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EXHIBIT 10.1
Toll Brothers Finance Corp.
$300,000,000
4.95% Senior Notes Due 2014
Guaranteed on a Senior Basis by Toll Brothers, Inc. and
Certain of Its Subsidiaries
Purchase Agreement
New York, New York
March 9, 2004
Banc One Capital Markets, Inc.
Citigroup Global Markets Inc.
Banc of America Securities LLC
Comerica Securities, Inc.
Credit Lyonnais Securities (USA) Inc.
SunTrust Capital Markets, Inc.
BNP Paribas Securities Corp.
The Royal Bank of Scotland plc
Wells Fargo Brokerage Services, LLC
c/o Banc One Capital Markets, Inc.
1 Bank One Plaza
Suite IL1-0595
Chicago, IL 60670
and
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
As Representatives of the Initial
Purchasers
Ladies and Gentlemen:
Toll Brothers Finance Corp., a corporation organized under the
laws of Delaware (the "Issuer"), proposes
to issue and sell to the several
parties named in Annex A hereto
(collectively, the "Initial Purchasers"), for
whom Banc One Capital Markets, Inc. and
Citigroup Global Markets Inc. ("you" or
the "Representatives") are acting as
Representatives, $300,000,000 principal
amount of its 4.95% Senior Notes Due March
15, 2014 (the "Notes"). The Notes are
to be issued under an indenture dated as of
November 22, 2002, as supplemented
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by the First Supplemental Indenture dated
as of May 1, 2003, the Second
Supplemental Indenture dated as of November
2, 2003, the Third Supplemental
Indenture dated as of January 26, 2004 and
the Fourth Supplemental Indenture
dated as of March 1, 2004 and the
Authorizing Resolutions dated March 9, 2004
(collectively the "Indenture") among the
Issuer, the guarantors named therein
(individually a "Guarantor" and
collectively, the "Guarantors"), including Toll
Brothers, Inc. (the "Company"), and J.P.
Morgan Trust Company, National
Association, as successor to Bank One Trust
Company, NA, as trustee (the
"Trustee"). The Notes are, and the notes
exchanged therefor pursuant to the
Registration Rights Agreement (as defined
herein) will be, fully and
unconditionally guaranteed (the
"Guarantees," and together with the Notes, the
"Securities") by the Guarantors to be named
in the Indenture. The Securities
will have the benefit of a registration
rights agreement (the "Registration
Rights Agreement") dated as of March 16,
2004 among the Issuer, the Company and
the Initial Purchasers, pursuant to which
the Company has agreed to register the
Securities under the Act subject to the
terms and conditions specified in the
Registration Rights Agreement. The use of
the neuter in this Agreement shall
include the feminine and masculine wherever
appropriate. Certain terms used
herein are defined in Section 16
hereof.
The sale of the Securities to the Initial Purchasers will be
made without registration of the Securities
under the Act in reliance upon
exemptions from the registration
requirements of the Act.
In connection with the sale of the Securities, the Issuer and
the Guarantors have prepared a final
offering memorandum, dated March 9, 2004
(as amended or supplemented at the
Execution Time, including any information
incorporated by reference therein, the
"Final Memorandum"). The Final Memorandum
sets forth certain information concerning
the Issuer, the Guarantors and the
Securities. The Issuer and the Guarantors
hereby confirm that they have
authorized the use of the Final Memorandum,
and any amendment or supplement
thereto, in connection with the offer and
sale of the Securities by the Initial
Purchasers. Unless stated to the contrary,
any references herein to the terms
"amend," "amendment" or "supplement" with
respect to the Final Memorandum shall
be deemed to refer to and include any
information filed under the Exchange Act
subsequent to the Execution Time which is
incorporated by reference therein.
1. Representations and Warranties. Each of the Issuer and the
Company represents and warrants to the
Initial Purchasers as set forth below in
this Section 1.
(a) At the Execution Time, on the Closing Date and on any
settlement date, the Final Memorandum did not, and will not (and
any
amendment or supplement thereto, at the date thereof, at the
Closing
Date and on any settlement date, will not), contain any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided,
however, that the Issuer and the Company make no representation
or
warranty as to the information contained in or omitted from the
Final
Memorandum, or any amendment or supplement thereto, in reliance
upon
and in conformity with
information furnished in writing to the Issuer
and the Company by or on behalf of the Initial Purchasers through
the
Representatives specifically for inclusion therein.
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(b) The documents incorporated by reference in the Final
Memorandum, when they became effective or were filed with the
Commission, as the case may be, under the Exchange Act, conformed,
and
any documents so filed and incorporated by reference after the date
of
this Agreement and on or prior to the Closing Date will conform,
when
they are filed with the Commission, in all material respects to
the
requirements of the Act and the Exchange Act, as applicable.
(c) Since the respective dates as of which information is
given in the Final Memorandum, except as otherwise specifically
stated
therein, (a) there has been no material adverse change in the
condition
(financial or otherwise), earnings, business affairs or
business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
business
(a "Material Adverse Change"), and (b) there has been no dividend
or
distribution of any kind declared, paid or made by the Company on
any
class of its capital stock.
(d) Neither the Issuer and the Company, nor any of their
respective
Affiliates, nor any person acting on its or their behalf
has, directly or indirectly, made offers or sales of any security,
or
solicited offers to buy any security, under circumstances that
would
require the registration of the Securities under the Act.
(e) Neither the Issuer and the Company, nor any of their
respective Affiliates, nor any person acting on its or their behalf
has
engaged in any form of general solicitation or general
advertising
(within the meaning of Regulation D) in connection with any offer
or
sale of the Securities in the United States.
(f) The Securities satisfy the eligibility requirements of
Rule 144A(d)(3) under the Act.
(g) Neither the Issuer nor the Company is, and after giving
effect to the offering and sale of the Securities and the
application
of the proceeds thereof as described in the Final Memorandum
neither
will be, an "investment company" within the meaning of the
Investment
Company Act, without taking account of any exemption arising out of
the
number of holders of the Issuer or the Company's securities.
(h) The Company is subject to and in full compliance with the
reporting requirements of Section 13 or Section 15(d) of the
Exchange
Act.
(i) Neither the Issuer nor the Company has paid or agreed to
pay to any person any compensation for soliciting another to
purchase
any securities of the Issuer or the Company (except as contemplated
by
this Agreement).
(j) None of the Issuer, the Guarantors or their respective
Affiliates has taken, directly or indirectly, any action designed
to
cause or which has constituted or which might reasonably be
expected to
cause or result, under the Exchange Act or otherwise, in the
stabilization or manipulation of the price of any security of
the
Issuer or the Company to facilitate the sale or resale of the
Securities.
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(k) The information prepared and provided by the Issuer and/or
Company pursuant to Section 5(g) hereof will not, at the date
thereof,
contain any untrue statement of a material fact or omit to state
any
material fact necessary to make the statements therein, in the
light of
the circumstances under which they were made, not misleading.
(l) Each of the Company and its subsidiaries has been duly
incorporated (if a corporation) or formed (if a partnership,
limited
liability corporation or trust) and is validly existing as a
corporation, partnership, limited liability company or trust, as
the
case may be, in good standing (if applicable) under the laws of
its
jurisdiction of incorporation or formation, as the case may be
(except
where the failure to
be in good standing would not result, individually
or in the aggregate, in a Material Adverse Change). Each of the
Company
and its subsidiaries has full corporate or other organizational
power
and authority to own or lease, as the case may be (except where
the
failure to be in good standing would not result, individually or in
the
aggregate, in a Material Adverse Change), and to operate its
properties
and conduct its business as described in the Final Memorandum, and
is
duly qualified to do business as a foreign corporation,
partnership,
limited liability company or trust, as the case may be, and is in
good
standing (if applicable) under the laws of each jurisdiction
which
requires such qualification (except where the failure to so
qualify
would not result, individually or in the aggregate, in a
Material
Adverse Change).
(m) All the outstanding shares of capital stock or outstanding
interests of each subsidiary of the Company have been duly and
validly
authorized and issued and are fully paid and nonassessable, and,
except
as otherwise set forth in the Final Memorandum, all outstanding
shares
of capital stock or outstanding interests of such subsidiaries
are
owned by the Company either directly or through wholly owned
subsidiaries free and clear of any perfected security interest or
any
other security interests, claims, liens or encumbrances.
(n) This Agreement has been duly authorized, executed and
delivered by the Issuer and the Guarantors; the Indenture has been
duly
authorized and, assuming due authorization, execution and
delivery
thereof by the Trustee, when executed and delivered by the Issuer
and
the Guarantors, will constitute a legal, valid, binding
instrument
enforceable against the Issuer and the Guarantors in accordance
with
its terms
(except that (a) the enforceability thereof may be subject to
applicable bankruptcy, reorganization, insolvency, moratorium or
other
laws affecting creditors' rights generally from time to time in
effect
and to general principles of equity, (b) the enforceability of
provisions imposing liquidated damages, penalties or an increase
in
interest rate upon the occurrence of certain events may be limited
in
certain circumstances and (c) provisions specifying that provisions
of
documents may be amended or waived only in writing may not be
enforced;
such clauses (a), (b) and (c) collectively being referred to as
"Enforceability Limitations"); the Securities have been duly
authorized, and, when executed and authenticated in accordance with
the
provisions of the Indenture and delivered to and paid for by
the
Initial Purchasers, will have been duly executed and delivered by
the
Issuer and the Guarantors and will constitute the legal, valid
and
binding obligations of the Issuer and the Guarantors, and be
entitled
to the benefits of the Indenture (subject to the Enforceability
Limitations); and the Registration Rights Agreement has been
duly
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authorized and, when executed and delivered by the Issuer and
the
Guarantors, will constitute the legal, valid, binding and
enforceable
instrument of the Issuer and the Guarantors (except (i) as to
the
Enforceability Limitations and (ii) as to indemnification and
contribution, that any right to indemnity and contribution may
be
limited by applicable law or public policy considerations with
respect
thereto).
(o) No consent, approval, authorization or order of or filing
with any court or governmental agency or body is required in
connection
with the transactions contemplated herein or in the Indenture or
the
Registration Rights Agreement, except such as will be obtained
under
the Act and the Trust Indenture Act and such as may be required
under
the blue sky laws of any jurisdiction in connection with the
purchase
and distribution of the Securities by the Initial Purchasers in
the
manner contemplated herein and in the Final Memorandum and the
Registration Rights Agreement.
(p) None of the execution and delivery of the Indenture, this
Agreement or the Registration Rights Agreement, the issue and sale
of
the Securities, or the consummation of any other of the
transactions
herein or therein contemplated, nor the fulfillment of the terms
hereof
or thereof will conflict with, result in a breach or violation of,
or
imposition of any lien, charge or encumbrance upon any property
or
assets of the Company or any of its subsidiaries pursuant to, (i)
the
charter, by-laws or other organizational documents of the Company
or
any of its subsidiaries; (ii) the terms of any indenture,
contract,
lease, mortgage, deed of trust, note agreement, loan agreement or
other
agreement, obligation, condition, covenant or instrument to which
the
Company or any of its subsidiaries is a party or bound or to which
its
or their property is subject; or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or
any
of its subsidiaries of any court, regulatory body,
administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its subsidiaries or any of
its
respective properties (except in the cases of clauses (ii) and
(iii)
for such conflicts, breaches, violations, liens, charges or
encumbrances that would not result, individually or in the
aggregate,
in a Material Adverse Change).
(q) The consolidated historical financial statements and
schedules of the Company and its consolidated and consolidating
subsidiaries incorporated by reference in the Final Memorandum
present
fairly in all material respects the financial condition, results
of
operations and cash flows of the Company as of the dates and for
the
periods indicated, comply as to form with the applicable
accounting
requirements of the Act and have been prepared in conformity
with
generally accepted accounting principles applied on a consistent
basis
throughout the periods involved (except as otherwise noted
therein);
the selected financial data set forth under the caption
"Selected
Consolidated Financial Information and Operating Data" in the
Final
Memorandum fairly present, on the basis stated in the Final
Memorandum,
the information included therein.
(r) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the
Company or any of its subsidiaries or its or their property is
pending
or, to the best knowledge of the Company, threatened that (i)
could
reasonably be expected to have a material adverse effect on the
performance of this Agreement, the Indenture or the Registration
Rights
Agreement, or the consummation of any of the transactions
contemplated
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hereby or thereby; or (ii) could reasonably be expected to
result,
individually or in the aggregate, in a Material Adverse Change,
except
as set forth, incorporated by reference in or contemplated in the
Final
Memorandum (exclusive of any amendment or supplement thereto).
(s) Each of the Company and its subsidiaries owns or leases
all such properties as are necessary to the conduct of its
operations
as presently conducted.
(t) Neither the Company nor any subsidiary is in violation or
default of (i) any provision of its charter or by-laws; (ii) the
terms
of any indenture, contract, lease, mortgage, deed of trust,
note
agreement, loan agreement or other agreement, obligation,
condition,
covenant or instrument to which it is a party or bound or to which
its
property is subject; or (iii) any statute, law, rule,
regulation,
judgment, order or decree applicable to the Company or any of
its
subsidiaries of any court, regulatory body, administrative
agency,
governmental body, arbitrator or other authority having
jurisdiction
over the Company or such subsidiary or any of its properties,
as
applicable (except in the cases of clauses (ii) and (iii) for
such
violations or defaults that would not result, individually or in
the
aggregate, in a Material Adverse Change).
(u) Ernst & Young LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and
delivered their report with respect to the audited consolidated
financial statements and schedules included in the Final
Memorandum,
are independent public accountants with respect to the Company
within
the meaning of the Act and the applicable published rules and
regulations thereunder.
(v) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has
requested
extensions thereof (except in any case in which the failure so to
file
would not result, individually or in the aggregate, in a
Material
Adverse
Change), whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated
in
the Final Memorandum (exclusive of any amendment or supplement
thereto)
and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that
any
of the foregoing is due and payable, except for any such
assessment,
fine or penalty that is currently being contested in good faith or
as
would not result, individually or in the aggregate, in a
Material
Adverse Change, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated
in
the Final Memorandum (exclusive of any amendment or supplement
thereto).
(w) No labor problem or dispute with the employees of the
Company or any of its subsidiaries exists or, to the best knowledge
of
the Company, is threatened or imminent, and the Company is not
aware of
any existing or imminent labor disturbance by the employees of any
of
its or its subsidiaries' principal suppliers, contractors or
customers,
which problem, dispute or labor disturbance could result,
individually
or in the aggregate, in a Material Adverse Change, whether or
not
arising from transactions in the ordinary course of business,
except as
set forth in or contemplated in the Final Memorandum (exclusive of
any
amendment or supplement thereto).
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(x) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses
and
risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; all policies of insurance
and
fidelity or surety bonds insuring the Company or any of its
subsidiaries or
their respective businesses, assets, employees,
officers and directors are in full force and effect; the Company
and
its subsidiaries are in compliance with the terms of such policies
and
instruments in all material respects; and there are no claims by
the
Company or any of its subsidiaries under any such policy or
instrument
as to which any insurance company is denying liability or
defending
under a reservation of rights clause, which denials or defenses
if
resolved adversely to the Company would result, individually or in
the
aggregate, in a Material Adverse Change; neither the Company nor
any
such subsidiary has been refused any insurance coverage sought
or
applied for; and neither the Company nor any such subsidiary has
any
reason to believe that it will not be able to renew its
existing
insurance coverage as and when such coverage expires or to
obtain
similar coverage from similar insurers as may be necessary to
continue
its business at a cost that would not result, individually or in
the
aggregate, in a Material Adverse Change, whether or not arising
from
transactions in the ordinary course of business, except as set
forth in
or contemplated in the Final Memorandum (exclusive of any amendment
or
supplement thereto).
(y) Except for minimum capital requirements of law or
contract, no Guarantor is currently prohibited, directly or
indirectly,
from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to
the
Company any loans or advances to such subsidiary from the Company
or
from transferring any of such Guarantor's property or assets to
the
Company or any other Guarantor, except as described in or
contemplated
by the Final Memorandum (exclusive of any amendment or
supplement
thereto).
(z) The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities
necessary
to conduct their respective businesses (except where the failure
to
possess such licenses, certificates, permits or other
authorizations
would not result, individually or in the aggregate, in a
Material
Adverse Change) and neither the Company nor any such subsidiary
has
received any notice of proceedings relating to the revocation
or
modification of any such certificate, authorization or permit
which, if
the subject of an unfavorable decision, ruling or finding,
would
result, individually or in the aggregate, in a Material Adverse
Change,
whether or not arising from transactions in the ordinary course
of
business, except as set forth in or contemplated in the Final
Memorandum (exclusive of any amendment or supplement thereto).
(aa) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that, in
reference
to the Company and its subsidiaries on a consolidated basis,
(i)
transactions are executed in accordance with management's general
or
specific authorizations; (ii) transactions are recorded as
necessary to
permit preparation of financial statements in conformity with
generally
accepted accounting principles and to maintain asset
accountability;
(iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the
recorded
accountability for assets is compared with the existing assets
at
reasonable intervals and appropriate action is taken with respect
to
any differences.
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(bb) There is and has been no failure on the part of the
Company and any of the Company's directors or officers, in
their
capacities as such, to comply in all material respects with any
provision of the Sarbanes-Oxley Act of 2002 and the rules and
regulations
promulgated in connection therewith, including Section 402
related to loans and Sections 302 and 906 related to
certifications.
Any certificate signed by any officer of the Issuer and the
Guarantors and delivered to the Initial
Purchasers or counsel for the Initial
Purchasers in connection with the offering
of the Securities shall be deemed a
representation and warranty by the Issuer
and the Guarantors, as to matters
covered thereby, to the Initial
Purchasers.
2. Purchase and Sale. (a) Subject to the terms and conditions
and in reliance upon the representations
and warranties herein set forth, the
Issuer agrees to sell to the Initial
Purchasers, and each of the Initial
Purchasers severally agrees to purchase
from the Issuer, at a purchase price of
99.144% of the principal amount thereof,
plus accrued interest, if any, from
March 16, 2004 to the Closing Date, the
entire principal amount of Notes, set
opposite such Initial Purchaser's name on
Annex A hereto, which Notes shall be
endorsed with the Guarantees.
(b) Delivery and Payment. Delivery of and payment for the
Securities shall be made at 10:00 A.M., New
York City time, on March 16, 2004,
or at such time on such later date (not
later than March 23, 2004) as the
Representatives shall designate, which date
and time may be postponed by
agreement between the Representatives and
the Issuer and the Company (such date
and time of delivery and payment for the
Securities being herein called the
"Closing Date"). Delivery of the Securities
shall be made to the Representatives
for the respective accounts of the several
Initial Purchasers against payment of
the purchase price thereof to or upon the
order of the Issuer and the Company by
wire transfer payable in same-day funds to
the account specified by the Issuer
and the Company. Delivery of the Securities
shall be made through the facilities
of The Depository Trust Company unless the
Representatives shall otherwise
instruct.
3. Offering by Initial
Purchasers. Each Initial Purchaser
severally represents and warrants to and
agrees with the Issuer and the Company
that:
(a) It is an "accredited investor" as that term is defined in
Regulation D under the Act.
(b) It has not offered or sold, and will not offer or sell,
any Securities except to those it reasonably believes to be
qualified
institutional buyers (as defined in Rule 144A under the Act) and
that,
in connection with each such sale, it has taken or will take
reasonable
steps to ensure that the purchaser of such Securities is aware
that
such sale is being made in reliance on Rule 144A. In the case of
a
non-bank purchaser of a Security acting as a fiduciary for one or
more
third parties, in connection with an offer and sale to such
purchaser
pursuant, such party or parties shall be a qualified
institutional
buyer(s).
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(c) No sale of the Securities to any one purchaser will be for
less than U.S. $100,000 principal amount. If the purchaser is a
non-bank fiduciary acting on behalf of others, each person for whom
it
is acting must
purchase at least $100,000 principal amount of the
Securities.
(d) Neither it nor any person acting on its behalf has made or
will make offers or sales of the Securities in the United States
by
means of
any form of general solicitation or general advertising
(within the meaning of Regulation D) in the United States.
4. Agreements. Each of the Issuer and the Company agrees with
the Initial Purchasers that:
(a) The Issuer and the Company will furnish to the Initial
Purchasers and to counsel for the Initial Purchasers, without
charge,
during the period referred to in paragraph (c) below, as many
copies of
the Final Memorandum and any amendments and supplements thereto as
they
may reasonably request.
(b) The Issuer and the Guarantors will not amend or supplement
the Final Memorandum, other than by filing documents under the
Exchange
Act that are
incorporated by reference therein, without the prior
written consent of the Representatives, which consent shall not
be
unreasonably withheld or delayed; provided, however, that, prior to
the
completion of the distribution of the Securities by the Initial
Purchasers (as determined by the Initial Purchasers), the Company
will
not file any document under the Exchange Act that is incorporated
by
reference in the Final Memorandum unless, prior to such
proposed
filing, the Company has furnished the Representatives with a copy
of
such document for their review and consent to such filing,
which
consent shall not be unreasonably withheld or delayed. The Company
will
promptly advise
the Representatives when any document filed under the
Exchange Act that is incorporated by reference in the Final
Memorandum
shall have been filed with the Commission prior to the completion
of
the sale of the securities by the Initial Purchasers (as determined
by
the Initial Purchasers).
(c) If at any time prior to the completion of the sale of the
Securities by the Initial Purchasers (as determined by the
Representatives), any event occurs as a result of which the
Final
Memorandum, as then amended or supplemented, would include any
untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if
it
should be necessary to amend or supplement the Final Memorandum
to
comply with applicable law, the Issuer and the Guarantors promptly
(i)
will notify the Representatives of any such event; (ii) subject to
the
requirements of paragraph (b) of this Section 4, will prepare
an
amendment or supplement that will correct such statement or
omission or
effect such compliance; and (iii) will supply any supplemented
or
amended Final Memorandum to the Initial Purchasers and counsel for
the
Initial Purchasers without charge in such quantities as they
may
reasonably request.
(d) The Issuer and the
Guarantors will use their best efforts,
in cooperation with the Initial Purchasers, to arrange, if
necessary,
for the qualification of the Securities for sale by the Initial
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Purchasers under the laws of such jurisdictions as the Initial
Purchasers may designate and will maintain such qualifications
in
effect so long as required for the sale of the Securities;
provided
that in no event shall the Issuer and the Guarantors be obligated
to
qualify to do business in any jurisdiction where they are not now
so
qualified or to take any action that would subject them to service
of
process in suits, other than those arising out of the offering or
sale
of the Securities, in any jurisdiction where they are not now
so
subject. The Issuer and the Company will promptly advise the
Representatives of the receipt by the Issuer or any of the
Guarantors
of any notification with respect to the suspension of the
qualification
of the Securities for sale in any jurisdiction or the initiation
or
threatening of any proceeding for such purpose.
(e) Neither the Issuer nor the Company will resell any
Securities that have been acquired by either of them; the Issuer
and
the Company will not permit any of their respective Affiliates
to
resell any Securities that have been acquired by any of them until
the
completion of the Exchange Offer (as defined in the Registration
Rights
Agreement).
(f) None of the Company, the Guarantors, or any of their
respective Affiliates, nor any person acting on its or their
behalf
will, directly or indirectly, make offers or sales of any security,
or
solicit offers to buy any security, under circumstances that
would
require the registration of the Securities under the Act.
(g) None of the
Company, the Guarantors, or any of their
respective Affiliates, nor any person acting on its or their
behalf
will engage in any form of general solicitation or general
advertising
(within the meaning of Regulation D) in connection with any offer
or
sale of the Securities in the United States.
(h) So long as any of the Securities are "restricted
securities" within the meaning of Rule 144(a)(3) under the Act,
the
Company will, during any period in which it is not subject to and
in
compliance with Section 13 or 15(d) of the Exchange Act or it is
not
exempt from such reporting requirements pursuant to and in
compliance
with Rule 12g3-2(b) under the Exchange Act, provide to each holder
of
such restricted securities and to each prospective purchaser
(as
designated by such holder) of such restricted securities, upon
the
request of such holder or prospective purchaser, any
information
required to be provided by Rule 144A(d)(4) under the Act. This
covenant
is intended to be for the benefit of the holders, and the
prospective
purchasers designated by such holders, from time to time of
such
restricted securities.
(i) The Issuer and the Guarantors will cooperate with the
Representatives and use its and their best efforts to permit
the
Securities to be eligible for clearance and settlement through
The
Depository Trust Company.
(j) Neither the Issuer nor any of the Guarantors will for a
period of ten business days following the Closing Date, without
the
prior written consent of the Representatives, offer, sell or
contract
to sell, or otherwise dispose of (or enter into any transaction
which
is designed to, or might reasonably be expected to, result in
the
disposition of (whether by actual disposition or effective
economic
disposition due to cash settlement or otherwise) by the Issuer or
the
Guarantors or any of their respective Affiliates or any person
in
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<PAGE>
privity with the Issuer or the Guarantors or any of their
respective
Affiliates), directly or indirectly, or announce the offering of,
any
debt securities issued or guaranteed by the Issuer or the
Guarantors
(other than the Securities). Notwithstanding anything in this
Section
to the contrary, the Company directly or indirectly through a
subsidiary, may (i) make borrowings under the Bank Credit
Facilities
(as defined in the Indenture) pursuant to the terms and conditions
of
such agreement, (ii) enter into purchase money mortgage
transactions,
(iii) obtain letters of credit and (iv) enter into such other
commercial lending transactions consistent with the Company's
business.
(k) The Issuer and the Guarantors will not take, directly or
indirectly, any action designed to or which has constituted or
which
might reasonably be expected to cause or result, under the Exchange
Act
or otherwise, in stabilization or manipulation of the price of
any
security of the
Issuer and the Guarantors to facilitate the sale or
resale of the Securities.
(l) The Issuer and the Company agree to pay all expenses
incident to the performance of their obligations under this
Agreement,
including (i) the costs of the preparation and printing of the
Final
Memorandum and each amendment or supplement thereto, (ii) the costs
of
printing and distributing to the Initial Purchasers and any
selected
dealers the Final Memorandum, and all amendments or supplements
thereto, as provided in this Agreement, (iii) the costs of
typing,
printing and reproducing this Agreement, the Indenture and the
Registration Rights Agreement, (iv) the fees paid to rating
agencies in
connection with the rating of the Securities, (v) the fees and
expenses
of qualifying the Securiti
