Toll Brothers Finance Corp.
$250,000,000
6.750% Senior Notes due 2019
Guaranteed on a Senior Basis by Toll Brothers, Inc. and
Certain of Its Subsidiaries
Banc of America
Securities LLC
J.P. Morgan Securities Inc.
Citigroup Global Markets Inc.
As the Representatives of the several
Underwriters
c/o Banc of America Securities LLC
One Bryant Park
New York, NY 10036
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 “ Underwriters ”), for whom
Banc of America Securities LLC, J.P. Morgan Securities Inc. and
Citigroup Global Markets Inc. (collectively, “ you
” or the “ Representatives ”) are acting
as representatives, $250,000,000 aggregate principal amount of its
6.750% Senior Notes due 2019 (the “ Notes ”).
The Notes are to be issued under the indenture dated as of
April 20, 2009 (as amended and supplemented, the “
Indenture ”) among the Issuer, the guarantors party
thereto (individually, a “ Guarantor ” and,
collectively, the “ Guarantors ”) including Toll
Brothers, Inc. (the “ Company ”), and The Bank
of New York Mellon, as trustee (the “ Trustee
”). The Notes will be fully and unconditionally guaranteed
(the “ Guarantees ” and, together with the
Notes, the “ Securities ”) by the Guarantors.
Certain terms used herein are defined in Section 15
hereof.
In
connection with the issuance of the Notes, the Issuer has commenced
a cash tender offer (the “ Tender Offer ”) for
up to $150,000,000 of the Issuer’s outstanding
(i) 6.875% Senior Notes due 2012 (the “ 2012 Senior
Notes ”) and (ii) 5.95% Senior Notes due 2013 (the
“ 2013 Senior Notes ” and, together with the
2012 Senior Notes, the “ Senior Notes ”) upon
the terms and subject to the conditions set forth in that certain
Offer to Purchase dated as of September 15, 2009, including
all information incorporated by reference therein and exhibits,
appendices and attachments thereto, as amended, modified or
supplemented from time to time. The net proceeds from the sale of
the Securities will be used for general corporate purposes, which
may include the repayment or repurchase of certain of the
Issuer’s outstanding indebtedness and to finance the Tender
Offer.
The
Issuer and the Guarantors have prepared and filed with the
Commission under the Securities Act a registration statement on
Form S-3 (File No. 333-154807), including a prospectus (the
“ Base Prospectus ”), relating to, among other
things, debt securities to be issued from time to time by the
Issuer. The Company has also filed, or proposes to file, with the
Commission pursuant to Rule 424 under
the Securities
Act a prospectus supplement specifically relating to the Securities
(the “ Prospectus Supplement ”). The
registration statement, as amended at the time it became effective,
including the information, if any, deemed pursuant to
Rule 430A, 430B or 430C under the Securities Act to be part of
the registration statement at the time of its effectiveness
(“ Rule 430 Information ”), is referred to
herein as the “ Registration Statement ”; and as
used herein, the term “ Prospectus ” means the
Base Prospectus as supplemented by the Prospectus Supplement
specifically relating to the Securities in the form first used (or
made available upon request of purchasers pursuant to Rule 173
under the Securities Act) in connection with confirmation of sales
of the Securities and the term “ Preliminary
Prospectus ” means the preliminary Prospectus Supplement
specifically relating to the Securities together with the Base
Prospectus. If the Company has filed an abbreviated registration
statement pursuant to Rule 462(b) under the Securities Act (the
“ Rule 462 Registration Statement ”), then
any reference herein to the term “Registration
Statement” shall be deemed to include such Rule 462
Registration Statement. Any reference in this Agreement to the
Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act, as of the effective date of the
Registration Statement or the date of such Preliminary Prospectus
or the Prospectus, as the case may be and any reference to
“amend”, “amendment” or
“supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date
under the Exchange Act that are deemed to be incorporated by
reference therein. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Registration
Statement and the Prospectus.
At
or prior to the time when sales of the Securities were first made
(the “ Time of Sale ”), the Issuer and the
Guarantors had prepared the following information (collectively,
the “ Time of Sale Information ”): (i) a
Preliminary Prospectus dated September 15, 2009, (ii) each
“free-writing prospectus” (as defined pursuant to
Rule 405 under the Securities Act) listed on Annex B
hereto and (iii) the Pricing Term Sheet, as set forth on
Annex C hereto.
1.
Representations and Warranties . Each of the Issuer and the
Company represents and warrants to the Underwriters as set forth
below in this Section 1.
(a)
Registration Statement, Issuer Free Writing Prospectus and Time
of Sale Information .
(i)
The Company meets the requirements for use of Form S-3 under the
Securities Act and has prepared and filed with the Commission an
automatic shelf registration statement, as defined in Rule 405
on Form S-3, including a related Base Prospectus, for registration
under the Securities Act of the offering and sale of the
Securities. Such Registration Statement, including any amendments
thereto filed prior to the Time of Sale, became effective upon
filing. The Issuer and the Company may have filed with the
Commission, as part of an amendment to the Registration Statement
or pursuant to Rule 424(b), one or more preliminary prospectus
supplements relating to the Securities, each of which has
previously been furnished to you. The Issuer and the Company will
file with the Commission a final prospectus supplement relating to
the Securities in accordance with Rule 424(b). As filed, such
final prospectus supplement shall contain all information required
by the Securities Act and the rules thereunder, and, except to the
extent each Representative shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Time of Sale or, to the extent not
completed at the Time of Sale, shall contain only such specific
additional information and other changes (beyond that contained in
the Base Prospectus and any Time of Sale Information) as each of
the Issuer and the Company has advised you, prior to the Time of
Sale, will be included or made therein. The Registration Statement,
at the Time of Sale, meets the requirements set forth in
Rule 215(a)(1)(x).
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(ii)
The Registration Statement is an “automatic shelf
registration statement” as defined in Rule 405 under the
Securities Act that has been filed with the Commission not earlier
than three years prior to the date hereof; and no notice of
objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to
Rule 401(g)(2) under the Securities Act has been received by
the Company, and the Securities, since their registration pursuant
to the Registration Statement, have been and remain eligible for
registration by the Company on a Rule 405 “automatic
shelf registration statement.” No stop order suspending the
effectiveness of the Registration Statement is in effect; neither
the Issuer nor the Company has been notified that any proceeding
for that purpose has been instituted by the Commission or by the
state securities authority of any jurisdiction and, to the
knowledge of the Issuer or the Company, no such proceeding has been
threatened. On each Effective Date, the Registration Statement did,
and when the Prospectus is first filed in accordance with Rule
424(b) and on the Closing Date (as defined herein), the Prospectus
(and any supplement thereto) will, comply in all material respects
with the applicable requirements of the Securities Act, the
Exchange Act and the Trust Indenture Act and the respective rules
thereunder; on each Effective Date and at the Time of Sale, the
Registration Statement did not and will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; on the Closing Date the
Indenture will comply in all material respects with the applicable
requirements of the Trust Indenture Act and the rules thereunder;
and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Prospectus (together with any supplement thereto)
will not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Issuer or the Company by or
on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the
Prospectus (or any supplement thereto), it being understood and
agreed that the only such information furnished by or on behalf of
any Underwriter consists of the information described as such in
Section 6 hereof. The Prospectus delivered to the Underwriters
for use in connection with the offering of the Securities will, at
the time of such delivery, be identical to the electronically
transmitted copies thereof filed with the Commission’s
Next-Generation EDGAR system (or successor system thereto), except
to the extent permitted by Regulation S-T under the Securities
Act.
(iii)
(a) The Time of Sale Information and (b) each electronic
road show, if any, when taken together as a whole with the Time of
Sale Information, at the Time of Sale did not, and at the Closing
Date will not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Issuer and the
Company make no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity
with information relating to the Underwriters furnished to the
Issuer or the Company in writing by the Underwriters expressly for
use in such Time of Sale Information.
(iv)
Each Issuer Free Writing Prospectus and the final term sheet
prepared and filed pursuant to Section 3(b) hereto does not include
any information that conflicts with the information contained in
the Registration Statement, including any document incorporated
therein by reference and any prospectus supplement deemed to be a
part thereof that has not been superseded or modified. The
foregoing sentence does not apply to statements in or omissions
from any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to
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the Issuer or
the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that
the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in
Section 6 hereof.
(b) Well-Known
Seasoned Issuer . The Company is a “well-known seasoned
issuer” and is not an “ineligible issuer” in
connection with the offering of the Securities, in each case as
defined in Rule 405 under the Securities Act and at the times
specified in the Securities Act in connection with the offering of
the Securities. The Issuer and the Company have paid the
registration fee for this offering or will pay such fee within the
time period required by such pursuant to Rule 456(b)(1) under
the Securities Act prior to the Closing Date, without giving effect
to the proviso in Rule 456(b)(1)(i).
(c)
Incorporated Documents . The documents incorporated by
reference in the Registration Statement, the Prospectus and the
Time of Sale Information, when they became effective or were filed
with the Commission, as the case may be, except to the extent
otherwise superseded by a subsequently filed document with the
Commission, 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
Exchange Act and none of such documents contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(d) No Material
Adverse Change . Since the respective dates as of which
information is given in the Registration Statement, the Time of
Sale Information and the Prospectus, except as otherwise
specifically stated therein, (a) there has been no material
adverse change in the condition (financial or otherwise), earnings,
business affairs or business prospects of 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 not been any change in
the capital stock (other than as a result of the exercise of stock
options) or long-term debt (other than as a result of payments on
purchase money mortgages) of the Company or any of its
subsidiaries, and there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its
capital stock.
(e) Exchange
Act Reporting . The Company is subject to and in full
compliance with the reporting requirements of Section 13 or
Section 15(d) of the Exchange Act.
(f) No
Stabilization . 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.
(g)
Organization and Good Standing . 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 have
full corporate or other organizational power and authority to own
or lease, as the case may be, would not result, individually or in
the aggregate, in a Material Adverse Change), with 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),
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and to operate
its properties and conduct its business as described in the
Registration Statement, the Time of Sale Information and the
Prospectus, 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 that requires such qualification (except
where the failure to so qualify would not result, individually or
in the aggregate, in a Material Adverse Change).
(h)
Capitalization . The Issuer has an authorized capitalization
as set forth in the Time of Sale Information and the Prospectus
under the heading “Capitalization,” all the outstanding
shares of capital stock or outstanding interests of the Company and
each of its subsidiaries have been duly and validly authorized and
issued and are fully paid and nonassessable and, except as
otherwise set forth in the Registration Statement, the Time of Sale
Information and the Prospectus, 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.
(i)
Authorization of Transaction Documents . This Agreement has
been duly authorized, executed and delivered by the Issuer and the
Company; the Indenture has been duly authorized by the Issuer and
the Guarantors 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 and
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, (c) provisions specifying that
provisions of documents may be amended or waived only in writing
may not be enforced and (d) any rights to indemnity and
contribution may be limited by applicable law or publicly policy
considerations with respect thereto; such clauses (a), (b),
(c) and (d) collectively being referred to as “
Enforceability Limitations ”); and the Notes and
Guarantees have been duly authorized and executed by the Issuer and
the Guarantors, respectively, in accordance with the provisions of
the Indenture (assuming due authorization, authentication and
delivery by the Trustee) and delivered through the facilities of
The Depository Trust Company to and paid for by the Underwriters
under this Agreement, will constitute the legal, valid and binding
obligations of the Issuer and the Guarantors, enforceable against
the Issuer and the Guarantors (subject to the Enforceability
Limitations) and entitled to the benefits of the
Indenture.
(j) Description
of the Securities . The statements made in each of the Time of
Sale Information and the Prospectus under the caption
“Description of Notes”, insofar as they purport to
constitute summaries of certain terms of documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
(k) No
Consents . Each of the Issuer and each Guarantor has all
requisite corporate or other organizational power and authority and
has taken all requisite corporate or other organizational action,
to enter into and perform this Agreement, the Indenture and the
Securities, to the extent it is a party thereto, and no consent,
authorization, approval or order of or filing with any court or
governmental agency or body is required for the performance by the
Issuer or any of the Guarantors of its obligations under this
Agreement, the Indenture or the Securities, except such as will be
obtained under the Securities Act and the Trust Indenture Act and
such as may be required under the blue sky or securities laws of
any jurisdiction in connection with the purchase and
dis-
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tribution of
the Securities by the Underwriters in the manner contemplated in
this Agreement, the Registration Statement, the Time of Sale
Information and the Prospectus.
(l) No
Violations . None of the execution and delivery of the
Indenture or this 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
impose 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 similar organizational document 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, defaults, liens, charges or encumbrances that
would not result, individually or in the aggregate, in a Material
Adverse Change).
(m) Financial
Statements and Information . The consolidated historical
financial statements and schedules of the Company and its
consolidated and consolidating subsidiaries incorporated by
reference in the Registration Statement, the Time of Sale
Information and the Prospectus 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 Securities 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).
(n) Legal
Proceedings . 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, to the best knowledge of the Issuer and the Company,
pending or threatened that (i) could reasonably be expected to
have a material adverse effect on the performance of this Agreement
or the Indenture, or the consummation of any of the transactions
contemplated hereby or thereby; or (ii) could reasonably be
expected to result, individually or in the aggregate, in a Material
Adverse Change, except as set forth, incorporated by reference in
or contemplated in the Registration Statement, the Time of Sale
Information and the Prospectus (exclusive of any amendment or
supplement thereto).
(o) Real and
Personal Property . 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.
(p) No
Violation . Neither the Company nor any subsidiary is in
violation or default of (i) any provision of its charter,
by-laws or other similar organizational document; (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).
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(q) Independent
Registered Public Accounting Firm . 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
contained in or incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus, is the
independent registered public accounting firm with respect to the
Company within the meaning of the Securities Act and the applicable
published rules and regulations thereunder.
(r) Taxes .
Each of the Company and its subsidiaries 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 Registration Statement, the Time of
Sale Information and the Prospectus (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 Registration Statement, the Time of
Sale Information and the Prospectus (exclusive of any amendment or
supplement thereto).
(s) No Labor
Disputes . No labor problem or dispute with the employees of
the Company or any of its subsidiaries exists or, to the best
knowledge of the Issuer and the Company, is threatened or imminent,
and neither the Issuer nor the Company is 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
Registration Statement, the Time of Sale Information and the
Prospectus (exclusive of any amendment or supplement
thereto).
(t) Investment
Company . 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
Registration Statement, the Time of Sale Information and the
Prospectus neither will be, an “investment company” as
defined in the Investment Company Act, without taking account of
any exemption arising out of the number of holders of the Issuer or
the Company’s securities.
(u)
Insurance . 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 (i) been refused any insurance coverage sought
or applied for or (ii) any reason to believe that it will not
be able to renew its existing insurance coverage as and when such
coverage expires, except that, in either (i) or (ii), the
Company and any such subsidiary believe
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that if any
such coverage is refused, they will be able 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 Registration Statement, the Time of
Sale Information and the Prospectus (exclusive of any amendment or
supplement thereto).
(v) No
Restrictions on Subsidiaries . 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 Registration Statement, the Time of Sale
Information and the Prospectus (exclusive of any amendment or
supplement thereto).
(w) Licenses
and Permits . 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 Registration Statement, the Time of Sale
Information and the Prospectus (exclusive of any amendment or
supplement thereto).
(x) Accounting
Controls . 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
authorization; (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.
(y)
Sarbanes-Oxley Act . 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.
(z) Disclosure
Controls . The Company has established and maintains disclosure
controls and procedures (as such term is defined in
Rules 13a-15 and 15d-14 under the Exchange Act); such
disclosure controls and procedures are designed to ensure that
material information relating to the Company and its subsidiaries
is made known to the chief executive officer and chief financial
officer of the Company by others within the Company or any
subsidiary, and such disclosure controls and procedures are
reasonably effective to perform the functions for which they were
established subject to the limitations of any such control system;
the Company’s auditors and the audit committee of the board
of directors of the Company have been advised of:
(A) any
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significant
deficiencies in the design or operation of internal controls which
are reasonably likely to adversely affect the Company’s
ability to record, process, summarize, and report financial data;
and (B) any fraud, whether or not material, that involves
management or other employees who have a significant role in the
Company’s internal controls; and since the date of the most
recent evaluation of such disclosure controls and procedures, there
have been no significant changes in internal controls or in other
factors that are reasonably likely to materially affect internal
controls, including any corrective actions with regard to
significant deficiencies and material weaknesses.
Any
certificate signed by any officer of the Issuer or the Guarantors
and delivered to the Underwriters or counsel for the Underwriters
in connection with the offering of the Securities shall be deemed a
representation and warranty by the Issuer and the Guarantors, as to
matters covered thereby, to the Underwriters.
(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 Underwriters, and each of the Underwriters severally
agrees to purchase from the Issuer, at a purchase price of 98.986%
of the principal amount thereof, plus accrued interest, if any,
from September 22, 2009 to the Closing Date, the entire
aggregate principal amount of Notes set forth opposite such
Underwriter’s name on Annex A hereto, which shall be
endorsed with the Guarantees.
(b) Delivery
of and payment for the Securities shall be made at 10:00 A.M.,
New York City time, on September 22, 2009, at the offices of
Cahill, Gordon & Reindel LLP, or at such time on such later
date or such other place 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 accounts of the
several Underwriters 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.
(c) Each
of the Issuer and the Guarantors hereby acknowledges that
(a) the purchase and sale of the Securities pursuant to this
Agreement is an arm’s-length commercial transaction between
the Issuer and Guarantors, on the one hand, and the Underwriters
and any affiliate through which it may be acting, on the other,
(b) the Underwriters are acting as principal and not as an
agent or fiduciary of the Company and (c) the Issuer and
Guarantors’ engagement of the Underwriters in connection with
the offering and the process leading up to the offering is as
independent contractors and not in any other capacity. Furthermore,
each of the Issuer and Guarantors agrees that it is solely
responsible for making its own judgments in connection with the
offering (irrespective of whether the Underwriters have advised or
is currently advising the Issuer or Guarantors on related or other
matters). Each of the Issuer and Guarantors agrees that it will not
claim that the Underwriters have rendered advisory services of any
nature or respect, or owe an agency, fiduciary or similar duty to
the Issuer and Guarantors, in connection with such transaction or
the process leading thereto.
3.
Agreements . Each of the Issuer and the Company agrees with
the Underwriters that:
(a) Prior to the
termination of the offering of the Securities, the Issuer and the
Company will not file any amendment of the Registration Statement
or supplement (including the
-9-
Prospectus or
any Time of Sale Information) to the Base Prospectus unless the
Issuer and the Company have furnished you a copy for your review
prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. The Issuer and the
Company will cause the Prospectus, properly completed, and any
supplement thereto to be filed in a form approved by the
Representatives with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to the Representatives of such timely
filing. The Issuer and the Company will promptly advise the
Representatives (i) when the Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b), (ii) when, prior to termination
of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective,
(iii) of any request by the Commission or its staff for any
amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Prospectus or
for any additional informat
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