
and delivery by the Company and the Guarantors of the Notes and the
Guarantees, respectively, to the Initial Purchasers, (iv) the
qualification or registration of the Notes for offer and sale under the
securities or Blue Sky laws of the several states (including, without
limitation, the
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cost of printing and mailing a preliminary and final Blue Sky memorandum
and the fees and disbursements of counsel to the Initial Purchasers
relating thereto), (v) the furnishing of such copies of the Preliminary
Offering Memorandum and the Offering Memorandum, and all amendments and
supplements thereto, as may be reasonably requested for use in connection
with Exempt Resales, (vi) the preparation of certificates for the Notes
and Exchange Notes (including, without limitation, printing and engraving
thereof), (vii) the application for eligibility of the Notes for trading
in the Private Offerings, Resales and Trading through Automated Linkages
("PORTAL") market of the National Association of Securities Dealers, Inc.
("NASD"), including, but not limited to, all application fees and
expenses, (viii) the approval of the Notes and Exchange Notes by The
Depository Trust Company ("DTC") for "book-entry" transfer, (ix) the
rating of the Notes and Exchange Notes by rating agencies, (x) the fees
and expenses of the Trustee and its counsel and (xi) the performance by
the Company and the Guarantors of their other obligations under the
Operative Documents, including, but not limited to, the fees,
disbursements and expenses of the Company's counsel and accountants.
(h) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act)
that would be integrated with the sale of the Notes in a manner that would
require the registration under the Act of the sale of the Notes to the
Initial Purchasers or any Eligible Purchasers.
(i) From and after the Closing Date, for so long as any of the Notes
remain outstanding and are "restricted securities" within the meaning of
Rule 144(a)(3) under the Act and during any period in which the Company is
not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), to make
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available the information required by Rule 144A(d)(4) under the Act to (i)
any holder or beneficial owner of Notes in connection with any sale of
such Notes and (ii) any prospective purchaser of such Notes from any such
holder or beneficial owner designated by the holder or beneficial owner.
(j) To comply with all of its agreements set forth in the
Registration Rights Agreement and all agreements set forth in the
representations letter of the Company to DTC relating to the approval of
the Notes by DTC for "book-entry" transfer.
(k) To use its best efforts to effect the eligibility of the Notes
for trading in the PORTAL market and to obtain approval of the Notes by
DTC for "book-entry" transfer.
(l) Not to distribute prior to the Closing Date any offering
material in connection with the offer and sale of the Notes other than the
Preliminary Offering Memorandum and the Offering Memorandum.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND GUARANTORS. (A)
The Company and each of the Guarantors represents and warrants to the Initial
Purchasers that:
(1) Each of the Preliminary Offering Memorandum and the Offering
Memorandum has been prepared in connection with the Exempt Resales.
Neither the Preliminary Offering Memorandum nor the Offering Memorandum,
or any supplement or amendment thereto, contains an untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no warranty or representation with respect
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to any statement made in reliance upon and in conformity with information
concerning the Initial Purchasers and furnished in writing by the Initial
Purchasers to the Company expressly for use in the Preliminary Offering
Memorandum or the Offering Memorandum. No order asserting that any of the
transactions contemplated by this Agreement are subject to the
registration requirements of the Act has been issued or threatened.
(2) As of the date of this Agreement, the Company has an authorized
capitalization as set forth under the heading entitled "Actual" in the
section of the Preliminary Offering Memorandum and the Offering Memorandum
entitled "Capitalization" and, as of the time of purchase, the Company
shall have an authorized capitalization as set forth under the heading
entitled "As Adjusted" in the section of the Preliminary Offering
Memorandum and the Offering Memorandum entitled "Capitalization"; all of
the issued and outstanding shares of Common Stock have been duly and
validly authorized and issued and are fully paid and nonassessable; the
Company has been duly incorporated and is validly existing as a
corporation in good standing under the law of the State of Delaware with
full corporate power and authority to own its properties and conduct its
business as described in the Preliminary Offering Memorandum and the
Offering Memorandum, to execute and deliver this Agreement and to issue,
sell and deliver the Senior Notes as herein contemplated.
(3) All of the issued and outstanding shares of the capital stock of
each of the Company's corporate subsidiaries (the "Corporate
Subsidiaries"), have been duly authorized and validly issued and are fully
paid and nonassessable and the partnership interests which the Company
owns in Beazer Homes Texas, L.P. (the "Partnership Subsidiary" and,
together with the Corporate Subsidiaries,
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the "Subsidiaries") have been duly authorized and validly issued and are
fully paid and non-assessable, and both the capital stock of the Corporate
Subsidiaries and the partnership interests in the Partnership Subsidiary
are owned by the Company free and clear of any pledge, lien, encumbrance,
security interest, preemptive right or other claim; except as described in
the Preliminary Offering Memorandum and the Offering Memorandum, there are
no outstanding rights, subscriptions, warrants, calls, options or other
agreements of any kind with respect to the capital stock or the
partnership interests of the Company or the Subsidiaries; the Company does
not own, directly or indirectly, shares of capital stock of any
corporation other than the Corporate Subsidiaries, or partnership
interests in any partnership other than the Partnership Subsidiary, except
that the Company does own a 40% interest in the Joint Venture Entity (as
defined in the Preliminary Offering Memorandum).
(4) Each of the Corporate Subsidiaries has been duly incorporated,
and the Partnership Subsidiary has been duly formed, and is validly
existing as a corporation, in the case of the Corporate Subsidiaries, or
as a limited partnership, in the case of the Partnership Subsidiary, in
good standing under the laws of its respective jurisdiction of
incorporation or formation with full corporate or partnership power, as
the case may be, and authority to own its respective properties and
conduct its respective business as described in the Preliminary Offering
Memorandum and the Offering Memorandum and to execute and deliver the
Indenture and the Guarantees.
(5) The Company and each of the Guarantors have all requisite
corporate and partnership power, as the case may be, and authority to
execute, deliver and perform all of their obligations under the Operative
Documents and to consummate the transactions contemplated by the Operative
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Documents and, without limitation, the Company has all requisite corporate
power and authority to issue, sell and deliver the Notes and each of the
Guarantors has all requisite corporate and partnership power, as the case
may be, and authority to execute, deliver and perform all of its
obligations under the Guarantees.
(6) The Company and each of the Subsidiaries are duly qualified or
licensed by and are in good standing in each jurisdiction in which the
nature of their respective businesses or their respective ownership or
leasing of their respective properties requires such qualification, except
where the failure, individually or in the aggregate, to be so licensed or
qualified and in good standing would not have a material adverse effect on
the properties, assets, prospects, operations, business or condition
(financial or otherwise) of the Company and the Subsidiaries taken as a
whole; and the Company and each of the Subsidiaries are in compliance in
all material respects with the laws, orders, rules and regulations issued
or administered by such jurisdictions.
(7) The Indenture has been duly authorized by each of the Company
and each of the Guarantors and, when executed and delivered by each of
them, will be a legal, valid and binding agreement of each enforceable in
accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance and fraudulent
transfer, reorganization, moratorium or similar laws relating to or
affecting creditors' rights generally and general principles of equity.
(8) The Notes have been duly authorized by the Company and the
Guarantees have been duly authorized by each of the Guarantors and, when
executed and authenticated in accordance with the terms of the
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Indenture and delivered to and paid for by you, the Notes will constitute
legal, valid and binding obligations of the Company and the Guarantees
will constitute legal, valid and binding obligations of each Guarantor, in
each case enforceable in accordance with their terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance and fraudulent transfer, reorganization, moratorium
or similar laws relating to or affecting creditors' rights generally and
general principles of equity.
(9) The Exchange Notes have been duly and validly authorized for
issuance by the Company and, when issued, authenticated and delivered by
the Company in accordance with the terms of the Exchange Offer and the
Indenture, the Exchange Notes will be legal, valid and binding obligations
of the Company, entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, except that
enforceability of the Exchange Notes may be limited by bankruptcy,
insolvency, fraudulent conveyance and fraudulent transfer, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity and the discretion of the
court before which any proceedings therefor may be brought. The Exchange
Notes, when issued, authenticated and delivered, will conform in all
material respects to the description thereof in the Offering Memorandum.
(10) The Guarantees have been duly and validly authorized by the
Guarantors and, when the Notes and Exchange Notes are executed and
delivered in accordance with the terms of the Indenture and the
Registration Rights Agreement, will be legal, valid and binding
obligations of the Guarantors, enforceable against each of them in
accordance with their respective terms, except that enforceability of the
Guarantees may be limited by
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bankruptcy, insolvency, fraudulent conveyance and fraudulent transfer,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity and the
discretion of the court before which any proceedings therefor may be
brought. The Guarantees, when executed and delivered, will conform in all
material respects to the description thereof in the Preliminary Offering
Memorandum and the Offering Memorandum.
(11) The Registration Rights Agreement has been duly and validly
authorized by the Company and each of the Guarantors and, when duly
executed and delivered by the Company and each of the Guarantors, will be
a legal, valid and binding agreement of the Company and each of the
Guarantors, enforceable against each of them in accordance with its terms,
except that (a) enforceability of the Registration Rights Agreement may be
limited by bankruptcy, insolvency, fraudulent conveyance and fraudulent
transfer, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general principles of
equity and the discretion of the court before which any proceedings
therefor may be brought and (b) any rights to indemnity or contribution
thereunder may be limited by federal and state securities laws and public
policy considerations. The Registration Rights Agreement will conform in
all material respects to the description thereof in the Preliminary
Offering Memorandum and the Offering Memorandum.
(12) Neither the Company nor any of the Subsidiaries is in breach
of, or in default under (nor has any event occurred which with notice,
lapse of time, or both would constitute a breach of, or default under),
its respective charter or by-laws or in the performance or observance of
any obligation, agreement, covenant or condition contained
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in any license, indenture, lease, mortgage, deed of trust, bank loan or
credit agreement or other agreement or instrument material to the conduct
of the business of the Company and the Subsidiaries, taken as a whole, to
which the Company or any of the Subsidiaries is a party or by which any of
them is bound, and the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby
will not conflict with, or result in any breach of or constitute a default
under (nor constitute any event which with notice, lapse of time, or both
would constitute a breach of, or default under), any provisions of the
charter or by-laws of the Company or any of the Subsidiaries or under any
provision of any license, indenture, lease, mortgage, deed of trust, bank
loan or credit agreement or other agreement or instrument to which the
Company or any of the Subsidiaries or any of their respective affiliates
is a party or by which the Company or any of the Subsidiaries or their
respective properties may be bound or affected, or under any federal,
state, local or foreign law, regulation or rule or any decree, judgment or
order applicable to the Company or any of the Subsidiaries or any of their
respective affiliates.
(13) This Agreement has been duly and validly authorized by the
Company and each of the Guarantors and, when duly executed and delivered
by the Company and each of the Guarantors, will be a legal, valid and
binding agreement of the Company and each of the Guarantors, enforceable
against each of them in accordance with its terms, except that (a)
enforceability of the Registration Rights Agreement may be limited by
bankruptcy, insolvency, fraudulent conveyance and fraudulent transfer,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity and the
discretion of the court before which any proceedings therefor may be
brought and
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(b) any rights to indemnity or contribution thereunder may be limited by
federal and state securities laws and public policy considerations.
(14) The Notes, the Guarantees and the Indenture conform in all
material respects to the descriptions thereof contained in the Preliminary
Offering Memorandum and the Offering Memorandum.
(15) No approval, authorization, consent or order of or filing with
any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency is required in connection
with the issuance and sale of the Notes, Exchange Notes and the Guarantees
as contemplated hereby, except such as have been or will be obtained and
made on or prior to the Closing Date (or, in the case of the Registration
Rights Agreement, will be obtained and made under the Act, the Trust
Indenture Act and state securities or Blue Sky laws and regulations).
(16) Each of the Company and the Subsidiaries has all necessary
permits, licenses, authorizations, consents and approvals and has made all
necessary filings required under any federal, state, local or foreign law,
regulation or rule, and has obtained all necessary authorizations,
consents and approvals from other persons, material to the conduct of its
respective business; neither the Company nor any of the Subsidiaries is in
violation of, or in default under, any such license, authorization,
consent or approval or any federal, state, local or foreign law,
regulation or rule or any decree, order judgment applicable to the Company
or any of the Subsidiaries the effect of which could have a material
adverse effect on the properties, assets, prospects, operations, business
or condition (financial or otherwise) of the Company and the Subsidiaries,
taken as a whole.
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(17) All legal or governmental proceedings, contracts or documents
of a character required to be described in the Preliminary Offering
Memorandum and the Offering Memorandum have been so described as required.
(18) Other than as described in the Preliminary Offering Memorandum
and the Offering Memorandum, there are no actions, suits or proceedings
pending or, to the Company's best knowledge, threatened against the
Company or any of the Subsidiaries or any of their respective properties,
at law or in equity, or before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or agency
which could result in a judgment, decree or order having a material
adverse effect on the properties, assets, prospects, operations, business
or conditions (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole.
(19) The audited and unaudited financial statements and information
incorporated by reference in the Preliminary Offering Memorandum and the
Offering Memorandum present fairly the consolidated financial position of
the Company and the Subsidiaries as of the dates indicated and the
consolidated results of operations and cash flows of the Company for the
periods specified, subject, in the case of such unaudited financial
statements, to normal year end adjustments; such financial statements have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved (except as
otherwise noted therein); and all adjustments to historical data made by
the Company in preparing the pro forma data were reasonable.
(20) Subsequent to the respective dates as of which information is
given in the Preliminary Offering
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Memorandum and the Offering Memorandum, and except as may be otherwise
stated in the Preliminary Offering Memorandum and the Offering Memorandum,
there has not been (i) any material adverse change, financial or
otherwise, in the business, properties, prospects, results of operations
or condition (financial or otherwise), present or prospective, of the
Company and the Subsidiaries, taken as a whole, (ii) any transaction,
which is or could be material to the business, properties, prospects,
results of operations or condition (financial or otherwise), present or
prospective, of the Company and the Subsidiaries, taken as a whole,
contemplated or entered into by the Company or any of the Subsidiaries, or
(iii) any obligation, contingent or otherwise, directly or indirectly
incurred by the Company or any of the Subsidiaries which is or could be
material to the business, properties, prospects, results of operations or
condition (financial or otherwise), present or prospective, of the Company
and the Subsidiaries taken as a whole.
(21) Neither the Company nor any of the Guarantors is, nor will any
of them be, after giving effect to the issuance and sale of the Notes and
the Guarantees and the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby,
(i) insolvent, (ii) left with unreasonably small capital with which to
engage in its anticipated businesses, or (iii) incurring debts beyond its
ability to pay such debts as they mature.
(22) The Company and the Subsidiaries have good title to all
properties and assets owned by them and have good leasehold interest in
each property and asset leased by them, in each case free and clear of all
pledges, liens, encumbrances, security interests, charges, mortgages and
defects, except as such do not materially affect the value
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of such property and as such do not interfere with the use made and
proposed to be made of such properties by the Company and the
Subsidiaries.
(23) The business, operations and facilities of the Company and each
of the Subsidiaries have been and are being conducted in compliance with
all applicable laws, ordinances, rules, regulations, licenses, permits,
approvals, plans, authorizations or requirements relating to occupational
safety and health, or pollution, or protection of health or the
environment, or reclamation (including, without limitation, those relating
to emissions, discharges, releases or threatened releases of pollutants,
contaminants or hazardous or toxic substances, materials or wastes into
ambient air, surface water, groundwater or land, or relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of chemical substances, materials or wastes, whether
solid, gaseous or liquid in nature) or otherwise relating to remediating
real property of any governmental department, commission, board, bureau,
agency or instrumentality of the United States, any state or political
subdivision thereof, or any foreign jurisdiction, and all applicable
judicial or administrative agency or regulatory decrees, awards, judgments
and orders relating thereto, except any violation thereof which would not,
individually or in the aggregate, have a material adverse effect on the
properties, assets, prospects, operations, business or condition
(financial or otherwise) of the Company and the Subsidiaries, taken as a
whole; and neither the Company nor any of the Subsidiaries has received
any notice from a governmental instrumentality or any third party alleging
any violation thereof or liability thereunder (including, without
limitation, liability for costs of investigating or remediating sites
containing hazardous substances and/or damages to natural resources).
-20-
(24) There is no claim pending or, to the best knowledge of the
Company, threatened or contemplated under any federal, state, local or
foreign law, rule or regulation governing pollution or protection of the
environment (the "Environmental Laws") against the Company or any of the
Subsidiaries which, if adversely determined, would have a material adverse
effect on the properties, assets, prospects, operation, business or
condition (financial or otherwise) of the Company and the Subsidiaries
taken as a whole; there are no past or present actions or conditions
including, without limitation, the release of any hazardous substance or
waste regulated under any Environmental Law that are likely to form the
basis of any such claim against the Company or any of the Subsidiaries
which, if adversely determined, would have a material adverse effect on
the properties, assets, prospects, operation, business or condition
(financial or otherwise) of the Company and the Subsidiaries, taken as a
whole.
(25) The Company and each of the Subsidiaries have filed all federal
or state income and franchise tax returns required to be filed and have
paid all taxes shown thereon as due, and there is no material tax
deficiency which has been or is reasonably likely to be asserted against
the Company or any of the Subsidiaries; all material tax liabilities of
the Company and the Subsidiaries are adequately provided for on the books
of the Company and the Subsidiaries.
(26) The Company has not incurred any liability for any finder's
fees or similar payments in connection with the transactions herein
contemplated.
(27) The Company, either directly or through one or more
Subsidiaries, has in effect, with financially sound insurers, insurance
with respect to its business and
-21-
properties and the business and properties of the Subsidiaries against
loss or damage of the kind customarily insured against by corporations
engaged in the same or similar businesses and similarly situated, of such
type and in such amounts as are customarily carried under similar
circumstances by such other corporations.
(28) None of the Company or its Subsidiaries is an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the "Investment
Company Act"), or analogous foreign laws and regulations.
(29) None of the Company, the Guarantors or their Affiliates (as
defined in Rule 501(b) of Regulation D under the Act) has (A) taken,
directly or indirectly, any action designed to, or that might reasonably
be expected to, cause or result in stabilization or manipulation of the
price of any security of the Company or any of the Guarantors to
facilitate the sale or resale of the Notes or (B) since the date of the
Preliminary Offering Memorandum (x) sold, bid for, purchased or paid any
person any compensation for soliciting purchases of the Notes in a manner
that would require registration of the Notes under the Act or (y) paid or
agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Company or any of the Guarantors in a
manner that would require registration of the Notes under the Act.
(30) No registration under the Act of the Notes is required for the
sale of the Notes to the Initial Purchasers as contemplated by this
Agreement or for the Exempt Resales, assuming in each case that (A) the
purchasers who buy the Notes in the Exempt Resales are Eligible Purchasers
and (B) the accuracy of and compliance with the Initial Purchasers'
representations, warranties
-22-
and covenants contained in Section 4(B) of this Agreement. No form of
general solicitation or general advertising (as those terms are used in
Regulation D under the Act) was used by the Company, any of the Guarantors
or any of their representatives in connection with the offer and sale of
any of the Notes or in connection with Exempt Resales, including, but not
limited to, articles, notices or other communications published in any
newspaper, magazine or similar medium or broadcast over television or
radio, or any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising.
(31) The execution and delivery of this Agreement, the other
Operative Documents and the sale of the Notes, the Exchange Notes, and
Guarantees to be purchased by the Eligible Purchasers will not involve any
prohibited transaction within the meaning of Section 406(a) of ERISA or
Section 4975(c)(1)(A)-(D) of the Code. The representation made by the
Company and each of the Guarantors in the preceding sentence is made in
reliance upon and subject to the accuracy of, and compliance with, the
representations and covenants made or deemed made by the Eligible
Purchasers as set forth in the Offering Memorandum under the caption
"Transfer Restrictions."
(32) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its date, and each amendment or supplement thereto, as
of its date, contains the information specified in, and meets the
requirements of, Rule 144A(d)(4) under the Act.
(33) Neither the Company nor any of its Subsidiaries (nor any agent
acting on behalf of the Company or any of the Subsidiaries) has taken, and
none of them will take, any action that might cause this Agreement or the
issuance or sale of the Notes or Exchange Notes to violate Regulation G
(12 C.F.R. Part 207), Regulation T (12 C.F.R.
-23-
Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R.
Part 224) of the Board of Governors of the Federal Reserve System or
analogous foreign laws and regulations, in each case as in effect, or as
the same may hereafter be in effect, on the Closing Date.
(34) No forward-looking statement (within the meaning of Section 27A
of the Act and Section 21E of the Exchange Act) contained in the Offering
Memorandum has been made or reaffirmed without a reasonable basis or has
been disclosed other than in good faith.
(35) None of the Company or the Guarantors is or, upon consummation
of the transactions, will be (A) "insolvent" as that term is defined in
Section 101(32) of the United States Bankruptcy Code (the "Bankruptcy
Code") (11 U.S.C. ss. 101(32)), Section 2 of the Uniform Fraudulent
Transfer Act ("UFTA") or Section 2 of the Uniform Fraudulent Conveyance
Act ("UFCA"), (B) an entity with "unreasonably small capital" as that term
is used in Section 548(a)(2)(ii) of the Bankruptcy Code or Section 5 of
the UFCA, (C) engaged or about to engage in a business or transaction for
which its remaining property is "unreasonably small" in relation to the
business or transaction as that term is used in Section 4 of the UFTA or
(D) unable to pay its debts as they mature or become due, within the
meaning of Section 548(a)(2)(B)(iii) of the Bankruptcy Code, Section 4 of
the UFTA and Section 6 of the UFCA. The Company and each of the Guarantors
now owns and upon consummation of the transactions will own assets having
a value at both "fair valuation" and at "present fair saleable value"
greater than the amount required to pay its "debts" as such terms are used
in Section 2 of the UFTA and Section 2 of the UFCA.
-24-
(36) The statistical and market-related data included in the
Preliminary Offering Memorandum and the Offering Memorandum are based on
or derived from sources that the Company and the Guarantors believe to be
reliable and accurate and represent the Company's and the Guarantors' good
faith estimates that are made on the basis of data derived from such
sources.
The Company and each of the Guarantors acknowledges that the Initial
Purchasers and, for purposes of the opinions to be delivered to the Initial
Purchasers pursuant to Section 7 of this Agreement, the law firm acting as
counsel to the Company and each of the Guarantors and counsel to the Initial
Purchasers will rely upon the accuracy and truth of the foregoing
representations and the Company and each Guarantor hereby consents to such
reliance.
(B) Each of the Initial Purchasers represents, warrants and
covenants to the Company that they are QIBs with such knowledge and experience
in financial and business matters as are necessary in order to evaluate the
merits and risks of an investment in the securities. The Initial Purchasers
represent, warrant and agree with the Company that (i) they are not acquiring
the Notes with a view to any distribution thereof that would violate the Act or
the securities laws of any state of the United States or any applicable
jurisdiction, (ii) they have not and will not solicit offers for, or offer or
sell, the Notes by any form of general solicitation or general advertising (as
those terms are used in Regulation D under the Act) or in any manner involving a
public offering within the meaning of Section 4(2) of the Act and (iii) they
have and will solicit offers for the Notes only from, and will offer the Notes
only to, (x) persons whom the Initial Purchasers reasonably believe to be QIBs
or, if any such person is buying for one or more institutional accounts for
which such person is acting as fiduciary or agent, only when such person has
represented to the Initial Purchasers that each such account is
-25-
a QIB to whom notice has been given that such sale or delivery is being made in
reliance on Rule 144A, and, in each case, in transactions under Rule 144A, or
(y) persons other than U.S. persons outside the U.S. in reliance on Regulation
S.
Each of the Initial Purchasers represents and warrants that the
source of funds being used by them to acquire the Notes does not include the
assets of any "employee benefit plan" (within the meaning of Section 3 of ERISA)
or any "plan" (within the meaning of Section 4975 of the Code).
The Initial Purchasers understand that the Company and, for purposes
of the opinion to be delivered to them pursuant to Section 7(f) hereof, counsel
to the Company will rely upon the accuracy and truth of the foregoing
representations, and the Initial Purchasers hereby consent to such reliance.
5. INDEMNIFICATION. (a) Each of the Company and the Guarantors, on a
joint and several basis, agrees to indemnify and hold harmless the Initial
Purchasers, each person, if any, who controls an Initial Purchaser within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, the agents,
employees, officers and directors of an Initial Purchaser and the agents,
employees, officers and directors of any such controlling person from and
against any and all losses, liabilities, claims, damages and expenses whatsoever
(including but not limited to reasonable attorneys' fees and any and all
reasonable expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever, and
any and all reasonable amounts paid in settlement of any claim or litigation) to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact
-26-
contained in the Preliminary Offering Memorandum or the Offering Memorandum, or
in any supplement thereto or amendment thereof, 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; provided,
however, that the Company and the Guarantors will not be liable in any such case
to the extent, but only to the extent, that any such loss, liability, claim,
damage or expense arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information relating to the Initial
Purchasers furnished to the Company by or on behalf of the Initial Purchasers
expressly for use therein; provided, further, that such indemnity with respect
to the Preliminary Offering Memorandum shall not inure to the benefit of the
Initial Purchasers (or any persons controlling the Initial Purchasers) from whom
the person asserting such loss, claim, damage or liability purchased the Notes
which are the subject thereof if such person did not receive a copy of the
Offering Memorandum (or the Offering Memorandum as amended or supplemented) at
or prior to the confirmation of the sale of such Notes to such person (and the
Offering Memorandum or any such amended or supplemented Offering Memorandum, as
applicable, shall have been delivered by the Company to the Initial Purchasers a
reasonable amount of time prior to the mailing or delivery, as applicable, of
such confirmation) and any such untrue statement or omission or alleged untrue
statement or omission of a material fact contained in such Preliminary Offering
Memorandum was corrected in the Offering Memorandum (or the Offering Memorandum
as amended or supplemented). This indemnity agreement will be in addition to any
liability that each of the Company and the Guarantors may otherwise have,
including, but not limited to, liability under this Agreement.
-27-
If any action is brought against the Initial Purchasers or any such
person in respect of which indemnity may be sought against the Company and the
Guarantors pursuant to the foregoing paragraph, the Initial Purchasers or such
person shall promptly notify the indemnifying party in writing of the
institution of such action and the indemnifying party shall assume the defense
of such action, including the employment of counsel reasonably satisfactory to
such indemnified party and payment of all fees and expenses, provided, however,
that the omission to so notify the indemnifying party shall not relieve the
indemnifying party from any liability which they may have to the Initial
Purchasers or any such person or otherwise. The Initial Purchasers or such
person shall have the right to employ their own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense of the Initial
Purchasers unless the employment of such counsel shall have been authorized in
writing by the indemnifying party in connection with the defense of such action
or the indemnifying party shall not have employed counsel to have charge of the
defense of such action or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to the indemnifying party
(in which case the indemnifying party shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties (but the
indemnifying parties may employ counsel and participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of the
indemnifying parties)), in any of which events such fees and expenses shall be
borne by the indemnifying party and paid as incurred (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (together with appropriate local counsel) in any
one action or series of related actions in the same jurisdiction representing
the indemnified parties who are parties to such action). The indemnifying party
shall not be liable for any settlement of any such claim or action effected
without its
-28-
written consent but if settled with the written consent of the indemnifying
party, the indemnifying party agrees to indemnify and hold harmless the Initial
Purchasers and any such person from and against any loss or liability by reason
of such settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement and (iii) such indemnified party
shall have given the indemnifying party at least 30 days' prior notice of its
intention to settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(b) The Initial Purchasers agree to indemnify and hold harmless the
Company and the Guarantors, each person, if any, who controls the Company or any
of the Guarantors within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, and each of its agents, employees, officers and directors and
the agents, employees, officers and directors of such controlling person from
and against any losses, liabilities, claims, damages and expenses whatsoever
(including but not limited to reasonable attorneys' fees and any and all
reasonable expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or
-29-
threatened, or any claim whatsoever and any and all reasonable amounts paid in
settlement of any claim or litigation) to which they or either of them may
become subject under the Act, the Exchange Act or otherwise insofar as such
losses, liabilities, claims, damages or expenses (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 Offering Memorandum or the
Offering Memorandum, 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, in each case to the extent, but only to the extent, that any such
loss, liability, claim, damage or expense arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
relating to the Initial Purchasers furnished to the Company by or on behalf of
the Initial Purchasers in writing expressly for use therein. The Company and the
Initial Purchasers acknowledge that the information set forth in Section 8 is
the only information furnished in writing by the Initial Purchasers to the
Company expressly for use in the Offering Memorandum. This indemnity agreement
will be in addition to any liability that the Initial Purchasers may otherwise
have, including, but not limited to, liability under this Agreement.
If any action is brought against the Company or the Guarantors or
any such person in respect of which indemnity may be sought against the Initial
Purchasers pursuant to the foregoing paragraph, the Company, the Guarantors or
such person shall promptly notify the Initial Purchasers in writing of the
institution of such action and the Initial Purchasers shall assume the defense
of such action, including the employment of counsel reasonably satisfactory to
such indemnified party and payment of all fees and expenses, provided, however,
that the
-30-
omission to so notify the Initial Purchasers shall not relieve the Initial
Purchasers from any liability which they may have to the Company, the Guarantors
or any such person or otherwise. The Company, the Guarantors or such person
shall have the right to employ its own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of the Company or such
person unless the employment of such counsel shall have been authorized in
writing by the Initial Purchasers in connection with the defense of such action
or the Initial Purchasers shall not have employed counsel to have charge of the
defense of such action or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to the Initial Purchasers
(in which case the Initial Purchasers shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties, but the
Initial Purchasers may employ counsel and participate in the defense thereof but
the fees and expenses of such counsel shall be at the expense of the Initial
Purchasers), in any of which events such fees and expenses shall be borne by the
Initial Purchasers and paid as incurred (it being understood, however, that the
Initial Purchasers shall not be liable for the expenses of more than one
separate counsel (together with appropriate local counsel) in any one action or
series of related actions in the same jurisdiction representing the indemnified
parties who are parties to such action). Anything in this paragraph to the
contrary notwithstanding, the Initial Purchasers shall not be liable for any
settlement of any such claim or action effected without the written consent of
the Initial Purchasers but if settled with the written consent of the Initial
Purchasers, the Initial Purchasers agree to indemnify and hold harmless the
Company, the Guarantors and any such person from and against any loss or
liability by reason of such settlement. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
-31-
contemplated by the second sentence of this paragraph, then the indemnifying
party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more
than 60 business days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such settlement and
(iii) such indemnified party shall have given the indemnifying party at least 30
days' prior notice of its intention to settle. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
6. CONTRIBUTION. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 5 of this
Agreement is for any reason held to be unavailable from the indemnifying party,
or is insufficient to hold harmless a party indemnified under Section 5 of this
Agreement, the Company and the Guarantors, on the one hand, and the Initial
Purchasers, on the other hand, shall contribute to the amount paid or payable by
such indemnified party as a result of such aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action or any claims
asserted) to which the Company and/or the Guarantors and the Initial Purchasers
may be subject (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Guarantors, on the one hand, and the
Initial Purchasers, on the other hand, from the Offering or, (ii) if
-32-
such allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Guarantors, on the one
hand, and the Initial Purchasers, on the other hand, in connection with the
statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Guarantors, on the one
hand, and the Initial Purchasers, on the other hand, shall be deemed to be in
the same proportion as (x) the total proceeds from the Offering (net of
discounts and commissions but before deducting expenses) received by the Company
and the Guarantors and (y) the total discounts and commissions received by the
Initial Purchasers as set forth in the table on the cover page of the Offering
Memorandum. The relative fault of the Company and the Guarantors, on the one
hand, and the Initial Purchasers, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company (and the Guarantors) or the
Initial Purchasers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission or
alleged statement or omission.
The Company, the Guarantors and the Initial Purchasers agree that it
would not be just and equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation or by any other method of allocation that does
not take into account the equitable considerations referred to above.
Notwithstanding the provisions of this Section 6, (i) in no case shall the
Initial Purchasers be required to contribute any amount in excess of the amount
by which the total discount and commissions applicable to the Notes pursuant to
this Agreement exceeds the amount of any damages that the Initial Purchasers
have otherwise been required to pay by
-33-
reason of any untrue or alleged untrue statement or omission or alleged omission
and (ii) 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 6, each person, if any, who controls the Initial Purchasers within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Initial Purchasers, and each person, if
any, who controls the Company or the Guarantors within the meaning of Section 15
of the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Company or the Guarantors, respectively, where applicable,
subject in each case to clauses (i) and (ii) of this paragraph. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim for contribution
may be made against another party or parties under this Section 6, notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
Section 6 or otherwise; provided, however, that no additional notice shall be
required with respect to any action for which notice has been given under
Section 5 for purposes of indemnification. No party shall be liable for
contribution with respect to any action or claim settled without its written
consent; provided, however, that such written consent was not unreasonably
withheld.
7. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The obligations of
the Initial Purchasers to purchase and pay for the Notes, as provided for in
this Agreement, shall be subject to satisfaction of the following conditions
prior to or concurrently with such purchase:
-34-
(a) All of the representations and warranties of the Company and the
Guarantors contained in this Agreement shall be true and correct on the
date of this Agreement and on the Closing Date. The Company and the
Guarantors shall have performed or complied with all of the agreements
contained in this Agreement and required to be performed or complied with
by them at or prior to the Closing Date.
(b) No stop order suspending the qualification or exemption from
qualification of the Notes in any jurisdiction shall have been issued and
no proceeding for that purpose shall have been commenced or shall be
pending or threatened.
(c) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency that would, as of the Closing Date, prevent the issuance of the
Notes or the Exchange Offer; no action, suit or proceeding shall have been
commenced and be pending against or affecting or, to the best knowledge of
the Company and the Guarantors, threatened against the Company and/or the
Guarantors before any court or arbitrator or any governmental body, agency
or official that, if adversely determined, would result in a material
adverse effect.
(d) Since the date as of which information is given in the Offering
Memorandum, except as expressly set forth therein, neither the Company nor
any of its Subsidiaries had any material liabilities or obligations,
direct or contingent, that were not set forth in the Company's
consolidated balance sheet as of December 31, 1997 or in the notes
thereto. Since the date as of which information is given in the Offering
Memorandum and up to the Closing Date, except as otherwise expressly set
forth in the Offering Memorandum, (a) none of the Company or its
-35-
Subsidiaries has (1) incurred any liabilities or obligations, direct or
contingent, that would, either individually or in the aggregate, result in
a material adverse effect or (2) entered into any material transaction not
in the ordinary course of business, and (b) there has not been any event
or development in respect of the business, development or financial
condition of the Company or any of its Subsidiaries that would, either
individually or in the aggregate, result in a material adverse effect.
(e) The Company will, at the time of purchase, deliver to the
Initial Purchasers a certificate of the chief executive officer and chief
financial officer to the effect that the representations and warranties of
the Company as set forth in this Agreement and the conditions set forth in
paragraphs (a), (b), (c) and (d) of this Section 7 have been met and that
they are true and correct as of the Closing Date.
(f) The Company shall have furnished to the Initial Purchasers at
the time of purchase, an opinion of Paul, Hastings, Janofsky & Walker,
LLP, counsel for the Company, addressed to the Initial Purchasers, and
dated the time of purchase and in form reasonably satisfactory to Cahill
Gordon & Reindel, counsel for the Initial Purchasers, substantially
stating that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with full corporate power and authority to own
its properties and conduct its business as described in the
Preliminary Offering Memorandum and the Offering Memorandum, to
execute and deliver this Agreement and to issue, sell and deliver
the Notes as herein contemplated;
-36-
(ii) all of the issued and outstanding shares of capital stock
of each of the Corporate Subsidiaries have been duly authorized and
validly issued and are fully paid and non-assessable and the
partnership interests which the Company owns in the Partnership
Subsidiary have been duly authorized and validly issued and are
fully paid and non-assessable, and both the capital stock of the
Corporate Subsidiaries and the partnership interests in the
Partnership Subsidiary are owned by the Company or one or more of
the Subsidiaries and, to the best knowledge of such counsel, free
and clear of any pledge, lien, encumbrance, security interest,
preemptive rights or other claim; except as described in the
Preliminary Offering Memorandum and the Offering Memorandum and, to
the best knowledge of such counsel, there are no outstanding rights,
subscriptions, warrants, calls, options or other agreements of any
kind with respect to the capital stock or the partnership interests
of the Company or the Subsidiaries;
(iii) each of the Corporate Subsidiaries has been duly
incorporated and the Partnership Subsidiary has been duly formed,
and is validly existing as a corporation, in the case of the
Corporate Subsidiaries, or as a limited partnership, in the case of
the Partnership Subsidiary, in good standing under the laws of its
respective jurisdiction of incorporation or formation, as the case
may be, with full corporate or partnership power, as the case may
be, and authority to own its respective properties and conduct its
respective business as described in the Preliminary Offering
Memorandum and the
-37-
Offering Memorandum and to execute and deliver the Indenture and the
Guarantees;
(iv) the Company and the Subsidiaries are duly qualified, and
are in good standing, in each jurisdiction in which the nature of
its business or its ownership or its leasing of property requires
such qualification, except where the failure, individually or in the
aggregate, to be so qualified could have a material adverse effect
on the properties, assets, prospects, operations, business or
condition (financial or otherwise) of the Company and the
Subsidiaries;
(v) this Agreement has been duly authorized, executed and
delivered by the Company and the Guarantors and constitutes a legal,
valid and binding obligation of the Company and the Guarantors
enforceable against the Company and each of the Guarantors in
accordance with its terms, except as the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance and fraudulent transfer, moratorium or similar laws
relating to or affecting creditors' rights generally and general
principles of equity;
(vi) the Indenture has been duly authorized, executed and
delivered by each of the Company and each of the Guarantors, and,
assuming due authorization, execution and delivery by the Trustee,
is a legal, valid and binding agreement of each of the Company and
each of the Guarantors enforceable in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or
similar laws relating to
-38-
or affecting creditors' rights generally and general principles of
equity;
(vii) the Notes have been duly authorized by the Company and
the Guarantees have been duly authorized by each of the Guarantors
and, when executed and authenticated in accordance with the terms of
the Indenture and delivered to and paid for by the Initial
Purchasers, will be legal, valid and binding obligations of the
Company and the Guarantees will constitute legal, valid and binding
obligations of each Guarantor, in each case enforceable in
accordance with their terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws relating to or affecting
creditors' rights generally and general principles of equity;
(viii) the Exchange Notes have been duly authorized by the
Company and the Guarantees have been duly authorized by each of the
Guarantors and, when executed and authenticated in accordance with
the terms of the Indenture and delivered to and paid for by the
Initial Purchasers, will be legal, valid and binding obligations of
the Company and the Guarantees will constitute legal, valid and
binding obligations of each Guarantor, in each case enforceable in
accordance with their terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws relating to or affecting
creditors' rights generally and general principles of equity;
(ix) the Registration Rights Agreement has been duly
authorized, executed and delivered by the
-39-
Company and the Guarantors and constitutes a legal, valid and
binding obligation of the Company and the Guarantors enforceable
against the Company and each of the Guarantors in accordance with
its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance and
fraudulent transfer, moratorium or similar laws relating to or
affecting creditors' rights generally and general principles of
equity;
(x) (a) the Company has an authorized capitalization as set
forth under the heading entitled "Actual" in the section of the
Preliminary Offering Memorandum and the Offering Memorandum entitled
"Capitalization"; and (b) the outstanding shares of Common Stock
have been duly and validly authorized and issued and are fully paid,
nonassessable and free of statutory and contractual preemptive
rights;
(xi) the Notes, the Exchange Notes, the Guarantees, the
Indenture and the Registration Rights Agreement conform in all
material respects as to legal matters to the descriptions thereof
contained in the Preliminary Offering Memorandum and the Offering
Memorandum;
(xii) no consent, approval, authorization or order of any
governmental authority is required for the issuance and sale by the
Company of the Notes to the Initial Purchasers or the consummation
by the Company of the transactions contemplated herein, except as
such as may be required under states securities or "Blue Sky" laws,
or the laws of any foreign jurisdiction, as to which such counsel
need not express an opinion;
-40-
(xiii) no registration under the Act is required in connection
with the sale of the Notes to the Initial Purchasers as contemplated
by this Agreement and the Offering Memorandum or in connection with
the initial resale of the Notes by the Initial Purchasers in
accordance with this Agreement, and prior to the commencement of the
Exchange Offer (as defined in the Registration Rights Agreement),
and the effectiveness of the Shelf Registration Statement (as
defined in the Registration Rights Agreement), and the Indenture is
not required to be qualified under the Trust Indenture Act;
(xiv) the execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby do not and will not conflict with,
or result in a breach of, or constitute a default under (nor
constitute any event which with notice, lapse of time, or both,
would constitute a breach of or default under), any provisions of
the charter or by-laws of the Company or any of the Subsidiaries or
under any provisions of any license, indenture, lease, mortgage,
deed of trust, bank loan, credit agreement or other agreement or
instrument known to such counsel to which the Company or any of the
Subsidiaries is a party or by which any of them or their respective
properties may be bound or affected, or under any law, regulation or
rule or any decree, judgment or order known to such counsel
applicable to the Company or any of the Subsidiaries;
(xv) to the best of such counsel's knowledge, there are no
contracts, licenses, agreements, leases or documents of a character
which are
-41-
required to be summarized or described in the Offering Memorandum
which have not been so summarized or described;
(xvi) to the best of such counsel's knowledge, there are no
actions, suits or proceedings pending or threatened against the
Company or any of the Subsidiaries or any of their respective
properties, at law or in equity or before or by any commission,
board, body, authority or agency which are required to be described
in the Offering Memorandum but are not so described;
(xvii) the Indenture is in sufficient form for due
qualification under the Trust Indenture Act.
Such counsel shall also state that, in connection with the
preparation of the Preliminary Offering Memorandum and the Offering
Memorandum, such counsel has participated in various discussions and
meetings with representatives of the Initial Purchasers, officers and
other representatives of the Company and representatives of the Company's
independent public accountants, and has examined copies of documents
furnished to such counsel by the Company as such counsel deems relevant.
Such counsel shall also state that nothing has come to the attention of
such counsel that led them to believe that the Preliminary Offering
Memorandum and the Offering Memorandum or any supplement thereto at the
date of such Preliminary Offering Memorandum and the Offering Memorandum
or such supplement, and at all times up to and including the time of
purchase or additional time of purchase, as the case may be, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading
(it being understood that such counsel need not
-42-
express an opinion with respect to the financial statements, the notes
thereto and the related schedules and other information of an accounting,
financial or statistical nature included in the Preliminary Offering
Memorandum and the Offering Memorandum).
In rendering any such opinion, such counsel may rely, as to matters
of fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and public officials and, as to
matters involving the application of the laws of any jurisdiction other
than the States of Delaware or New York or the United States, to the
extent satisfactory in form and scope to Cahill Gordon & Reindel, counsel
to the Initial Purchasers.
(g) The Initial Purchasers shall have received on the Closing Date
an opinion (satisfactory in form and substance to the Initial Purchasers)
dated the Closing Date of Cahill Gordon & Reindel, counsel to the Initial
Purchasers, covering substantially such matters as are customarily covered
in such opinions.
(h) The Initial Purchasers shall have received a "comfort letter"
from Deloitte & Touche LLP, independent public accountants for the Company
and the Guarantors, dated as of the date of this Agreement, addressed to
the Initial Purchasers and in form and substance satisfactory to the
Initial Purchasers and counsel to the Initial Purchasers. In addition, as
of the Closing Date, the Initial Purchasers shall have received a
"bring-down comfort letter" from Deloitte & Touche, LLP in form and
substance satisfactory to the Initial Purchasers and counsel to the
Initial Purchasers covering the same items and matters as covered in the
"comfort letter" but as of a date that is not more than three days prior
to the date thereof and any changes and additions to the Preliminary
-43-
Offering Memorandum that were made producing the Offering Memorandum.
(i) The Initial Purchasers shall have received a "comfort letter"
from Ernst & Young LLP, independent public accountants for the Company and
the Guarantors, dated as of the date of this Agreement, addressed to the
Initial Purchasers and in form and substance satisfactory to the Initial
Purchasers and counsel to the Initial Purchasers.
(j) The Company, the Guarantors and the Trustee shall have entered
into the Indenture and the Initial Purchasers shall have received
counterparts, conformed as executed, thereof.
(k) The Company, the Guarantors and the Initial Purchasers shall
have entered into the Registration Rights Agreement and the Initial
Purchasers shall have received counterparts, conformed as executed,
thereof.
(l) The Notes shall have been approved as eligible for trading in
the PORTAL market.
(m) Between the time of execution of this Agreement and the time of
purchase of the Notes, there shall not have occurred any downgrading, nor
shall any notice have been given of (i) any intended or potential
downgrading or (ii) any review or possible change that does not indicate
an improvement in, or maintenance of, the rating accorded any securities
of or guaranteed by the Company or any subsidiary of the Company by any
"nationally recognized statistical rating organization", as that term is
defined in Rule 436(g)(2) promulgated under the Act.
(n) The Initial Purchasers shall have been furnished with certified
copies of such documents as they may
-44-
reasonably request and all closing documents from the closings of the
transactions contemplated hereby.
(o) Cahill Gordon & Reindel, counsel to the Initial Purchasers,
shall have been furnished with such documents as they may reasonably
request to enable them to review or pass upon the matters referred to in
this Section 7 and in order to evidence the accuracy, completeness or
satisfaction in all material respects of any of the representations,
warranties or conditions contained in this Agreement.
If any of the conditions specified in this Section 7 shall not have
been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by the Initial Purchasers on notice to the Company
at any time at or prior to the Closing Date, and such termination shall be
without liability of any party to any other party except that the Company shall
reimburse the Initial Purchasers for all of the reasonable out-of-pocket
expenses, including the reasonable expense of Initial Purchasers' counsel,
incurred by the Initial Purchasers in connection with this Agreement.
Notwithstanding any such termination, the provisions of Sections 3(g), 5, 6, 9,
10(d) and 13 shall remain in effect.
The Company's obligation under this Agreement to sell the Notes to
the Initial Purchasers on the Closing Date is subject to the Initial Purchasers
purchasing and paying for all of the Notes.
8. INITIAL PURCHASERS' INFORMATION. The Company and the Initial
Purchasers severally acknowledge that the statements set forth in (i) the last
paragraph on the front cover page concerning the forms of the offering by the
Initial Purchasers; (ii) the first paragraph on page 3 concerning stabilization
activities by the Initial Purchasers; and (iii) the statements concerning the
Initial Purchasers contained in
-45-
the fifth paragraph and the fifth sentence of the third paragraph under the
caption "Plan of Distribution" in the Offering Memorandum constitute the only
information furnished in writing by the Initial Purchasers expressly for use in
the Offering Memorandum.
9. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. All representations
and warranties, covenants and agreements contained in this Agreement, including
the agreements contained in Sections 3(g) and 10(d), the indemnity agreements
contained in Section 5 and the contribution agreements contained in Section 6
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Initial Purchasers or any controlling
person thereof or by or on behalf of the Company, any of the Guarantors or any
controlling person of any thereof, and shall survive delivery of and payment for
the Notes to and by the Initial Purchasers. The representations contained in
Section 4 and the agreements contained in Sections 3(g), 5, 6, 10(d) and 13
shall survive the termination of this Agreement, including pursuant to Sections
7 and 10.
10. EFFECTIVE DATE OF AGREEMENT; TERMINATION. (a) This Agreement
shall become effective upon execution and delivery of a counterpart hereof by
each of the parties hereto.
(b) The Initial Purchasers shall have the right to terminate this
Agreement at any time prior to the Closing Date by notice to the Company from
the Initial Purchasers, without liability (other than with respect to Sections 5
and 6) on the Initial Purchasers if, on or prior to such date, (i) the Company
or any of the Guarantors shall have failed, refused or been unable to perform in
any material respect any agreement on its part to be performed under this
Agreement, (ii) any other condition of the obligations of the Initial Purchasers
under this Agreement as provided in Section 7 is not fulfilled when
-46-
and as required in any material respect, (iii) trading in securities generally
on the New York Stock Exchange shall have been suspended or materially limited,
or minimum prices shall have been established on such exchange by the
Commission, or by such exchange or other regulatory body or governmental
authority having jurisdiction, (iv) a general banking moratorium shall have been
declared by U.S. federal or New York authorities, or if a moratorium in foreign
exchange trading by major international banks or persons shall have been
declared, (v) there is an outbreak or escalation of hostilities or other
national or international calamity on or after the date of this Agreement, or if
there has been a declaration by the United States of a national emergency or
war, the effect of which shall be, in the Initial Purchasers' judgment, to make
it inadvisable or impracticable to proceed with the offering or delivery of the
Notes on the terms and in the manner contemplated in the Offering Memorandum or
(vi) there shall have been such a material adverse change in general economic,
political or financial conditions or the effect (or potential effect if the
financial markets in the United States have not yet opened) of international
conditions on the financial markets in the United States shall be such as, in
the Initial Purchasers' judgment, to make it inadvisable or impracticable to
proceed with the offering or delivery of the Notes on the terms and in the
manner contemplated in the Offering Memorandum.
(c) Any notice of termination pursuant to this Section 10 shall be
given at the address specified in Section 11 below by telephone or telephonic
facsimile, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any clause of
Section 10(b), or if the sale of the Notes provided for in this Agreement is not
consummated because any condition to the obligations of the Initial Purchasers
set forth in this Agreement is not satisfied or because of any
-47-
refusal, inability or failure on the part of either of the Company or any
Guarantor to perform any agreement in this Agreement or comply with any
provision of this Agreement, the Company and the Guarantors will, subject to
demand by the Initial Purchasers, reimburse the Initial Purchasers for all of
its reasonable out-of-pocket expenses (including the reasonable fees and
expenses of the Initial Purchasers' counsel) incurred in connection with this
Agreement.
11. NOTICE. All communications with respect to or under this
Agreement, except as may be otherwise specifically provided in this Agreement,
shall be in writing and, if sent to the Initial Purchasers, shall be mailed,
delivered, or telecopied and confirmed in writing to SBC Warburg Dillon Read
Inc., 535 Madison Avenue, New York, New York 10022 (telephone: (212) 906-7000),
Attention: Corporate Finance Department, telecopy number: (212) 593-0164; and if
sent to the Company or the Guarantors, shall be mailed, delivered or telecopied
and confirmed in writing to Beazer Homes USA, Inc., 5775 Peachtree Dunwoody
Road, Suite C-550, Atlanta, Georgia 30342, telephone: (404) 250-3420, telecopy
number : (404) 250-3428, Attention: President, and Paul, Hastings, Janofsky &
Walker LLP, 399 Park Avenue, 31st Floor, New York, New York 10022, telephone:
(212) 318-6000, telecopy number: (212) 319-4090, Attention:
William F. Schwitter.
All such notices and communications shall be deemed to have been
duly given: (i) at the time delivered by hand, if personally delivered; (ii)
five business days after being deposited in the mail, postage prepaid, if
mailed; (iii) when receipt acknowledged if telecopied; and (iv) on the next
business day, if timely delivered to an air courier guaranteeing overnight
delivery.
12. PARTIES. This Agreement shall inure solely to the benefit of,
and shall be binding upon, the Initial Purchasers and the Company and the
Guarantors and the
-48-
controlling persons and agents referred to in Sections 5 and 6, and their
respective successors and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained. The
term "successors and assigns" shall not include a purchaser, in its capacity as
such, of Notes from the Initial Purchasers.
13. CONSTRUCTION. This Agreement shall be construed in accordance
with the internal laws of the State of New York (without giving effect to any
provisions thereof relating to conflicts of law) and each of the parties hereto
consent to the jurisdiction of the courts of the State of New York. Each of the
parties hereto agrees to submit to the jurisdiction of the the U.S. Federal
Courts sitting in the City of New York for the purposes of any suit, action or
proceeding arising out of or relating to this Indenture. Nothing herein shall
affect the right to serve process in any other manner permitted by law or shall
limit the right of the Initial Purchasers to bring proceedings against the
Company and/or the Guarantors in the courts of any other jurisdiction.
14. CAPTIONS. The captions included in this Agreement are included
solely for convenience of reference and are not to be considered a part of this
Agreement.
15. SUBMISSION TO JURISDICTION. The Company and the Guarantors
irrevocably submit to the nonexclusive jurisdiction of any Federal court sitting
in New York over any suit, action or proceeding arising out of or relating to
this agreement. The Company and the Guarantors irrevocably waive, to the fullest
extent permitted by law, any objection they may now or thereafter have to the
laying of venue of any such court and any claim that any such suit, action or
proceeding brought in such a court has been brought in an inconvenient forum.
The Company and the Guarantors agree that a final judgment in any
-49-
such suit, action or proceeding brought in any such court shall be conclusive
and binding upon the Company and the Guarantors and may be enforced in any other
courts to the jurisdiction of which the Company and the Guarantors are or may be
subject, by suit upon such judgment.
16. COUNTERPARTS. This Agreement may be executed in various
counterparts and by the parties to this Agreement in separate counterparty, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
17. MISCELLANEOUS. SBC Warburg Dillon Read Inc., an indirect, wholly
owned subsidiary of Swiss Bank Corporation, is not a bank and is separate from
any affiliated bank, including any U.S. branch or agency of Swiss Bank
Corporation. Because SBC Warburg Dillon Read Inc. is a separately incorporated
entity, it is solely responsible for its own contractual obligations and
commitments, including obligations with respect to sales purchases of
securities. Securities sold, offered or recommended by SBC Warburg Dillon Read
Inc. are not deposits, are not insured by the Federal Deposit Insurance
Corporation, are not guaranteed by a branch or agency, and are not otherwise an
obligation or responsibility of a branch or agency.
A lending affiliate of SBC Warburg Dillon Read Inc. may have lending
relationships with issuers of securities underwritten or privately placed by SBC
Warburg Dillon Read Inc. To the extent required under the securities laws,
prospectuses and other disclosure documents for securities underwritten or
privately placed by SBC Warburg Dillon Read Inc. will disclose the existence of
any such lending relationships and whether the proceeds of the issue will be
used to repay debts owed to affiliates of SBC Warburg Dillon Read Inc.
-50-
Without the Company's prior written approval, the U.S. branches and
agencies of Swiss Bank Corporation will not share with SBC Warburg Dillon Read
Inc. any non-public information concerning the Company or any of the Guarantors,
and SBC Warburg Dillon Read Inc. will not share any non-public information
received from the Initial Purchasers with any of such U.S. branches and agencies
of Swiss Bank Corporation.
-51-
If the foregoing correctly sets forth the understanding among the
Company, the Guarantors and the Initial Purchasers, please so indicate in the
space provided below for the purpose, whereupon this letter and your acceptance
shall constitute a binding agreement among the Company, the Guarantors and the
Initial Purchasers.
BEAZER HOMES USA, INC.
By:*
---------------------------------
Name:
Title:
GUARANTORS:
BEAZER HOMES CORP.
By:*
---------------------------------
BEAZER/SQUIRES REALTY, INC.
By:*
---------------------------------
BEAZER HOMES SALES ARIZONA INC.
By:*
---------------------------------
BEAZER REALTY CORP.
By:*
---------------------------------
PANITZ HOMES REALTY, INC.
By:*
---------------------------------
BEAZER MORTGAGE CORPORATION
By:*
---------------------------------
BEAZER HOMES HOLDINGS CORP.
By:*
---------------------------------
BEAZER HOMES TEXAS HOLDINGS, INC.
By:*
---------------------------------
BEAZER HOMES TEXAS, L.P.
By:*
---------------------------------
* Executed by David S. Weiss as an authorized officer of
each of the Company and the Guarantors.
Confirmed and accepted as
of the date first above
written:
SBC WARBURG DILLON READ INC.
By: /s/ Allan P. Merrill
---------------------------------
Name: Allan P. Merrill
Title: Executive Director
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ Eric A. Anderson
---------------------------------
Name: Eric A. Anderson
Title: Managing Director
SALOMON SMITH BARNEY
By: /s/ Beth May
---------------------------------
Name: Beth May
Title: Vice President
Exhibit A
Form of Registration Rights Agreement
Exhibit B
Principal Amount
Initial Purchasers of Notes
- ------------------ ----------------
SBC Warburg Dillon Read Inc............ $50.000,000
Donaldson Lufkin & Jenrette
Securities Corporation............... 30,000,000
Salomon Smith Barney................... 20,000,000
------------
$100,000,000
------------