AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 10, 1999
REGISTRATION NO. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
ENGLE HOMES, INC.
(Exact name of Registrant as Specified in its Charter)
---------------
<TABLE>
<S> <C> <C>
FLORIDA 1521 59-2214791
(State or Other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Incorporation or Organization) Classification Code Number) Identification No.)
</TABLE>
123 N.W. 13TH STREET
BOCA RATON, FLORIDA 33432
(561) 391-4012
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
---------------
COPY TO:
<TABLE>
<S> <C>
DAVID SHAPIRO KENNETH S. GERSH, ESQ.
ENGLE HOMES, INC. GREENBERG TRAURIG, P.A.
123 N.W. 13TH STREET 1221 BRICKELL AVENUE
BOCA RATON, FLORIDA 33432 MIAMI, FLORIDA 33131
(561) 391-4012 (305) 579-0500
(Name, address, including zip code, and telephone number, TELECOPY (305) 579-0717
including area code, of agent for service)
</TABLE>
SEE TABLE OF ADDITIONAL REGISTRANTS BELOW
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] __________
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ______
---------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================================
PROPOSED MAXIMUM
TITLE OF EACH CLASS AGGREGATE OFFERING AMOUNT OF REGISTRATION
OF SECURITIES TO BE REGISTERED PRICE(1) FEE
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
9 1/4% Series C Senior Notes due 2008............................ $100,000,000 $27,800
- -------------------------------------------------------------------------------------------------------------------
Guarantees of 9 1/4% Series C Senior Notes due 2008.............. -- -- (2)
- -------------------------------------------------------------------------------------------------------------------
Total...................................................... $100,000,000 $27,800
===================================================================================================================
</TABLE>
(1) Estimated pursuant to Rule 457 solely for the purpose of calculating the
registration fee.
(2) Pursuant to Rule 457(n) under the Securities Act of 1933, no separate fee
is payable for the Guarantees.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
================================================================================
<PAGE>
<TABLE>
<CAPTION>
TABLE OF ADDITIONAL REGISTRANTS
ADDRESS, INCLUDING ZIP
CODE, AND TELEPHONE
STATE OR OTHER NUMBER, INCLUDING AREA
JURISDICTION OF I.R.S. EMPLOYER CODE OF REGISTRANT'S
NAME INCORPORATION IDENTIFICATION NO. PRINCIPAL EXECUTIVE OFFICE
---- --------------- ------------------ --------------------------
<S> <C> <C> <C>
Banyan Trails, Inc. Florida 65-0775403 123 N.W. 13th Street
Boca Raton, Florida 33432
(561) 391-4012
Engle Homes/Arizona, Inc. Florida 65-0482568 123 N.W. 13th Street
Boca Raton, Florida 33432
(561) 391-4012
Engle Homes/Atlanta, Inc. Florida 65-0357420 123 N.W. 13th Street
Boca Raton, Florida 33432
(561) 391-4012
Engle Homes/Broward, Inc. Florida 65-0389397 123 N.W. 13th Street
Boca Raton, Florida 33432
(561) 391-4012
Engle Homes/Colorado, Inc. Florida 65-0496809 123 N.W. 13th Street
Boca Raton, Florida 33432
(561) 391-4012
Engle Homes/Gulf Coast, Inc. Florida 65-0429651 123 N.W. 13th Street
Boca Raton, Florida 33432
(561) 391-4012
Engle Homes/Jacksonville, Inc. Florida 65-0839876 123 N.W. 13th Street
Boca Raton, Florida 33432
(561) 391-4012
Engle Homes/Lake Bernadette, Inc. Florida 59-3288055 123 N.W. 13th Street
Boca Raton, Florida 33432
(561) 391-4012
Engle Homes/North Carolina, Inc. Florida 65-0482564 123 N.W. 13th Street
Boca Raton, Florida 33432
(561) 391-4012
Engle Homes/Orlando, Inc. Florida 65-0326491 123 N.W. 13th Street
Boca Raton, Florida 33432
(561) 391-4012
Engle Homes/Palm Beach, Inc. Florida 65-0388379 123 N.W. 13th Street
Boca Raton, Florida 33432
(561) 391-4012
Engle Homes/Pembroke, Inc. Florida 65-0470740 123 N.W. 13th Street
Boca Raton, Florida 33432
(561) 391-4012
Engle Homes/Southwest Florida, Inc. Florida 65-0559002 123 N.W. 13th Street
Boca Raton, Florida 33432
(561) 391-4012
Engle Homes/Texas, Inc. Florida 65-0424508 123 N.W. 13th Street
Boca Raton, Florida 33432
(561) 391-4012
Engle Homes/Virginia, Inc. Florida 65-0482565 123 N.W. 13th Street
Boca Raton, Florida 33432
(561) 391-4012
Greenleaf Homes, Inc. Florida 65-0762713 123 N.W. 13th Street
Boca Raton, Florida 33432
(561) 391-4012
Pembroke Falls Realty, Inc. Florida 65-0698225 123 N.W. 13th Street
Boca Raton, Florida 33432
(561) 391-4012
Preferred Builders Realty, Inc. Florida 59-2552841 123 N.W. 13th Street
Boca Raton, Florida 33432
(561) 391-4012
Preferred Home Mortgage Company Florida 65-0325930 123 N.W. 13th Street
Boca Raton, Florida 33432
(561) 391-4012
St. Tropez At Boca Golf, Inc. Florida 65-0304088 123 N.W. 13th Street
Boca Raton, Florida 33432
(561) 391-4012
Universal Land Title, Inc. Florida 59-2630287 123 N.W. 13th Street
Boca Raton, Florida 33432
(561) 391-4012
Engle Homes Realty, Inc. Georgia 65-0816680 123 N.W. 13th Street
Boca Raton, Florida 33432
(561) 391-4012
Engle Homes/Arizona Construction, Inc. Arizona 86-0873699 123 N.W. 13th Street
Boca Raton, Florida 33432
(561) 391-4012
Universal Land Title of Colorado, Inc. Colorado 84-1281298 123 N.W. 13th Street
Boca Raton, Florida 33432
(561) 391-4012
</TABLE>
<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL OR OFFER THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
PROSPECTUS
[ENGLE HOMES LOGO]
OFFER TO EXCHANGE
$100,000,000
9 1/4% SERIES C SENIOR NOTES DUE 2008
FOR
9 1/4% SERIES B SENIOR NOTES DUE 2008
THE REGISTERED NOTES
The terms of the new 9 1/4% Series C Senior Notes due 2008 that we are
offering in this prospectus aRE substantially identical to the terms of our
outstanding 9 1/4% Series B Senior Notes due 2008. The differencE between them
is that the registered notes will be freely transferable and will not have any
covenants regarding registration rights or additional interest.
MATERIAL TERMS OF THE EXCHANGE OFFER
/bullet/ Expires at 5:00 p.m., New York City time, on ,
1999, unless extended.
/bullet/ The exchange offer is subject to customary conditions,
including the conditions that the exchange offer not violate
applicable law or any applicable interpretation of the staff
of the Securities and Exchange Commission.
/bullet/ Tenders of initial notes may be withdrawn at any time prior to
the expiration of the exchange offer.
/bullet/ All initial notes that are validly tendered and not withdrawn
will be exchanged for registered notes.
/bullet/ We will not receive any proceeds from the exchange offer.
/bullet/ All broker-dealers must comply with the registration and
prospectus delivery requirements of the Securities Act of
1933.
/bullet/ We do not intend to apply for listing of the registered notes
on any securities exchange or to arrange for them to be quoted
on any quotation system.
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US
A PROXY.
INVESTING IN THE NOTES INVOLVES CERTAIN RISKS. PLEASE SEE "RISK
FACTORS" BEGINNING ON PAGE 9.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THE REGISTERED NOTES OR DETERMINED IF
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS , 1999
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission. You may read and
copy any documents we file at the Securities and Exchange Commission's Public
Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call
the Securities and Exchange Commission at 1-800-SEC-0330 for information on the
operation of the Public Reference Room. Our SEC filings are also available to
the public from the SEC's Website at "http://www.sec.gov."
The Securities and Exchange Commission allows us to "incorporate by
reference" the information we file with them, which means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is considered to be part of this
prospectus, and information we later file with the Securities and Exchange
Commission will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the Securities and Exchange Commission under Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act until this offering is completed:
1. Our Annual Report on Form 10-K for the fiscal year ended
October 31, 1998,
2. Our Proxy Statement for our 1999 Annual Meeting filed on
January 19, 1999,
3. Our Quarterly Report on Form 10-Q for the fiscal quarter ended
January 31, 1999, and
4. Our Quarterly Report on Form 10-Q for the fiscal quarter ended
April 30, 1999.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address:
Engle Homes, Inc.
123 N.W. 13th Street
Suite 300
Boca Raton, Florida 33432
Attention: David Shapiro, Vice President - Finance
(561) 391-4012
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We may not make an offer
of the registered notes in any state where the offer is not permitted. You
should not assume that the information in this prospectus is accurate as of any
date other than the date on the front of this document.
i
<PAGE>
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains certain "forward-looking statements" within
the meaning of federal securities laws about our financial condition, results of
operations and business.
You can find many of these statements by looking for words such as
"believes," "expects," "anticipates," "estimates," or similar expressions used
in this prospectus.
These forward-looking statements are subject to numerous assumptions,
risks and uncertainties that may cause our actual results, performance or
achievements to be materially different form any future results, performance or
achievements expressed or implied by us in those statements. The risks and
uncertainties include those risks and uncertainties identified, among other
places, under the heading "Risk Factors" in this prospectus.
The most important factors that could prevent us from achieving our
stated goals include, but are not limited to, the following:
/bullet/ Local, regional and national economic conditions;
/bullet/ The effects of government regulation;
/bullet/ The competitive environment in which we operate;
/bullet/ Fluctuations in interest rates;
/bullet/ Changes in home prices;
/bullet/ The availability and cost of labor and materials; and
/bullet/ Weather conditions.
Because forward-looking statements are subject to risks and
uncertainties, actual results may differ materially from those expressed or
implied by such statements. You are cautioned not to place undue reliance on
such statements, which speak only as of the date of this prospectus.
The cautionary statements contained or referred to in this section
should be considered in connection with any subsequent written or oral
forward-looking statements that we or persons acting on our behalf may issue. We
undertake no obligation to review or confirm analysts' expectations or estimates
or to release publicly any revisions to any forward-looking statements to
reflect events or circumstances after the date of this prospectus or to reflect
the occurrence of unanticipated events.
ii
<PAGE>
SUMMARY
This summary highlights selected information from this prospectus and
may not contain all information that may be important to you. This prospectus
and the documents incorporated by reference in this prospectus include specific
terms of the exchange offer, as well as information regarding our business and
detailed financial data. We encourage you to read the detailed information and
financial statements appearing elsewhere in this prospectus or incorporated by
reference in this prospectus.
WHO WE ARE
We design, construct, market and sell detached single-family
residences, townhomes, patio homes and condominiums to entry level and move-up
buyers, retirees and second-home, seasonal buyers. We currently operate in nine
geographic markets:
/bullet/ Broward County, Palm Beach County and Martin County in South
Florida,
/bullet/ Orlando in Central Florida,
/bullet/ Tampa, Sarasota, Naples and Fort Myers on the west coast of
Florida,
/bullet/ Denver, Colorado,
/bullet/ Dallas, Texas,
/bullet/ Virginia,
/bullet/ Raleigh, North Carolina,
/bullet/ Phoenix, Arizona, and
/bullet/ Atlanta, Georgia.
We offer a variety of home styles at prices ranging from approximately
$70,000 to over $400,000 with an average sales price in fiscal 1998 of
approximately $192,000. In addition, we operate a mortgage company which
provides mortgages primarily to our home buyers in all of the geographic markets
we operate in and a title company which provides services to our home buyers and
others in Florida, Denver, Colorado and Dallas, Texas.
We are a leading Florida homebuilder and believe we are one of the top
five builders of single-family homes in South Florida and Central Florida.
Florida is the number one homebuilding state in the United States in terms of
total housing starts. In addition, Florida is currently the fourth largest state
based upon total population and has consistently ranked among the top four
states in population growth over the past seven decades.
Since 1993, we have expanded into eight of the top 20 homebuilding
markets in the nation through both start-up operations and the acquisition of a
homebuilder in Denver, Colorado. In fiscal 1998, approximately 44% of our
revenues from home sales were generated outside of the Florida markets as
compared to none in fiscal 1993.
Over the past five years, our total revenues have grown from $224
million in fiscal 1994 to $536 million in fiscal 1998. The number of homes
delivered increased from 1,992 in fiscal 1997 to 2,605 in fiscal 1998. At the
end of fiscal 1998, we were marketing homes in 91 communities.
Our principal executive offices are located at 123 N.W. 13th Street,
Suite 300, Boca Raton, Florida 33432, and our telephone number is (561)
391-4012.
1
<PAGE>
RECENT DEVELOPMENTS
On May 26, 1999, we amended our unsecured revolving credit agreement to
provide for the following:
/bullet/ the term of the facility was extended to May 2002 from May
2001,
/bullet/ the aggregate committed amount was reduced to $100 million
from $170 million, and
/bullet/ certain other amendments were made to the agreement to provide
us with greater financial flexibility.
THE EXCHANGE OFFER
On April 29, 1999, we issued in a private placement $100 million of our
9 1/4% Series B Senior Notes due 2008. We entered into a registration rights
agreement with the initial purchasers of these notes in which we agreed to
deliver to you this prospectus and to complete the exchange offer. You are
entitled to exchange your initial notes in the exchange offer for 9 1/4% Series
C Senior Notes due 2008 with substantially identical terms. We believe that the
registered notes to be issued in the exchange offer may be resold by you without
compliance with the registration and prospectus delivery requirements of the
Securities Act of 1933, subject to certain limited conditions.
We issued the initial notes under an indenture which grants the holders
of the initial notes certain rights. The registered notes will also be issued
under that indenture and the holders of the registered notes will have the same
rights as the holders of the initial notes. In addition, there are currently
$149,670,000 of registered notes outstanding which were also issued under this
indenture and the registered notes issued in the exchange offer will be part of
the same class as these currently outstanding registered notes.
Registration Rights Agreement...........You are entitled under the registration
rights agreement to exchange your
initial notes for registered notes with
substantially identical terms. The
exchange offer is intended to satisfy
these rights. After the exchange offer
is complete, except as set forth in the
next paragraph, you will no longer be
entitled to any exchange or registration
rights with respect to your initial
notes.
The registration rights agreement
requires us to file a registration
statement for a continuous offering in
accordance with Rule 415 under the
Securities Act for your benefit if you
would not receive freely tradeable
registered notes in the exchange offer
or you are ineligible to participate in
the exchange offer and indicate that you
wish to have your initial notes
registered under the Securities Act. See
"The Exchange Offer - Procedures for
Tendering."
The Exchange Offer......................We are offering to exchange $1,000
principal amount of 9 1/4% Series C
Senior Notes due 2008 which have been
registered under the Securities Act for
each $1,000 principal amount of 9 1/4%
Series B Senior Notes due 2008 which
were issued on April 29, 1999 in a
private placement. In order to be
exchanged, an initial note must be
properly tendered and accepted. All
initial notes that are validly tendered
and not validly withdrawn will be
exchanged.
As of this date, there are $100 million
of initial notes and $149,670,000 of
previously issued registered notes
outstanding.
We will issue the new registered notes
promptly after
2
<PAGE>
the expiration of the exchange offer.
Resales of the registered notes.........We believe that registered notes to be
issued in the exchange offer may be
offered for resale, resold and otherwise
transferred by you without compliance
with the registration and prospectus
delivery provisions of the Securities
Act if you meet the following
conditions:
(1) the registered notes are acquired by
you in the ordinary course of your
business,
(2) you are not engaging in and do not
intend to engage in a distribution
of the registered notes,
(3) you do not have an arrangement or
understanding with any person to
participate in the distribution of
the registered notes, and
(4) you are not an affiliate of ours, as
that term is defined in Rule 405
under the Securities Act.
If you do not meet the above conditions,
you may incur liability under the
Securities Act if you transfer any
registered note without delivering a
prospectus meeting the requirements of
the Securities Act. We do not assume or
indemnify you against that liability.
Each broker-dealer that is issued
registered notes in the exchange offer
for its own account in exchange for
initial notes which were acquired by
that broker-dealer as a result of
market-making activities or other
trading activities must acknowledge that
it will deliver a prospectus meeting the
requirements of the Securities Act in
connection with any resales of the
registered notes. A broker-dealer may
use this prospectus for an offer to
resell or to otherwise transfer these
registered notes.
Expiration Date.........................The exchange offer will expire at 5:00
p.m., New York City time, on , 1999,
unless we decide to extend the exchange
offer. We do not intend to extend the
exchange offer, although we reserve the
right to do so. If we determine to
extend the exchange offer, we do not
intend to extend it beyond , 1999.
Conditions to the Exchange Offer........The only conditions to completing the
exchange offer are that the exchange
offer not violate applicable law or any
applicable interpretation of the staff
of the SEC and no injunction, order or
decree has been issued which would
prohibit, prevent or materially impair
our ability to proceed with the exchange
offer. See "The Exchange Offer -
Conditions."
Procedures for Tendering Initial Notes
Held in the Form of Book-Entry
Interests............................The initial notes were issued as global
securities in fully registered form
without coupons. Beneficial interests in
the initial notes which are held by
direct or indirect participants in The
Depository Trust Company through
3
<PAGE>
certificateless depositary interests are
shown on, and transfers of the initial
notes can be made only through, records
maintained in book-entry form by The
Depository Trust Company with respect to
its participants.
If you are a holder of an initial note
held in the form of a book-entry
interest and you wish to tender your
initial notes for exchange pursuant to
the exchange offer, you must transmit to
American Stock Transfer & Trust Company,
as exchange agent, on or prior to the
expiration of the exchange offer either:
/bullet/ a written or facsimile copy of
a properly completed and
executed letter of transmittal
and all other required
documents to the address set
forth on the cover page of the
letter of transmittal; or
/bullet/ a computer-generated message
transmitted by means of DTC's
Automated Tender Offer Program
system and forming a part of a
confirmation of book-entry
transfer in which you
acknowledge and agree to be
bound by the terms of the
letter of transmittal.
The exchange agent must also receive on
or prior to the expiration of the
exchange offer either:
/bullet/ a timely confirmation of
book-entry transfer of your
initial notes into the exchange
agent's account at DTC, in
accordance with the procedure
for book-entry transfers
described in this prospectus
under the heading "The Exchange
Offer--Book-Entry Transfer," or
/bullet/ the documents necessary for
compliance with the guaranteed
delivery procedures described
below.
A letter of transmittal accompanies this
prospectus. By executing the letter of
transmittal or delivering a
computer-generated message through DTC's
Automated Tender Offer Program system,
you will represent to us that, among
other things:
(1) the registered notes to be acquired
by you in the exchange offer are
being acquired in the ordinary
course of your business;
(2) you are not engaging in and do not
intend to engage in a distribution
of the registered notes;
(3) you do not have an arrangement or
understanding with any person to
participate in the distribution of
the registered notes; and
(4) you are not our affiliate.
4
<PAGE>
Procedures for Tendering Certificated
Initial Notes.........................If you are a holder of book-entry
interests in the initial notes, you are
entitled to receive, in limited
circumstances, in exchange for your
book-entry interests, certificated notes
which are in equal principal amounts to
your book-entry interests. See
"Book-Entry; Delivery and Form." No
certificated notes are issued and
outstanding as of the date of this
prospectus. If you acquire certificated
initial notes prior to the expiration of
the exchange offer, you must tender your
certificated initial notes in accordance
with the procedures described in this
prospectus under the heading "The
Exchange Offer--Procedures for
Tendering--Certificated Initial Notes."
Special Procedures for
Beneficial Owners.....................If you are the beneficial owner of
initial notes and they are registered in
the name of a broker, dealer, commercial
bank, trust company or other nominee,
and you wish to tender your initial
notes, you should promptly contact the
person in whose name your initial notes
are registered and instruct that person
to tender on your behalf. If you wish to
tender on your own behalf, you must,
prior to completing and executing the
letter of transmittal and delivering
your initial notes, either make
appropriate arrangements to register
ownership of the initial notes in your
name or obtain a properly completed bond
power from the person in whose name your
initial notes are registered. The
transfer of registered ownership may
take considerable time. See "The
Exchange Offer--Procedures for
Tendering--Procedures Applicable to All
Holders."
Guaranteed Delivery Procedures..........If you wish to tender your initial notes
and:
(1) they are not immediately available,
(2) time will not permit your initial
notes or other required documents to
reach the exchange agent before the
expiration of the exchange offer, or
(3) you cannot complete the procedure
for book-entry transfer on a timely
basis,
you may tender your initial notes in
accordance with the guaranteed delivery
procedures set forth in "The Exchange
Offer--Procedures for
Tendering--Guaranteed Delivery
Procedures."
Acceptance of Initial Notes and
Delivery of registered notes..........Except under the circumstances described
above under "Conditions to the Exchange
Offer," we will accept for exchange any
and all initial notes which are properly
tendered in the exchange offer prior to
5:00 p.m., New York City time, on the
expiration date. The registered notes to
be issued to you in the exchange offer
will be delivered promptly following the
expiration date. See "The Exchange
Offer--Terms of the Exchange Offer."
5
<PAGE>
Withdrawal..............................You may withdraw the tender of your
initial notes at any time prior to 5:00
p.m., New York City time, on the
expiration date. We will return to you
any initial notes not accepted for
exchange for any reason without expense
to you as promptly as we can after the
expiration or termination of the
exchange offer.
Exchange Agent..........................American Stock Transfer & Trust Company
is serving as the exchange agent in
connection with the exchange offer.
Consequences of Failure to Exchange.....If you do not participate in the
exchange offer, upon completion of the
exchange offer, the liquidity of the
market for your initial notes could be
adversely affected.
Federal Income Tax Consequences.........The exchange of the initial notes will
not be a taxable event for federal
income tax purposes. See "United States
Federal Income Tax Considerations."
6
<PAGE>
THE REGISTERED NOTES
The Registered Notes....................$100,000,000 aggregate principal amount
of 9 1/4% Series C Senior Notes due 2008
of Engle Homes, Inc.
Maturity Date...........................February 1, 2008.
Interest Payment Dates..................Interest at will accrue from February 1,
1999, or the last interest payment date
on the initial notes, and will be
payable on each February 1 and August 1,
commencing August 1, 1999.
Guarantees..............................The registered notes are guaranteed by
each of our wholly-owned subsidiaries.
If we cannot make payments on the
registered notes when payments are due,
the guarantor subsidiaries will be
obligated to make them.
Optional Redemption.....................At any time on or after February 1,
2003, we may redeem the registered notes
at the redemption prices listed in the
section "Description of the Registered
Notes" under the heading "Optional
Redemption."
We may also redeem up to 33% of the
registered notes at any time before
February 1, 2001, with the net proceeds
of one or more public equity offerings
at the redemption price listed in the
section "Description of the Registered
Notes" under the heading "Optional
Redemption," so long as at least 67% of
the registered notes we originally
issued, including the $149,670,000 of
registered notes that are currently
outstanding, remain outstanding.
Change of Control.......................Upon a change of control as described in
the section "Description of the
Registered Notes" under the heading
"Certain Covenants - Change of Control,"
holders of registered notes will have
the right to require us to purchase some
or all of their registered notes at 101%
of the principal amount, plus interest
to the date of purchase. We cannot
assure you that we will have sufficient
funds to purchase any of the registered
notes.
Additional Offers to Purchase...........Under certain circumstances, we may be
required to make an offer to purchase a
portion of the registered notes in the
event of certain asset sales or if our
net worth falls below a certain level
for two consecutive quarters.
Ranking.................................The registered notes are our general
obligations and will not be secured by
any collateral. Right to payment under
the registered notes will be:
/bullet/ junior to the rights of our
secured creditors to the extent
of their security in our
assets,
/bullet/ equal with the rights of
creditors under our other
unsecured unsubordinated debt,
including our credit facility,
and
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<PAGE>
/bullet/ senior to the rights of
creditors under debt expressly
subordinated to the registered
notes.
The guarantees of our subsidiaries will
also not be secured by any collateral.
Right to payment under any guarantee
will be:
/bullet/ junior to the rights of secured
creditors to the extent of
their security in our
subsidiaries' assets,
/bullet/ equal with the rights of
creditors under our
subsidiaries' other unsecured
unsubordinated debt, and
/bullet/ senior to the rights of
creditors under debt of our
subsidiaries that is expressly
subordinated to the guarantees
of the registered notes.
Currently, neither us nor our
subsidiaries have any secured
indebtedness outstanding other than our
warehouse lines of credit.
Certain Covenants.......................The registered notes will be issued
under an indenture which will, among
other things, restrict our ability and
the ability of our subsidiaries to:
/bullet/ borrow money,
/bullet/ pay dividends on or repurchase
our common stock,
/bullet/ sell certain assets,
/bullet/ enter into certain transactions
with our affiliates,
/bullet/ incur liens,
/bullet/ merge with or into other
companies, or
/bullet/ make investments in
subsidiaries that are not
guarantors of the registered
notes.
For more details, see the section
"Description of the Registered Notes"
under the heading "Certain Covenants."
8
<PAGE>
RISK FACTORS
You should carefully consider the risks described below before making
an investment decision. The risks and uncertainties described below are not the
only ones that we may face. There may be additional risks and uncertainties not
presently known to us or that we currently do not believe are material that may
also impair our business operations.
If any of the following risks actually occur, our business, financial
condition or results of operations could be materially adversely affected. In
such case, the trading price of the registered notes could decline and you may
lose all or part of your investment.
AFTER COMPLETION OF THE EXCHANGE OFFER THE LIQUIDITY OF ANY MARKET FOR THE
INITIAL NOTES COULD BE ADVERSELY AFFECTED AND THE INITIAL NOTES MAY NO LONGER BE
ENTITLED TO ANY REGISTRATION RIGHTS.
We issued the initial notes in a private offering exempt from the
registration requirements of the Securities Act. Accordingly, you may not offer,
sell or otherwise transfer your initial notes except in compliance with the
registration requirements of the Securities Act and applicable state securities
laws or pursuant to exemptions from such registration requirements. If you do
not exchange your initial notes for registered notes in this exchange offer,
your initial notes will continue to be subject to these transfer restrictions
after the completion of this exchange offer.
After completion of this exchange offer, if you do not tender your
initial notes in this exchange offer, you will no longer be entitled to any
registration rights under the registration rights agreement, except under
limited circumstances.
To the extent initial notes are tendered and accepted in the exchange
offer, the liquidity of the trading market, if any, for the initial notes could
be adversely affected.
FUTURE CHANGES IN BUSINESS CONDITIONS COULD ADVERSELY AFFECT OUR BUSINESS,
INCLUDING OUR ABILITY TO BUILD HOMES AT PRICES OUR CUSTOMERS ARE WILLING OR ABLE
TO PAY.
The homebuilding industry is cyclical and is significantly affected by
changes in general and local economic conditions, such as:
/bullet/ employment levels,
/bullet/ availability of financing for home buyers,
/bullet/ interest rate levels,
/bullet/ consumer confidence, and
/bullet/ housing demand.
An oversupply of alternatives to new homes, such as rental properties
and used homes, could depress prices and reduce margins for the sale of new
homes.
Weather conditions and natural disasters such as hurricanes, tornadoes,
earthquakes, floods and fires, can harm the homebuilding business.
Inventory risk can be substantial for homebuilders. The risks inherent
in purchasing and developing land increase as consumer demand for housing
decreases. The market value of undeveloped land, building lots and housing
inventories can fluctuate significantly as a result of changing market
conditions.
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<PAGE>
In addition, inventory carrying costs can be significant and can result
in losses in a poorly performing project or market. In the event of significant
changes in economic or market conditions, we may have to sell homes at a loss.
In our business, we must continuously seek and make acquisitions of
land for replacement and expansion of land inventory within our current markets
and, from time to time, make acquisitions of land for expansion into new
markets. Although we employ various measures designed to manage inventory risks,
we can give no assurance that such measures will be successful.
The homebuilding industry has from time to time experienced significant
difficulties, including:
/bullet/ shortages of qualified trades people,
/bullet/ reliance on local contractors, who may be inadequately
capitalized,
/bullet/ shortages of materials, and
/bullet/ volatile increases in the cost of certain materials
(particularly increases in the price of lumber, framing and
cement, which are significant components of home construction
costs).
These difficulties could cause us to take longer and pay more costs to
build our homes. We may not be able to recapture increased costs by raising
prices in many cases because we fixed our prices up to six months in advance of
delivery by signing home sales contracts. In addition, some home buyers may
cancel or not honor their home sales contracts altogether.
FUTURE INCREASES IN INTEREST RATES COULD PREVENT POTENTIAL CUSTOMERS FROM BUYING
OUR HOMES AND ADVERSELY AFFECT OUR BUSINESS.
Virtually all our customers finance their acquisitions through lenders
providing mortgage financing. Increases in interest rates or decreases in
availability of mortgage financing could depress the market for new homes
because of the increased monthly mortgage costs to potential home buyers. Even
if potential customers do not need financing, changes in interest rates and
mortgage availability could make it harder for them to sell their homes to
potential buyers who need financing. This could adversely affect our results of
operations.
OUR SUBSTANTIAL DEBT COULD ADVERSELY AFFECT OUR FINANCIAL HEALTH AND PREVENT US
FROM FULFILLING OUR OBLIGATIONS UNDER THE NOTES.
We have a significant amount of debt. As of April 30, 1999, our
outstanding indebtedness was approximately $284,120,000. In addition, subject to
the restrictions in the indenture relating to the notes and in our credit
facility, we may incur additional debt in the future.
The amount of our debt could have important consequences to a holder of
the notes. For example, it could:
/bullet/ make us more vulnerable in the event of a downturn in our
business or in general economic conditions,
/bullet/ limit our ability to obtain additional financing for future
working capital, capital expenditures, general corporate or
other purposes
/bullet/ require us to dedicate a substantial portion of our cash flow
from operations to the payment on our debt and reduce our
ability to use our cash flow for other purposes, and
/bullet/ limit our flexibility in planning for, or reacting to, the
changes in our business.
Our ability to meet our debt service obligations depends on our future
performance. Numerous factors outside of our control, including changes in
financial, political and business conditions in the markets in which we do
business, affect our operating results. Any adverse changes in these factors
could adversely affect our operating results. We cannot assure you that we will
be able to generate sufficient cash flow from operations or that future
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<PAGE>
borrowings will be available to us under our credit facility in amounts
sufficient to meet our debt service obligations, including the notes. We may
need to refinance all or a portion of our debt, including the notes, or obtain
alternative additional financing, to make required debt service payments. We
cannot be certain that we could refinance our debt or obtain alternative
additional financing on terms that are favorable to us.
Our credit facility and the indenture governing the notes contain
financial covenants. If we fail to comply with any of these covenants, our debt
could become due and payable before maturity, which could adversely affect our
operations, including our ability to make additional borrowings under our credit
facility.
OUR BUSINESS OPERATIONS ARE GEOGRAPHICALLY CONCENTRATED AND ECONOMIC DOWNTURNS
IN THE GEOGRAPHIC AREAS IN WHICH WE OPERATE WOULD ADVERSELY AFFECT OUR BUSINESS.
Our operations are located in the following areas:
/bullet/ South Florida, Central Florida and the west coast of Florida,
/bullet/ Denver, Colorado,
/bullet/ Dallas, Texas,
/bullet/ Virginia,
/bullet/ Raleigh, North Carolina,
/bullet/ Phoenix, Arizona, and
/bullet/ Atlanta, Georgia.
Adverse general economic conditions in any of these markets could have
a material adverse impact on our operations. During our 1998 fiscal year,
approximately 56% of our housing revenue and a significant portion of our
operating income were derived from operations in Florida. Adverse economic
changes in Florida could significantly affect our operations. We expanded into
two new geographic markets, Phoenix, Arizona, and Atlanta, Georgia, in our 1997
fiscal year. We may find these new markets to be less stable than our
established markets and these new markets may involve delays, problems and
expenses we do not typically find in the existing markets with which we are
familiar.
OUR PRINCIPAL SHAREHOLDERS HAVE SIGNIFICANT VOTING CONTROL.
Alec Engelstein, our Chairman, President and Chief Executive Officer,
and Harry Engelstein, our Executive Vice President and Chief Construction
Officer, together beneficially own a total of approximately 32% of our
outstanding Common Stock and together have significant voting power with respect
to the election of our Board of Directors, and in general, the determination of
the outcome of various matters submitted to the shareholders for approval. The
interests of our principal shareholders may be in conflict with the interests of
holders of notes.
WE ARE DEPENDENT ON OUR KEY EXECUTIVES FOR OUR CONTINUED SUCCESS.
Our operations are managed by a relatively small number of executive
officers. If we were to lose the services of one or more of these executive
officers, particularly Alec Engelstein, our Chairman, President and Chief
Executive Officer, that loss could have an adverse effect on our business and
operations.
11
<PAGE>
FEDERAL AND STATE LAWS ALLOW COURTS, UNDER SPECIFIC CIRCUMSTANCES, TO VOID
GUARANTEES AND TO REQUIRE CERTAIN PAYMENTS RECEIVED FROM GUARANTORS TO BE
RETURNED.
Although holders of the notes will be direct creditors of the
guarantors by virtue of the guarantees, existing or future creditors of any
guarantor could avoid or subordinate such guarantor's guarantee under the
fraudulent conveyance laws if they were successful in establishing that:
/bullet/ the guarantee was incurred with fraudulent intent, or
/bullet/ the guarantor did not receive fair consideration or reasonably
equivalent value for issuing the guarantee and the guarantor
1) was insolvent at the time of the guarantee,
2) was rendered insolvent by reason of the guarantee,
3) was engaged in a business or transaction for which its
assets constituted unreasonably small capital to carry on
its business, or
4) intended to incur, or believed that it would incur, debt
beyond its ability to pay such debt as it matured.
The measures of insolvency for purposes of determining whether a
fraudulent conveyance occurred would vary depending upon the laws of the
relevant jurisdiction and upon the valuation assumptions and methodology applied
by the court. Generally, however, a company would be considered insolvent for
purposes of the foregoing if:
/bullet/ the sum of the company's debts, including contingent,
unliquidated and unmatured liabilities, is greater than all of
such company's property at a fair valuation, or
/bullet/ if the present fair saleable value of the company's assets is
less than the amount that will be required to pay the probable
liability on its existing debts as they become absolute and
matured.
WE MAY NOT HAVE THE ABILITY TO RAISE FUNDS NECESSARY TO FINANCE ANY CHANGE OF
CONTROL OFFER REQUIRED BY THE INDENTURE.
If a change of control occurs as described in the section "Description
of the Registered Notes" under the heading "Certain Covenants--Change of
Control," we will be required to offer to repurchase all of the outstanding
notes at 101% of their principal amount, together with any accrued and unpaid
interest. We cannot assure you that we will have sufficient funds available or
that we will be permitted by our other debt agreements to repurchase the notes.
HOMEBUILDING IS VERY COMPETITIVE, AND COMPETITIVE CONDITIONS COULD ADVERSELY
AFFECT OUR RESULTS OF OPERATIONS.
The homebuilding industry is highly competitive and fragmented. We
compete in each of our markets with numerous national, regional and local
builders, including some builders with greater financial resources than us.
Builders of new homes compete not only for home buyers, but also for desirable
properties, raw materials and skilled subcontractors.
The competitive conditions in the homebuilding industry could result
in:
/bullet/ difficulty in acquiring suitable land at acceptable prices,
/bullet/ increased selling incentives,
/bullet/ lower sales, or
/bullet/ delays in construction.
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<PAGE>
GOVERNMENTAL REGULATIONS COULD INCREASE THE COST AND AVAILABILITY OF OUR
DEVELOPMENT AND HOMEBUILDING PROJECTS AND ADVERSELY AFFECT OUR BUSINESS.
We are subject to extensive and complex regulations that affect the
development and homebuilding process, including zoning, density and building
standards. These regulations often provide broad discretion to the administering
governmental authorities. This can delay or increase the cost of development or
homebuilding.
We also are subject to a variety of local, state and federal laws and
regulations concerning protection of health and the environment. These
environmental laws may result in delays, may cause us to incur substantial
compliance and other costs, and can prohibit or severely restrict development
and homebuilding activity in certain environmentally sensitive regions or areas.
THE VOTING INTEREST OF THE HOLDERS OF NOTES WILL BE DILUTED.
Currently, approximately $149,670,000 of registered notes are
outstanding. The registered notes which are currently outstanding and the
registered notes to be issued in the exchange offer will be deemed to be a
single series of debt securities outstanding under the indenture. Accordingly,
the individual voting interest of each holder of registered notes will be
diluted. In addition, issuances of additional notes under the indenture, to the
extent permitted by the debt incurrence limitations of the indenture, may result
in further dilution of the individual voting interest of the holders of notes.
WE CANNOT ASSURE YOU THAT A TRADING MARKET WILL BE SUSTAINED FOR THE NOTES.
The registered notes to be issued in the exchange offer will trade as a
single class with the $149,670,000 of registered notes that are currently
outstanding. The registered notes are not listed on a securities exchange and we
do not intend to apply for listing of the registered notes on a securities
exchange. The liquidity of the trading market in the registered notes, and the
market prices quoted for the registered notes, may be adversely affected by
changes in the overall market for these types of securities and by changes in
our financial performance or prospects or in the prospects for companies in our
industry generally. As a result, we cannot assure you that an active trading
market will continue for the registered notes, that you will be able to sell the
registered notes or that, if you can sell your registered notes, you will be
able to sell them at an acceptable price.
OUR SYSTEMS MAY NOT BE YEAR 2000 COMPLIANT.
We have done an assessment of the homebuilding and corporate operations
that utilize the our significant information technology and non-information
technology systems. We believe that our information technology system is Year
2000 compliant in all material respects.
We have replaced certain non-compliant systems and are in the process
of replacing others. The systems we are in the process of replacing are not
critical to our operations. In substantially all of the cases, the replacement
or upgrading of all of these systems will occur prior to any exposure to
potential Year 2000 issues. We do not believe that our non-compliant systems
pose a material risk to our financial condition or that the cost of replacing or
upgrading our remaining non-compliant systems will have any material averse
effect. However, we cannot currently determine to what extent Year 2000 issues
will affect the systems of governmental agencies on which we are dependent for
zoning, building permits and related matters that are critical to our
operations.
We have surveyed and continue to monitor our significant vendors ,
subcontractors, suppliers and financial institutions to assess their readiness
or anticipated readiness for the Year 2000. We believe that our worst-case
scenario resulting from Year 2000 issues would be the failure of some of our
vendors, subcontractors or other third parties to achieve Year 2000 compliance,
resulting in a slowdown of our operations. We will continue to monitor our
largest suppliers, vendors and sub-contractors and attempt to minimize any
adverse effects on our operations. In addition, we are currently developing
contingency plans. While at present we do not believe the Year 2000 issue will
have a material adverse effect on our business, we cannot assure you in this
regard.
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<PAGE>
USE OF PROCEEDS
We will not receive any cash proceeds from the exchange offer. In
consideration for issuing the registered notes as contemplated in this
prospectus, we will receive in exchange the initial notes in like principal
amount. The initial notes surrendered in exchange for the registered notes will
be retired and canceled and cannot be reissued. The issuance of the registered
notes will not result in any increase in our indebtedness.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges
for the periods indicated:
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEAR ENDED OCTOBER 31, APRIL 30,
---------------------------------------------------- ----------------
1994 1995 1996 1997 1998 1998 1999
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges (1)...... 2.56x 1.18x 1.63x 2.40x 2.55x 2.24x 2.92x
</TABLE>
- ------------
(1) Computed by dividing earnings by fixed charges. "Earnings" consist of income
from operations before income taxes, plus amortization of previously
capitalized interest included in costs of sales and fixed charges, exclusive
of capitalized interest costs. "Fixed Charges" consist of interest costs
incurred, including capitalized interest costs plus amortization of loan
costs and that portion of operating lease rental expense deemed to be
representative of interest.
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<PAGE>
THE EXCHANGE OFFER
PURPOSE OF THE EXCHANGE OFFER
Upon the issuance of the initial notes under the purchase agreement,
the initial purchasers and their respective assignees became entitled to the
benefits of the registration rights agreement. Under the registration rights
agreement, we are required to:
/bullet/ use our reasonable best efforts to cause the registration
statement to declared effective no later than 150 days after
the date the initial notes were issued,
/bullet/ keep the exchange offer open for not less than 30 days (or
longer if required by applicable law) after we notify holders
of the notes of the exchange offer, and
/bullet/ use reasonable best efforts to complete the exchange offer as
soon as practicable, but no later than 150 days after the date
on which we issued the initial notes.
The exchange offer being made by this prospectus is intended to satisfy
our obligations under the registration rights agreement. If we fail to fulfill
such obligations, the holders of outstanding initial notes are entitled to
receive "Additional Interest" until we have fulfilled such obligations, at the
rate of 0.50%, which rate will increase by an additional 0.50% at the beginning
of each 90-day period that we must pay Additional Interest, provided that any
such increase in the interest rate may not exceed 1.5%. All amounts of accrued
Additional Interest will be payable in cash on the same interest payment dates
as the notes.
EFFECT OF THE EXCHANGE OFFER
Based on interpretations by the SEC staff contained in no-action
letters issued to third parties, we believe that you may offer for resale,
resell and otherwise transfer the registered notes issued to you under the
exchange offer without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that you can represent that:
/bullet/ you are acquiring the registered notes in the ordinary course
of your business;
/bullet/ you have no arrangements or understandings with any person to
participate in the exchange offer for the purpose of
distributing the registered notes; and
/bullet/ you are not an "affiliate" (as defined in Rule 405 of the
Securities Act) of ours.
If you are not able to make these representations, you are a
"Restricted Holder." As a Restricted Holder, you will not be able to participate
in the exchange offer, may not rely on the SEC staff positions set forth in the
Exxon Capital Holdings Corporation no-action letter and similar no-action
letters and may only sell your initial notes as part of a registration statement
containing the selling security holder information required by Item 507 of SEC
Regulation S-K, or under an exemption from the registration requirement of the
Securities Act.
In addition, each broker-dealer, other than a Restricted Holder, that
receives registered notes for its own account in exchange for initial notes
which were acquired by such broker-dealer as a result of market-making or other
trading activities (a "Participating Broker-Dealer") may be a statutory
underwriter and must acknowledge in the letter of transmittal that it will
deliver a prospectus meeting the requirements of the Securities Act upon any
resale of such registered notes. The letter of transmittal states that by so
acknowledging and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
Based upon interpretations by the SEC staff, we believe that a Participating
Broker-Dealer may offer for resale, resell and otherwise transfer registered
notes issued under the exchange offer upon compliance with the prospectus
delivery requirements, but without compliance with the registration
requirements, of the Securities Act. This prospectus, as it may be amended or
supplemented from time to time, may be used by a Participating
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<PAGE>
Broker-Dealer as part of their resales. We have agreed that, for a period of 90
days after the completion of the exchange offer, we will make this prospectus
available to any broker-dealer for use by the broker-dealer in any resale. By
acceptance of this exchange offer, each broker-dealer that receives registered
notes under the exchange offer agrees to notify us prior to using this
prospectus in a sale or transfer of registered notes. For more information,
please see the section "Plan of Distribution."
To the extent initial notes are tendered and accepted in the exchange
offer, the principal amount of outstanding initial notes will decrease with a
resulting decrease in the liquidity in the market for the initial notes. Initial
notes that are still outstanding following the completion of the exchange offer
will continue to be subject to transfer restrictions.
TERMS OF THE EXCHANGE OFFER
Upon the terms and subject to the conditions contained in this
prospectus and in the letter of transmittal, we will accept any and all initial
notes validly tendered and not withdrawn prior to 5:00 p.m., New York City time,
on the expiration date. As of the date of this prospectus, $100 million
principal amount of the initial notes is outstanding. We will issue $1,000
principal amount at maturity of registered notes in exchange for each $1,000
principal amount at maturity of outstanding initial notes accepted in the
exchange offer. Holders may tender some or all of their initial notes under the
exchange offer. However, initial notes may be tendered only in integral
multiples of $1,000.
The form and terms of the registered notes will be substantially
identical to the form and terms of the initial notes, except that:
/bullet/ the offering of the registered notes has been registered under
the Securities Act;
/bullet/ the registered notes will not be subject to transfer
restrictions;
/bullet/ the registered notes will be issued free of any covenants
regarding registration rights and free of any provision for
Additional Interest; and
/bullet/ the registered notes will evidence the same debt as the
initial notes and will be entitled to the benefits of the
indenture under which initial notes were, and the registered
notes will be, issued.
You do not have any appraisal or dissenters rights under law or the
indenture in the exchange offer. We intend to conduct the exchange offer in
accordance with the applicable requirements of the Exchange Act.
We will be deemed to have accepted validly tendered initial notes when,
as and if we have given oral notice, promptly confirmed in writing, or written
notice of the acceptance to the exchange agent. The exchange agent will act as
agent for the tendering holders for the purpose of receiving the registered
notes from us.
If we do not accept for exchange any tendered initial notes because of
an invalid tender, the occurrence of other events described in this prospectus
or otherwise, certificates for any such unaccepted initial notes will be
returned to you, without expense, as promptly as practicable after the
expiration date.
If you tender initial notes in the exchange offer, you will not be
required to pay brokerage commissions or fees or, subject to the instructions in
the letter of transmittal, transfer taxes relating to the exchange of initial
notes under the exchange offer. We will pay all charges and expenses, other than
underwriting discounts and commissions and transfer taxes, as part of the
exchange offer. See "--Fees and Expenses."
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EXPIRATION DATE, EXTENSIONS, AMENDMENTS
The term "expiration date" means 5:00 p.m., New York City time,
on , 1999, unless we, in our sole discretion, extend the exchange
offer, in which case the term "expiration date" shall mean the latest date and
time to which the exchange offer is extended.
In order to extend the exchange offer, we will notify the exchange
agent of any extension by oral notice (promptly confirmed in writing) or written
notice and will make a public announcement that we have extended the exchange
offer prior to 9:00 a.m., New York City time, on the next business day after the
previously scheduled expiration date unless otherwise required by applicable law
or regulation.
We have the right, in our reasonable discretion, (1) to delay accepting
any initial notes, to extend the exchange offer or, if any of the conditions set
forth below under "Conditions" shall not have been satisfied, to terminate the
exchange offer, by giving oral or written notice of such delay, extension or
termination to the exchange agent, or (2) to amend the terms of the exchange
offer in any manner. Any such delay in acceptance, extension, termination or
amendment will be followed as promptly as practicable by a public announcement.
If we believe that we have made a material amendment of the terms of the
exchange offer, we will promptly disclose such amendment in a manner reasonably
calculated to inform the holders of the notes of such amendment and we will
extend the exchange offer to the extent required by law.
Without limiting the manner in which we may choose to make public
announcement of any delay, extension, termination or amendment of the exchange
offer, we shall have no obligation to publish, advertise or otherwise
communicate any such public announcement, other than by making a timely release
to the Dow Jones News Service.
PROCEDURES FOR TENDERING
BOOK-ENTRY INTERESTS
The initial notes were issued as global securities in fully registered
form without interest coupons. Beneficial interests in the global securities,
held by direct or indirect participants in The Depository Trust Company ("DTC"
or the "Depositary"), are shown on, and transfers of these interests are
effected only through, records maintained in book-entry form by DTC with respect
to its participants.
If you hold your initial notes in the form of book-entry interests and
you wish to tender your initial notes for exchange pursuant to the exchange
offer, you must transmit to the exchange agent on or prior to the expiration
date either:
(1) a written or facsimile copy of a properly completed and duly
executed letter of transmittal, including all other documents
required by such letter of transmittal, to the exchange agent
at the address set forth on the cover page of the letter of
transmittal, or
(2) a computer-generated message transmitted by means of DTC's
Automated Tender Offer Program system and received by the
exchange agent and forming a part of a confirmation of
book-entry transfer, in which you acknowledge and agree to be
bound by the terms of the letter of transmittal.
In addition, in order to deliver initial notes held in the form of
book-entry interests:
(A) a timely confirmation of book-entry transfer of such notes
into the exchange agent's account at DTC pursuant to the
procedure for book-entry transfers described below under
"--Book-Entry Transfer" must be received by the exchange agent
prior to the expiration date, or
(B) you must comply with the guaranteed delivery procedures
described below.
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THE METHOD OF DELIVERY OF INITIAL NOTES AND THE LETTER OF TRANSMITTAL
AND ALL OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT YOUR ELECTION AND
RISK. INSTEAD OF DELIVERY BY MAIL, WE RECOMMEND THAT YOU USE AN OVERNIGHT OR
HAND DELIVERY SERVICE. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE
DELIVERY TO THE EXCHANGE AGENT BEFORE THE EXPIRATION DATE. YOU SHOULD NOT SEND
THE LETTER OF TRANSMITTAL OR INITIAL NOTES TO US. YOU MAY REQUEST YOUR BROKER,
DEALER, COMMERCIAL BANK, TRUST COMPANY, OR NOMINEE TO EFFECT THE ABOVE
TRANSACTIONS FOR YOU.
CERTIFICATED INITIAL NOTES
Only registered holders of certificated initial notes may tender those
notes in the exchange offer. If your initial notes are certificated notes and
you wish to tender those notes for exchange pursuant to the exchange offer, you
must transmit to the exchange agent on or prior to the expiration date, a
written or facsimile copy of a properly completed and duly executed letter of
transmittal, including all other required documents, to the address set forth
below under "--Exchange Agent." In addition, in order to validly tender your
certificated initial notes:
(1) the certificates representing your initial notes must be
received by the exchange agent prior to the expiration date,
or
(2) you must comply with the guaranteed delivery procedures
described below.
PROCEDURES APPLICABLE TO ALL HOLDERS
If you tender an initial note and you do not withdraw the tender prior
to the expiration date, you will have made an agreement with us in accordance
with the terms and subject to the conditions set forth in this prospectus and in
the letter of transmittal.
If your initial notes are registered in the name of a broker, dealer,
commercial bank, trust company or other nominee and you wish to tender your
notes, you should contact the registered holder promptly and instruct the
registered holder to tender on your behalf. If you wish to tender on your own
behalf, you must, prior to completing and executing the letter of transmittal
and delivering your initial notes, either make appropriate arrangements to
register ownership of the initial notes in your name or obtain a properly
completed bond power from the registered holder. The transfer of registered
ownership may take considerable time.
Signatures on a letter of transmittal or a notice of withdrawal must be
guaranteed by an eligible institution unless:
(A) initial notes tendered in the exchange offer are tendered
either
(1) by a registered holder who has not completed the box
entitled "Special Registration Instructions" or "Special
Delivery Instructions" on the letter of transmittal, or
(2) for the account of an eligible institution; and
(B) the box entitled "Special Registration Instructions" on the
letter of transmittal has not been completed.
If signatures on a letter of transmittal or a notice of withdrawal are
required to be guaranteed, the guarantee must be by a financial institution,
which includes most banks, savings and loan associations and brokerage houses,
that is a participant in the Securities Transfer Agents Medallion Program, the
New York Stock Exchange Medallion Program or the Stock Exchanges Medallion
Program.
If the letter of transmittal is signed by a person other than you, your
initial notes must be endorsed or accompanied by a properly completed bond power
and signed by you as your name appears on those initial notes.
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If the letter of transmittal or any initial notes or bond powers are
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations, or others acting in a fiduciary or representative
capacity, those persons should so indicate when signing. Unless we waive this
requirement, in this instance you must submit with the letter of transmittal
proper evidence satisfactory to us of their authority to act on your behalf.
We will determine, in our sole discretion, all questions regarding the
validity, form, eligibility, including time of receipt, acceptance and
withdrawal of tendered initial notes. This determination will be final and
binding. We reserve the absolute right to reject any and all initial notes not
properly tendered or any initial notes our acceptance of which would, in the
opinion of our counsel, be unlawful. We also reserve the right to waive any
defects, irregularities or conditions of tender as to particular initial notes.
Our interpretation of the terms and conditions of the exchange offer, including
the instructions in the letter of transmittal, will be final and binding on all
parties.
You must cure any defects or irregularities in connection with tenders
of your initial notes within the time period we will determine unless we waive
that defect or irregularity. Although we intend to notify you of defects or
irregularities with respect to your tender of initial notes, neither we, the
exchange agent nor any other person will incur any liability for failure to give
this notification. Your tender will not be deemed to have been made and your
notes will be returned to you if:
(1) you improperly tender your initial notes,
(2) you have not cured any defects or irregularities in your
tender, and
(3) we have not waived those defects, irregularities or improper
tender.
The exchange agent will return your notes, unless otherwise provided
in the letter of transmittal, as soon as practicable following the expiration of
the exchange offer.
In addition, we reserve the right in our sole discretion to:
(1) purchase or make offers for, or offer registered notes for,
any initial notes that remain outstanding subsequent to the
expiration of the exchange offer,
(2) terminate the exchange offer, and
(3) to the extent permitted by applicable law, purchase notes in
the open market, in privately negotiated transactions or
otherwise.
The terms of any of these purchases or offers could differ from the
terms of the exchange offer.
By tendering, you will represent to us that, among other things:
(1) the registered notes to be acquired by you in the exchange
offer are being acquired in the ordinary course of your
business,
(2) you are not engaging in and do not intend to engage in a
distribution of the registered notes to be acquired by you in
the exchange offer,
(3) you do not have an arrangement or understanding with any
person to participate in the distribution of the registered
notes to be acquired by you in the exchange offer, and
(4) you are not our "affiliate," as defined under Rule 405 of the
Securities Act.
In all cases, issuance of registered notes for initial notes that are
accepted for exchange in the exchange offer will be made only after timely
receipt by the exchange agent of certificates for your initial notes or a timely
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book-entry confirmation of your initial notes into the exchange agent's account
at DTC, a properly completed and duly executed letter of transmittal, or a
computer-generated message instead of the letter of transmittal, and all other
required documents. If any tendered initial notes are not accepted for any
reason set forth in the terms and conditions of the exchange offer or if initial
notes are submitted for a greater principal amount than you desire to exchange,
the unaccepted or non-exchanged initial notes, or initial notes in substitution
therefor, will be returned without expense to you. In addition, in the case of
initial notes tendered by book-entry transfer into the exchange agent's account
at DTC pursuant to the book-entry transfer procedures described below, the
non-exchanged initial notes will be credited to your account maintained with
DTC, as promptly as practicable after the expiration or termination of the
exchange offer.
GUARANTEED DELIVERY PROCEDURES
If you desire to tender your initial notes and your initial notes are
not immediately available or one of the situations described in the immediately
preceding paragraph occurs, you may tender if:
(1) you tender through an eligible financial institution,
(2) on or prior to 5:00 p.m., New York City time, on the
expiration date, the exchange agent receives from an eligible
institution, a written or facsimile copy of a properly
completed and duly executed letter of transmittal and notice
of guaranteed delivery, substantially in the form provided by
us, and
(3) the certificates for all certificated initial notes, in proper
form for transfer, or a book-entry confirmation, and all other
documents required by the letter of transmittal, are received
by the exchange agent within three NYSE trading days after the
date of execution of the notice of guaranteed delivery.
The notice of guaranteed delivery may be sent by facsimile
transmission, mail or hand delivery. The notice of guaranteed delivery must set
forth:
(1) your name and address,
(2) the amount of initial notes you are tendering, and
(3) a statement that your tender is being made by the notice of
guaranteed delivery and that you guarantee that within three
New York Stock Exchange trading days after the execution of
the notice of guaranteed delivery, the eligible institution
will deliver the following documents to the exchange agent:
(A) the certificates for all certificated initial notes being
tendered, in proper form for transfer or a book-entry
confirmation of tender,
(B) a written or facsimile copy of the letter of transmittal,
or a book-entry confirmation instead of the letter of
transmittal, and
(C) any other documents required by the letter of
transmittal.
BOOK-ENTRY TRANSFER
The exchange agent will establish an account with respect to the
book-entry interests at DTC for purposes of the exchange offer promptly after
the date of this prospectus. You must deliver your book-entry interest by
book-entry transfer to the account maintained by the exchange agent at DTC. Any
financial institution that is a participant in DTC's systems may make book-entry
delivery of book-entry interests by causing DTC to transfer the book-entry
interests into the exchange agent's account at DTC in accordance with DTC's
procedures for transfer.
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If one of the following situations occur:
(1) you cannot deliver a book-entry confirmation of book-entry
delivery of your book-entry interests into the exchange
agent's account at DTC, or
(2) you cannot deliver all other documents required by the letter
of transmittal to the exchange agent prior to the expiration
date,
then you must tender your book-entry interests according to the
guaranteed delivery procedures discussed above.
WITHDRAWAL OF TENDERS
Except as otherwise provided herein, tenders of initial notes may be
withdrawn at any time prior to 5:00 p.m., New York City time, on the expiration
date.
To withdraw a tender of initial notes in the exchange offer, a written
or facsimile transmission notice of withdrawal must be received by the exchange
agent at its address listed in this prospectus prior to 5:00 p.m., New York City
time, on the expiration date. Any notice of withdrawal must:
/bullet/ specify the name of the person having deposited the initial
notes to be withdrawn,
/bullet/ identify the initial notes to be withdrawn, including the
certificate number or numbers and principal amount of such
initial notes,
/bullet/ be signed by the holder in the same manner as the original
signature on the letter of transmittal by which the initial
notes were tendered, including any required signature
guarantees, or be accompanied by documents of transfer
sufficient to have the trustee with respect to the initial
notes register the transfer of the initial notes into the name
of the person withdrawing the tender, and
/bullet/ specify the name in which any initial notes are to be
registered if different from that of the person that deposited
the initial notes to be withdrawn.
If the initial notes have been delivered under the book-entry procedure
set forth above under "--Procedures for Tendering," any notice of withdrawal
must specify the name and number of the participant's account at DTC to be
credited with the withdrawn initial notes.
We will determine, in our sole discretion, all questions as to the
validity, form and eligibility, including time of receipt, of withdrawal
notices. Our determination shall be final and binding on all parties. Any
initial notes withdrawn will be deemed not to have been validly tendered for
purposes of the exchange offer and registered notes will not be issued in
exchange for such withdrawn initial notes unless the withdrawn initial notes are
validly retendered. Properly withdrawn initial notes may be retendered by
following one of the procedures described above under "--Procedures for
Tendering" at any time prior to the expiration date.
Any initial notes that are tendered but not accepted due to withdrawal,
rejection of tender or termination of the exchange offer will be returned as
soon as practicable to the holder without cost to the holder (or, in the case of
initial notes tendered by book-entry transfer into the exchange agent's account
at the book-entry transfer facility under the book-entry transfer procedures
described above, these initial notes will be credited to an account maintained
with such book-entry transfer facility for the initial notes).
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CONDITIONS
Notwithstanding any other term of the exchange offer, we are not
required to accept for exchange any initial notes, and may terminate the
exchange offer as provided in this prospectus before the acceptance of any
initial notes, if:
/bullet/ the exchange offer will violate applicable law or any
applicable interpretation of the SEC staff;
/bullet/ the initial notes are not tendered in accordance with the
exchange offer;
/bullet/ you do not represent that you are acquiring the registered
notes in the ordinary course of your business, and that you
have no arrangement or understanding with any person to
participate in a distribution of the registered notes; or
/bullet/ any action or proceeding is instituted or threatened in any
court or by before any governmental agency with respect to the
exchange offer which, in our judgment, would reasonably be
expected to impair our ability to proceed with the exchange
offer.
These conditions are for our sole benefit and we may be asserted them
regardless of the circumstances giving rise to any a condition or may be waived
by us in whole or in part at any time and from time to time in our reasonable
discretion. Our failure at any time to exercise any of the foregoing rights
shall not be deemed a waiver of the right and each right shall be deemed an
ongoing right which may be asserted at any time and from time to time.
If we determine in our reasonable judgment that any of the conditions
are not satisfied, we may (1) refuse to accept any initial notes and return all
tendered initial notes to the tendering holders (or, in the case of initial
notes delivered by book-entry transfer within DTC, credit any initial notes to
the account maintained within DTC by the participant in DTC which delivered the
notes), (2) extend the exchange offer and retain all initial notes tendered
prior to the expiration of the exchange offer, subject, however, to the rights
of holders to withdraw the tenders of initial notes (see "Withdrawal of Tenders"
above) or (3) waive the unsatisfied conditions with respect to the exchange
offer and accept all properly tendered initial notes which have not been
withdrawn. If a waiver constitutes a material change to the exchange offer, we
will promptly disclose the waiver by means of a prospectus supplement that will
be distributed to the registered holders, and we will extend the exchange offer
for a period of five to ten business days, depending upon the significance of
the waiver and the manner of disclosure to the registered holders, if the
exchange offer would otherwise expire during such five to ten business day
period.
EXCHANGE AGENT
American Stock Transfer & Trust Company has been appointed as exchange
agent for the exchange offer. Delivery of letters of transmittal and any other
required documents, questions, requests for assistance, and requests for
additional copies of this prospectus or of the letter of transmittal should be
directed to the exchange agent as follows:
<TABLE>
<S> <C>
BY REGISTERED OR CERTIFIED MAIL, BY FACSIMILE (ELIGIBLE INSTITUTIONS ONLY):
OVERNIGHT COURIER OR HAND DELIVERY:
(718) 234-5001
American Stock Transfer & Trust Company Attention: Exchange Department
40 Wall Street
New York, New York 10005 Confirmed by Telephone: (718) 921-8200
Attention: Exchange Department (Originals of all documents submitted by facsimile
should be sent promptly by hand, overnight courier or
registered or certified mail.)
</TABLE>
Delivery to other than the above address or facsimile number will not
constitute a valid delivery.
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FEES AND EXPENSES
We will pay expenses of soliciting tenders. The principal solicitation
is being made by mail; however, additional solicitation may be made by
facsimile, telephone or in person by our officers and regular employees.
We have not retained any dealer-manager as part of the exchange offer
and will not make any payments to brokers, dealers or others soliciting
acceptance of the exchange offer. We will, however, pay the exchange agent
reasonable and customary fees for services and will reimburse it for its
reasonable out-of-pocket expenses under the exchange offer. We will also pay the
reasonable fees and expenses of one firm acting as counsel for the initial
purchasers. Expenses include fees and expenses of the exchange agent and
trustee, accounting and legal fees and printing costs, among others.
TRANSFER TAXES
You must pay all transfer taxes, if any, applicable to the exchange of
initial notes under the exchange offer. If satisfactory evidence of payment of
the taxes or exemption therefrom is not submitted with the letter of
transmittal, the amount of the transfer taxes will be billed directly to you.
ACCOUNTING TREATMENT
The registered notes will be recorded at the same carrying value as the
initial notes on the date of the exchange. Accordingly, we will recognize no
gain or loss for accounting purposes. The expenses of the exchange offer and the
unamortized expenses relating to the issuance of the initial notes will be
amortized over the term of the registered notes.
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DESCRIPTION OF THE REGISTERED NOTES
The initial notes were issued under an indenture, dated as of June 12,
1998, among us, our subsidiaries which are guarantors of the notes and American
Stock Transfer & Trust Company, as trustee. The registered notes will be issued
under the same indenture. We have summarized selected provisions of the
indenture and the notes below.
In this summary description of the notes, all references to "Engle
Homes," "we," "our," and "us" are to Engle Homes, Inc., excluding its
subsidiaries, unless the context clearly indicates otherwise. We have used in
this summary description capitalized terms that we have defined below under
"--Glossary."
GENERAL
The indenture provided for the initial issuance of up to $150 million
principal amount of registered notes of which $149,670,000 are currently
outstanding. The indenture also provides us the flexibility to issue additional
notes in the future, subject to the limitations described below under "--Certain
Covenants - Limitation on Debt," pursuant to which we issued the initial notes.
Any initial notes that remain outstanding after the completion of the exchange
offer, together with the currently outstanding registered notes and thee
registered notes issued in exchange for the initial notes will be treated as a
single class of debt securities under the indenture. The initial notes, the
currently outstanding registered notes, the registered notes to be issued in the
exchange offer and any additional notes issued under the indenture are
collectively referred to as the "notes" in this summary description of the
notes.
The notes will mature on February 1, 2008 and will bear interest at
9.25% per year.
We:
/bullet/ will pay interest semi-annually on February 1 and August 1 of
each year, commencing August 1, 1999,
/bullet/ will pay interest to the persons in whose names a note is
registered at the close of business on the January 15 and July
15 before date interest will be paid,
/bullet/ will compute interest on the basis of a 360-day year
consisting of twelve 30-day months,
/bullet/ will make payments on the notes at the offices of the trustee,
and
/bullet/ may make payments by wire transfer for notes held in
book-entry form or by check mailed to the address of the
person entitled to the payment as it appears in the note
register.
The notes will be issued only in fully registered form without coupons,
in denominations of $1,000 and any integral multiple thereof. The notes are
exchangeable and transfers of the notes will be registered without charge, but
we may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection a transfer.
The notes are our general obligations and are not secured by any
collateral. The notes rank equally in right of payment with all our other
existing and future senior unsecured and unsubordinated debt, including our
credit facility, and senior to all our subordinated debt.
Holders of our secured debt and secured debt of our subsidiaries will
have claims to the assets constituting collateral for that debt. If we are
involved in any dissolution, liquidation or reorganization, our secured debt
holders would be paid before holders of the notes receive any amounts due under
the notes to the extent of the value of the assets securing that debt. If the
value of the collateral is not enough to pay off the secured debt, secured
creditors
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would be entitled to share claims with holders of notes with respect to any
other of our assets. Currently, neither us nor our subsidiaries have any secured
debt outstanding other than our warehouse lines of credit.
THE GUARANTEES
Our payment obligations under the notes are jointly and severally
guaranteed by our subsidiaries. The guarantees are the general obligation of
each subsidiary guarantor and are not secured by any collateral. The guarantees
rank equally in right of payment with each subsidiary guarantor's other existing
and future senior unsecured and unsubordinated debt, including the subsidiary
guarantors guarantees of our obligations under our credit facility, and senior
to all subordinated debt of the subsidiary guarantors.
Holders of secured debt of the subsidiary guarantors will have claims
to the assets constituting collateral for that debt. If any subsidiary guarantor
is involved in any dissolution, liquidation or reorganization, its secured debt
holders would be paid before holders of the notes receive any amounts due under
the guarantee from that subsidiary guarantor to the extent of the value of the
assets securing that debt.
Except as provided in "Certain Covenants" below, we are not restricted
from selling or otherwise disposing of any of our subsidiaries that guarantee
the notes.
The indenture provides that each of our subsidiaries that is a
Restricted Subsidiary (other than, in our discretion, any Restricted Subsidiary
the assets of which have a book value of not more than $1,000,000) will be
guarantee our obligations under the notes.
The indenture provides that if we or any of our subsidiaries sell all
or substantially all of the assets, or all of the capital stock, of any of our
other subsidiaries that guarantees the notes in a transaction constituting an
Asset Sale, and if the Net Proceeds from such Asset Sale are used in accordance
with the covenant "Limitation on Asset Sales," then the subsidiary guarantor (in
the event of a sale or other disposition of all of the capital stock of the
subsidiary guarantor) or the corporation acquiring such assets (in the event of
a sale or other disposition of all or substantially all of the assets of the
subsidiary guarantor) shall be released and discharged of its obligations to
guarantee the notes.
OPTIONAL REDEMPTION
On or after February 1, 2003, we may elect to redeem some or all of the
notes. We will provide the holders at least 30 but not more than 60 days' notice
of our intent to redeem.
If we elect to redeem the notes, we may do so at the following prices,
which are expressed in percentages of principal amount, if redeemed during the
twelve-month period beginning on February 1 of the year listed below:
YEAR PERCENTAGE
---- ----------
2003................................... 104.625%
2004................................... 103.083%
2005................................... 101.542%
2006 and thereafter.................... 100.000%
We will also pay accrued interest to, but excluding, the date of
redemption. If a redemption date occurs on an interest payment date, the
interest will be payable to the holder of record as of the record date.
In addition, if we consummate one or more public offerings of our
common stock after June 8, 1998 and on or prior to February 1, 2001, we may, at
our option, redeem up to 33% of the original aggregate principal amount of the
notes with the net proceeds of such offerings at 109.250% of the principal
amount thereof, plus accrued and unpaid interest, if any, to the redemption
date; provided, however, that immediately after giving effect to any such
redemption not less than 67% of the original aggregate principal amount of the
notes remains outstanding.
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If we do not redeem all the notes, the trustee will select the notes to
be redeemed either by lot, pro rata or by any other method as the trustee
considers fair and appropriate, as long as the method complies with applicable
legal and stock exchange requirements. On or after the redemption date, interest
will cease to accrue on the notes or portions thereof called for redemption.
CERTAIN COVENANTS
CHANGE OF CONTROL.
In the event of a Change of Control, each holder of notes may require
us to repurchase all or any part which is equal to $1,000 or a multiple of
$1,000 of that holder's notes at a purchase price equal to 101% of the principal
amount of the notes to be repurchased, plus accrued interest, on the 45th day
after the date of the Change of Control Notice (the "Change of Control
Repurchase Date").
Within 30 days after the occurrence of a Change of Control, we or, at
our request, the trustee, will deliver to all holders of record of the notes a
notice (the "Change of Control Notice") of the occurrence of the Change of
Control and of the repurchase right. We will deliver a copy of the Change of
Control Notice to the trustee. To exercise the repurchase right, on or before
the 30th day after the date of the Change of Control Notice, holders of notes
must deliver written notice to us (or an agent designated by us for such
purposes) of the holder's exercise of such right, together with the notes with
respect to which the right is being exercised, duly endorsed for transfer. Such
written notice shall be irrevocable.
The right to require the repurchase of notes shall not continue after
we have been discharged from our obligations under the notes and the indenture
with respect to the notes in accordance with the indenture as described under
"--Defeasance" below.
If the Change of Control Repurchase Date is between a regular record
date for the payment of interest and the next succeeding interest payment date,
any note to be repurchased must be accompanied by funds equal to the interest
payable on such succeeding interest payment date on the principal amount to be
repurchased (unless such note shall have been called for redemption, in which
case no such payment shall be required), and the interest on the principal
amount of the note being repurchased will be paid on such next succeeding
interest payment date to the registered holder of such note on the immediately
preceding record date. A note repurchased on an interest payment date need not
be accompanied by any payment, and the interest on the principal amount of the
note being repurchased will be paid on such interest payment date to the
registered holder of such note on the immediately preceding record date.
A "Change of Control" will be deemed to have occurred when:
/bullet/ any person or group is or becomes the beneficial owner of
shares representing more than 50% of our voting stock;
/bullet/ we
(A) consolidate with or merge into any other entity or any
other entity merges into us and our outstanding common
stock is changed or exchanged for other assets or
securities unless our stockholders immediately bore the
transaction own immediately following the transaction more
than 50% of the combined voting power of the entity
resulting from the transaction in substantially the same
proportion as their ownership of our voting stock
immediately before the transaction, or
(B) sell, assign, convey, transfer, lease or otherwise dispose
of all or substantially all of our assets to any person,
or
/bullet/ at any time during any consecutive two-year period,
individuals who at the beginning of such period constituted
our Board of Directors (together with any new directors whose
election by such Board of
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Directors or whose nomination for election by our stockholders
was approved by a vote of a majority of the directors then
still in office who were either directors at the beginning of
such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a
majority of our Board of Directors then in office; or
/bullet/ we are liquidated or dissolved or adopt a plan of liquidation.
In the case of the first two bulled points, a Change of Control will
not be deemed to have occurred if after consummation of the transaction Alec
Engelstein or Harry Engelstein or their respective estates, affiliates and
associates have the right or ability by voting power, contract or otherwise to
elect or designate for election a majority of our Board of Directors.
If any repurchase pursuant to the foregoing provisions constitutes a
tender offer as defined under the Exchange Act, we will comply with the
requirements of Rule l4e-1 and any other tender offer rules under the Exchange
Act which then may be applicable. We could, in the future, enter into certain
significant transactions that would not constitute a Change of Control with
respect to the Change of Control purchase feature of the notes. The Change of
Control purchase feature of the notes may in certain circumstances make more
difficult or discourage a takeover of us and, thus, the removal of incumbent
management. The Change of Control purchase feature, however, is not the result
of management's knowledge of any specific effort to obtain control of us by
means of a merger, tender offer, solicitation or otherwise, or part of a plan by
management to adopt a series of anti-takeover provisions.
The meaning of the phrase "all or substantially all" as used in the
indenture in the definition of "Change of Control" with respect to a sale of
assets varies according to the facts and circumstances of the subject
transaction, has no clearly established meaning under relevant law and is
subject to judicial interpretation. Accordingly, in certain circumstances, there
may be a degree of uncertainty in ascertaining whether a particular transaction
would involve a disposition of "all or substantially all" of our assets, and
therefore it may be unclear whether a Change of Control has occurred and whether
the notes are subject to a Change of Control Offer.
MAINTENANCE OF NET WORTH.
If our Net Worth at the end of any two fiscal quarters in a row (the
last day of such second fiscal quarter being referred to as the "Trigger Date")
is less than $35,000,000 (the "Minimum Net Worth"), then we must offer (a "Net
Worth Offer") to acquire equally from all holders of notes on the date (the "Net
Worth Repurchase Date") that is 45 days following the date of the Net Worth
Notice, 10% of the original outstanding principal amount of the notes (or if
less than 10% of the original aggregate principal amount of the notes issued are
then outstanding, all the notes outstanding at the time) (the "Net Worth Offer
Amount") at a purchase price of 100% of the principal amount thereof, plus
accrued interest to the Net Worth Repurchase Date (the "Net Worth Price"). We
may credit against the Net Worth Offer Amount the principal amount of notes
acquired by us prior to the Trigger Date through purchase, optional redemption
or exchange. We, however, may not credit a specific note in more than one Net
Worth Offer. In no event shall the failure to meet the Minimum Net Worth at the
end of any fiscal quarter be counted toward the making of more than one Net
Worth Offer. We will notify the trustee promptly after the occurrence of any of
the events specified in this provision and shall notify the trustee in writing
if our Net Worth is equal to or less than the Minimum Net Worth for any fiscal
quarter.
Within 30 days after the Trigger Date, we, or, at our request, the
trustee, shall give notice of the Net Worth Offer to each holder (the "Net Worth
Notice"). To accept a Net Worth Offer a holder must deliver to us, on or before
the 30th day after the date of the Net Worth Notice, a written notice of the
holder's acceptance of such offer, together with the notes with respect to which
the offer is being accepted, duly endorsed for transfer to us. Such written
notice may be withdrawn upon further written notice delivered to the trustee on
or prior to the third day preceding the Net Worth Repurchase Date.
If the Net Worth Repurchase Date is between a regular record date for
the payment of interest and the next succeeding interest payment date, any note
to be repurchased must be accompanied by funds equal to the interest payable on
such succeeding interest payment date on the principal amount to be repurchased
(unless such note shall have been called for redemption, in which case no such
payment shall be required), and the interest on the principal
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amount of the note being repurchased will be paid on such next succeeding
interest payment date to the registered holder of such note on the immediately
preceding record date. A note repurchased on an interest payment date need not
be accompanied by any payment, and the interest on the principal amount of the
note being repurchased will be paid on such interest payment date to the
registered holder of such note on the immediately preceding record date.
If any repurchase pursuant to the foregoing provisions constitutes a
tender offer as defined under the Exchange Act, we will comply with the
requirements of Rule l4e-1 and any other tender offer rules under the Exchange
Act which then may be applicable.
LIMITATION ON DEBT.
We may not, and we will not allow any of our Restricted Subsidiaries
to, directly or indirectly, create, incur, assume, guarantee or otherwise become
liable for any debt, except the following:
/bullet/ debt evidenced by the notes and the guarantees of the notes,
/bullet/ debt incurred by us or any subsidiary guarantor under or in
respect of a Bank Facility (including any guarantees related
thereto) for working capital or other corporate purposes or
evidenced by letters of credit, that is not in excess of
$140,000,000,
/bullet/ debt incurred under a Warehouse Facility not in excess of the
value of the Mortgages pledged to secure debt thereunder,
/bullet/ our debt to any subsidiary guarantor or of any our Restricted
Subsidiaries to us or to any subsidiary guarantor,
/bullet/ debt which was outstanding on February 2, 1998,
/bullet/ Non-Recourse Debt,
/bullet/ debt in respect of performance, completion, guarantee, surety
and similar bonds or banker's acceptances provided by us or
any of our Restricted Subsidiaries in the ordinary course of
business,
/bullet/ additional debt in an amount not to exceed $7,500,000 at any
time outstanding,
/bullet/ debt referred to in the definition of Interest Rate Protection
Agreement,
/bullet/ Purchase Money Obligations incurred in the ordinary course of
business in an amount not exceeding $5,000,000 at any time
outstanding, and
/bullet/ Refinancing Debt.
In addition to the types of debt listed above, we and our Restricted
Subsidiaries may incur debt if, at the time such debt is so incurred and after
giving effect to the debt and the application of the proceeds of the debt, our
Coverage Ratio is not less than 2.0 to 1.0.
We will not, and we will not allow any of our Restricted Subsidiaries
to, directly or indirectly, incur any debt that is subordinated to any other of
our debt or the debt of any subsidiary guarantor unless that debt is also
subordinated to the notes or the guarantee of the subsidiary guarantor in the
same manner.
LIMITATION ON RESTRICTED PAYMENTS.
We may not, and we will not allow any of our Restricted Subsidiaries
to, make any Restricted Payment, if, after giving effect to the proposed
Restricted Payment:
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/bullet/ an event of default has occurred and is continuing,
/bullet/ we would not be able to incur $1.00 of additional debt under
Coverage Ratio test set forth under the caption "--Limitation
on Debt" above, or
/bullet/ the aggregate amount of all Restricted Payments made by us and
our Restricted Subsidiaries (the amount of any Restricted
Payment not made in cash to be determined in good faith by our
board of directors) from and after February 2, 1998 exceeds
the sum of:
(1) 50% of our aggregate Consolidated Net Income accrued
during the period beginning on February 1, 1998 and ending
on the last day of the first full month ending immediately
prior to the date of the proposed Restricted Payment (or,
if Consolidated Net Income is a deficit, then minus 100%
of such deficit), plus
(2) the aggregate net proceeds (the amount of such proceeds,
if other than cash, to be determined in good faith by our
board of directors) received by us from the issuance or
sale (other than to a Subsidiary) of our capital stock
(other than Redeemable Stock), including the principal
amount of any convertible or exchangeable notes issued
after February 2, 1998 or other convertible or
exchangeable securities issued after February 2, 1998, to
the extent converted or exchanged into capital stock from
and after February 2, 1998, and options, warrants and
rights to purchase its capital stock (other than
Redeemable Stock); plus
(3) in the case of the disposition or repayment of any
Investment constituting a Restricted Payment made after
February 2, 1998 (excluding any Investment described in
fourth bullet point of the following paragraph, but
including upon the redesignation of an Unrestricted
Subsidiary as a Restricted Subsidiary), an amount equal to
the lesser of the return of capital with respect to such
Investment and the cost of such Investment, in either
case, reduced (but not below zero) by the excess, if any,
of the cost of the disposition of such Investment over the
gain, if any, realized by us or the Restricted Subsidiary
in respect of such disposition of such Investment, plus
(4) $5,000,000.
So long as no default or event of default has occurred and is
continuing, these provisions will not prevent:
/bullet/ the payment of any dividend within 60 days after the date of
its declaration if such dividend could have been made on the
date of its declaration in compliance with the foregoing
provisions,
/bullet/ the redemption, repurchase or other acquisition or retirement
of any shares of any class of our capital stock or the capital
stock of any Subsidiary in exchange for, or out of the net
cash proceeds of, a substantially concurrent
(A) capital contribution to the us from any person other than
a Subsidiary or
(B) issue and sale of other shares of our capital stock (other
than Redeemable Stock) to any person other than a
Subsidiary; provided, however, that the amount of any such
net cash proceeds that are utilized for any such
redemption, repurchase or other acquisition or retirement
shall be excluded from clause (2) of the third bullet
point of the preceding paragraph,
/bullet/ any redemption, repurchase or other acquisition or retirement
of subordinated debt by exchange for, or out of the net cash
proceeds of, a substantially concurrent
(A) capital contribution to us from any person other than a
Subsidiary or
(B) issue and sale of
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(x) our capital stock (other than Redeemable Stock) to any
person other than to a Subsidiary; provided, however, that
the amount of any such net cash proceeds that are utilized
for any such redemption, repurchase or other acquisition
or retirement shall be excluded from clause (2) of the
third bullet point of the preceding paragraph; or
(y) our debt issued to any person other than a Subsidiary, so
long as the debt (1) has no stated maturity earlier than
February 1, 2008, (2) has a Weighted Average Life to
Maturity equal to or greater than the remaining Weighted
Average Life to Maturity of the notes and (3) is
subordinated to the notes in the same manner and at least
to the same extent as the subordinated debt purchased,
exchanged, redeemed, acquired or retired,
/bullet/ Investments constituting Restricted Payments made as a result
of the receipt of non-cash consideration from any Asset Sale
made pursuant to and in compliance with the covenant described
under "Limitation on Asset Sales,"
/bullet/ the repurchase or redemption of shares of capital stock from
any of officer, director or employee of us or our Restricted
Subsidiaries whose employment has been terminated or who has
died or become disabled in an aggregate amount not to exceed
$250,000 per annum; and
/bullet/ the making of Restricted Payments in an aggregate amount not
to exceed $5,000,000.
Amounts paid pursuant to the first, fifth and sixth bullet points above
shall reduce amounts available for future Restricted Payments.
LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
RESTRICTED SUBSIDIARIES.
We will not, and we will not allow any of our Restricted Subsidiaries
to, create, assume or otherwise cause or suffer to exist or to become effective
any consensual encumbrance or restriction on the ability of any of our
Restricted Subsidiaries to
/bullet/ pay dividends or make any other distributions on its capital
stock to us or any of our Restricted Subsidiaries,
/bullet/ make payments in respect of any debt owed to us or any of our
Restricted Subsidiaries, or
/bullet/ make loans or advances to us or any of our Restricted
Subsidiaries.
These provisions will not prohibit the following restrictions:
/bullet/ those contained in the indenture, a Bank Facility, a Warehouse
Facility and Refinancing Debt (to the extent restrictions
contained in such Refinancing Debt are not more restrictive
than those contained in the debt being refinanced);
/bullet/ consensual encumbrances or restrictions binding upon any
person at the time such person becomes a Subsidiary if the
encumbrance or restriction is not created, incurred or assumed
in contemplation of such person becoming a Subsidiary and does
not extend to any of our other property or property of another
of Subsidiaries
/bullet/ restrictions contained in security agreements permitted by the
indenture securing debt permitted by the indenture to the
extent such restrictions restrict the transfer of assets
subject to such security agreements;
/bullet/ any encumbrance or restriction consisting of customary
non-assignment provisions in leases to the extent such
provisions restrict the transfer of the leases,
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/bullet/ any encumbrance or restriction pursuant to an agreement in
effect on February 2, 1998, or
/bullet/ any restrictions with respect to a Subsidiary imposed pursuant
to an agreement which has been entered into for the sale or
disposition of all or substantially all the capital stock or
assets of the Subsidiary.
LIMITATION ON LIENS.
We will not, and we will not allow any of our Restricted Subsidiaries
to, create, incur, assume or permit to exist any Lien upon or with respect to
any of our assets or any Subsidiary, whether now owned or hereafter acquired, or
on any income or profits therefrom. This restriction does not apply to Permitted
Liens.
TRANSACTIONS WITH AFFILIATES.
We will not, and we will not allow any of our Restricted Subsidiaries
to, enter into any transactions with any of our Affiliates unless
/bullet/ the transactions are between or among us and our Restricted
Subsidiaries,
/bullet/ the transactions are in the ordinary course of business and
consistent with past practice, or
/bullet/ the terms of the transactions are fair and reasonable to us or
the Restricted Subsidiary, and are at least as favorable as
the terms which we could obtain in a comparable transaction
made on an arm's-length basis between unaffiliated parties.
In the event of any transaction or series of transactions occurring
subsequent to February 2, 1998 with one of our Affiliates which involves in
excess of $1,000,000 and is not permitted under the first bullet point above,
all of the disinterested members of our Board of Directors shall by resolution
determine that such transaction or series of transactions meets the criteria set
forth in the third bullet point above. In the event of any transaction or series
of transactions occurring subsequent to February 2, 1998 with one of our
Affiliates which involves in excess of $10,000,000 and is not permitted under
the first bullet point above, we must deliver to the trustee an opinion of an
Independent Financial Advisor to the effect that the transaction is fair to us
or the relevant Restricted Subsidiary from a financial point of view.
These provisions will not apply to the following:
/bullet/ any Restricted Payment which is permitted by the "Limitation
on Restricted Payments" covenant or
/bullet/ the payment of compensation to our directors who are not our
employees and wages and other compensation to our officers.
LIMITATION ON ASSET SALES.
We will not, and we will not allow any of our Restricted Subsidiaries
to, consummate an Asset Sale, unless:
/bullet/ we or the Restricted Subsidiary receive consideration at the
time of the Asset Sale at least equal to the fair market value
(as determined in good faith by our board of directors or the
board of directors of the Restricted Subsidiary) of the assets
disposed of, and
/bullet/ the consideration for such Asset Sale consists of at least 85%
cash.
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For purposes of the above provision, the following shall be considered
"cash":
/bullet/ the amount of liabilities assumed by the transferee,
/bullet/ any notes or other obligations received by us or the
Restricted Subsidiary and immediately converted into cash, or
/bullet/ with respect to the sale or other disposition of all of the
capital stock of any Restricted Subsidiary, the amount of
liabilities that remain the obligation of the Restricted
Subsidiary subsequent to the sale or other disposition.
Within 12 months from the date that any Asset Sale is consummated, the
Net Proceeds of the Asset Sale will be reinvested in Additional Assets or
applied to the redemption or repurchase of our debt which ranks equally with the
notes or debt of a Restricted Subsidiary which is not subordinated to other debt
of the Restricted Subsidiary, which, in each case, will be a permanent reduction
of such Debt. To the extent that the Net Proceeds of an Asset Sale are not so
applied, we or the Restricted Subsidiary will, within 30 days from the
expiration of such 12-month period, use the remaining Net Proceeds (less any
amounts used to pay reasonable fees and expenses connected with a Net Proceeds
Offer) to make an offer to repurchase the notes at a price equal to 100% of the
principal amount thereof, plus accrued interest to the Net Proceeds Repurchase
Date ("a Net Proceeds Offer").
Notwithstanding the foregoing, the Net Proceeds of an Asset Sale are
not required to be applied in accordance with the preceding paragraph, unless
and until the aggregate Net Proceeds for all such Asset Sales in a 12-month
period exceeds $5,000,000.
To accept a Net Proceeds Offer a holder shall deliver to us on or
before the 30th day after the date of the Net Proceeds Offer (the "Net Proceeds
Repurchase Date"), a written notice of the holder's acceptance of the Net
Proceeds Offer, together with the notes with respect to which the offer is being
accepted, duly endorsed for transfer to us. Such written notice may be withdrawn
upon further written notice to the trustee on or prior to the third day
preceding the Net Proceeds Repurchase Date.
If the Net Proceeds Repurchase Date is between a regular record date
for the payment of interest and the next succeeding interest payment date, any
note to be repurchased must be accompanied by funds equal to the interest
payable on such succeeding interest payment date on the principal amount to be
repurchased (unless such note shall have been called for redemption, in which
case no such payment shall be required), and the interest on the principal
amount of the note being repurchased will be paid on such next succeeding
interest payment date to the registered holder of such note on the immediately
preceding record date. A note repurchased on an interest payment date need not
be accompanied by any payment, and the interest on the principal amount of the
note being repurchased will be paid on such interest payment date to the
registered holder of such note on the immediately preceding record date.
If any repurchase pursuant to the foregoing provisions constitutes a
tender offer as defined under the Exchange Act, we will comply with the
requirements of Rule l4e-1 and any other tender offer rules under the Exchange
Act which then may be applicable.
Any amount of Net Proceeds remaining after a Net Proceeds Offer shall
be returned by the trustee to us and may be used by us for any purpose not
inconsistent with the indenture.
EVENTS OF DEFAULT
Each of the following is an "events of default" with respect to the
notes:
/bullet/ failure to pay the principal of any note when such principal
becomes due and payable at maturity, upon acceleration or
otherwise;
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/bullet/ failure to pay interest on any note when due, and such failure
continues for a 30-day period;
/bullet/ a default in the observance or performance of any other
covenant or agreement of Engle Homes or the Guarantors in the
note, the guarantee or the indenture that continues for the
period and after the notice specified below;
/bullet/ an event of default shall have occurred under one or more
evidences of our debt or debt of any of our Restricted
Subsidiaries (other than Non-Recourse Debt) with an
outstanding aggregate principal amount of $5,000,000 or more,
and the event of default (1) consists of the failure by Engle
Homes or any Restricted Subsidiary to make any payment in
respect of such debt at its final maturity or (2) results in
the acceleration of such Debt which acceleration shall be in
effect;
/bullet/ any final judgment or judgments for payment of money in excess
of $5,000,000 in the aggregate shall be rendered against us or
any of our Restricted Subsidiaries and shall remain unstayed,
unsatisfied or undischarged for the period and after the
notice specified below;
/bullet/ certain events of bankruptcy, insolvency or reorganization of
Engle Homes or Material Subsidiaries; and
/bullet/ any guarantee of a Material Subsidiary ceases to be in full
force and effect (other than in accordance with the terms of
such Guarantee and the indenture) or is declared null and void
and unenforceable or found to be invalid or any subsidiary
guarantor denies its liability under its guarantee (other than
by reason of release of a subsidiary guarantor from its
guarantee in accordance with the terms of the indenture and
the guarantee).
We are required to deliver to the trustee within 120 days after the end
of each fiscal year, an officer's certificate stating whether or not the
signatories know of any default by us under the indenture and the notes and, if
any default exists, describing such default.
A default under the third or fifth bullet point above is not an event
of default until the trustee or the holders of at least 25% in principal amount
of the notes then outstanding notify us of the default and we do not cure the
default within 60 days.
The notice must:
/bullet/ specify the default,
/bullet/ demand that the default be remedied, and
/bullet/ state that the notice is a "Notice of Default."
If the holders of 25% in principal amount of notes then outstanding
request the trustee to give such notice on their behalf, the trustee shall do
so.
In case an event of default (other than an event of default resulting
from certain events of bankruptcy, insolvency or reorganization of Engle Homes)
shall have occurred and be continuing, the trustee, by notice to us, or the
holders of 25% of the principal amount of the notes then outstanding, by notice
to us and the trustee, may declare the principal of the notes, plus accrued
interest, to be immediately due and payable. In case an event of default
resulting from certain events of bankruptcy, insolvency or reorganization of
Engle Homes shall occur, such amounts shall be due and payable without any
declaration or any act on the part of the trustee or the holders of the notes.
Any declaration of acceleration may be rescinded and past defaults may be waived
by the holders of a majority of the principal amount of the notes then
outstanding upon conditions provided in the indenture. Except to enforce the
right to receive payment of principal or interest when due, no holder of a note
may institute any proceeding with respect to the indenture or for any remedy
thereunder unless such holder has previously given to the trustee written notice
of a continuing event of default and unless the holders of 25% of the principal
amount of
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the notes then outstanding have requested the trustee to institute proceedings
in respect of such event of default and have offered the trustee reasonable
indemnity against loss, liability and expense to be thereby incurred, the
trustee has failed so to act for 60 days after receipt of the same and during
such 60-day period the holders of a majority of the principal amount of the
notes then outstanding have not given the trustee a direction inconsistent with
the request. Subject to certain restrictions, the holders of a majority in
principal amount of the notes then outstanding will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the trustee or exercising any trust or power conferred on the trustee. The
trustee, however, may refuse to follow any direction that conflicts with law or
the indenture, that is unduly prejudicial to the rights of any holder of a note
or that would involve the trustee in personal liability and the trustee may take
any other action deemed proper by the trustee which is not inconsistent with
such direction.
MERGERS AND CONSOLIDATIONS
Neither we nor any subsidiary guarantor will consolidate or merge with
or into, or sell, lease, convey or otherwise dispose of all or substantially all
of its assets (including, without limitation, by way of liquidation or
dissolution), or assign any of its obligations under the notes, the guarantees
or the indenture (as an entirety or substantially as an entirety in one
transaction or series of related transactions), to any Person or permit any of
our Restricted Subsidiaries to do any of the foregoing (in each case other than
with Engle Homes or another Wholly Owned Restricted Subsidiary) unless:
/bullet/ the Person formed by or surviving such consolidation or merger
(if other than Engle Homes or the subsidiary guarantor, as the
case may be), or to which such sale, lease, conveyance or
other disposition or assignment will be made (collectively,
the "Successor"), is a corporation or other legal entity
organized and existing under the laws of the United States or
any state thereof or the District of Columbia, and the
Successor assumes by supplemental indenture in a form
reasonably satisfactory to the trustee all of the obligations
of Engle Homes or such Guarantor, as the case may be, under
the notes or such Guarantor's Guarantee, as the case may be,
and the indenture,
/bullet/ immediately after giving effect to such transaction, no
default or event of default has occurred and is continuing,
/bullet/ immediately after giving effect to such transaction and the
use of any net proceeds therefrom, on a pro forma basis, the
Consolidated Tangible Net Worth of Engle Homes or the
Successor (in the case of a transaction involving, Engle
Homes), as the case may be, would be at least equal to the
Consolidated Tangible Net Worth of Engle Homes immediately
prior to such transaction and
/bullet/ in the case of a transaction involving Engle Homes,
immediately after giving effect to such transaction and the
use of any net proceeds therefrom, on a pro forma basis, the
Coverage Ratio of Engle Homes or the Successor (in the case of
a transaction involving Engle Homes), as the case may be,
would be such that Engle Homes or the Successor (in the case
of a transaction involving Engle Homes), as the case may be,
would be entitled to Incur at least $1.00 of additional Debt
under such Coverage Ratio test in the "Limitation on Debt"
covenant set forth in the indenture.
The foregoing provisions shall not apply to a transaction involving the
consolidation or merger of a subsidiary guarantor with or into another person,
or the sale, lease, conveyance or other disposition of all or substantially all
of the assets of such subsidiary guarantor, that results in such subsidiary
guarantor being released from its guarantee as provided under "The Guarantees"
above.
DEFEASANCE
Under the terms of the indenture and the notes, if we irrevocably
deposit with the trustee, in trust, money or U.S. Government Obligations (as
defined in the indenture) which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money in an amount
sufficient to pay the principal of
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and interest on the notes on the dates such payments are due in accordance with
the terms of the notes, we, at our option,
/bullet/ will be discharged from any and all obligations in respect of
the notes (except in each case for certain obligations to
register the transfer or exchange of notes, replace stolen,
lost or mutilated notes, maintain paying agencies and hold
moneys for payment in trust) or
/bullet/ need not comply with the covenants of the indenture nor be
subject to the operation of the cross acceleration provisions
described under "Events of Default."
To exercise either option above, we are required to deliver to the
trustee an opinion of counsel that the holders of the notes will not recognize
income, gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such defeasance
had not occurred.
In the event we exercise our option under the second bullet point above
and the notes are declared due and payable because of the occurrence of any
event of default (other than the cross acceleration provisions described under
"Events of Default" which will be inapplicable), the amount of money and U.S.
Government Obligations on deposit with the trustee will be sufficient to pay
amounts due on the notes at the time of their stated maturity but may not be
sufficient to pay amounts due on the notes at the time of the acceleration
resulting from such event of default. However, we shall remain liable for such
payments.
REPORTS
As long as any of the notes are outstanding, we will deliver to the
trustee and the trustee will mail to each holder of notes within 15 days after
the filing of the same with the Commission copies of the quarterly and annual
reports and of the information, documents and other reports with respect to us
and the subsidiary guarantors, if any, which we and the subsidiary guarantors
may be required to file with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act. The indenture provides that, notwithstanding that neither us
nor any of the subsidiary guarantors may be required to remain subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, we will
continue to file with the Commission and provide the trustee and holders of the
notes with such annual and quarterly reports and such information, documents and
other reports with respect to us as are required under Sections 13 and 15(d) of
the Exchange Act. If our filing of documents with the Commission as
aforementioned in this paragraph is not permitted under the Exchange Act, we
shall promptly upon written notice supply copies of such documents to any
prospective holder of notes. In addition, the indenture requires that for so
long as any of the notes remain outstanding we will make available to any
prospective purchaser of the notes or beneficial owner of the notes in
connection with any sale thereof the information required by Rule 144A(d)(4)
under the Securities Act, until such time as either we have consummated the
exchange offer or the holders of notes have disposed of their notes pursuant to
an effective registration statement filed by us.
AMENDMENT, SUPPLEMENT AND WAIVER
Subject to certain exceptions, the indenture or the notes may be
amended or supplemented with the consent (which may include consents obtained in
connection with a tender offer or exchange offer for notes) of the holders of at
least a majority in principal amount of notes then outstanding, and any existing
default or event of default (other than any continuing default or event of
default in the payment of interest on or the principal of the notes) under, or
compliance with any provision of, the indenture may be waived with the consent
(which may include consents obtained in connection with a tender offer or
exchange offer for notes) of the holders of a majority in principal amount of
the notes then outstanding.
Without the consent of any holder of notes, we and the trustee may
amend the indenture or the notes or waive any provision of the indenture to:
/bullet/ cure any ambiguity, defect or inconsistency,
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/bullet/ comply with the "Mergers and Consolidations" section set forth
in the indenture,
/bullet/ provide for uncertificated notes in addition to certificated
notes,
/bullet/ make any change that does not adversely affect the legal
rights under the indenture of any holder of notes,
/bullet/ comply with the qualification of the indenture under the Trust
Indenture Act, or
/bullet/ reflect a subsidiary guarantor ceasing to be liable on the
guarantees because it is no longer a Subsidiary of Engle
Homes.
Without the consent of each holder of notes affected, we may not
/bullet/ reduce the amount of notes whose holders must consent to an
amendment, supplement or waiver,
/bullet/ reduce the rate of or change the time for payment of interest,
including default interest, on any note,
/bullet/ reduce the principal of or change the fixed maturity of any
note or alter the provisions with respect to redemption under
the "Optional Redemption" section set forth in the indenture,
/bullet/ make any notes payable in money other than that stated in the
note,
/bullet/ make any change in certain other provisions set forth in the
indenture,
/bullet/ adversely modify the ranking or priority of the notes or any
guarantee,
/bullet/ release any subsidiary guarantors from any of its obligations
under its guarantee or the indenture otherwise than in
accordance with the terms of the indenture, or
/bullet/ waive a continuing default or event of default in the payment
of principal of or interest on the notes.
NO PERSONAL LIABILITY OF SHAREHOLDERS, OFFICERS, DIRECTORS OR EMPLOYEES
The indenture provides that no recourse for the payment of the
principal of, premium, if any, or interest on any of the notes, or for any claim
based thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of Engle Homes or any subsidiary guarantor in
the indenture or in any of the notes or because of the creation of any debt
represented thereby, shall be had against any shareholder, officer, director,
employee or controlling person of Engle Homes, any subsidiary guarantor or any
successor Person thereof. Each Holder, by accepting such notes, will waive and
release all such liability.
CONCERNING THE TRUSTEE
The indenture contains certain limitations on the rights of the
trustee, should it become a creditor of Engle Homes, to obtain payment of claims
in certain cases, or to realize on certain property received in respect of any
such claim as security or otherwise. The trustee will be permitted to engage in
other transactions; however, if it acquires any conflicting interest (as defined
in the indenture), it must eliminate such conflict or resign.
The Holders of a majority in principal amount of the then outstanding
notes will have the right to direct the time, method and place of conducting any
proceeding for exercising any remedy available to the trustee, subject to
certain exceptions. The indenture provides that in case an event of default
occurs and is not cured, the trustee will be required, in the exercise of its
power, to use the degree of care of a prudent person in similar circumstances in
the conduct of his own affairs. Subject to such provisions, the trustee will be
under no obligation to exercise any of its
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rights or powers under the indenture at the request of any Holder, unless such
Holder shall have offered to the trustee security and indemnity satisfactory to
the trustee.
GOVERNING LAW
The indenture, the notes and the guarantees will be governed by the
internal laws of the State of New York.
GLOSSARY
"ADDITIONAL ASSETS" means assets used or usable by us or any of our
Restricted Subsidiaries in the operation of our existing lines of business.
"AFFILIATE" of any Person means
(1) any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with
such Person and
(2) any other Person that beneficially owns at least 10% of the
voting common stock of such Person.
For the purposes of this definition, "control" when used with respect
to any Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"ASSET SALE" for any Person means the sale, lease, conveyance or other
disposition (including, without limitation, by merger, consolidation or sale and
leaseback transaction, and whether by operation of law or otherwise) of any of
that Person's assets (including, without limitation, the sale or other
disposition of capital stock of any Subsidiary of such Person, whether by such
Person or such Subsidiary) outside the ordinary course of business, whether
owned on February 2, 1998, or subsequently acquired in one transaction or a
series of related transactions, in which such Person and/or its Subsidiaries
receive cash and/or other consideration (including, without limitation, the
unconditional assumption of Indebtedness of such Person and/or its Subsidiaries)
of $2,500,000 or more as to each such transaction or series of related
transactions.
The following shall not constitute an "Asset Sale":
(1) a transaction or series of related transactions that results
in a Change of Control,
(2) sales, leases, conveyances or other dispositions of real
estate related to the homebuilding business of Engle Homes or
its Subsidiaries, and
(3) transactions between us and any subsidiary guarantor, or among
our subsidiary guarantors.
"BANK FACILITY" means, collectively, one or more commitments from one
or more banks or other lending institutions to lend funds, together with any and
all agreements, documents and instruments from time to time delivered in
connection therewith as such commitments or any such agreements, documents or
instruments may be in effect or amended, amended and restated, renewed,
extended, restructured, supplemented or otherwise modified from time to time and
any credit agreement, loan agreement, note purchase agreement, indenture or
other agreement, document or instrument refinancing, refunding or otherwise
replacing such Bank Facility, whether or not with the same agent, trustee,
representative lenders or holders, and, subject to the proviso to the next
succeeding sentence, irrespective of any changes in the terms and conditions
thereof. Without limiting the generality of the foregoing, the term "Bank
Facility" shall include any amendment, amendment and restatement, renewal,
extension, restructuring, supplement or modification to any Bank Facility and
all refundings, refinancings and replacements of any Bank Facility, including
any agreement (1) extending the maturity of any Debt incurred thereunder or
contemplated thereby, (2) adding or deleting borrowers or guarantors thereunder;
provided that such borrowers and issuers include one or more of Engle Homes and
its Subsidiaries and their respective successors and assigns, (3)
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increasing the amount of Debt Incurred thereunder or available to be borrowed
thereunder, or (4) otherwise altering the terms and conditions thereof in a
manner not prohibited by the terms of the indenture.
"CONSOLIDATED INTEREST EXPENSE" of Engle Homes means, for any period,
the aggregate amount of interest which, in accordance with generally accepted
accounting principles, would be included on an income statement for Engle Homes
and its Restricted Subsidiaries on a consolidated basis, whether expensed
directly, or included as a component of cost of goods sold, or allocated to
joint ventures or otherwise (including, but not limited to, imputed interest
included on capitalized lease obligations, all commissions, discounts and other
fees and charges owed with respect to letters of credit and bankers' acceptance
financing, the net costs associated with hedging obligations, amortization of
other financing fees and expenses, the interest portion of any deferred payment
obligation, amortization of discount or premium, if any, and all other non-cash
interest expense), excluding interest expense related to mortgage banking
operations, PLUS the product of (1) the SUM of (a) cash dividends paid on any
Preferred Stock of Engle Homes PLUS (b) cash dividends, the principal amount of
any debt securities issued as a dividend, the liquidation value of any Preferred
Stock issued as a dividend and the fair market value (as determined by our board
of directors in good faith) of any other non-cash dividends, in each case, paid
on any Preferred Stock of any Restricted Subsidiary of Company (other than a
Wholly-Owned Restricted Subsidiary), TIMES (2) a fraction, the numerator of
which is one and the denominator of which is one minus the then current
effective aggregate federal, state and local tax rate of Engle Homes, expressed
as a decimal.
"CONSOLIDATED INTEREST INCURRED" of Engle Homes means, for any period,
(1) the aggregate amount of interest which, in accordance with
generally accepted accounting principles, would be included on
an income statement for Engle Homes and its Restricted
Subsidiaries on a consolidated basis, whether expensed
directly, or included as a component of cost of goods sold, or
allocated to joint ventures or otherwise (including, but not
limited to, imputed interest included on capitalized lease
obligations, all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers'
acceptance financing, the net costs associated with hedging
obligations, amortization of other financing fees and
expenses, the interest portion of any deferred payment
obligation, amortization of discount or premium, if any, and
all other non-cash interest expense), excluding interest
expense related to our mortgage banking operations, PLUS or
MINUS, without duplication,
(2) the difference between capitalized interest for such period
and the interest component of cost of goods sold for such
period, PLUS
(3) the PRODUCT of
(a) the SUM of
(x) cash dividends paid on any Preferred Stock of Engle
Homes PLUS
(y) cash dividends, the principal amount of any debt
securities issued as a dividend, the liquidation
value of any Preferred Stock issued as a dividend
and the fair market value (as determined by our
Board of Directors in good faith) of any other
non-cash dividends, in each case, paid on any
Preferred Stock of any Subsidiary of Engle Homes
(other than a Wholly-Owned Restricted Subsidiary),
TIMES
(b) a fraction, the numerator of which is one and the
denominator of which is one minus the then current
effective aggregate federal, state and local tax rate of
Engle Homes, expressed as a decimal.
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"CONSOLIDATED NET INCOME" of Engle Homes, for any period, means the net
income (loss) of Engle Homes and its Restricted Subsidiaries for such period,
determined on a consolidated basis, in accordance with generally accepted
accounting principles; provided that, without duplication,
(1) the net income of any Person, other than a Restricted
Subsidiary which is consolidated with Engle Homes, in which
any Person other than Engle Homes and its Restricted
Subsidiaries has an interest shall be included only to the
extent of the amount of cash dividends or distributions
actually paid to Engle Homes or a Restricted Subsidiary during
such period,
(2) the net income of any Person acquired in a pooling of
interests transaction for any period prior to the date of such
acquisition shall be excluded,
(3) the net income of any Subsidiary of Engle Homes shall be
excluded to the extent such Subsidiary is prohibited, directly
or indirectly, from distributing such net income or any
portion thereof to Engle Homes or a Restricted Subsidiary,
(4) all extraordinary gains and losses (after taxes) that would be
included on an income statement for such period shall be
excluded and
(5) all gains and losses (after taxes) attributable to Asset Sales
shall be excluded; provided, that there shall be included in
such net income, without duplication, the net income of any
Unrestricted Subsidiary to the extent such net income is
actually received by Engle Homes or any of its Restricted
Subsidiaries in cash during such period.
"CONSOLIDATED NON-CASH CHARGES" of Engle Homes means, for any period,
the aggregate depreciation, amortization and other non-cash charges (other than
reserves or expenses established in anticipation of future cash requirements
such as reserves for taxes and uncollectible accounts) of Engle Homes and its
Restricted Subsidiaries on a consolidated basis for such period, as determined
in accordance with generally accepted accounting principles.
Consolidated Non-cash Charges shall not include the following:
(1) any charges that are not included for the purpose of
determining Consolidated Net Income,
(2) any charges that are included for the purpose of determining
Consolidated Interest Expense or Consolidated Tax Expense, and
(3) any charges representing capitalized selling, general and
administrative expenses that are expensed during such period
as cost of goods sold.
"CONSOLIDATED TANGIBLE ASSETS" of Engle Homes as of any date means the
total amount of assets of Engle Homes and its Restricted Subsidiaries (less
applicable reserves and less the assets securing the payment of Non-Recourse
Debt of Engle Homes and its Restricted Subsidiaries) on a consolidated basis at
the end of the fiscal quarter immediately preceding such date, as determined in
accordance with generally accepted accounting principles, LESS the following as
reflected on the consolidated balance sheet of Engle Homes and its Restricted
Subsidiaries:
(1) unamortized debt and debt issuance expense, deferred charges,
goodwill, patents, trademarks, copyrights, and all other items
which would be treated as intangibles on the consolidated
balance sheet of Engle Homes and its Restricted Subsidiaries
prepared in accordance with generally accepted accounting
principles, and
(2) appropriate adjustments on account of minority interests of
other Persons holding equity investments in Restricted
Subsidiaries.
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"CONSOLIDATED TANGIBLE NET WORTH" of Engle Homes means our Net Worth
LESS unamortized debt and debt issuance expense, deferred charges, goodwill,
patents, trademarks, copyrights, and all other items which would be treated as
intangibles on the consolidated balance sheet of Engle Homes and its Restricted
Subsidiaries prepared in accordance with generally accepted accounting
principles.
"CONSOLIDATED TAX EXPENSE" of Engle Homes means, for any period, the
aggregate of the tax expense of Engle Homes and its Restricted Subsidiaries for
such period, determined on a consolidated basis, in accordance with generally
accepted accounting principles.
"COVERAGE RATIO" of Engle Homes means the ratio of our EBITDA to its
Consolidated Interest Incurred for the four fiscal quarters ending immediately
prior to the date of determination. Notwithstanding clause (2) of the definition
of Consolidated Net Income, if the Debt which is being Incurred is Incurred in
connection with an acquisition by Engle Homes or a Restricted Subsidiary, the
Coverage Ratio shall be determined after giving effect to both the Consolidated
Interest Incurred related to the Incurrence of such Debt and the EBITDA (a) of
the Person becoming a Restricted Subsidiary of Engle Homes or (b) in the case of
an acquisition of assets that constitute substantially all of an operating unit
or business, relating to the assets being acquired by Engle Homes or a
Restricted Subsidiary of Engle Homes.
"DEBT" means the following as to any Person:
(1) any indebtedness of such Person for borrowed money,
(2) all indebtedness of such Person evidenced by bonds,
debentures, notes, letters of credit, drafts or similar
instruments,
(3) all indebtedness of such Person to pay the deferred purchase
price of property or services, but not including accounts
payable and accrued expenses arising in the ordinary course of
business, (d) all capitalized lease obligations of such
Person,
(4) all Debt of others secured by a Lien on any asset of such
Person, whether or not such Debt is assumed by such Person or
guaranteed by such Person,
(5) Redeemable Stock of such Person and Preferred Stock of any
Subsidiary of such Person,
(6) all obligations of such Person with respect to Interest Rate
Protection Agreements, and
(7) all Debt of others guaranteed by such Person.
"Debt" of Engle Homes shall not include the amount reflected on a
consolidated balance sheet of Engle Homes with respect to options to acquire
real property which was purchased by Engle Homes and sold to a third party
within 360 days of such purchase for consideration at least equal to the amount
paid by Engle Homes for such property less an amount equal to the value of such
option.
"EBITDA" for Engle Homes, for any period, means, without duplication,
(1) the Consolidated Net Income of Engle Homes PLUS,
(2) the SUM of the following to the extent deducted in calculating
Consolidated Net Income:
(a) Consolidated Tax Expense,
(b) Consolidated Interest Expense, and
(c) Consolidated Non-cash Charges.
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"EXISTING DEBT" means all of the Debt of Engle Homes and its Restricted
Subsidiaries that was outstanding on February 2, 1998.
"GUARANTEE" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt of such other Person (whether by agreement to keepwell or to maintain
financial condition or otherwise), provided that the term "guarantee" shall not
include endorsements for collection or deposit in the ordinary course of
business.
"HOMEBUILDING JOINT VENTURE" means
(1) any Unrestricted Subsidiary and
(2) any person which is not a Guarantor in which Engle Homes or
any of its Subsidiaries has an ownership interest and in which
no other person has a greater beneficial ownership interest
than the beneficial ownership interest of Engle Homes that, in
each case, was formed for and is engaged in homebuilding
operations.
"INDEPENDENT FINANCIAL ADVISOR" means a firm
(1) which does not, and whose directors, officers and employees or
Affiliates do not, have a direct or indirect financial
interest in Engle Homes and
(2) which, in the judgment of our Board of Directors, is otherwise
independent and qualified to perform the task for which it is
to be engaged.
"INTEREST RATE PROTECTION AGREEMENT" means any arrangement with any
other Person whereby, directly or indirectly, such Person is entitled to receive
from time to time periodic payments calculated by applying either a floating or
a fixed rate of interest on a stated notional amount in exchange for periodic
payments made by such Person calculated by applying a fixed or a floating rate
of interest on the same notional amount and shall include, without limitation,
interest rate swaps, caps, floors, collars and similar agreements; PROVIDED that
any arrangement which is entered into by Engle Homes or any of its Restricted
Subsidiaries in connection with Debt Incurred by Engle Homes or any of its
Restricted Subsidiaries shall constitute Permitted Debt.
"INVESTMENT" means, with respect to any Person, any direct or indirect
loan or other extension of credit or capital contribution to (by means of any
transfer of cash or other property to others or any payment for property or
services for the account or use of others), or any purchase or acquisition by
such Person of any capital stock, bonds, notes, debentures or other securities
or evidences of Debt issued by, any other Person. "Investments" shall exclude
extensions of trade credit by Engle Homes and its Subsidiaries in the ordinary
course of business in accordance with normal trade practices of Engle Homes or
such Subsidiary, as the case may be.
"ISSUE DATE" means the original date of issuance of the notes.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
assignment (including any assignment of rights to receive payments of money
other than in connection with mortgage banking operations in the ordinary course
of business), charge, security interest or encumbrance of any kind (including
any conditional sale or other title retention agreement or any lease in the
nature thereof) in respect of such asset, any agreement to grant to any Person
any such Lien and any sale and leaseback of any asset.
"MATERIAL SUBSIDIARY" means any Restricted Subsidiary of Engle Homes
which accounted for 10 percent or more of our Consolidated Tangible Assets or
EBITDA for the fiscal year ending immediately prior to any Default or Event of
Default.
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"MORTGAGE" means a first priority mortgage or first priority deed of
trust on improved real property.
"NET PROCEEDS" with respect to any Asset Sale means
(1) cash (in U.S. dollars or freely convertible into U.S. dollars)
received by Engle Homes or any of its Restricted Subsidiaries
from such Asset Sale (including cash received as consideration
for the assumption or incurrence of liabilities incurred in
connection with or in anticipation of such Asset Sale), after
(a) provision for all income or other taxes measured by or
resulting from such Asset Sale to Engle Homes or any of
its Restricted Subsidiaries, whether or not offset by net
operating loss and tax credit carry-forwards,
(b) payment of all brokerage commissions and the underwriting
fees and, without limitation, all other fees and expenses
related to such Asset Sale, and
(c) deduction of appropriate amounts to be provided by Engle
Homes or any of its Restricted Subsidiaries as a reserve,
in accordance with generally accepted accounting
principles, against any liabilities associated with the
assets sold or otherwise disposed of in such Asset Sale
(including, without limitation, pension and other
post-employment benefit liabilities and liabilities
related to environmental matters) or against any
indemnification obligations associated with the sale or
other disposition of the assets sold or otherwise disposed
of in such Asset Sale, and
(2) all noncash consideration received by Engle Homes or any of
its Restricted Subsidiaries from such Asset Sale upon the
liquidation or conversion of such consideration into cash.
"NET WORTH" of Engle Homes means, at any date, the aggregate of
capital, surplus and retained earnings of Engle Homes and its Restricted
Subsidiaries as would be shown on a consolidated balance sheet of Engle Homes
prepared in accordance with generally accepted accounting principles, adjusted
to exclude (to the extent included) investments by Engle Homes and its
Subsidiaries in joint ventures and the amount of equity attributable to
Affiliates other than Restricted Subsidiaries of such Person.
"NON-RECOURSE DEBT" with respect to any Person means Debt of such
Person for which the sole legal recourse for collection of principal and
interest on such Debt is against the specific property identified in the
instruments evidencing or securing such Debt and such property was acquired with
the proceeds of such Debt or such Debt was Incurred within 90 days after the
acquisition of such property.
"PERMITTED INVESTMENTS" of any Person means Investments of such Person
in
(1) direct obligations of the United States or any agency thereof
or obligations guaranteed by the United States or any agency
thereof, in each case maturing within 180 days of the date of
acquisition thereof,
(2) certificates of deposit maturing within 180 days of the date
of acquisition thereof issued by a bank, trust company or
savings and loan association which is organized under the laws
of the United States or any state thereof having capital,
surplus and undivided profits aggregating in excess of $250
million and a Keefe Bank Watch Rating of C or better,
(3) certificates of deposit maturing within 180 days of the date
of acquisition thereof issued by a bank, trust company or
savings and loan association organized under the laws of the
United States or any state thereof other than banks, trust
companies or savings and loan associations satisfying the
criteria in (2) above; provided that the aggregate amount of
all certificates of deposit issued to
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Engle Homes at any one time by any one such bank, trust
company or savings and loan association will not exceed
$100,000,
(4) commercial paper given the highest rating by two established
national credit rating agencies and maturing not more than 180
days from the date of the acquisition thereof,
(5) repurchase agreements or money-market accounts which are fully
secured by direct obligations of the United States or any
agency thereof and
(6) in the case of Engle Homes and its Subsidiaries,
(a) any receivables or loans taken by Engle Homes or a
Subsidiary in connection with the sale of any asset
otherwise permitted by the indenture,
(b) Investments in any Guarantor,
(c) Investments in the notes or Debt PARI PASSU with the
notes,
(d) Investments in evidences of Debt, securities or other
property received from another Person by Engle Homes or
any of its Restricted Subsidiaries in connection with any
bankruptcy proceeding or by reason of a composition or
readjustment of debt or a reorganization of such Person or
as a result of foreclosure, perfection or enforcement of
any Lien in exchange for evidences of Debt, securities or
other property of such Person held by Engle Homes or any
of its Restricted Subsidiaries, or for other liabilities
or obligations of such other Person to Engle Homes or any
of its Restricted Subsidiaries that were created, in
accordance with the terms of the indenture,
(e) Investments in Interest Rate Protection Agreements which
constitute Permitted Debt,
(f) Investments in any Homebuilding Joint Ventures not in
excess of $20 million in the aggregate for all
Homebuilding Joint Ventures, and
(g) Investments in an aggregate amount outstanding not greater
than $5,000,000.
"PERMITTED LIENS" with respect to Engle Homes and its Restricted
Subsidiaries means
(1) Liens on assets of Engle Homes or any Restricted Subsidiary of
Engle Homes securing Debt which may be incurred pursuant to
the "Limitation on Debt" covenant, provided that the aggregate
amount of Debt secured by Liens (excluding Nonrecourse Debt of
Engle Homes and Restricted Subsidiaries and Debt outstanding
under the Warehouse Facility) may not exceed 40 percent of our
Consolidated Tangible Assets;
(2) Liens securing a Warehouse Facility; provided that such Liens
shall not extend to any assets other than the mortgages,
promissory notes and other collateral that secures mortgage
loans made by Engle Homes or any of its Restricted
Subsidiaries;
(3) Liens securing Non-Recourse Debt of Engle Homes or any
Restricted Subsidiary of Engle Homes, provided that such Liens
apply only to the property financed out of the net proceeds of
such Non-Recourse Debt within 90 days of the incurrence of
such Non-Recourse Debt;
(4) Liens securing Debt of a Person existing at the time that such
Person is merged into or consolidated with Engle Homes or a
Restricted Subsidiary; provided that such Liens were not
created in contemplation of such merger or consolidation and
do not extend to any assets or property of Engle Homes or any
Restricted Subsidiary, other than the surviving Person and its
Subsidiaries;
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(5) Liens on assets or property acquired by Engle Homes or a
Restricted Subsidiary; provided that such Liens were not
created in contemplation of such acquisition and do not extend
to any other assets or property (other than proceeds of such
acquired assets or property);
(6) Liens in respect of Interest Rate Protection Agreements which
constitute Permitted Debt;
(7) Liens for taxes, assessments or governmental charges or claims
that either (a) are not yet delinquent or (b) are being
contested in good faith by appropriate proceedings and as to
which appropriate reserves have been established or other
provisions have been made in accordance with generally
accepted accounting principles;
(8) statutory Liens of landlords and carriers', warehousemen's,
mechanics', suppliers', materialmen's, repairmen's,
contractors' or other Liens imposed by law and arising in the
ordinary course of business;
(9) Liens (other than any Lien imposed by the Employee Retirement
Income Security Act of 1974, as amended) incurred or deposits
made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types
of social security;
(10) Liens incurred or deposits made to secure the performance of
tenders, bids, leases, statutory obligations, surety and
appeal bonds, progress payments, government contracts and
other obligations of like nature (exclusive of obligations for
the payment of borrowed money), in each case, incurred in the
ordinary course of business;
(11) attachment or judgment Liens not giving rise to a Default or
Event of Default;
(12) easements, rights-of-way, restrictions and other similar
charges or encumbrances not materially interfering with the
ordinary conduct of the business of Engle Homes or any of its
Subsidiaries;
(13) leases or subleases granted to others not materially
interfering with the ordinary conduct of the business of Engle
Homes or any of its Restricted Subsidiaries;
(14) Liens securing Refinancing Debt; provided that such Liens only
extend to the assets securing the Debt being refinanced, such
refinanced Debt was previously secured and such Liens do not
extend to any other assets of Engle Homes or the assets of any
of our other Subsidiaries;
(15) Liens securing Purchase Money Obligations (including
capitalized lease obligations);
(16) Liens existing on February 2, 1998;
(17) any contract to sell an asset provided such sale is otherwise
permitted under the indenture; and
(18) Liens on property or assets of any Restricted Subsidiary
securing Debt of such Restricted Subsidiary owing to Engle
Homes or one or more Restricted Subsidiaries of Engle Homes.
"PERSON" means any individual, corporation, partnership, association,
trust or other entity or organization, including a government or political
subdivision or agency or instrumentality thereof.
"PREFERRED STOCK" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) of
such Person's preferred or preference stock whether outstanding on or issued
after February 2, 1998, and including, without limitation, all classes and
series of preferred or preference stock.
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"PURCHASE MONEY OBLIGATIONS" means Debt of any Person secured by Liens
(1) on property purchased, acquired, or constructed by such Person
or its Subsidiaries after February 2, 1998 and used in the
ordinary course of business by such Person and
(2) securing the payment of all or any part of the purchase price
or construction cost of such assets and limited to the
property so acquired and improvements thereof; provided that
such Debt is incurred no later than 90 days after the
acquisition of such property or completion of such
construction or improvements.
"REDEEMABLE STOCK" means, with respect to any Person, any class or
series of capital stock of such Person that is redeemable at the option of the
holder (except pursuant to a change in control provision that does not (1) cause
such capital stock to become redeemable in circumstances which would not
constitute a Change of Control and (2) require Engle Homes to pay the redemption
price therefor prior to the Change of Control Repurchase Date) or is subject to
mandatory redemption or otherwise matures prior to the final stated maturity of
the notes.
"REFINANCING DEBT" means Debt that refunds, refinances or extends any
notes, Existing notes, Existing Debt (other than Existing Debt to be repaid with
the net proceeds of the offering of the notes) or other Debt incurred by Engle
Homes or its Restricted Subsidiaries permitted under the terms of the indenture,
but only to the extent that
(1) the Refinancing Debt is subordinated to the notes to the same
extent as the Debt being refunded, refinanced or extended, if
at all,
(2) the Refinancing Debt is scheduled to mature either
(a) no earlier than the Debt being refunded, refinanced or
extended, or
(b) after the maturity date of the notes,
(3) the portion, if any, of the Refinancing Debt that is scheduled
to mature on or prior to the maturity date of the notes has a
Weighted Average Life to Maturity at the time such Refinancing
Debt is Incurred that is equal to or greater than the Weighted
Average Life to Maturity of the portion of the Debt being
refunded, refinanced or extended that is scheduled to mature
on or prior to the maturity date of the notes, and
(4) the gross proceeds of such Refinancing Debt are an amount that
is equal to or less than the aggregate principal amount then
outstanding under the Debt being refunded, refinanced or
extended (plus the premiums or other payments paid in
connection therewith (which shall not exceed the stated amount
of any premium or other payment required to be paid in
connection with such a renewal, extension, substitution,
refunding, refinancing, redemption, repurchase or replacement
pursuant to the terms of the Debt being renewed, extended,
substituted, refunded, refinanced, amended, modified,
supplemented, redeemed, repurchased or replaced) and the
expenses incurred in connection therewith).
"RESTRICTED PAYMENTS" means with respect to Engle Homes or any
Restricted Subsidiary
(1) the declaration or payment of any dividend or other
distribution on any shares of such Person's capital stock,
except
(a) dividends or distributions in additional shares of capital
stock of Engle Homes other than Redeemable Stock or
(b) the declaration or payment of any dividend or other
distribution by a Restricted Subsidiary to Engle Homes or
another Restricted Subsidiary,
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(2) any payment on account of the purchase, redemption or other
acquisition of
(a) any shares of such Person's capital stock, or
(b) any option, warrant or other right to acquire shares of
such Person's capital stock, except, in each case, capital
stock held by Engle Homes or a Restricted Subsidiary,
(3) any Investment (other than a Permitted Investment) in any
Person, or
(4) any principal payment, redemption, repurchase, defeasance or
other acquisition or retirement, prior to scheduled principal
payment or scheduled maturity, of Debt of Engle Homes or its
Subsidiaries which is subordinated in right of payment to the
notes (other than Debt held by Engle Homes or a Restricted
Subsidiary).
"RESTRICTED SUBSIDIARY" means any Subsidiary which is not an
Unrestricted Subsidiary.
"SUBSIDIARY" means, with respect to any Person,
(1) any corporation or entity of which a majority of the capital
stock having ordinary voting power to elect a majority of the
board of directors or other Persons performing similar
functions is at the time directly or indirectly owned by such
Person or one or more of the other Subsidiaries of that Person
or
(2) any partnership or joint venture at least a majority of the
voting power of which is at the time directly or indirectly
owned by such Person or one or more of the other Subsidiaries
of that Person, or a combination thereof or a successor
thereto.
"UNRESTRICTED SUBSIDIARY" means each of the Subsidiaries of Engle Homes
(other than a Guarantor) so designated by a resolution adopted by the Board of
Directors of Engle Homes.
Only Subsidiaries which meet the following conditions may be designated
an Unrestricted Subsidiary:
(1) neither Engle Homes nor any of its other Subsidiaries (other
than Unrestricted Subsidiaries) may
(a) provide any direct or indirect credit support for any Debt
of such Subsidiary (including any undertaking, agreement
or instrument evidencing such Debt) or
(b) be directly or indirectly liable for any Debt of such
Subsidiary, and
(2) the creditors with respect to Debt for borrowed money of such
Subsidiary have agreed in writing that they have no recourse,
direct or indirect, to Engle Homes or any other Subsidiary of
Engle Homes (other than Unrestricted Subsidiaries), including,
without limitation, recourse with respect to the payment of
principal or interest on any Debt of such Subsidiary.
The Board of Directors of Engle Homes may designate an Unrestricted
Subsidiary to be a Restricted Subsidiary under the following conditions:
(1) any such redesignation will be deemed to be an Incurrence by
Engle Homes and its Restricted Subsidiaries of the Debt (if
any) of such redesignated Subsidiary for purposes of the
"Limitation on Debt" covenant set forth in the indenture as of
the date of such redesignation,
(2) any Debt of such Unrestricted Subsidiary could then be
Incurred in accordance with the "Limitation on Debt" covenant
set forth in the indenture on the date of such redesignation
and
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(3) the Liens of such Unrestricted Subsidiary could then be
incurred in accordance with the "Limitation on Liens" covenant
set forth in the indenture as of the date of such
redesignation.
The Board of Directors of Engle Homes may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary under the following conditions:
(1) all previous Investments by Engle Homes and its Restricted
Subsidiaries in such Restricted Subsidiary (net of any returns
previously paid on such Investments) will be deemed to be
Restricted Payments at the time of such designation and will
reduce the amount available for Restricted Payments under the
"Limitations on Restricted Payments" covenant set forth in the
indenture,
(2) Engle Homes and its Restricted Subsidiaries could incur $1.00
of additional Indebtedness under the Coverage Ratio test
contained in the "Limitations on Debt" covenant set forth in
the indenture and
(3) no Default or Event of Default shall have occurred or be
continuing. Any such designation or redesignation by the Board
of Directors of Engle Homes will be evidenced to the trustee
by the filing with the trustee of a certified copy of the
resolution of the Board of Directors of Engle Homes giving
effect to such designation or redesignation and an Officers'
Certificate certifying that such designation or redesignation
complied with the foregoing conditions and setting forth the
underlying calculations.
"WAREHOUSE FACILITY" means a Bank Facility to finance the making of
mortgage loans originated by Engle Homes or any of its Subsidiaries.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any Debt or
portion thereof, if applicable, at any date, the number of years obtained by
dividing (1) the then outstanding principal amount of such Debt or portion
thereof, if applicable, into (2) the sum of the products obtained by multiplying
(a) the amount of each then remaining installment, sinking fund, serial maturity
or other required payment of principal, including payment at final maturity, in
respect thereof, by (b) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such payment.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" means any Restricted Subsidiary of
Engle Homes of which 100% of the outstanding capital stock is owned by one or
more Wholly Owned Restricted Subsidiaries of Engle Homes or by Engle Homes and
one or more Wholly Owned Restricted Subsidiaries of Engle Homes. For purposes of
this definition, any directors' qualifying shares shall be disregarded in
determining the ownership of a Subsidiary.
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BOOK-ENTRY; DELIVERY AND FORM
So long as the Depositary or its nominee is the registered owner of a
global note, the Depositary or its nominee, as the case may be, will be the sole
holder of the notes represented thereby for all purposes under the indenture.
Except as otherwise provided in this section, the beneficial owners of the
global notes representing the notes will not be entitled to receive physical
delivery of certificated notes and will not be considered the holders thereof
for any purpose under the indenture, and no global note representing the
book-entry notes shall be exchangeable or transferable. Accordingly, each
beneficial owner must rely on the procedures of the Depositary and, if such
beneficial owner is not a Participant, then such beneficial owner must rely on
the procedures of the Participant through which such beneficial owner owns its
interest in order to exercise any rights of a holder under such global note or
the indenture. The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in certificated form. Such
limits and such laws may impair the ability to transfer beneficial interests in
a global note representing the notes.
The global notes representing the notes will be exchangeable for
certificated notes of like tenor and terms and of differing authorized
denominations aggregating a like principal amount, only if
(1) the Depositary notifies us that it is unwilling or unable to
continue as Depositary for the global notes,
(2) the Depositary ceases to be a clearing agency registered under
the Securities Exchange Act,
(3) we in our sole discretion determines that the global notes
shall be exchangeable for certificated notes, or
(4) there shall have occurred and be continuing an event of
default under the indenture with respect to the notes.
Upon any such exchange, the certificated notes shall be registered in
the names of the beneficial owners of the global notes representing the notes,
which names shall be provided by the Depositary's relevant Participants (as
identified by the Depositary) to the Trustee.
The following is based on information furnished by the Depositary:
The Depositary will act as the securities depositary for the
notes. The notes will be issued as fully registered securities
registered in the name of Cede & Co. (the Depositary's partnership
nominee). Fully registered global notes will be issued for the notes,
in the aggregate principal amount of such issue, and will be deposited
with the Depositary.
The Depositary is a limited-purpose trust company organized
under the New York Banking Law, a "banking organization" within the
meaning of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York
Uniform Commercial Code, and a "clearing agency" registered pursuant to
the provisions of Section 17A of the Exchange Act. The Depositary holds
securities that its participants ("Participants") deposit with the
Depositary. The Depositary also facilitates the settlement among
Participants of securities transactions, such as transfers and pledges,
in deposited securities through electronic computerized book-entry
changes to Participants' accounts, thereby eliminating the need for
physical movement of securities certificates. Direct Participants of
the Depositary ("Direct Participants") include securities brokers and
dealers (including the Initial Purchasers), banks, trust companies,
clearing corporations and certain other organizations. The Depositary
is owned by a number of its Direct Participants, including the Initial
Purchasers and by the New York Stock Exchange, Inc., the American Stock
Exchange, Inc., and the National Association of Securities Dealers,
Inc. Access to the Depositary's system is also available to others such
as securities brokers and dealers, banks and trust companies that clear
through or maintain a custodial relationship with a Direct
48
<PAGE>
Participant, either directly or indirectly ("Indirect Participants").
The rules applicable to the Depositary and its Participants are on file
with the SEC.
Purchases of notes under the Depositary's system must be made
by or through Direct Participants, which will receive a credit for such
notes on the Depositary's record. The ownership interest of each actual
purchaser of each Note represented by a global note ("Beneficial
Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written
confirmation from the Depositary of their purchase, but Beneficial
Owners are expected to receive written confirmations providing details
of the transaction, as well as periodic statements of their holdings,
from the Direct or Indirect Participants through which such Beneficial
Owner entered into the transaction. Transfers of ownership interests in
the global notes representing the notes are to be accomplished by
entries made on the books of Participants acting on behalf of
Beneficial Owners. Beneficial Owners of the global notes representing
the notes will not receive certificated notes representing their
ownership interests therein, except in the event that use of the
book-entry system for such notes is discontinued.
To facilitate subsequent transfers, all global notes
representing the notes which are deposited with, or on behalf of, the
Depositary are registered in the name of the Depositary's nominee, Cede
& Co. The deposit of global notes with, or on behalf of, the Depositary
and their registration in the name of Cede & Co. will effect no change
in beneficial ownership. The Depositary has no knowledge of the actual
Beneficial Owners of the global notes representing the notes; the
Depositary's records reflect only the identity of the Direct
Participants to whose accounts such notes are credited, which may or
may not be the Beneficial Owners. The Participants will remain
responsible for keeping account of their holdings on behalf of their
customers.
Conveyance of notices and other communications by the
Depositary to Direct Participants, by Direct Participants to Indirect
Participants, and by Direct and Indirect Participants to Beneficial
Owners will be governed by arrangements among them, subject to any
statutory or regulatory requirements as may be in effect from time to
time.
Neither the Depositary nor Cede & Co. will consent or vote with
respect to the global notes representing the notes. Under its usual
procedure, the Depositary mails an Omnibus Proxy to Engle Homes as soon
as possible after the applicable record date. The Omnibus Proxy assigns
Cede & Co.'s consenting or voting rights to those Direct Participants
to whose accounts the notes are credited on the applicable record date
(identified in a listing attached to the Omnibus Proxy).
Principal, premium, if any, and/or interest, if any, payments
on the global notes representing the notes will be made to the
Depositary. The Depositary's practice is to credit Direct Participants'
accounts on the applicable payment date in accordance with their
respective holdings shown on the Depositary's records unless the
Depositary has reason to believe that it will not receive payment on
such date. Payments by Participants to Beneficial Owners will be
governed by standing instructions and customary practices, as is the
case with securities held for the accounts of customers in bearer form
or registered in "street name," and will be the responsibility of such
Participant and not of the Depositary, the Trustee or Engle Homes,
subject to any statutory or regulatory requirements as may be in effect
from time to time. Payment of principal, premium, if any, and/or
interest, if any, to the Depositary is the responsibility of Engle
Homes or the Trustee, disbursement of such payments to Direct
Participants shall be the responsibility of the Depositary, and
disbursement of such payments to the Beneficial Owners shall be the
responsibility of Direct and Indirect Participants.
The Depositary may discontinue providing its services as
securities depositary with respect to the notes at any time by giving
reasonable notice to Engle Homes or the Trustee. Under such
circumstances, in the event that a successor securities depositary is
not obtained, certificated notes are required to be printed and
delivered.
49
<PAGE>
We may decide to discontinue use of the system of book-entry transfers
through the Depositary (or a successor securities depositary). In that event,
certificated notes will be printed and delivered.
The information in this section concerning the Depositary and the
Depositary's system has been obtained from sources that we believe to be
reliable, but we take no responsibility for its accuracy.
The Depositary has further advised us that management of the Depositary
is aware that some computer applications, systems, and the like for processing
data ("Systems") that are dependent upon calendar dates, including dates before,
on, and after January 1, 2000, may encounter "Year 2000 problems." The
Depositary has informed its Participants and other members of the financial
community (the "Industry") that it has developed and is implementing a program
so that its Systems, as the same relate to the timely payment of distributions
(including principal and income payments) to securityholders, book-entry
deliveries, and settlement of trades within the Depositary ("Depositary
Services"), continue to function appropriately. This program includes a
technical assessment and a remediation plan, each of which is complete.
Additionally, the Depositary's plan includes a testing phase, which is expected
to be completed within appropriate time frames.
However, the Depositary's ability to perform properly its service is
also dependent upon other parties, including but not limited to issuers and
their agents, as well as the Depositary's Direct Participants and Indirect
Participants and third party vendors from whom the Depositary licenses software
and hardware, and third party vendors on whom the Depositary relies for
information or the provision of services, including telecommunication and
electrical utility service providers, among others. The Depositary has informed
the Industry that it is contacting (and will continue to contact) third party
vendors from whom the Depositary acquires services to: (1) impress upon them the
importance of such services being Year 2000 compliance; and (2) determine the
extent of their efforts for Year 2000 remediation (and, as appropriate, testing)
of their services. In addition, the Depositary is in the process of developing
such contingency plans as it deems appropriate.
According to the Depositary, the foregoing information with respect to
the Depositary has been provided to the Industry for informational purposes only
and is not intended to serve as a representation, warranty, or contract
modification of any kind.
UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
For U.S. federal income tax purposes, the exchange of an initial note
for a registered note pursuant to the exchange offer should not be treated as a
taxable exchange for U.S. federal income tax purposes. In that event, holders
who exchange their initial notes for registered notes would not recognize
income, gain or loss for U.S. federal income tax purposes. In addition, a
holder's tax basis in the registered notes would be equal to its adjusted basis
in the initial notes, and its holding period would include the period during
which it held the initial notes. Persons considering the exchange of initial
notes for registered notes pursuant to the exchange offer should consult their
own tax advisors concerning the application of the U.S. federal tax laws to
their particular situations as well as any consequences arising under the laws
of any other taxing jurisdiction.
50
<PAGE>
PLAN OF DISTRIBUTION
Each broker-dealer that receives registered notes in exchange for
initial notes for its own account pursuant to the exchange offer must
acknowledge that it will deliver a prospectus in connection with any resale of
such registered notes. This prospectus, as it may be amended or supplemented
from time to time, may be used by a broker-dealer in connection with resales of
registered notes received in exchange for initial notes where such initial notes
were acquired as a result of market-making activities or other trading
activities. We have agreed that we will make this prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale for a period of 180 days after consummation of the exchange offer, or
such shorter period as will terminate when all initial notes acquired by
broker-dealers for their own accounts as a result of market-making activities or
other trading activities have been exchanged for registered notes and resold by
such broker-dealers. A broker-dealer that delivers such a prospectus to
purchasers in connection with such resales will be subject to certain of the
civil liability provisions under the Securities Act and will be bound by the
provisions of the Registration Rights Agreement (including certain
indemnification rights and obligations).
We will not receive any proceeds from any sale of registered notes by
broker-dealers. registered notes received in exchange for initial notes pursuant
to the exchange offer by broker-dealers for their own account pursuant to the
exchange offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on the registered notes or a combination of such methods of resale, at
market prices prevailing at the time of resale, at prices related to such
prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such registered notes. Any
broker-dealer that resells registered notes that were received by it for its own
account pursuant to the exchange offer in exchange for initial notes pursuant to
the exchange offer and any broker or dealer that participates in a distribution
of such registered notes may be deemed to be an "underwriter" within the meaning
of the Securities Act and any profit on any such resale of registered notes and
any commissions or concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act.
For a period of 180 days after consummation of the exchange offer, or
such shorter period as will terminate when all initial notes acquired by
broker-dealers for their own accounts as a result of market-making activities or
other trading activities have been exchanged for registered notes and resold by
such broker-dealers, we will promptly send additional copies of this prospectus
and any amendment or supplement to this prospectus to any broker-dealer that
requests such documents in the letter of transmittal. We have agreed to
indemnify such broker-dealers against certain liabilities, including liabilities
under the Securities Act.
LEGAL MATTERS
The validity of the registered notes offered hereby will be passed upon
by Greenberg Traurig, P.A.
EXPERTS
The Consolidated Financial Statements of Engle Homes and the related
schedule incorporated by reference in this prospectus have been audited by BDO
Seidman, LLP, independent certified public accountants, to the extent and for
the periods set forth in their reports incorporated by reference herein, and are
incorporated by reference in reliance upon such reports given upon the authority
of said firm as experts in auditing and accounting.
51
<PAGE>
================================================================================
We have not authorized any dealer, sales representative or any other person to
give any information or to make any representations not contained in this
prospectus or the accompanying letter of transmittal. This prospectus and the
accompanying letter of transmittal do not offer to sell or buy
any securities in any jurisdiction where it is unlawful.
---------------
TABLE OF CONTENTS
PAGE
----
Where You Can Find More Information.....................i
Cautionary Statement Regarding Forward-Looking
Statements...........................................ii
Summary.................................................1
Risk Factors............................................9
Use of Proceeds........................................14
Ratio of Earnings to Fixed Charges.....................14
The Exchange Offer.....................................15
Description of the Registered Notes....................24
Book Entry; Delivery and Form..........................48
United States Federal Income Tax Considerations........50
Plan of Distribution...................................51
Legal Matters..........................................51
Experts................................................51
================================================================================
================================================================================
[ENGLE HOMES LOGO]
ENGLE HOMES, INC.
OFFER TO EXCHANGE
$100,000,000
9 1/4% SERIES C SENIOR NOTES DUE 2008
FOR ANY AND ALL OUTSTANDING
9 1/4% SERIES B SENIOR NOTES DUE 2008
----------
PROSPECTUS
----------
, 1999
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant has authority under the Florida Business Corporation Act
to indemnify its directors and officers to the extent provided in such statute.
The Registrant's Amended and Restated Articles of Incorporation provide that the
Registrant shall indemnify its executive officers and directors to the fullest
extent permitted by law either now or hereafter. The Registrant has also entered
into an agreement with each of its directors and certain of its officers wherein
it is agreeing to indemnify each of them to the fullest extent permitted by law.
In general, Florida law permits a Florida corporation to indemnify its
directors, officers, employees and agents, and persons serving at the
corporation's request in such capacities for another enterprise against
liabilities arising from conduct that such persons reasonably believed to be in,
or not opposed to, the best interests of the corporation and, with respect to
any criminal action or proceeding, had no reasonable cause to believe their
conduct was unlawful.
The provisions of the Florida Business Corporation Act that authorize
indemnification do not eliminate the duty of care of a director and, in
appropriate circumstances, equitable remedies such as injunctive or other forms
of nonmonetary relief will remain available under Florida law. In addition, each
director will continue to be subject to liability for (a) violations of the
criminal law, unless the director had reasonable cause to believe his conduct
was lawful or had no reasonable cause to believe his conduct was unlawful, (b)
deriving an improper personal benefit from a transaction, (c) voting for or
assenting to an unlawful distribution, and (d) willful misconduct or a conscious
disregard for the best interests of the Registrant in a proceeding by or in the
right of the Registrant to procure a judgment in its favor or in a proceeding by
or in the right of a shareholder. The statute does not affect a director's
responsibilities under any other law, such as the Federal securities laws or
state or Federal environmental laws.
At present, there is no pending litigation or proceeding involving a
director or officer of the Registrant as to which indemnification is being
sought from the Registrant, nor is the Registrant aware of any threatened
litigation that may result in claims for indemnification from the Registrant by
any officer or director.
II-1
<PAGE>
ITEM 21. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
------- -----------
<S> <C>
4.1 Indenture, dated June 12, 1998, between the Registrant, the Guarantors named therein and
the American Stock Transfer & Trust Company, as trustee, hereby incorporated by reference
to Exhibit 4.1 of the Registrant's Registration Statement on Form S-4 (File No. 333-59057).
4.2 Form of registered note (included in Exhibit 4.1).
4.3 Registration Rights Agreement, dated as of April 29, 1999, by and among the Registrant,
the Guarantors named therein and Jefferies & Company, Inc.
5.1 Opinion of Greenberg Traurig, P.A.
10.1 Registrant's Third Amended and Restated 1991 Stock Option Plan (Compensatory Plan), hereby
incorporated by reference to Exhibit A of Registrant's Proxy Statement for its 1998 Annual
Meeting.
10.2 Indemnification Agreement between the Registrant and
each of its directors and certain executive officers,
hereby incorporated by reference to Exhibit 10.2 of our
Registration Statement of Form S-1 (File No. 33-58678).
10.3 Asset Purchase Agreement, dated May 13, 1994, among
Engle Homes, Inc., Park Homes West, Inc. and David H.
Feinberg, and Amendment No. 1 thereto, dated June 14,
1994, hereby incorporated by reference to Exhibit 2.1 of
the Registrant's Current Report on Form 8-K, dated June
28, 1994.
10.4 Registrant's Amended and Restated 1997 Bonus Performance Plan (Compensatory Plan), hereby
incorporated by reference to Exhibit B of Registrant's Proxy Statement for its 1998 Annual
Meeting.
10.6 Credit Agreement, dated as of May 28, 1998, by and among
the Registrant, as Borrower, the Banks named therein,
SunTrust Bank, South Florida, National Association, a
national banking association, as Administrative Agent,
and NationsBank, N.A., a national banking association,
as Documentation Agent, hereby incorporated by reference
to Exhibit 10.6 of the Registrant's Registration
Statement on Form S-4 (File No. 333-59057).
10.7 First Amendment, dated as of May 26, 1999, to the Credit
Agreement, dated as of May 28, 1998, by and among the
Registrant, as Borrower, the Banks named therein,
SunTrust Bank, South Florida, National Association, a
national banking association, as Administrative Agent,
and NationsBank, N.A., a national banking association,
as Documentation Agent.
12.1 Statement of Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of BDO Seidman, LLP.
23.2 Consent of Greenberg Traurig, P.A. (included in Exhibit 5.1)
24.1 Powers of Attorney (included on signature page).
99.1 Form of Letter of Transmittal.
99.2 Form of Notice of Guaranteed Delivery.
99.3 Form of Tender Instruction Letters.
</TABLE>
ITEM 22. UNDERTAKINGS
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering thereof.
The undersigned registrant hereby undertakes as follows: that prior to
any public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this registration statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
issuer undertakes that such reoffering prospectus will contain the information
called for by the applicable registration form with respect to
II-2
<PAGE>
reofferings by persons who may be deemed underwriters, in addition to the
information called for by the other items of the applicable form.
The registrant undertakes that every prospectus (i) that is filed
pursuant to the immediately preceding paragraph, or (ii) that purports to meet
the requirements of section 10(a)(3) of the Act and is used in connection with
an offering of securities subject to Rule 415, will be filed as a part of an
amendment to the registration statement and will not be used until such
amendment is effective, and that, for purposes of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11 or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton,
State of Florida, on June 10, 1999.
ENGLE HOMES, INC.
By: /s/ ALEC ENGELSTEIN
---------------------------------------
Alec Engelstein,
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Shapiro his true and lawful
attorney-in-fact with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments, including any post-effective amendments, to this registration
statement and any filings made pursuant to Rule 462 under the Securities Act,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ ALEC ENGELSTEIN Chairman of the Board, President June 10, 1999
- ---------------------------- and Chief Executive Officer
Alec Engelstein (Principal Executive Officer)
/s/ DAVID SHAPIRO Vice President - Finance, Chief June 10, 1999
- ---------------------------- Financial Officer and Director
David Shapiro (Principal Financial Officer)
/s/ PAUL LEIKERT Vice President - Chief Accounting June 10, 1999
- ---------------------------- Officer
Paul Leikert (Principal Accounting Officer)
/s/ HARRY ENGELSTEIN Executive Vice President, Chief June 10, 1999
- ---------------------------- Construction Officer and Director
Harry Engelstein
/s/ JOHN A. KRAYNICK Senior Vice President June 10, 1999
- ---------------------------- and Director
John A. Kraynick
/s/ HENRY H. FISHKIND Director June 10, 1999
- ----------------------------
Henry H. Fishkind
/s/ RONALD J. KORN Director June 10, 1999
- ----------------------------
Ronald J. Korn
/s/ ALAN L. SHULMAN Director June 10, 1999
- ----------------------------
Alan L. Shulman
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton,
State of Florida, on June 10, 1999.
BANYAN TRAILS, INC.
By: /s/ DAVID SHAPIRO
--------------------------------------------
David Shapiro,
Vice President, Secretary and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Shapiro his true and lawful
attorney-in-fact with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments, including any post-effective amendments, to this registration
statement and any filings made pursuant to Rule 462 under the Securities Act,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ ALEC ENGELSTEIN President and Director June 10, 1999
- ---------------------------- (Principal Executive Officer)
Alec Engelstein
/s/ DAVID SHAPIRO Vice President, Secretary, June 10, 1999
- ---------------------------- Treasurer and Director
David Shapiro (Principal Financial Officer) and
Principal Accounting Officer)
/s/ JOHN A. KRAYNICK Vice President June 10, 1999
- ---------------------------- and Director
John A. Kraynick
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton,
State of Florida, on June 10, 1999.
ENGLE HOMES/ARIZONA, INC.
By: /s/ DAVID SHAPIRO
------------------------------------
David Shapiro,
Vice President, Secretary and
Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Shapiro his true and lawful
attorney-in-fact with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments, including any post-effective amendments, to this registration
statement and any filings made pursuant to Rule 462 under the Securities Act,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ MARK UPTON President June 10, 1999
- ---------------------------- (Principal Executive Officer)
Mark Upton
/s/ ALEC ENGELSTEIN Vice President and Director June 10, 1999
- ----------------------------
Alec Engelstein
/s/ DAVID SHAPIRO Vice President, Secretary, June 10, 1999
- ---------------------------- Treasurer and Director
David Shapiro (Principal Accounting Officer)
/s/ JOHN A. KRAYNICK Vice President June 10, 1999
- ---------------------------- and Director
John A. Kraynick
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton,
State of Florida, on June 10, 1999.
ENGLE HOMES/ARIZONA CONSTRUCTION, INC.
By: /s/ MARK UPTON
--------------------------------------
Mark Upton, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Shapiro his true and lawful
attorney-in-fact with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments, including any post-effective amendments, to this registration
statement and any filings made pursuant to Rule 462 under the Securities Act,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ MARK UPTON President June 10, 1999
- ---------------------------- (Principal Executive Officer)
Mark Upton
/s/ KAREN MURRAY Treasurer and Assistant Secretary June 10, 1999
- ---------------------------- (Principal Financial Officer and
Karen Murray Principal Accounting Officer)
/s/ ALEC ENGELSTEIN Director June 10, 1999
- ----------------------------
Alec Engelstein
/s/ DAVID SHAPIRO Director June 10, 1999
- ----------------------------
David Shapiro
/s/ JOHN A. KRAYNICK Director June 10, 1999
- ----------------------------
John A. Kraynick
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton,
State of Florida, on June 10, 1999.
ENGLE HOMES/ATLANTA, INC.
By: /s/ DAVID SHAPIRO
--------------------------------------
David Shapiro,
Vice President, Secretary
and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Shapiro his true and lawful
attorney-in-fact with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments, including any post-effective amendments, to this registration
statement and any filings made pursuant to Rule 462 under the Securities Act,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ GEOFFREY BRUNNING President and Director June 10, 1999
- ---------------------------- (Principal Executive Officer)
Geoffrey Brunning
/s/ ALEC ENGELSTEIN Vice President and Director June 10, 1999
- ----------------------------
Alec Engelstein
/s/ DAVID SHAPIRO Vice President, Secretary, June 10, 1999
- ---------------------------- Treasurer and Director
David Shapiro (Principal Financial Officer and
Principal Accounting Officer)
/s/ JOHN A. KRAYNICK Vice President June 10, 1999
- ---------------------------- and Director
John A. Kraynick
/s/ HARRY ENGELSTEIN Vice President June 10, 1999
- ---------------------------- and Director
Harry Engelstein
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton,
State of Florida, on June 10, 1999.
ENGLE HOMES/BROWARD, INC.
By: /s/ DAVID SHAPIRO
-----------------------------------------
David Shapiro,
Vice President, Secretary
and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Shapiro his true and lawful
attorney-in-fact with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments, including any post-effective amendments, to this registration
statement and any filings made pursuant to Rule 462 under the Securities Act,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ HARRY ENGELSTEIN President and Director June 10, 1999
- ---------------------------- (Principal Executive Officer)
Harry Engelstein
/s/ ALEC ENGELSTEIN Vice President and Director June 10, 1999
- ----------------------------
Alec Engelstein
/s/ DAVID SHAPIRO Vice President, Secretary, June 10, 1999
- ---------------------------- Treasurer and Director
David Shapiro (Principal Financial Officer and
Principal Accounting Officer)
/s/ JOHN A. KRAYNICK Vice President June 10, 1999
- ---------------------------- and Director
John A. Kraynick
II-9
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton,
State of Florida, on June 10, 1999.
ENGLE HOMES/COLORADO, INC.
By: /s/ DAVID SHAPIRO
------------------------------------
David Shapiro,
Vice President, Secretary
and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Shapiro his true and lawful
attorney-in-fact with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments, including any post-effective amendments, to this registration
statement and any filings made pursuant to Rule 462 under the Securities Act,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ ERIC ECKBERG President June 10, 1999
- ---------------------------- (Principal Executive Officer)
Eric Eckberg
/s/ ALEC ENGELSTEIN Vice President and Director June 10, 1999
- ----------------------------
Alec Engelstein
/s/ DAVID SHAPIRO Vice President, Secretary, June 10, 1999
- ---------------------------- Treasurer and Director
David Shapiro (Principal Financial Officer and
Principal Accounting Officer)
/s/ JOHN A. KRAYNICK Vice President June 10, 1999
- ---------------------------- and Director
John A. Kraynick
II-10
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton,
State of Florida, on June 10, 1999.
ENGLE HOMES/GULF COAST, INC.
By: /s/ DAVID SHAPIRO
------------------------------------
David Shapiro,
Vice President, Secretary
and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Shapiro his true and lawful
attorney-in-fact with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments, including any post-effective amendments, to this registration
statement and any filings made pursuant to Rule 462 under the Securities Act,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ SERGE GOOTAN President June 10, 1999
- ---------------------------- (Principal Executive Officer)
Serge Gootan
/s/ ALEC ENGELSTEIN Vice President and Director June 10, 1999
- ----------------------------
Alec Engelstein
/s/ DAVID SHAPIRO Vice President, Secretary, June 10, 1999
- ---------------------------- Treasurer and Director
David Shapiro (Principal Financial Officer and
Principal Accounting Officer)
/s/ JOHN A. KRAYNICK Vice President June 10, 1999
- ---------------------------- and Director
John A. Kraynick
II-11
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton,
State of Florida, on June 10, 1999.
ENGLE HOMES/JACKSONVILLE, INC.
By: /s/ DAVID SHAPIRO
------------------------------------
David Shapiro,
Vice President, Secretary
and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Shapiro his true and lawful
attorney-in-fact with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments, including any post-effective amendments, to this registration
statement and any filings made pursuant to Rule 462 under the Securities Act,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ ALEC ENGELSTEIN President and Director June 10, 1999
- ---------------------------- (Principal Executive Officer)
Alec Engelstein
/s/ DAVID SHAPIRO Vice President, Secretary, June 10, 1999
- ---------------------------- Treasurer and Director
David Shapiro (Principal Financial Officer and
Principal Accounting Officer)
/s/ JOHN A. KRAYNICK Vice President June 10, 1999
- ---------------------------- and Director
John A. Kraynick
II-12
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton,
State of Florida, on June 10, 1999.
ENGLE HOMES/LAKE BERNADETTE, INC.
By: /s/ DAVID SHAPIRO
------------------------------------
David Shapiro,
Vice President, Secretary
and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Shapiro his true and lawful
attorney-in-fact with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments, including any post-effective amendments, to this registration
statement and any filings made pursuant to Rule 462 under the Securities Act,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ ALEC ENGELSTEIN President and Director June 10, 1999
- ----------------------------
Harry Engelstein
/s/ DAVID SHAPIRO Vice President, Secretary, June 10, 1999
- ---------------------------- Treasurer and Director
David Shapiro (Principal Financial Officer and
Principal Accounting Officer)
/s/ JOHN A. KRAYNICK Vice President June 10, 1999
- ---------------------------- and Director
John A. Kraynick
II-13
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton,
State of Florida, on June 10, 1999.
ENGLE HOMES/NORTH CAROLINA, INC.
By: /s/ DAVID SHAPIRO
------------------------------------
David Shapiro,
Vice President, Secretary
and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Shapiro his true and lawful
attorney-in-fact with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments, including any post-effective amendments, to this registration
statement and any filings made pursuant to Rule 462 under the Securities Act,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ ALEC ENGELSTEIN President and Director June 10, 1999
- ----------------------------
Alec Engelstein
/s/ DAVID SHAPIRO Vice President, Secretary, June 10, 1999
- ---------------------------- Treasurer and Director
David Shapiro (Principal Financial Officer and
Principal Accounting Officer)
/s/ JOHN A. KRAYNICK Vice President June 10, 1999
- ---------------------------- and Director
John A. Kraynick
II-14
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton,
State of Florida, on June 10, 1999.
ENGLE HOMES/ORLANDO, INC.
By: /s/ DAVID SHAPIRO
------------------------------------
David Shapiro,
Vice President, Secretary
and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Shapiro his true and lawful
attorney-in-fact with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments, including any post-effective amendments, to this registration
statement and any filings made pursuant to Rule 462 under the Securities Act,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ WILLIAM CARMICHAEL President and Director June 10, 1999
- ---------------------------- (Principal Executive Officer)
William Carmichael
/s/ ALEC ENGELSTEIN Vice President and Director June 10, 1999
- ----------------------------
Alec Engelstein
/s/ DAVID SHAPIRO Vice President, Secretary, June 10, 1999
- ---------------------------- Treasurer and Director
David Shapiro (Principal Financial Officer and
Principal Accounting Officer)
/s/ JOHN A. KRAYNICK Vice President June 10, 1999
- ---------------------------- and Director
John A. Kraynick
II-15
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton,
State of Florida, on June 10, 1999.
ENGLE HOMES/PALM BEACH, INC.
By: /s/ DAVID SHAPIRO
------------------------------------
David Shapiro,
Vice President, Secretary
and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Shapiro his true and lawful
attorney-in-fact with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments, including any post-effective amendments, to this registration
statement and any filings made pursuant to Rule 462 under the Securities Act,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ HARRY ENGELSTEIN President and Director June 10, 1999
- ---------------------------- (Principal Executive Officer)
Harry Engelstein
/s/ ALEC ENGELSTEIN Vice President and Director June 10, 1999
- ----------------------------
Alec Engelstein
/s/ DAVID SHAPIRO Vice President, Secretary, June 10, 1999
- ---------------------------- Treasurer and Director
David Shapiro (Principal Financial Officer and
Principal Accounting Officer)
/s/ JOHN A. KRAYNICK Vice President June 10, 1999
- ---------------------------- and Director
John A. Kraynick
II-16
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton,
State of Florida, on June 10, 1999.
ENGLE HOMES/PEMBROKE, INC.
By: /s/ DAVID SHAPIRO
------------------------------------
David Shapiro,
Vice President, Secretary
and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Shapiro his true and lawful
attorney-in-fact with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments, including any post-effective amendments, to this registration
statement and any filings made pursuant to Rule 462 under the Securities Act,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ HARRY ENGELSTEIN President and Director June 10, 1999
- ---------------------------- (Principal Executive Officer)
Harry Engelstein
/s/ ALEC ENGELSTEIN Vice President and Director June 10, 1999
- ----------------------------
Alec Engelstein
/s/ DAVID SHAPIRO Vice President, Secretary, June 10, 1999
- ---------------------------- Treasurer and Director
David Shapiro (Principal Financial Officer and
Principal Accounting Officer)
/s/ JOHN A. KRAYNICK Vice President June 10, 1999
- ---------------------------- and Director
John A. Kraynick
II-17
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton,
State of Florida, on June 10, 1999.
ENGLE HOMES/SOUTHWEST FLORIDA, INC.
By: /s/ DAVID SHAPIRO
------------------------------------
David Shapiro,
Vice President, Secretary
and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Shapiro his true and lawful
attorney-in-fact with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments, including any post-effective amendments, to this registration
statement and any filings made pursuant to Rule 462 under the Securities Act,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ DAVID COBB President June 10, 1999
- ---------------------------- (Principal Executive Officer)
David Cobb
/s/ ALEC ENGELSTEIN Vice President and Director June 10, 1999
- ----------------------------
Alec Engelstein
/s/ DAVID SHAPIRO Vice President, Secretary, June 10, 1999
- ---------------------------- Treasurer and Director
David Shapiro (Principal Financial Officer and
Principal Accounting Officer)
/s/ JOHN A. KRAYNICK Vice President June 10, 1999
- ---------------------------- and Director
John A. Kraynick
II-18
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton,
State of Florida, on June 10, 1999.
ENGLE HOMES/TEXAS, INC.
By: /s/ DAVID SHAPIRO
------------------------------------
David Shapiro,
Vice President, Secretary
and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Shapiro his true and lawful
attorney-in-fact with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments, including any post-effective amendments, to this registration
statement and any filings made pursuant to Rule 462 under the Securities Act,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ RICHARD ALBERQUE President June 10, 1999
- ---------------------------- (Principal Executive Officer)
Richard Alberque
/s/ ALEC ENGELSTEIN Vice President and Director June 10, 1999
- ----------------------------
Alec Engelstein
/s/ DAVID SHAPIRO Vice President, Secretary, June 10, 1999
- ---------------------------- Treasurer and Director
David Shapiro (Principal Financial Officer and
Principal Accounting Officer)
/s/ JOHN A. KRAYNICK Vice President June 10, 1999
- ---------------------------- and Director
John A. Kraynick
II-19
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton,
State of Florida, on June 10, 1999.
ENGLE HOMES/VIRGINIA, INC.
By: /s/ DAVID SHAPIRO
------------------------------------
David Shapiro,
Vice President, Secretary
and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Shapiro his true and lawful
attorney-in-fact with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments, including any post-effective amendments, to this registration
statement and any filings made pursuant to Rule 462 under the Securities Act,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ BRUCE LEINBERGER President June 10, 1999
- ---------------------------- (Principal Executive Officer)
Bruce Leinberger
/s/ ALEC ENGELSTEIN Vice President and Director June 10, 1999
- ----------------------------
Alec Engelstein
/s/ DAVID SHAPIRO Vice President, Secretary, June 10, 1999
- ---------------------------- Treasurer and Director
David Shapiro (Principal Financial Officer and
Principal Accounting Officer)
/s/ JOHN A. KRAYNICK Vice President June 10, 1999
- ---------------------------- and Director
John A. Kraynick
II-20
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets the
requirements for filing on Form S-2 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boca Raton, State of Florida, on June 10, 1999.
GREENLEAF HOMES, INC.
By: /s/ DAVID SHAPIRO
------------------------------------
David Shapiro,
Vice President, Secretary
and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Shapiro his true and lawful
attorney-in-fact with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments, including any post-effective amendments, to this registration
statement and any filings made pursuant to Rule 462 under the Securities Act,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ GEOFFREY BRUNNING President and Director June 10, 1999
- ---------------------------- (Principal Executive Officer)
Geoffrey Brunning
/s/ DAVID SHAPIRO Vice President, Secretary, June 10, 1999
- ---------------------------- Treasurer and Director
David Shapiro (Principal Financial Officer and
Principal Accounting Officer)
/s/ JOHN A. KRAYNICK Vice President June 10, 1999
- ---------------------------- and Director
John A. Kraynick
II-21
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton,
State of Florida, on June 10, 1999.
PEMBROKE FALLS REALTY, INC.
By: /s/ DAVID SHAPIRO
------------------------------------
David Shapiro,
Vice President, Secretary
and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Shapiro his true and lawful
attorney-in-fact with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments, including any post-effective amendments, to this registration
statement and any filings made pursuant to Rule 462 under the Securities Act,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ ALEC ENGELSTEIN President and Director June 10, 1999
- ---------------------------- (Principal Executive Officer)
Alec Engelstein
/s/ DAVID SHAPIRO Vice President, Secretary, June 10, 1999
- ---------------------------- Treasurer and Director
David Shapiro (Principal Financial Officer and
Principal Accounting Officer)
/s/ JOHN A. KRAYNICK Vice President June 10, 1999
- ---------------------------- and Director
John A. Kraynick
II-22
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton,
State of Florida, on June 10, 1999.
PREFERRED BUILDERS REALTY, INC.
By: /s/ DAVID SHAPIRO
------------------------------------
David Shapiro,
Vice President, Secretary
and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Shapiro his true and lawful
attorney-in-fact with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments, including any post-effective amendments, to this registration
statement and any filings made pursuant to Rule 462 under the Securities Act,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ PAUL ACKERMAN President and Director June 10, 1999
- ---------------------------- (Principal Executive Officer)
Paul Ackerman
/s/ ALEC ENGELSTEIN Vice President and Director June 10, 1999
- ----------------------------
Alec Engelstein
/s/ DAVID SHAPIRO Vice President, Secretary, June 10, 1999
- ---------------------------- Treasurer and Director
David Shapiro (Principal Financial Officer and
Principal Accounting Officer)
/s/ JOHN A. KRAYNICK Vice President June 10, 1999
- ---------------------------- and Director
John A. Kraynick
II-23
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton,
State of Florida, on June 10, 1999.
PREFERRED HOME MORTGAGE COMPANY
By: /s/ DAVID SHAPIRO
------------------------------------
David Shapiro,
Vice President, Secretary
and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Shapiro his true and lawful
attorney-in-fact with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments, including any post-effective amendments, to this registration
statement and any filings made pursuant to Rule 462 under the Securities Act,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ DAN KLINGER President and Director June 10, 1999
- ---------------------------- (Principal Executive Officer)
Dan Klinger
/s/ ALEC ENGELSTEIN Vice President and Director June 10, 1999
- ----------------------------
Alec Engelstein
/s/ DAVID SHAPIRO Vice President, Secretary, June 10, 1999
- ---------------------------- Treasurer and Director
David Shapiro (Principal Financial Officer and
Principal Accounting Officer)
/s/ JOHN A. KRAYNICK Vice President June 10, 1999
- ---------------------------- and Director
John A. Kraynick
II-24
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton,
State of Florida, on June 10, 1999.
ST. TROPEZ AT BOCA GOLF, INC.
By: /s/ DAVID SHAPIRO
------------------------------------
David Shapiro,
Vice President, Secretary
and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Shapiro his true and lawful
attorney-in-fact with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments, including any post-effective amendments, to this registration
statement and any filings made pursuant to Rule 462 under the Securities Act,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ ALEC ENGELSTEIN President and Director June 10, 1999
- ---------------------------- (Principal Executive Officer)
Alec Engelstein
/s/ HARRY ENGELSTEIN Vice President and Director June 10, 1999
- ----------------------------
Harry Engelstein
/s/ DAVID SHAPIRO Vice President, Secretary, June 10, 1999
- ---------------------------- Treasurer and Director
David Shapiro (Principal Financial Officer and
Principal Accounting Officer)
II-25
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton,
State of Florida, on June 10, 1999.
UNIVERSAL LAND TITLE, INC.
By: /s/ DAVID SHAPIRO
------------------------------------
David Shapiro,
Vice President, Secretary
and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Shapiro his true and lawful
attorney-in-fact with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments, including any post-effective amendments, to this registration
statement and any filings made pursuant to Rule 462 under the Securities Act,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ MICHAEL GLASS President and Director June 10, 1999
- ---------------------------- (Principal Executive Officer)
Michael Glass
/s/ ALEC ENGELSTEIN Vice President and Director June 10, 1999
- ----------------------------
Alec Engelstein
/s/ DAVID SHAPIRO Vice President, Secretary, June 10, 1999
- ---------------------------- Treasurer and Director
David Shapiro (Principal Financial Officer and
Principal Accounting Officer)
/s/ JOHN A. KRAYNICK Vice President June 10, 1999
- ---------------------------- and Director
John A. Kraynick
II-26
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton,
State of Florida, on June 10, 1999.
UNIVERSAL LAND TITLE OF COLORADO, INC.
By: /s/ DAVID SHAPIRO
------------------------------------
David Shapiro,
Vice President, Secretary
and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Shapiro his true and lawful
attorney-in-fact with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments, including any post-effective amendments, to this registration
statement and any filings made pursuant to Rule 462 under the Securities Act,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ MICHAEL GLASS President and Director June 10, 1999
- ---------------------------- (Principal Executive Officer)
Michael Glass
/s/ DAVID SHAPIRO Vice President, Secretary, June 10, 1999
- ---------------------------- Treasurer and Director
David Shapiro (Principal Financial Officer and
Principal Accounting Officer)
/s/ JOHN A. KRAYNICK Vice President June 10, 1999
- ---------------------------- and Director
John A. Kraynick
II-27
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton,
State of Florida, on June 10, 1999.
ENGLE HOMES REALTY, INC.
By: /s/ DAVID SHAPIRO
------------------------------------
David Shapiro,
Vice President, Secretary
and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Shapiro his true and lawful
attorney-in-fact with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments, including any post-effective amendments, to this registration
statement and any filings made pursuant to Rule 462 under the Securities Act,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ GEOFFREY BRUNNING President and Director June 10, 1999
- ---------------------------- (Principal Executive Officer)
Geoffrey Brunning
/s/ ALEC ENGELSTEIN Vice President and Director June 10, 1999
- ----------------------------
Alec Engelstein
/s/ DAVID SHAPIRO Vice President, Secretary, June 10, 1999
- ---------------------------- Treasurer and Director
David Shapiro (Principal Financial Officer and
Principal Accounting Officer)
/s/ JOHN A. KRAYNICK Vice President June 10, 1999
- ---------------------------- and Director
John A. Kraynick
/s/ HARRY ENGELSTEIN Vice President June 10, 1999
- ---------------------------- and Director
Harry Engelstein
II-28
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
------- -----------
<S> <C>
4.3 Registration Rights Agreement, dated as of April 29, 1999, by and among the Registrant,
the Guarantors named therein and Jefferies & Company, Inc.
5.1 Opinion of Greenberg Traurig, P.A.
10.7 First Amendment, dated as of May 26, 1999, to the Credit
Agreement, dated as of May 28, 1998, by and among the
Registrant, as Borrower, the Banks named therein,
SunTrust Bank, South Florida, National Association, a
national banking association, as Administrative Agent,
and NationsBank, N.A., a national banking association,
as Documentation Agent.
12.1 Statement of Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of BDO Seidman, LLP.
99.1 Form of Letter of Transmittal.
99.2 Form of Notice of Guaranteed Delivery.
99.3 Form of Tender Instruction Letters.
</TABLE>
EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
Dated as of April 29, 1999
by and among
ENGLE HOMES, INC.
THE SUBSIDIARY GUARANTORS
named herein
and
JEFFERIES & COMPANY, INC.,
as Initial Purchaser
----------
$100,000,000
9 1/4% SERIES B SENIOR NOTES DUE FEBRUARY 1, 2008
<PAGE>
TABLE OF CONTENTS
PAGE
----
1. DEFINITIONS............................................................1
2. EXCHANGE OFFER.........................................................4
3. SHELF REGISTRATION.....................................................8
4. ADDITIONAL INTEREST....................................................9
5. REGISTRATION PROCEDURES...............................................10
6. REGISTRATION EXPENSES.................................................18
7. INDEMNIFICATION.......................................................19
8. RULES 144 AND 144A....................................................22
9. UNDERWRITTEN REGISTRATIONS............................................22
10. MISCELLANEOUS.........................................................23
(a) NO INCONSISTENT AGREEMENTS.........................................23
(b) ADJUSTMENTS AFFECTING REGISTRABLE NOTES............................23
(c) AMENDMENTS AND WAIVERS.............................................23
(d) NOTICES............................................................23
(e) SUCCESSORS AND ASSIGNS.............................................25
(f) COUNTERPARTS.......................................................25
(g) HEADINGS...........................................................25
(H) GOVERNING LAW......................................................25
(i) SEVERABILITY.......................................................25
(j) NOTES HELD BY THE ISSUERS OR THEIR AFFILIATES......................25
(k) THIRD PARTY BENEFICIARIES..........................................25
(1) ENTIRE AGREEMENT...................................................26
-i-
<PAGE>
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "AGREEMENT") is made and
entered into as of April 29, 1999, by and among Engle Homes, Inc., a Florida
corporation (the "Company"), each of the subsidiaries of the Company listed on
the signature pages hereto (collectively, the "SUBSIDIARY GUARANTORS"), and
Jefferies & Company, Inc. (the "INITIAL PURCHASER").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of April 23, 1999, by and among the Company, the Subsidiary
Guarantors and the Initial Purchaser (the "PURCHASE AGREEMENT") which provides
for, among other things, the issuance and sale to the Initial Purchaser of
$100,000,000 aggregate principal amount of the Company's 9 1/4% Series B Senior
Notes due February 1, 2008 (the "NOtes"). In order to induce the Initial
Purchaser to enter into the Purchase Agreement, the Company and the Subsidiary
Guarantors have agreed to provide the registration rights set forth in this
Agreement for the benefit of the Initial Purchaser and their direct and indirect
transferees and assigns. The execution and delivery of this Agreement is a
condition to the Initial Purchaser's obligation to purchase the Notes under the
Purchase Agreement. The Company and the Subsidiary Guarantors are collectively
referred to herein as the "Issuers."
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
ADDITIONAL INTEREST: See Section 4(a).
ADVICE: See the last paragraph of Section 5.
AGREEMENT: See the first introductory paragraph to this Agreement.
APPLICABLE PERIOD: See Section 2(b).
BUSINESS DAY: A day that is not a Saturday, a Sunday, or a day on which
banking institutions in New York, New York are required to be closed.
COMPANY: See the first introductory paragraph to this Agreement.
EFFECTIVENESS DATE: The 150th day after the Issue Date.
EFFECTIVENESS PERIOD: See Section 3(a).
EVENT DATE: See Section 4(b).
<PAGE>
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
EXCHANGE NOTES: See Section 2(a).
EXCHANGE OFFER: See Section 2(a).
EXCHANGE REGISTRATION STATEMENT: See Section 2(a).
FILING DATE: The 60th day after the Issue Date.
HOLDER: Any registered holder of Registrable Notes.
INDEMNIFIED PERSON: See Section 7(c).
INDEMNIFYING PERSON: See Section 7(c).
INDENTURE: The Indenture, dated as of June 12, 1998, by and among the
Company, the Subsidiary Guarantors and American Stock Transfer & Trust Company,
as trustee, pursuant to which the Notes are being issued, as amended or
supplemented from time to time in accordance with the terms thereof.
INITIAL PURCHASER: See the first introductory paragraph to this
Agreement.
INITIAL SHELF REGISTRATION: See Section 3(a).
INSPECTORS: See Section 5(o).
ISSUE DATE: The date on which $100,000,000 aggregate principal amount
of Notes were sold to the Initial Purchaser pursuant to the Purchase Agreement.
ISSUERS: See the second introductory paragraph to this Agreement.
NASD: National Association of Securities Dealers, Inc.
NOTES: See the second introductory paragraph to this Agreement.
PARTICIPANT: See Section 7(a).
PARTICIPATING BROKER-DEALER: See Section 2(b).
PERSON: An individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm or other legal entity.
<PAGE>
PRIVATE EXCHANGE: See Section 2(b).
PRIVATE EXCHANGE NOTES: See Section 2(b).
PROSPECTUS: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Registrable Notes covered by such Registration Statement, and all other
amendments and supplements to such prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such prospectus.
PURCHASE AGREEMENT: See the second introductory paragraph to this
Agreement.
RECORDS: See Section 5(o).
REGISTRABLE NOTES: Each Note upon original issuance thereof and at all
times subsequent thereto, each Exchange Note as to which Section 2(c)(iv) hereof
is applicable upon original issuance thereof and at all times subsequent thereto
and each Private Exchange Note upon original issuance thereof and at all times
subsequent thereto, until, in the case of any such Note, Exchange Note or
Private Exchange Note, as the case may be, the earliest to occur of (i) a
Registration Statement (other than, with respect to any Exchange Note as to
which Section 2(c)(iv) hereof is applicable, the Exchange Registration
Statement) covering such Note, Exchange Note or Private Exchange Note, as the
case may be, has been declared effective by the SEC and such Note, Exchange Note
or Private Exchange Note, as the case may be, has been disposed of in accordance
with such effective Registration Statement, (ii) such Note, Exchange Note or
Private Exchange Note, as the case may be, is sold in compliance with Rule 144,
(iii) in the case of any Note, such Note has been exchanged pursuant to the
Exchange Offer for an Exchange Note or Exchange Notes which may be resold
without restriction under state and federal securities laws, or (iv) such Note,
Exchange Note or Private Exchange Note, as the case may be, ceases to be
outstanding for purposes of the Indenture.
REGISTRATION STATEMENT: Any registration statement of the Issuers filed
with the SEC under the Securities Act, including, but not limited to, the
Exchange Registration Statement, that covers any of the Registrable Notes
pursuant to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such registration statement, including
post-effective amendments, all exhibits, and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
RULE 144: Rule 144 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in
-3-
<PAGE>
offers and sales by subsequent holders that are not affiliates of an issuer of
such securities being free of the registration and prospectus delivery
requirements of the Securities Act.
RULE 144A: Rule 144A promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
RULE 415: Rule 415 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
SECURITIES ACT: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
SHELF NOTICE: See Section 2(c).
SHELF REGISTRATION: See Section 3(b).
SUBSEQUENT SHELF REGISTRATION: See Section 3(b).
SUBSIDIARY GUARANTORS: See the first introductory paragraph to this
Agreement.
TIA: The Trust Indenture Act of 1939, as amended.
TRUSTEE: The trustee under the Indenture and, if existent, the trustee
under any indenture governing the Exchange Notes and Private Exchange Notes (if
any).
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration in
which securities of one or more of the issuers are sold to an underwriter for
reoffering to the public.
2. EXCHANGE OFFER
(a) Each of the Issuers agrees to file with the SEC no later than the
Filing Date, an offer to exchange (the "EXCHANGE OFFER") any and all of the
Registrable Notes (other than Private Exchange Notes, if any) for a like
aggregate principal amount of debt securities of the Company, guaranteed by the
Subsidiary Guarantors, which are identical in all material respects to the Notes
(the "EXCHANGE NOTES") (and which are entitled to the benefits of the Indenture
or a trust indenture which is identical in all material respects to the
Indenture (other than such changes to the Indenture or any such identical trust
indenture as are necessary to comply with any requirements of the SEC to effect
or maintain the qualification thereof under the TIA) and which, in either case,
has been qualified under the TIA), except that the Exchange Notes shall have
been registered pursuant to an effective Registration Statement under the
Securities Act and shall contain no restrictive legend thereon. The Exchange
Offer shall be registered under the
-4-
<PAGE>
Securities Act on the appropriate form (the "EXCHANGE REGISTRATION STATEMENT")
and shall comply with all applicable tender offer rules and regulations under
the Exchange Act. Each of the Issuers agrees to use its best efforts to (x)
cause the Exchange Registration Statement to be declared effective under the
Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer
open for at least 30 calendar days (or longer if required by applicable law)
after the date that notice of the Exchange Offer is mailed to Holders; and (z)
consummate the Exchange Offer on or prior to the 45th day following the date on
which the Exchange Registration Statement is declared effective. If after such
Exchange Registration Statement is initially declared effective by the SEC, the
Exchange Offer or the issuance of the Exchange Notes thereunder is interfered
with by any stop order, injunction or other order or requirement of the SEC or
any other governmental agency or court, such Exchange Registration Statement
shall be deemed not to have become effective for purposes of this Agreement.
Each Holder who participates in the Exchange Offer will be required to represent
that any Exchange Notes received by it will be acquired in the ordinary course
of its business, that at the time of the consummation of the Exchange Offer such
Holder will have no arrangement or understanding with any Person to participate
in the distribution of the Exchange Notes in violation of the provisions of the
Securities Act, and that such Holder is not an affiliate of any of the Issuers
within the meaning of the Securities Act. Upon consummation of the Exchange
Offer in accordance with this Section 2, the provisions of this Agreement shall
continue to apply, MUTATIS MUTANDIS, solely with respect to Registrable Notes
that are Private Exchange Notes and Exchange Notes held by Participating
Broker-Dealers, and the Issuers shall have no further obligation to register
Registrable Notes (other than Private Exchange Notes and other than in respect
of any Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to
Section 3 of this Agreement.
(b) The Issuers shall include within the Prospectus contained in the
Exchange Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchaser, which shall contain a summary
statement of the positions taken or policies made by the staff of the SEC with
respect to the potential "underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Notes received by such broker-dealer in the Exchange Offer (a "PARTICIPATING
BROKER-DEALER"), whether such positions or policies have been publicly
disseminated by the staff of the SEC or such positions or policies, in the
judgment of the Initial Purchaser, represent the prevailing views of the staff
of the SEC. Such "Plan of Distribution" section shall also allow, to the extent
permitted by applicable policies and regulations of the SEC, the use of the
Prospectus by all Persons subject to the prospectus delivery requirements of the
Securities Act, including, to the extent so permitted, all Participating
Broker-Dealers, and include a statement describing the manner in which
Participating Broker-Dealers may resell the Exchange Notes.
Each of the Issuers shall use its best efforts to keep the Exchange
Registration Statement effective and to amend and supplement the Prospectus
contained therein, in order to permit such Prospectus to be lawfully delivered
by all Persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such Persons must comply with such requirements
in order to resell the Exchange Notes, but in no event longer than 180 days (the
"APPLICABLE PERIOD").
-5-
<PAGE>
If, upon consummation of the Exchange Offer, the Initial Purchaser
holds any Notes acquired by it and having the status of an unsold allotment in
the initial distribution, the Company upon the request of the Initial Purchaser
shall, simultaneously with the delivery of the Exchange Notes in the Exchange
Offer, issue and deliver to the Initial Purchaser, in exchange (the "PRIVATE
EXCHANGE") for the Notes held by such Initial Purchaser, a like principal amount
of debt securities of the Company, guaranteed by the Subsidiary Guarantors, that
are identical in all material respects to the Exchange Notes except for the
existence of restrictions on transfer thereof under the Securities Act and
securities laws of the several states of the U.S. (the "PRIVATE EXCHANGE NOTES")
(and which are issued pursuant to the same indenture as the Exchange Notes);
PROVIDED, HOWEVER, the Issuers shall not be required to effect such exchange if,
in the written opinion of counsel for the Issuers (a copy of which shall be
delivered to the Initial Purchaser and any Holder affected thereby), such
exchange cannot be effected without registration under the Securities Act. The
Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
Interest on the Exchange Notes and the Private Exchange Notes will
accrue from (A) the later of (i) the last interest payment date on which
interest was paid on the Notes surrendered in exchange therefor or (ii) if the
Notes are surrendered for exchange on a date in a period which includes the
record date for an interest payment date to occur on or after the date of such
exchange and as to which interest will be paid, the date of such interest
payment date or (B) if no interest has been paid on the Notes, from the date of
the original issuance of the Notes.
In connection with the Exchange Offer, the Issuers shall:
(1) mail to each Holder a copy of the Prospectus forming part
of the Exchange Registration Statement, together with an appropriate
letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York, which may be the Trustee or an affiliate thereof;
(3) permit Holders to withdraw tendered Registrable Notes at
any time prior to the close of business, New York time, on the last
business day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all
applicable laws.
As soon as practicable after the close of the Exchange Offer or the
Private Exchange, as the case may be, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered
and not validly withdrawn pursuant to the Exchange Offer or the Private
Exchange, as the case may be;
-6-
<PAGE>
(2) deliver to the Trustee for cancellation all Registrable
Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to
each Holder tendering such Registrable Notes, Exchange Notes or Private
Exchange Notes, as the case may be, equal in principal amount to the
Notes of such Holder so accepted for exchange.
The Exchange Offer and the Private Exchange shall be subject to the
following conditions: (i) the Exchange Offer or the Private Exchange, as the
case may be, does not violate applicable law or any applicable interpretation of
the staff of the SEC, (ii) no action or proceeding is instituted or threatened
in any court or by any governmental agency which might materially impair the
ability of the Issuers to proceed with the Exchange Offer or the Private
Exchange and no material adverse development has occurred in any existing action
or proceeding with respect to the Issuers and (iii) all governmental approvals
have been obtained, which approvals the Issuers deem necessary for the
consummation of the Exchange Offer or Private Exchange.
The Exchange Notes and the Private Exchange Notes may be issued under
(i) the Indenture or (ii) an indenture identical in all material respects to the
Indenture, which in either event will provide that the Exchange Notes will not
be subject to the transfer restrictions set forth in the Indenture and that the
Exchange Notes, the Private Exchange Notes and the Notes, if any, will vote and
consent together on all matters as one class and that none of the Exchange
Notes, the Private Exchange Notes or the Notes, if any, will have the right to
vote or consent as a separate class on any matter.
(c) At the Company's discretion, the Company may also offer to exchange
Existing Senior Notes (as defined in the Indenture) for Exchange Notes pursuant
to the Exchange Offer Registration Statement.
(d) If, (i) because of any change in law or in currently prevailing
interpretations of the staff of the SEC, the Issuers are not permitted to effect
an Exchange Offer, (ii) the Exchange Offer is not consummated within 180 days of
the Issue Date, (iii) any holder of Private Exchange Notes so requests in
writing to the Issuers within 120 days after the consummation of the Exchange
Offer or (iv) in the case of any Holder that participates in the Exchange Offer,
such Holder does not receive Exchange Notes on the date of the exchange that may
be sold without restriction under state and federal securities laws (other than
due solely to the status of such Holder as an affiliate of any of the Issuers
within the meaning of the Securities Act) and so notifies the Company within 60
days after the consummation of the Exchange Offer and providing a reasonable
basis for its conclusions, in the case of each of clauses (i)-(iv), then the
Issuers shall promptly deliver to the Holders and the Trustee written notice
thereof (the "SHELF NOTICE") and shall file a Shelf Registration pursuant to
Section 3.
-7-
<PAGE>
3. SHELF REGISTRATION
If a Shelf Notice is delivered as contemplated by Section 2(c), then:
(a) SHELF REGISTRATION. The Issuers shall as promptly as reasonably
practicable file with the SEC a Registration Statement for an offering to be
made on a continuous basis pursuant to Rule 415 covering all of the Registrable
Notes (the "INITIAL SHELF REGISTRATION"). If the Issuers shall not have yet
filed the Exchange Registration Statement, each of the Issuers shall use its
best efforts to file with the SEC the Initial Shelf Registration on or prior to
the Filing Date and shall use its best efforts to cause such Initial Shelf
Registration to be declared effective under the Securities Act on or prior to
the Effectiveness Date. Otherwise, each of the Issuers shall use its best
efforts to file with the SEC the Initial Shelf Registration within 30 days of
the delivery of the Shelf Notice and shall use its best efforts to cause such
Shelf Registration to be declared effective under the Securities Act as promptly
as practicable thereafter. The Initial Shelf Registration shall be on Form S-l
or another appropriate form permitting registration of such Registrable Notes
for resale by Holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). The Issuers shall not
permit any securities other than the Registrable Notes to be included in any
Shelf Registration (as defined below). The Issuers shall use their best efforts
to keep the Initial Shelf Registration continuously effective under the
Securities Act until the date which is 36 months from the effective date of such
Initial Shelf Registration (subject to extension pursuant to the last paragraph
of Section 5 hereof) (the "EFFECTIVENESS PERIOD"), or such shorter period ending
when (i) all Registrable Notes covered by the Initial Shelf Registration have
been sold in the manner set forth and as contemplated in the Initial Shelf
Registration or (ii) a Subsequent Shelf Registration (as defined below) covering
all of the Registrable Notes has been declared effective under the Securities
Act.
(b) SUBSEQUENT SHELF REGISTRATIONS. If the Initial Shelf Registration
or any Subsequent Shelf Registration ceases to be effective for any reason at
any time during the Effectiveness Period (other than because of the sale of all
of the securities registered thereunder), each of the Issuers shall use its best
efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within 45 days of such cessation
of effectiveness amend such Shelf Registration in a manner to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional "shelf" Registration Statement pursuant to Rule 415 covering all of
the Registrable Notes (a "SUBSEQUENT SHELF REGISTRATION"). If a Subsequent Shelf
Registration is filed, each of the Issuers shall use its best efforts to cause
the Subsequent Shelf Registration to be declared effective as soon as
practicable after such filing and to keep such Subsequent Shelf Registration
continuously effective for a period equal to the number of days in the
Effectiveness Period less the aggregate number of days during which the Initial
Shelf Registration or any Subsequent Shelf Registrations was previously
continuously effective. As used herein the term "SHELF REGISTRATION" means the
Initial Shelf Registration and any Subsequent Shelf Registration.
(c) SUPPLEMENTS AND AMENDMENTS. The Issuers shall promptly supplement
and amend any Shelf Registration if required by the rules, regulations or
instructions applicable to the
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registration form used for such Shelf Registration, if required by the
Securities Act, or if reasonably requested by the Holders of a majority in
aggregate principal amount of the Registrable Notes covered by such Shelf
Registration or by any underwriter of such Registrable Notes.
4. ADDITIONAL INTEREST
(a) The Issuers and the Initial Purchaser agree that the Holders of
Registrable Notes will suffer damages if the Issuers fail to fulfill their
obligations under Section 2 or Section 3 hereof and that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly,
the Issuers, jointly and severally, agree to pay, as liquidated damages,
additional interest on the Notes ("ADDITIONAL INTEREST") under the circumstances
and to the extent set forth below (each of which shall be given independent
effect):
(i) if the Exchange Registration Statement has not been filed
on or prior to the Filing Date, then commencing on the day after the
Filing Date, Additional Interest shall accrue on the Notes over and
above the stated interest at a rate of 0.50% per annum for the first 90
days immediately following the Filing Date, such Additional Interest
rate increasing by an additional 0.50% per annum at the beginning of
each subsequent 90-day period;
(ii) if the Exchange Registration Statement is not declared
effective on or prior to the Effectiveness Date, then commencing on the
day after the Effectiveness Date, Additional Interest shall accrue on
the Notes over and above the stated interest at a rate of 0.50% per
annum for the first 90 days immediately following the day after the
Effectiveness Date, such Additional Interest rate increasing by an
additional 0.50% per annum at the beginning of each subsequent 90-day
period; and
(iii) if (A) the Issuers have not exchanged Exchange Notes for
all Notes validly tendered in accordance with the terms of the Exchange
Offer on or prior to the 60th day after the date on which the Exchange
Registration Statement is declared effective or (B) the Initial Shelf
Registration, if required to be filed hereunder, is not declared
effective on or prior to the 180th day after the Issue Date or (C) if
applicable, a Shelf Registration has been declared effective and such
Shelf Registration ceases to be effective at any time during the
Effectiveness Period, then Additional Interest shall accrue on the
Notes over and above the stated interest at a rate of 0.50% per annum
for the first 90 days commencing on the (x) 60th day after the date on
which the Exchange Registration Statement is declared effective, in the
case of (A) or (B) above, or (y) the day such Shelf Registration ceases
to be effective in the case of (C) above, such Additional Interest rate
increasing by an additional 0.50% per annum at the beginning of each
such subsequent 90-day period;
PROVIDED, HOWEVER, that the Additional Interest rate on the Notes may not exceed
at any one time in the aggregate 1.5% per annum; and PROVIDED FURTHER, that (1)
upon the filing of the Exchange
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Registration Statement (in the case of (i) above), (2) upon the effectiveness of
the Exchange Registration Statement (in the case of (ii) above), or (3) upon the
exchange of Exchange Notes for all Notes tendered (in the case of (iii)(A)
above), upon the effectiveness of the Initial Shelf Registration (in the case of
(iii)(B) above) or upon the effectiveness of a Shelf Registration which had
ceased to remain effective (in the case of (iii)(C) above), Additional Interest
on the Notes as a result of such clause (or the relevant subclause thereof), as
the case may be, shall cease to accrue.
(b) The Issuers shall notify the Trustee within one business day after
each and every date on which an event occurs in respect of which Additional
Interest is required to be paid (an "EVENT DATE"). Any amounts of Additional
Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section 4 will be
payable semi-annually by wire transfer of immediately available funds or by
federal funds check on each regular interest payment date specified in the
Indenture (to the Holders of record on the regular record date therefor
(specified in the Indenture) immediately preceding such dates), commencing with
the first such regular interest payment date occurring after any such Additional
Interest commences to accrue, subject to Section 2.17 of the Indenture with
respect to defaulted interest. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest rate by the
principal amount of the Notes, multiplied by a fraction, the numerator of which
is the number of days such Additional Interest rate was applicable during such
period (determined on the basis of a 360-day year comprised of twelve 30-day
months and, in the case of a partial month, the actual number of days elapsed),
and the denominator of which is 360.
5. REGISTRATION PROCEDURES
In connection with the filing of any Registration Statement pursuant to
Section 2 or 3 hereof, the Issuers shall effect such registrations to permit the
sale of such securities covered thereby in accordance with the intended method
or methods of disposition thereof, and pursuant thereto and in connection with
any Registration Statement filed by the Issuers hereunder, the Issuers shall:
(a) Prepare and file with the SEC prior to the Filing Date,
the Exchange Registration Statement or if the Exchange Registration
Statement is not filed because of the circumstances contemplated by
Section 2(c)(i), a Shelf Registration as prescribed by Section 2 or 3,
and use their best efforts to cause each such Registration Statement to
become effective and remain effective as provided herein; PROVIDED
that, if (1) a Shelf Registration is filed pursuant to Section 3, or
(2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, before filing any Registration Statement
or Prospectus or any amendments or supplements thereto, the Issuers
shall, if requested, furnish to and afford the Holders of the
Registrable Notes to be registered pursuant to such Shelf Registration
or each such Participating Broker-Dealer, as the case may be, covered
by such Registration Statement, their counsel and the managing
underwriters, if any, a
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reasonable opportunity to review copies of all such documents
(including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed (in each case at
least five business days prior to such filing). The Issuers shall not
file any such Registration Statement or Prospectus or any amendments or
supplements thereto if the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration Statement,
or any such Participating Broker-Dealer, as the case may be, their
counsel, or the managing underwriters, if any, shall reasonably object.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration or Exchange
Registration Statement, as the case may be, as may be necessary to keep
such Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period, as the case may be;
cause the related Prospectus to be supplemented by any Prospectus
supplement required by applicable law, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; and comply with the provisions of
the Securities Act and the Exchange Act applicable to it with respect
to the disposition of all securities covered by such Registration
Statement as so amended or in such Prospectus as so supplemented and
with respect to the subsequent resale of any securities being sold by a
Participating Broker-Dealer covered by any such Prospectus. The Company
shall be deemed not to have used its best efforts to keep a
Registration Statement effective during the Applicable Period if it
voluntarily takes any action that would result in selling Holders of
the Registrable Notes covered thereby or Participating Broker-Dealers
seeking to sell Exchange Notes not being able to sell such Registrable
Notes or such Exchange Notes during that period unless such action is
required by applicable law or unless the Company complies with this
Agreement, including, without limitation, the provisions of paragraph
5(k) hereof and the last paragraph of this Section 5.
(c) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period from whom the Company has
received written notice that it will be a Participating Broker-Dealer
in the Exchange Offer, notify the selling Holders of Registrable Notes,
or each such Participating Broker-Dealer, as the case may be, their
counsel and the managing underwriters, if any, promptly (but in any
event within two business days), and confirm such notice in writing,
(i) when a Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to a Registration Statement
or any post-effective amendment, when the same has become effective
(including in such notice a written statement that any Holder may, upon
request, obtain, without charge, one conformed copy of such
Registration Statement or post-effective amendment including financial
statements and schedules, documents incorporated or deemed to be
incorporated by reference and exhibits), (ii) of the issuance by the
SEC of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any
Prospectus or the
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initiation of any proceedings for that purpose, (iii) if at any time
when a prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Notes the representations and
warranties of the Issuers contained in any agreement (including any
underwriting agreement) contemplated by Section 5(n) hereof cease to be
true and correct, (iv) of the receipt by the Issuers of any
notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation
or threatening of any proceeding for such purpose, (v) of the happening
of any event, the existence of any condition or any information
becoming known that makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or deemed
to be incorporated therein by reference untrue in any material respect
or that requires the making of any changes in, or amendments or
supplements to, such Registration Statement, Prospectus or documents so
that, in the case of the Registration Statement, it will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it will
not contain any untrue statement of a material fact or omit to state
any 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, and (vi) of any of the Issuers' reasonable
determination that a post-effective amendment to a Registration
Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, use their best efforts to
prevent the issuance of any order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use
of a Prospectus or suspending the qualification (or exemption from
qualification) of any of the Registrable Notes or the Exchange Notes to
be sold by any Participating Broker-Dealer, for sale in any
jurisdiction, and, if any such order is issued, to use their best
efforts to obtain the withdrawal of any such order at the earliest
possible date.
(e) If a Shelf Registration is filed pursuant to Section 3 and
if requested by the managing underwriters, if any, or the Holders of a
majority in aggregate principal amount of the Registrable Notes being
sold in connection with an underwritten offering, (i) promptly as
practicable incorporate in a prospectus supplement or post-effective
amendment such information or revisions to information therein relating
to such underwriters or selling Holders as the managing underwriters,
if any, or such Holders or their counsel reasonably request to be
included or made therein and (ii) make all required filings of such
prospectus supplement or such post-effective amendment as soon as
practicable after the Issuers have received notification of the matters
to be incorporated in such prospectus supplement or post-effective
amendment.
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(f) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, furnish to each selling
Holder of Registrable Notes and to each such Participating
Broker-Dealer who so requests and to counsel and each managing
underwriter, if any, without charge, one conformed copy of the
Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and
schedules, and, if requested, all documents incorporated or deemed to
be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, deliver to each selling
Holder of Registrable Notes or each such Participating Broker-Dealer,
as the case may be, their respective counsel, and the underwriters, if
any, without charge, as many copies of the Prospectus and each
amendment or supplement thereto and any documents incorporated by
reference therein as such Persons may reasonably request; and, subject
to the last paragraph of this Section 5, each Issuer hereby consents to
the use of such Prospectus and each amendment or supplement thereto by
each of the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, and the underwriters
or agents, if any, and dealers (if any), in connection with the
offering and sale of the Registrable Notes covered by, or the sale by
Participating Broker-Dealers of the Exchange Notes pursuant to, such
Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, to use their best efforts to
register or qualify, and to cooperate with the selling Holders of
Registrable Notes or each such Participating Broker-Dealer, as the case
may be, the underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Notes or
Exchange Notes, as the case may be, for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United
States as any selling Holder, Participating Broker-Dealer, or the
managing underwriter or underwriters, if any, reasonably request in
writing; PROVIDED that where Exchange Notes held by Participating
Broker-Dealers or Registrable Notes are offered other than through an
underwritten offering, the Issuers agree to cause their counsel to
perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 5(h); keep
each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to
be kept effective and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions
of the Exchange Notes held by Participating Broker-Dealers or the
Registrable Notes covered by the applicable Registration Statement;
PROVIDED that none
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of the Issuers shall be required to (A) qualify generally to do
business in any jurisdiction where it is not then so qualified, (B)
take any action that would subject it to general service of process in
any such jurisdiction where it is not then so subject or (C) subject
itself to taxation in excess of a nominal dollar amount in any such
jurisdiction where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3,
cooperate with the selling Holders of Registrable Notes and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Notes
to be sold, which certificates shall not bear any restrictive legends
and shall be in a form eligible for deposit with The Depository Trust
Company; and enable such Registrable Notes to be in such denominations
and registered in such names as the managing underwriter or
underwriters, if any, or Holders may reasonably request.
(j) Use their best efforts to cause the Registrable Notes
covered by any Registration Statement to be registered with or approved
by such governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof or the underwriters, if any, to
consummate the disposition of such Registrable Notes, except as may be
required solely as a consequence of the nature of such selling Holder's
business, in which case each of the Issuers will cooperate in all
reasonable respects with the filing of such Registration Statement and
the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, upon the occurrence of any
event contemplated by paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly
as practicable prepare and (subject to Section 5(a) hereof) file with
the SEC, at the joint and several expense of each of the Issuers, a
supplement or post-effective amendment to the Registration Statement or
a supplement to the related Prospectus or any document incorporated or
deemed to be incorporated therein by reference, or file any other
required document so that, as thereafter delivered to the purchasers of
the Registrable Notes being sold thereunder or to the purchasers of the
Exchange Notes to whom such Prospectus will be delivered by a
Participating Broker-Dealer, any such Prospectus will not contain an
untrue statement of a material fact or omit 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.
(l) Use their best efforts to cause the Registrable Notes
covered by a Registration Statement to be rated with the appropriate
rating agencies, if so requested by the Holders of a majority in
aggregate principal amount of Registrable Notes covered by such
Registration Statement or the managing underwriter or underwriters, if
any.
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<PAGE>
(m) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee
with printed certificates for the Registrable Notes in a form eligible
for deposit with The Depository Trust Company and (ii) provide a CUSIP
number for the Registrable Notes.
(n) In connection with an underwritten offering of Registrable
Notes pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings of debt securities
similar to the Notes and take all such other actions as are reasonably
requested by the managing underwriter or underwriters in order to
expedite or facilitate the registration or the disposition of such
Registrable Notes and, in such connection, (i) make such
representations, warranties to, and covenants with, the underwriters,
with respect to the business of the Issuers and their respective
subsidiaries and the Registration Statement, Prospectus and documents,
if any, incorporated or deemed to be incorporated by reference therein,
in each case, as are customarily made by issuers to underwriters in
underwritten offerings of debt securities similar to the Notes, and
confirm the same in writing if and when requested; (ii) obtain the
opinion of counsel to the Issuers and updates thereof in form and
substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters covering the matters
customarily covered in opinions requested in underwritten offerings of
debt securities similar to the Notes and such other matters as may be
reasonably requested by underwriters; (iii) obtain "cold comfort"
letters and updates thereof in form and substance reasonably
satisfactory to the managing underwriter or underwriters from the
independent certified public accountants of the Issuers (and, if
necessary, any other independent certified public accountants of any
subsidiary of any of the Issuers or of any business acquired by any of
the Issuers for which financial statements and financial data are, or
are required to be, included in the Registration Statement), addressed
to each of the underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings of debt securities
similar to the Notes and such other matters as reasonably requested by
the managing underwriter or underwriters; and (iv) if an underwriting
agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable than those set forth in
Section 7 hereof (or such other provisions and procedures acceptable to
Holders of a majority in aggregate principal amount of Registrable
Notes covered by such Registration Statement and the managing
underwriter or underwriters or agents) with respect to all parties to
be indemnified pursuant to said Section. The above shall be done at
each closing under such underwriting agreement, or as and to the extent
required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, make available for
inspection by any selling Holder of such Registrable Notes being sold,
or each such Participating Broker-Dealer, as the case may be, any
underwriter participating in any such disposition
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of Registrable Notes, if any, and any attorney, accountant or other
agent retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively, the
"INSPECTORS"), at the offices where normally kept, during reasonable
business hours, all financial and other records and pertinent corporate
documents of the Issuers and their respective subsidiaries
(collectively, the "RECORDS") as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities,
and cause the officers, directors and employees of the Issuers and
their respective subsidiaries to supply all information reasonably
requested by any such Inspector in connection with such Registration
Statement. Such Records shall be kept confidential by each Inspector
and shall not be disclosed by the Inspectors unless (i) the disclosure
of such Records is necessary to avoid or correct a material
misstatement or omission in such Registration Statement or (ii) the
release of such Records is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction. Each selling Holder of
such Registrable Notes and each such Participating Broker-Dealer will
be required to agree that information obtained by it as a result of
such inspections shall be deemed confidential and shall not be used by
it as the basis for any market transactions in the securities of the
Issuers unless and until such is made generally available to the
public. Each selling Holder of such Registrable Notes and each such
Participating Broker-Dealer will be required to further agree that it
will, upon learning that disclosure of such Records is sought in a
court of competent jurisdiction, give notice to the Issuers and allow
the Issuers to undertake appropriate action to prevent disclosure of
the Records deemed confidential at their expense.
(p) Provide an indenture trustee for the Registrable Notes or
the Exchange Notes, as the case may be, and cause the Indenture or the
trust indenture provided for in Section 2(a), as the case may be, to be
qualified under the TIA not later than the effective date of the
Exchange Offer or the first Registration Statement relating to the
Registrable Notes; and in connection therewith, cooperate with the
trustee under any such indenture and the Holders of the Registrable
Notes, to effect such changes to such indenture as may be required for
such indenture to be so qualified in accordance with the terms of the
TIA; and execute, and use its best efforts to cause such trustee to
execute, all documents as may be required to effect such changes, and
all other forms and documents required to be filed with the SEC to
enable such indenture to be so qualified in a timely manner.
(q) Comply with all applicable rules and regulations of the
SEC and make generally available to its security holders earnings
statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Notes are sold to underwriters in a firm commitment
or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the
first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods.
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(r) Upon consummation of the Exchange Offer or a Private
Exchange, obtain an opinion of counsel to the Issuers, in a form
customary for underwritten transactions, addressed to the Trustee for
the benefit of all Holders of Registrable Notes participating in the
Exchange Offer or the Private Exchange, as the case may be, that the
Exchange Notes or the Private Exchange Notes, as the case may be, and
the related indenture constitute legally valid and binding obligations
of each of the Issuers, enforceable against each of the Issuers in
accordance with their respective terms subject to customary exceptions
and qualifications.
(s) If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the
Issuers (or to such other Person as directed by the Issuers) in
exchange for the Exchange Notes or the Private Exchange Notes, as the
case may be, the Issuers shall mark, or caused to be marked, on such
Registrable Notes that such Registrable Notes are being canceled in
exchange for the Exchange Notes or the Private Exchange Notes, as the
case may be; in no event shall such Registrable Notes be marked as paid
or otherwise satisfied.
(t) Cooperate with each seller of Registrable Notes covered by
any Registration Statement and each underwriter, if any, participating
in the disposition of such Registrable Notes and their respective
counsel in connection with any filings required to be made with the
NASD.
(u) Use their best efforts to take all other steps reasonably
necessary to effect the registration of the Registrable Notes covered
by a Registration Statement contemplated hereby.
The Issuers may require each seller of Registrable Notes as to which
any registration is being effected to furnish to the Issuers such information
regarding such seller and the distribution of such Registrable Notes as the
Issuers may, from time to time, reasonably request. The Issuers may exclude from
such registration the Registrable Notes of any seller who fails to furnish such
information within a reasonable time after receiving such request. Each seller
as to which any Shelf Registration Statement is being effected agrees to furnish
promptly to the Issuers all information required to be disclosed in order to
make the information previously furnished to the Issuers by such seller not
materially misleading.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by acquisition of such Registrable Notes or Exchange Notes to be sold by
such Participating Broker-Dealer, as the case may be, that, upon receipt of any
notice from the Issuers of the happening of any event of the kind described in
Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi), such Holder will forthwith
discontinue disposition of such Registrable Notes covered by a Registration
Statement and such Participating Broker Dealer will forthwith discontinue
disposition of such Exchange Notes pursuant to any Prospectus and, in each case,
forthwith discontinue dissemination of such Prospectus until such Holder's or
Participating Broker-Dealer's
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receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5(k), or until it is advised in writing (the "Advice") by the Issuers
that the use of the applicable Prospectus may be resumed, and has received
copies of any amendments or supplements thereto and, if so directed by the
Issuers, such Holder or Participating Broker-Dealer, as the case may be, will
deliver to the Issuers all copies, other than permanent file copies, then in
such Holder's or Participating Broker-Dealer's possession, of the Prospectus
covering such Registrable Securities current at the time of the receipt of such
notice. In the event the Issuers shall give any such notice, each of the
Effectiveness Period and the Applicable Period shall be extended by the number
of days during such periods from and including the date of the giving of such
notice to and including the date when each seller of Registrable Notes covered
by such Registration Statement or Exchange Notes to be sold by such
Participating Broker-Dealer, as the case may be, shall have received (x) the
copies of the supplemented or amended Prospectus contemplated by Section 5(k) or
(y) the Advice.
6. REGISTRATION EXPENSES
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuers shall be borne by the Issuers, jointly and
severally, whether or not the Exchange Offer or a Shelf Registration is filed or
becomes effective, including, without limitation, (i) all registration and
filing fees (including, without limitation, (A) fees with respect to filings
required to be made with the NASD in connection with an underwritten offering
and (B) fees and expenses of compliance with state securities or Blue Sky laws
(including, without limitation, reasonable fees and disbursements of counsel in
connection with Blue Sky qualifications of the Registrable Notes or Exchange
Notes and determination of the eligibility of the Registrable Notes or Exchange
Notes for investment under the laws of such jurisdictions (x) where the holders
of Registrable Notes are located, in the case of the Exchange Notes, or (y) as
provided in Section 5(h) hereof, in the case of Registrable Notes or Exchange
Notes to be sold by a Participating Broker-Dealer during the Applicable
Period)), (ii) printing expenses, including, without limitation, expenses of
printing certificates for Registrable Notes or Exchange Notes in a form eligible
for deposit with The Depository Trust Company and of printing prospectuses if
the printing of prospectuses is requested by the managing underwriter or
underwriters, if any, or by the Holders of a majority in aggregate principal
amount of the Registrable Notes included in any Registration Statement or by any
Participating Broker-Dealer during the Applicable Period, as the case may be,
(iii) reasonable messenger, telephone and delivery expenses incurred in
connection with the Exchange Registration Statement and any Shelf Registration,
(iv) fees and disbursements of counsel for the Issuers and reasonable fees and
disbursements of special counsel for the sellers of Registrable Notes (subject
to the provisions of Section 6(b)), (v) fees and disbursements of all
independent certified public accountants referred to in Section 5(n)(iii)
(including, without limitation, the expenses of any special audit and "cold
comfort" letters required by or incident to such performance), (vi) rating
agency fees, (vii) Securities Act liability insurance, if the Issuers desire
such insurance, (viii) fees and expenses of all other Persons retained by the
Issuers, (ix) internal expenses of the Issuers (including, without limitation,
all salaries and expenses of officers and employees of the Issuers performing
legal or accounting duties), (x) the expense of any annual audit, (xi) the fees
and
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expenses incurred in connection with the listing of the securities to be
registered on any securities exchange and (xii) the expenses relating to
printing, word processing and distributing all Registration Statements,
underwriting agreements, securities sales agreements, indentures and any other
documents necessary in order to comply with this Agreement.
(b) In connection with any Shelf Registration hereunder, the Issuers,
jointly and severally, shall reimburse the Holders of the Registrable Notes
being registered in such registration for the fees and disbursements, not to
exceed $25,000, of not more than one counsel (in addition to appropriate local
counsel) chosen by the Holders of a majority in aggregate principal amount of
the Registrable Notes to be included in such Shelf Registration and other
out-of-pocket expenses of Holders of Registrable Notes incurred in connection
with the registration and sale of Registrable Notes.
7. INDEMNIFICATION
(a) Each of the Issuers, jointly and severally, agrees to indemnify and
hold harmless each Holder of Registrable Notes and each Participating
Broker-Dealer selling Exchange Notes during the Applicable Period, the officers
and directors of each such Person, and each Person, if any, who controls any
such Person within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act (each, a "PARTICIPANT"), from and against any and
all losses, claims, damages and liabilities (including, without limitation, the
reasonable legal fees and other reasonable expenses actually incurred in
connection with any suit, action or proceeding or any claim asserted) caused by,
arising out of or based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement (as amended
or supplemented if the Issuers shall have furnished any amendments or
supplements thereto) or caused by, arising out of or based upon any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
Prospectus (as amended or supplemented if the Issuers shall have furnished any
amendments or supplements thereto) or caused by, arising out of or based upon
any omission or alleged omission to state therein 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, except insofar as such
losses, claims, damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Participant furnished to the Issuers
in writing by or on behalf of such Participant expressly for use therein;
PROVIDED, HOWEVER, that the Company will not be liable if such untrue statement
or omission or alleged untrue statement or omission was contained or made in any
preliminary prospectus and corrected in the Prospectus or any amendment or
supplement thereto and the Prospectus does not contain any other untrue
statement or omission or alleged untrue statement or omission of a material fact
that was the subject matter of the related proceeding and any such loss,
liability, claim, damage or expense suffered or incurred by the Participants
resulted from any action, claim or suit by any Person who purchased Registrable
Notes or Exchange Notes which are the subject thereof from such Participant and
it is established in the related proceeding that such Participant failed to
deliver or provide a copy of the
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<PAGE>
Prospectus (as amended or supplemented) to such Person with or prior to the
confirmation of the sale of such Registrable Notes or Exchange Notes sold to
such Person if required by applicable law, unless such failure to deliver or
provide a copy of the Prospectus (as amended or supplemented) was a result of
noncompliance by the Company with Section 5 of this Agreement.
(b) Each Participant agrees, severally and not jointly, to indemnify
and hold harmless the Issuers, their respective directors and officers and each
Person who controls any of the Issuers within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Issuers to each Participant, but only with
reference to information relating to such Participant furnished to the Issuers
in writing by such Participant expressly for use in any Registration Statement
or Prospectus, any amendment or supplement thereto, or any preliminary
prospectus. The liability of any Participant under this paragraph shall in no
event exceed the proceeds received by such Participant from sales of Registrable
Notes or Exchange Notes giving rise to such obligations.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "INDEMNIFIED PERSON") shall promptly
notify the Person against whom such indemnity may be sought (the "INDEMNIFYING
PERSON") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such counsel related to
such proceeding; PROVIDED, HOWEVER, that the failure to so notify the
Indemnifying Person shall not relieve it of any obligation or liability which it
may have hereunder or otherwise (unless and only to the extent that such failure
directly results in the loss or compromise of any material rights or defenses by
the Indemnifying Person and the Indemnifying Person was not otherwise aware of
such action or claim). In any such proceeding, any Indemnified Person shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless (i) the Indemnifying
Person and the Indemnified Person shall have mutually agreed in writing to the
contrary, (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that, unless there
is a conflict among Indemnified Persons, the Indemnifying Person shall not, in
connection with any proceeding or related proceeding in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed promptly after receipt of the invoice therefor as
they are incurred. Any such separate firm for the Participants and such control
Persons of Participants shall be designated in writing by Participants who sold
a majority in interest of Registrable Notes sold by all such Participants and
any such separate firm for the Issuers, their directors, their officers and such
control Persons of the Issuers shall be designated in writing by the Company.
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<PAGE>
The Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its prior written consent, but if settled with such consent or
if there is a final non-appealable judgment for the plaintiff for which the
Indemnified Person is entitled to indemnification pursuant to this Agreement,
the Indemnifying Person agrees to indemnify any Indemnified Person from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person
shall have requested an Indemnifying Person to reimburse the Indemnified Person
for reasonable fees and expenses actually incurred by counsel as contemplated by
the third sentence of this paragraph, the Indemnifying Person agrees that it
shall be liable for any settlement of any proceeding effected without its prior
written consent if (i) such settlement is entered into more than 30 days after
receipt by such Indemnifying Person of the aforesaid request and (ii) such
Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement; PROVIDED,
HOWEVER, that the Indemnifying Person shall not be liable for any settlement
effected without its consent pursuant to this sentence if the Indemnifying
Person is contesting, in good faith, the request for reimbursement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement (A) includes an unconditional release of such indemnified Person, in
form and substance satisfactory to such Indemnified Person, from all liability
on claims that are the subject matter of such proceeding and (B) does not
include any statement as to an admission of fault, culpability or failure to act
by or on behalf of an Indemnified Person.
(d) If the indemnification provided for in the first and second
paragraphs of this Section 7 is unavailable (other than by reason of the
exceptions specifically provided therein) to, or insufficient to hold harmless,
an Indemnified Person in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraphs, in
lieu of indemnifying such Indemnified Person thereunder and in order to provide
for just and equitable contribution, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect (i) the relative
benefits received by the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other from the offering of the Registrable
Notes or Exchange Notes, as the case may be or (ii) if the allocation provided
by the foregoing clause (i) is not permitted by applicable law, not only such
relative benefits but also the relative fault of the Indemnifying Person or
Persons on the one hand and the Indemnified Person or Persons on the other in
connection with the statements or omissions (or alleged statements or omissions)
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable considerations. The
relative fault of the parties 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 Issuers on the one hand or by the Participants or such other
Indemnified Person, as the case may be, on the other, the parties' relative
intent, knowledge, access to information and
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<PAGE>
opportunity to correct or prevent such statement or omission and any other
equitable considerations appropriate under the circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by PRO RATA allocation
(even if the Participants were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses actually incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Notes or
Exchange Notes, as the case may be, exceeds the amount of any damages that such
Participant has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this Section
7 will be in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
8. RULES 144 AND 144A
Each of the Issuers covenants that it will file the reports required to
be filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner and, if at any time
it is not required to file such reports, it will, upon the request of any Holder
of Registrable Notes, make publicly available other information so long as
necessary to permit sales pursuant to Rule 144 and Rule 144A. Each of the
Issuers further covenants, for so long as any Registrable Notes remain
outstanding, to make available to any Holder or beneficial owner of Registrable
Notes in connection with any sale thereof and any prospective purchaser of such
Registrable Notes from such Holder or beneficial owner, the information required
by Rule 144A(d)(4) under the Securities Act in order to permit resales of such
Registrable Notes pursuant to Rule 144A.
9. UNDERWRITTEN REGISTRATIONS
If any of the Registrable Notes covered by any Shelf Registration are
to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of a majority in aggregate principal amount of such Registrable
Notes included in such offering and reasonably acceptable to the Issuers.
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<PAGE>
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
10. MISCELLANEOUS
(a) NO INCONSISTENT AGREEMENTS. None of the Issuers has entered, as of
the date hereof, and none of the Issuers shall enter, after the date of this
Agreement, into any agreement with respect to any of its securities that is
inconsistent with the rights granted to the Holders of Registrable Notes in this
Agreement or otherwise conflicts with the provisions hereof. None of the Issuers
has entered and none of the Issuers will enter into any agreement with respect
to any of its securities which will grant to any Person piggy-back rights with
respect to a Registration Statement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE NOTES. Neither the Company nor
the Subsidiary Guarantors shall, directly or indirectly, take any action with
respect to the Registrable Notes as a class that would adversely affect the
ability of the Holders of Registrable Notes to include such Registrable Notes in
a registration undertaken pursuant to this Agreement.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of (A) the Holders of not less than a majority in aggregate principal
amount of the then outstanding Registrable Notes and (B) in circumstances that
would adversely affect Participating Broker-Dealers, the Participating
Broker-Dealers holding not less than a majority in aggregate principal amount of
the Exchange Notes held by all Participating Broker-Dealers; PROVIDED, HOWEVER,
that Section 7 and this Section 10(c) may not be amended, modified or
supplemented without the prior written consent of each Holder and each
Participating Broker-Dealer (including any Person who was a Holder or
Participating Broker-Dealer of Registrable Notes or Exchange Notes, as the case
may be, disposed of pursuant to any Registration Statement). Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders of Registrable
Notes whose securities are being tendered pursuant to the Exchange Offer or sold
pursuant to a Registration Statement and that does not directly or indirectly
affect, impair, limit or compromise the rights of other Holders of Registrable
Notes may be given by Holders of at least a majority in aggregate principal
amount of the Registrable Notes being tendered or being sold by such Holders
pursuant to such Registration Statement.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
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<PAGE>
1. if to a Holder of Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or
Participating Broker-Dealer, as the case may be, set forth on the
records of the registrar under the Indenture, with a copy in like
manner to the Initial Purchaser as follows:
Jefferies & Company, Inc.
11100 Santa Monica Boulevard - 10th Floor
Los Angeles, California 90025
Facsimile No.: (310) 575-5165
Attention: Corporate Finance Department
with a copy to:
Vinson & Elkins L.L.P.
2300 First City Tower
1001 Fannin Street
Houston, Texas 77002-6760
Facsimile No.: (713) 615-5282
Attention: Michael P. Finch
2. if to the Initial Purchaser, at the address specified in
Section 10(d)(1);
3. if to an Issuer, as follows:
Engle Homes, Inc.
123 N.W. 13th Street, Suite 300
Boca Raton, Florida 33432
Facsimile No.: (561) 238-5634
Attention: Chief Executive Officer
with copies to:
Greenberg Traurig, P.A.
1221 Brickell Avenue
Miami, Florida 33131
Facsimile No.: (305) 579-0717
Attention: Bruce E. Macdonough
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed, one business day after
being timely delivered to a next-day air courier guaranteeing overnight
delivery; and when receipt is acknowledged by the addressee, if telecopied.
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<PAGE>
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto
and the Holders; PROVIDED, HOWEVER, that this Agreement shall not inure to the
benefit of or be binding upon a successor or assign of a Holder unless such
successor or assign holds Registrable Notes.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, 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.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(H) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) NOTES HELD BY THE ISSUERS OR THEIR AFFILIATES. Whenever the consent
or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Issuers or their affiliates
(as such term is defined in Rule 405 under the Securities Act) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
(k) THIRD PARTY BENEFICIARIES. Holders of Registrable Notes and
Participating Broker-Dealers are intended third party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons.
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<PAGE>
(1) ENTIRE AGREEMENT. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Initial Purchaser on the
one hand and the Issuers on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.
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<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ENGLE HOMES, INC.
By: /s/ DAVID SHAPIRO
-----------------------------------------
Name: David Shapiro
Title: Vice President - Finance and Chief
Financial Officer
BANYAN TRAILS, INC.
ENGLE HOMES/ARIZONA, INC.
ENGLE HOMES/ATLANTA, INC.
ENGLE HOMES/BROWARD, INC.
ENGLE HOMES/COLORADO, INC.
ENGLE HOMES/GULF COAST, INC.
ENGLE HOMES/JACKSONVILLE, INC.
ENGLE HOMES/LAKE BERNADETTE, INC.
ENGLE HOMES/NORTH CAROLINA, INC.
ENGLE HOMES/ORLANDO, INC.
ENGLE HOMES/PALM BEACH, INC.
ENGLE HOMES/PEMBROKE, INC.
ENGLE HOMES/SOUTHWEST FLORIDA, INC.
ENGLE HOMES/TEXAS, INC.
ENGLE HOMES/VIRGINIA, INC.
ENGLE HOMES REALTY, INC.
GREENLEAF HOMES, INC.
PEMBROKE FALLS REALTY, INC.
PREFERRED BUILDERS REALTY, INC.
PREFERRED HOME MORTGAGE COMPANY
ST. TROPEZ AT BOCA GOLF, INC.
UNIVERSAL LAND TITLE, INC.
ENGLE HOMES/ARIZONA CONSTRUCTION, INC.
UNIVERSAL LAND TITLE OF COLORADO, INC.
By: /s/ DAVID SHAPIRO
----------------------------------------
Name: David Shapiro
Title: Vice President
JEFFERIES & COMPANY, INC.
By: /s/ CHRIS KANOFF
---------------------------------------
Name: Chris Kanoff
Title: Executive Vice President
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EXHIBIT 5.1
GREENBERG TRAURIG, P.A.
1221 BRICKELL AVENUE
MIAMI, FLORIDA 33131
June 10, 1999
Engle Homes, Inc.
123 N.W. 13th Street
Boca Raton, Florida 33432
Ladies and Gentlemen:
We have acted as special counsel to Engle Homes, Inc., a Florida
corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-4, including the Prospectus constituting a part
thereof (the "Registration Statement"), to be filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the
"Securities Act"), relating to an offer to exchange (the "Exchange Offer") the
Company's 9 1/4% Series C Senior Notes due 2008 (the "Exchange Notes") for an
equal principal amount of the Company's outstanding 9 1/4% Series B Senior Notes
due 2008 (the "Old Notes"). The Exchange Notes will be guaranteed (the
"Guarantees") by the Guarantors (as defined).
The Old Notes were issued, and the Excange Notes will be issued,
pursuant to an Indenture (the "Indenture") dated as of June 12, 1998, by and
among the Company, certain subsidiaries of the Company party thereto (the
"Guarantors") and American Stock Transfer & Trust Company, as Trustee (the
"Trustee").
In connection with our opinion, we have examined: (a) the Registration
Statement, including the Prospectus; (b) the Indenture; (c) the form of the
Exchange Notes; (d) the form of the Guarantees; and (e) such other proceedings,
documents and records as we have deemed necessary to enable us to render this
opinion.
In our examinations of the above referenced documents, we have assumed
the genuineness of all signatures, the authenticity of all documents,
certificates and instruments submitted to us as originals and the conformity
with the originals of all documents submitted to us as copies.
Based upon the foregoing, assuming that the Indenture has been duly
authorized, executed and delivered by, and represents the valid and binding
obligation of, the Trustee, and when the Registration Statement, including any
amendments thereto, shall have become effective under the Securities Act and
having regard for such legal considerations as we deem relevant, we are of the
opinion that:
1. The Exchange Notes, when duly executed and delivered by or on behalf
of the Company in the form contemplated by the Indenture upon the terms set
forth in the Registration Statement and authenticated by the Trustee or an
authenticating agent appointed by the Trustee in
<PAGE>
accordance with the terms of the Indenture, will be legally issued and valid and
binding obligations of the Company enforceable in accordance with their terms;
and
2. The Guarantees, when duly executed and delivered by or on behalf of
the Guarantors in the form contemplated by the Indenture upon the terms set
forth in the Registration Statement, will be legally issued and valid and
binding obligations of the Guarantors enforceable in accordance with their
terms;
except, in each case, as enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other comparable
laws affecting the enforcement of creditors' rights generally or the application
of equitable principles (regardless of whether such enforceability is considered
in a proceeding in equity or at law) and subject, in each case, to the
qualification that certain provisions thereof may be unenforceable in whole or
in part under the laws of the States of Florida and New York, as applicable, but
the inclusion of such provision does not affect the validity of the Exchange
Notes or the Guarantees and each of them contain legally adequate provisions for
the realization of the principal legal rights and benefits afforded thereby.
We are qualified to practice law in the State of Florida and we do not
purport to be experts on the law of any other jurisdiction other than the
federal laws of the United States of America. In rendering our opinions with
respect to the Exchange Notes and the Guarantees, we have assumed with your
permission, and without independent investigation, that the applicable laws of
the State of New York are identical in all relevant respects to the substantive
laws of the State of Florida. We express no opinion and make no representation
with respect to the law of any other jurisdiction.
This opinion is for your benefit and it may not be reprinted,
reproduced or distributed to any other person for any purpose without our prior
written consent, except that we hereby consent to the reference to our firm
under the caption "Legal Matters" in the Prospectus which is filed as part of
the Registration Statement, and to the filing of this opinion as an exhibit to
such Registration Statement. In giving this consent, we do not admit that we are
experts within the meaning of Section 11 of the Securities Act or within the
category of persons whose consent is required by Section 7 of the Securities
Act. Our opinion is expressly limited to the matters set forth above and we
render no opinion, whether by implication or otherwise, as to any other matters
relating to the Company, the Subsidiary Guarantors or any other person, or any
other document or agreement involved with the transactions contemplated by the
Exchange Offer. We assume no obligation to advise you of facts, circumstances,
events or developments which hereafter may be brought to our attention and which
may alter, affect or modify the opinions expressed herein.
Sincerely,
/s/ GREENBERG TRAURIG, P.A.
GREENBERG TRAURIG, P.A.
EXHIBIT 10.7
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS AGREEMENT (the "Agreement") supplements and amends the Credit
Agreement dated as of May 28, 1998 (the "Credit Agreement") by and among Engle
Homes, Inc., a Florida corporation, as Borrower (the "Borrower"), the Banks
named therein and party thereto, as Banks, SunTrust Bank South Florida National
Association, a national banking association, as Administrative Agent (the
"Administrative Agent" or "Agent"), and NationsBank, N.A., a national banking
association, as Documentation Agent (the "Documentation Agent"), and is made as
of this 26th day of May, 1999 by and among the Borrower, the Subsidiaries
(defined in the Credit Agreement) of Borrower existing as of the date of this
Agreement, the Banks now party to the Credit Agreement, and the Administrative
Agent. As of the date of this Agreement, Bank of America National Trust and
Savings Association is the successor in interest to NationsBank, N.A. and The
First National Bank of Chicago is the successor in interest to Bank One,
Arizona, N.A.
RECITALS:
WHEREAS, the Borrower, the Banks party to the Credit Agreement, and the
Administrative Agent executed and delivered the Credit Agreement; and
WHEREAS, the Borrower, the Subsidiaries (defined in the Credit
Agreement) of Borrower existing as of the date of this Agreement, the Banks now
party to the Credit Agreement, and the Administrative Agent desire to recognize
certain changes and amend the Credit Agreement, all as expressly set forth in
this Agreement;
W I T N E S S E T H:
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, the Subsidiaries (defined in the Credit Agreement)
of Borrower existing as of the date of this Agreement, the Banks now party to
the Credit Agreement, and the Administrative Agent and do hereby covenant and
agree as follows:
1. RECITALS ARE TRUE AND CORRECT; AND DEFINED TERMS.
The foregoing Recitals are true and correct and form a part of
this Agreement and any capitalized terms not defined in this Agreement
shall have the meanings set forth in the Credit Agreement.
2. CHANGES IN COMMITMENTS AND BANKS.
(a) Effective as of May 7, 1999, Borrower permanently
reduced the Aggregate Commitment from $170,000,000.00
to $100,000,000.00 and, therefore, each Bank's
Commitment ratably in proportion to the ratio that its
<PAGE>
respective Commitment bears to the Aggregate
Commitment, in accordance with the terms of Section
2.5(d) of the Credit Agreement. In addition, Borrower
delivered an Extension Request pursuant to Section
2.21(a) of the Credit Agreement, requesting a
one-year extension of the Facility Maturity Date from
May 29, 2001 to May 29, 2002, and all of the Banks
approved the Extension Request, except for Banque
Paribas and Credit Lyonnais, Atlanta Agency, both of
whose respective Commitments, as so reduced pursuant
to Section 2.5(d) of the Credit Agreement, were prior
to the date of this Agreement assigned to and
accepted by SunTrust, in its capacity as a Bank, thus
increasing its Commitment by the amount of the
Commitments so assigned.
(b) SCHEDULE "A" attached hereto and incorporated herein
replaces SCHEDULE "A" to the Credit Agreement and
sets forth each of the Banks now party to the Credit
Agreement and their respective Commitments as of the
date of this Agreement, after giving effect to the
changes described in paragraph (a) of this Section of
this Agreement.
(c) The Notes originally issued to each Bank party to
this Agreement shall continue to evidence all Loans
now or hereafter made by or owing to such Bank,
notwithstanding the foregoing changes, since each
Bank's Commitment, as so reduced, and in the case of
SunTrust, as so reduced and then so increased, is now
less than the original stated principal amount of its
respective Note.
3. BILTMORE SOUTH CORP.
Biltmore South Corp. has been released as a Guarantor and from
its liability on the Guaranty with the consent of all parties hereto,
based on Borrower's representation and warranty reaffirmed hereby that
Biltmore South Corp. is no longer a Subsidiary of Borrower.
4. OTHER MODIFICATIONS TO THE CREDIT AGREEMENT.
a. FACILITY MATURITY DATE.
(i) The definition of "Facility Maturity Date" in
Article I of the Credit Agreement is hereby amended and
restated to read as follows:
"Facility Maturity Date" means May 29, 2002, as the
same may be extended for two years as provided in
Section 2.21."
(ii) The first sentence of paragraph (a) of Section
2.21 of the Credit Agreement is amended and restated to read
as follows:
2
<PAGE>
"Borrower may request a single, two-year extension of
the Facility Maturity Date by submitting a written
request for an extension to Agent (an "Extension
Request") no earlier than 630 days and no later than
two years after May 28, 1998, the date of this Credit
Agreement."
(iii) Consistent with the foregoing provisions of
this paragraph (a) of this Section 4 of this Agreement, all
other references to "one (1) year" in Section 2.21 of the
Credit Agreement are hereby amended and restated to be "two
(2) years".
(iv) The schedule in paragraph (c) of Section 2.5 of
the Credit Agreement, showing the extension fee payable if the
Facility Maturity Date is extended pursuant to the provisions
of Section 2.21 of the Credit Agreement, is hereby amended and
restated to be as follows:
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------
BANK'S EXTENSION FEE
COMMITMENT (as a percentage of Bank's Commitment)
--------------------------------------------------------------------------------
<S> <C>
$30,000,000.00 or more .10 %
--------------------------------------------------------------------------------
$20,000,000.00 to $29,999,999.99 .070 %
--------------------------------------------------------------------------------
$10,000,000.00 to $19,999,999.99 .035 %
--------------------------------------------------------------------------------
</TABLE>
b. BORROWING BASE.
Clause (i) in the definition of "Borrowing Base" in
Article I of the Credit Agreement is hereby amended and
restated to read as follows:
"(i) 100% of all Housing Unit Costs, plus."
c. LETTER OF CREDIT FACILITY LIMITATION.
The reference to `"$10,000,000"' in clause (ii) of
Section 4.2 of the Credit Agreement is hereby amended and
restated to be "$15,000,000".
d. INDEBTEDNESS LIMITATION.
Clause (viii) of Section 8.2 of the Credit Agreement
is hereby amended and restated to read as follows:
"(viii) Contingent Indebtedness with respect to
undrawn Letters of Credit, banker's acceptances, and
performance, completion, guarantee, surety,
3
<PAGE>
construction and similar bonds entered into the
ordinary course of business not to exceed in the
aggregate at any time outstanding $35,000,000,
excluding such Contingent Indebtedness of or on
behalf of Engle Homes/Pembroke, Inc."
5. REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants that: (a) the representations
and warranties in the Credit Agreement are true in all materials
respects as of the date hereof (both before and after giving effect to
this Agreement); and (b) no Event of Default or Unmatured Event of
Default has occurred and is continuing as of the date hereof (both
before and after giving effect to this Agreement).
6. CONDITIONS PRECEDENT.
The effectiveness of this Agreement is subject to the receipt
by the Agent of the following:
a. At least ten (10) original counterparts of
this Agreement, duly executed by all
signatories hereto; and
b. Any and all additional certificates,
opinions, agreements, instruments, documents
and assurances as the Agent may reasonably
request.
7. CONSENT OF GUARANTORS.
Each of the Subsidiaries has joined into the execution of this
Agreement for the purposes of consenting to this Agreement in their
capacity as Guarantors and ratifying the Guaranty, which remains in
full force and effect in accordance with its terms, and for the further
purpose of confirming that each of them remains liable as a Guarantor
on the Guaranty and that such liability is not in any way altered,
diminished or impaired by this Agreement.
8. EFFECT OF THIS AGREEMENT.
This Agreement supplements and amends the Credit Agreement and
constitutes a part of the Credit Agreement and one of the Loan
Documents. Except as specifically supplemented or amended by this
Agreement, the Credit Agreement and all other Loan Documents are hereby
ratified and each shall remain in full force and effect according to
their respective terms.
4
<PAGE>
9. CLAIMS AND DEFENSES.
The Borrower and each Subsidiary represents and warrants to
each of the other parties to this Agreement that there is no defense or
right of offset against any Obligations, and the Borrower and each
Subsidiary hereby waives, and releases, acquits, satisfies, and forever
discharges each of the other parties to this Agreement and their
respective officers, directors, shareholders and agents (collectively,
"Released Parties") from any and all claims, counterclaims, defenses,
actions, causes of action, suits, controversies, agreements, promises
and demands whatsoever in law or in equity which the Borrower or any
Subsidiary ever had, now has or which any legal representative,
successor or assign of any of them can, shall, or may have against any
of the Released Parties for, upon or by reason of any matter, cause or
thing whatsoever from the beginning of time to the date of this
Agreement, including, without limitation, any such matter, cause or
thing arising out of or with respect to the Guaranty or any of the Loan
Documents, excluding only those obligations of the Agent and Banks
expressly set forth in the Loan Documents to the extent arising on or
after the date of this Agreement.
10. SUCCESSORS AND ASSIGNS.
This Agreement shall bind and inure to the benefit of the
parties hereto and their respective legal representatives, successors
and assigns; provided, however, that no party may assign, and no Person
shall succeed to, any rights, powers, duties or obligations in
violation of the Credit Agreement or other Loan Documents.
11. CAPTIONS.
All captions or headings contained in this Agreement are
provided for convenience and ease of reference only, and are in no way
intended to, nor shall they, form a part of or limit, restrict or
define the scope or content of this Agreement.
12. GOVERNING LAW.
This Agreement shall be governed by and construed according to
the laws of the State of Florida.
13. COUNTERPARTS.
This Agreement may be executed and delivered in any number of
counterparts, each of which, when so executed and delivered, shall be
and constitute an original and one and the same document.
5
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
BORROWER:
ENGLE HOMES, INC., a Florida corporation
By: /S/ DAVID SHAPIRO
-----------------------------------------------
Name: David Shapiro
Title: Vice President
(SEAL)
GUARANTORS:
ENGLE HOMES/ORLANDO, INC.,
ENGLE HOMES/PALM BEACH, INC.,
ENGLE HOMES/BROWARD, INC.,
ENGLE HOMES/PEMBROKE, INC.,
ENGLE HOMES/GULF COAST, INC.,
ENGLE HOMES/ATLANTA, INC.
(f/k/a Engle Homes/Dade, Inc.),
ENGLE HOMES/SOUTHWEST FLORIDA, INC.
(f/k/a Engle Homes/Naples, Inc.),
ENGLE HOMES/LAKE BERNADETTE, INC.,
ENGLE HOMES/COLORADO, INC.
(f/k/a Park Engle Homes, Inc.),
ENGLE HOMES/ARIZONA, INC.
(f/k/a Engle Homes/Maryland, Inc.),
ENGLE HOMES/NORTH CAROLINA, INC.,
ENGLE HOMES/TEXAS, INC.,
ENGLE HOMES/VIRGINIA, INC.,
GREENLEAF HOMES, INC.,
PREFERRED BUILDERS REALTY, INC.,
PREFERRED HOME MORTGAGE COMPANY,
UNIVERSAL LAND TITLE, INC.,
PEMBROKE FALLS REALTY, INC.,
ST. TROPEZ AT BOCA GOLF, INC.,
ENGLE HOMES/JACKSONVILLE, INC. and
BANYAN TRAILS, INC., each a Florida corporation,
ENGLE HOMES/ARIZONA CONSTRUCTION, INC.,
an Arizona corporation, and
UNIVERSAL LAND TITLE OF COLORADO, INC.,
a Colorado corporation, and
ENGLE HOMES REALTY, INC., a Georgia corporation
By: /S/ DAVID SHAPIRO
-----------------------------------------------
Name: David Shapiro
Title: Vice President
(CORPORATE SEALS)
6
<PAGE>
BANKS:
SUNTRUST BANK, SOUTH FLORIDA, NATIONAL ASSOCIATION
By: /S/ JEFFREY I. SHULMAN
-----------------------------------------------
Name: Jeffrey I. Shulman
Title: Senior Vice President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, a national banking association,
successor in interest to NationsBank, N.A.
By: /S/ MARK W. LARIVIERE
----------------------------------------------
Name: Mark W. Lariviere
Title: Vice President
GUARANTY FEDERAL BANK, FSB
By: /S/ LINDA B. GARCIA
----------------------------------------------
Name: Linda B. Garcia
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO, successor in
interest to Bank One, Arizona, N.A.
By: /S/ CHRIS FLYNN
----------------------------------------------
Name: Chris Flynn
Title: Corporate Banking Officer
BANKBOSTON, N.A.
By: /S/ KEVIN C. HAKE
----------------------------------------------
Name: Kevin C. Hake
Title: Director
7
<PAGE>
NORWEST BANK COLORADO, NATIONAL ASSOCIATION
By: /S/ ALISON GALLAGHER
----------------------------------------------
Name: Alison Gallagher
Title: Vice President
AGENT:
SUNTRUST BANK, SOUTH FLORIDA, NATIONAL ASSOCIATION,
a national banking association
By: /S/ JEFFREY I. SHULMAN
----------------------------------------------
Name: Jeffrey I. Shulman
Title: Senior Vice President
8
<PAGE>
SCHEDULE "A"
Existing Banks and Commitments
SunTrust Bank, South Florida, National Association $38,235,294
Bank of America National Trust and Savings Association $17,647,059
Guaranty Federal Bank, FSB $14,705,882
BankBoston, N.A. $11,764,706
The First National Bank of Chicago $11,764,706
Norwest Bank, Colorado, N.A. $5,882,353
9
EXHIBIT 12.1
<TABLE>
<CAPTION>
ENGLE HOMES, INC. AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN THOUSANDS)
FISCAL YEAR ENDED OCTOBER 31,
-----------------------------------------------------
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Computation of historical ratios
Income from continuing operations $17,448 $13,468 $ 8,495 $ 5,912 $ 7,575
Add:
Provision for income taxes 10,922 8,431 5,206 3,624 4,604
Amortization of previously capitalized interest
included in cost of sales 17,809 16,066 11,543 6,904 7,712
Amortization of debt expense 591 373 456 792 942
------- ------- ------- ------- -------
Net income as adjusted 46,770 38,338 25,700 17,232 20,833
======= ======= ======= ======= =======
Fixed charges
Interest capitalized 17,757 15,623 15,272 13,750 7,183
Amortization of debt expense 591 373 456 792 942
------- ------- ------- ------- -------
$18,348 $15,996 $15,728 $14,542 $ 8,125
======= ======= ======= ======= =======
Ratio of earnings to fixed charges 2.55x 2.40x 1.63x 1.18x 2.56x
</TABLE>
<TABLE>
<CAPTION>
SIX MONTHS ENDED
APRIL 30,
1999
----
<S> <C>
Computation of historical ratios
Income from continuing operations $11,491
Add:
Provision for income taxes 7,224
Amortization of previously capitalized interest
included in cost of sales 9,069
Amortization of debt expense 389
-------
Net income as adjusted 28,173
=======
Fixed charges
Interest capitalized 9,258
Amortization of debt expense 389
-------
$9,647
=======
Ratio of earnings to fixed charges 2.92x
</TABLE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Shareholders and Board of Directors of
Engle Homes, Inc.
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated November
10, 1998, relating to the consolidated financial statements and schedule of
Engle Homes, Inc. appearing in the Company's annual report on Form 10-K for the
year ended October 31, 1998.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
BDO Seidman, LLP
Miami, Florida
June 7, 1999
EXHIBIT 99.1
LETTER OF TRANSMITTAL
ENGLE HOMES, INC.
OFFER TO EXCHANGE ITS
9 1/4% SERIES C SENIOR NOTES DUE 2008
FOR ANY AND ALL OF ITS OUTSTANDING
9 1/4% SERIES B SENIOR NOTES DUE 2008
PURSUANT TO THE PROSPECTUS DATED ________________, 1999 THE EXCHANGE
OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
________________, 1999, UNLESS THE OFFER IS EXTENDED. TENDERS MAY BE WITHDRAWN
PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
AMERICAN STOCK TRANSFER & TRUST COMPANY
BY REGISTERED OR CERTIFIED MAIL, OVERNIGHT COURIER OR HAND DELIVERY:
40 WALL STREET
NEW YORK, NEW YORK 10005
ATTENTION: EXCHANGE DEPARTMENT
FACSIMILE TRANSMISSIONS TO CONFIRM BY TELEPHONE
(ELIGIBLE INSTITUTIONS ONLY): OR FOR INFORMATION CALL:
(718) 234-5001 (718) 921-8200
---------------------------------
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO A
NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS
LETTER OF TRANSMITTAL IS COMPLETED.
The undersigned hereby acknowledges receipt and review of the
Prospectus, dated , 1999, of Engle Homes, Inc., a Florida corporation (the
"Company"), and this Letter of Transmittal (the "Letter of Transmittal"), which
together describe the Company's offer (the "Exchange Offer") to exchange its 9
1/4% Series C Senior Notes (the "Exchange Notes"), which have been registered
under the Securities Act of 1933, as amended (the "Securities Act"), pursuant to
a Registration Statement of which the Prospectus is a part, for a like principal
amount of its issued and outstanding 9 1/4% Series B Senior Notes due 2008 (the
"Old Notes"). Capitalized terms used but not defined herein shall have the same
meaning given them in the Prospectus.
This Letter of Transmittal is to be completed either if (a)
certificates are to be forwarded herewith or (b) tenders are to be made pursuant
to the procedures for tender by book-entry transfer set forth under "The
Exchange Offer -- Procedures for Tendering -- Book Entry Interests" in the
Prospectus and an Agent's Message (as defined below) is not delivered.
Certificates, or book-entry confirmation of a book-entry transfer of such Old
Notes into the Exchange Agent's account at The Depository Trust Company ("DTC"),
as well as this Letter of Transmittal (or facsimile thereof), properly completed
and duly executed, with any required signature guarantees, and any other
documents required by this Letter of Transmittal, must be received by the
Exchange Agent at its address set forth herein on or prior to the Expiration
Date. Tenders by book-entry transfer may also be made by delivering an Agent's
Message in lieu of this Letter of Transmittal. The term "book-entry
confirmation" means a confirmation of a book-entry transfer of Old Notes into
the Exchange Agent's account at DTC. The term "Agent's Message" means a message,
transmitted by DTC to and received by the Exchange Agent and forming a part of a
book-entry confirmation, which states that DTC has received an express
acknowledgment from the tendering participant, which acknowledgment states that
such participant has received and agrees to be bound by this Letter of
Transmittal and that the Company may enforce this Letter of Transmittal against
such participant.
Holders (as defined below) of Old Notes whose certificates (the
"Certificates") for such Old Notes are not immediately available or who cannot
deliver their Certificates and all other required documents to the Exchange
Agent on or prior to the Expiration Date (as defined in the Prospectus) or who
cannot complete the procedures for book-entry transfer on a timely basis, must
tender their Old Notes according to the guaranteed delivery procedures set forth
in "The Exchange Offer -- Procedures for Tendering -- Guaranteed Delivery
Procedures" in the Prospectus.
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
ALL TENDERING HOLDERS COMPLETE THIS BOX:
DESCRIPTION OF OLD NOTES
<TABLE>
<CAPTION>
OLD NOTES
IF BLANK, PRINT NAME AND ADDRESS OF REGISTERED HOLDER(S) (ATTACH ADDITIONAL LIST IF NECESSARY)
AGGREGATE PRINCIPAL AMOUNT OF
CERTIFICATE PRINCIPAL AMOUNT OLD NOTES TENDERED
NUMBER(S)* OF OLD NOTES (IF LESS THAN ALL)**
------------ ----------------- ----------------------
<S> <C> <C> <C>
____________ _________________ ______________________
____________ _________________ ______________________
____________ _________________ ______________________
____________ _________________ ______________________
____________ _________________ ______________________
</TABLE>
* Need not be completed by book-entry Holders.
** Old Notes may be tendered in whole or in part in multiples of $1,000. All
Old Notes held shall be deemed tendered unless a lesser number is specified
in this column. See Instructions 4.
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND COMPLETE
THE FOLLOWING:
Name of Tendering Institution___________________________________________________
DTC Account Number___________________________ Transaction Code Number___________
[ ] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF
TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING
(SEE INSTRUCTION 1):
Name(s) of Registered Holder(s)_________________________________________________
Window Ticket Number (if any)___________________________________________________
Date of Execution of Notice of Guaranteed Delivery______________________________
Name of Institution which Guaranteed Delivery___________________________________
If Guaranteed Delivery is to be made by Book-Entry Transfer:
Name of Tendering Institution___________________________________________________
DTC Account Number___________________________ Transaction Code Number___________
[ ] CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED OLD NOTES
ARE TO BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER SET FORTH ABOVE.
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE OLD NOTES FOR ITS
OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER TRADING ACTIVITIES (A
"PARTICIPATING BROKER-DEALER") AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF
THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:___________________________________________________________________________
Address:________________________________________________________________________
2
<PAGE>
Ladies and Gentlemen:
Subject to the terms and conditions of the Exchange Offer, the
undersigned hereby tenders to the Company for exchange the principal amount of
Old Notes indicated above. Subject to and effective upon the acceptance for
exchange of all or any portion of the Old Notes tendered herewith in accordance
with the terms and conditions of the Exchange Offer (including, if the Exchange
Offer is extended or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers to or upon the
order of the Company all right, title and interest in and to such Old Notes as
are being tendered herewith. The undersigned hereby irrevocably constitutes and
appoints the Exchange Agent as its agent and attorney-in-fact (with full
knowledge that the Exchange Agent is also acting as agent of the Company in
connection with the Exchange Offer) with respect to the tendered Old Notes, with
full power of substitution (such power of attorney being deemed to be an
irrevocable power coupled with an interest) subject only to the right of
withdrawal described in the Prospectus, to (i) deliver Certificates for Old
Notes to the Company together with all accompanying evidences of transfer and
authenticity to, or upon the order of, the Company, upon receipt by the Exchange
Agent, as the undersigned's agent, of the Exchange Notes to be issued in
exchange for such Old Notes, (ii) present Certificates for such Old Notes for
transfer, and to transfer the Old Notes on the books of the Company, and (iii)
receive for the account of the Company all benefits and otherwise exercise all
rights of beneficial ownership of such Old Notes, all in accordance with the
terms and conditions of the Exchange Offer.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, exchange, sell, assign and transfer the Old
Notes tendered hereby and that, when the same are accepted for exchange, the
Company will acquire good, marketable and unencumbered title thereto, free and
clear of all liens, restrictions, charges and encumbrances, and that the Old
Notes tendered hereby are not subject to any adverse claims or proxies. The
undersigned will, upon request, execute and deliver any additional documents
deemed by the Company or the Exchange Agent to be necessary or desirable to
complete the exchange, assignment and transfer of the Old Notes tendered hereby,
and the undersigned will comply with its obligations under the Registration
Rights Agreement. The undersigned has read and agrees to all of the terms of the
Exchange Offer.
The name(s) and address(es) of the registered Holder(s) of the Old
Notes tendered hereby should be printed above, if they are not already set forth
above, as they appear on the Certificates representing such Old Notes. The
Certificate number(s) and the Old Notes that the undersigned wishes to tender
should be indicated in the appropriate boxes above.
If any tendered Old Notes are not exchanged pursuant to the Exchange
Offer for any reason, or if Certificates are submitted for more Old Notes than
are tendered or accepted for exchange, Certificates for such nonexchanged or
nontendered Old Notes will be returned (or, in the case of Old Notes tendered by
book-entry transfer, such Old Notes will be credited to an account maintained at
DTC), without expense to the tendering Holder, promptly following the expiration
or termination of the Exchange Offer.
The undersigned understands that tenders of Old Notes pursuant to any
one of the procedures described in "The Exchange Offer--Procedures for
Tendering" in the Prospectus and in the instructions attached hereto will, upon
the Company's acceptance for exchange of such tendered Old Notes, constitute a
binding agreement between the undersigned and the Company upon the terms and
subject to the conditions of the Exchange Offer. The undersigned recognizes
that, under certain circumstances set forth in the Prospectus, the Company may
not be required to accept for exchange any of the Old Notes tendered hereby.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the Exchange Notes be
issued in the name(s) of the undersigned or, in the case of a book-entry
transfer of Old Notes, that such Exchange Notes be credited to the account
indicated above maintained at DTC. If applicable, substitute Certificates
representing Old Notes not exchanged or not accepted for exchange will be issued
to the undersigned or, in the case of a book-entry transfer of Old Notes, will
be credited to the account indicated above maintained at DTC. Similarly, unless
otherwise indicated under "Special Delivery Instructions," please deliver
Exchange Notes to the undersigned at the address shown below the undersigned's
signature.
By tendering Notes and executing this Letter of Transmittal or
effecting delivery of an Agent's Message in lieu thereof, the undersigned hereby
acknowledge(s) that this Exchange Offer is being made in reliance upon
interpretations contained in no-action letters issued to third parties by the
staff of the Securities and Exchange Commission (the "SEC"), including Exxon
Capital Holdings Corporation, SEC No-Action Letter (available April 13, 1989),
Morgan Stanley & Co. Inc., SEC No-Action Letter (available June 5, 1991) (the
"Morgan Stanley Letter") and Mary Kay Cosmetics, Inc., SEC No-Action Letter
(available June 5, 1991), that the Exchange Notes
3
<PAGE>
issued in exchange for the Old Notes pursuant to the Exchange Offer may be
offered for resale, resold and otherwise transferred by holders thereof (other
than (i) a broker-dealer who purchased Old Notes exchanged for such Exchange
Notes directly from the Company to resell pursuant to Rule 144A or any other
available exemption under the Securities Act or (ii) any such holder that is an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act), without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that such Exchange Notes are acquired
in the ordinary course of such holders' business and such holders are not
participating in, and have no arrangement with any person to participate in, the
distribution of such Exchange Notes. The undersigned specifically represent(s)
to the Company that (i) any Exchange Notes acquired in exchange for Old Notes
tendered hereby are being acquired in the ordinary course of business of the
person receiving such Exchange Notes, (ii) the undersigned is not participating
in, and has no arrangement with any person to participate in, the distribution
of such Exchange Notes, and (iii) neither the undersigned nor any such other
person is an "affiliate" (as defined in Rule 405 under the Securities Act) of
the Company or a broker-dealer tendering Old Notes acquired directly from the
Company for its own account.
If the undersigned or the person receiving the Exchange Notes is a
broker-dealer that is receiving Exchange Notes in exchange for Old Notes for its
own account pursuant to the Exchange Offer, the undersigned acknowledges that it
or such other person will deliver a prospectus in connection with any resale of
such Exchange Notes. The undersigned acknowledges that if the undersigned is
participating in the Exchange Offer for the purpose of distributing the Exchange
Notes received in exchange for the Old Notes (i) the undersigned cannot rely on
the position of the staff of the SEC in the Morgan Stanley Letter and similar
SEC no-action letters, and, in the absence of an exemption therefrom, must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with a secondary resale transaction of such
Exchange Notes, in which case the registration statement must contain the
selling security holder information required by Item 507 or Item 508, as
applicable, of Regulation S-K of the SEC, and (ii) a broker- dealer that
delivers such a prospectus to purchasers in connection with such resales will be
subject to certain of the civil liability provisions under the Securities Act
and will be bound by the provisions of the Registration Rights Agreement
(including certain indemnification rights and obligations).
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Company to be necessary or desirable to complete the
sale, assignment and transfer of the Old Notes tendered hereby. All authority
herein conferred or agreed to be conferred in this Letter of Transmittal shall
survive the death or incapacity of the undersigned and any obligation of the
undersigned hereunder shall be binding upon the heirs, executors,
administrators, personal representatives, trustees in bankruptcy, legal
representatives, successors and assigns of the undersigned. Except as stated in
the Prospectus, this tender is irrevocable.
The undersigned, by completing the box entitled "Description of Old
Notes" above and signing this letter, will be deemed to have tendered the Old
Notes as set forth in such box.
4
<PAGE>
HOLDER(S) SIGN HERE
(SEE INSTRUCTIONS 2, 5 AND 6)
(PLEASE COMPLETE SUBSTITUTE FORM W-9 ON PAGE 11)
(NOTE: SIGNATURE(S) MUST BE GUARANTEED IF REQUIRED
BY INSTRUCTION 2)
This Letter of Transmittal must be signed by registered Holder(s)
exactly as name(s) appear(s) on Certificate(s) for the Old Notes hereby tendered
or on the register of Holders maintained by the Company, or by any person(s)
authorized to become the registered Holder(s) by endorsements and documents
transmitted herewith (including such opinions of counsel, certifications and
other information as may be required by the Company or the Trustee for the Old
Notes to comply with the restrictions on transfer applicable to the Old Notes).
If signature is by an attorney-in-fact, executor, administrator, trustee,
guardian, officer of a corporation or another acting in a fiduciary capacity or
representative capacity, please set forth the signer's full title. See
Instruction 5.
________________________________________________________________________________
________________________________________________________________________________
(SIGNATURE(S) OF HOLDER(S))
Date: ______________, 1999
Name(s)_________________________________________________________________________
________________________________________________________________________________
(PLEASE PRINT)
Capacity (full title)___________________________________________________________
Address_________________________________________________________________________
________________________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number__________________________________________________
Tax Identification of Social Security Number(s)_________________________________
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED, SEE INSTRUCTIONS 2 AND 5)
________________________________________________________________________________
(AUTHORIZED SIGNATURE)
Date: ___________, 1999
Name of Firm____________________________________________________________________
Capacity (full title)___________________________________________________________
(PLEASE PRINT)
Address_________________________________________________________________________
________________________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number__________________________________________________
5
<PAGE>
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 6)
To be completed ONLY if Exchange Notes or Old Notes not tendered are to
be issued in the name of someone other than the registered Holder of the Old
Notes whose name(s) appear(s) above.
Issue
[ ] Old Notes not tendered to:
[ ] Exchange Notes to:
Name(s)_________________________________________________________________________
Address_________________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number__________________________________________________
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 6)
To be completed ONLY if Exchange Notes or Old Notes not tendered are to
be sent to someone other than the registered Holder of the Old Notes whose
name(s) appear(s) above, or such registered Holder(s) at an address other than
that shown above.
Mail
[ ] Old Notes not tendered to:
[ ] Exchange Notes to:
Name(s)_________________________________________________________________________
Address_________________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number__________________________________________________
6
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES; GUARANTEED
DELIVERY PROCEDURES. This Letter of Transmittal is to be completed either if (a)
Certificates are to be forwarded herewith or (b) tenders are to be made pursuant
to the procedures for tender by book-entry transfer set forth in "The Exchange
Offer -- Procedures for Tendering -- Book Entry Interests" in the Prospectus and
an Agent's Message is not delivered. Certificates, or timely confirmation of a
book-entry transfer of such Old Notes into the Exchange Agent's account at DTC,
as well as this Letter of Transmittal (or facsimile thereof), properly completed
and duly executed, with any required signature guarantees, and any other
documents required by this Letter of Transmittal, must be received by the
Exchange Agent at its address set forth herein on or prior to the Expiration
Date. Tenders by book-entry transfer may also be made by delivering an Agent's
Message in lieu thereof. Old Notes may be tendered in whole or in part in
integral multiples of $1,000.
Holders who wish to tender their Old Notes and (i) whose Old Notes are
not immediately available or (ii) who cannot deliver their Old Notes, this
Letter of Transmittal and all other required documents to the Exchange Agent on
or prior to the Expiration Date or (iii) who cannot complete the procedures for
delivery by book-entry transfer on a timely basis, may tender their Old Notes by
properly completing and duly executing a Notice of Guaranteed Delivery pursuant
to the guaranteed delivery procedures set forth in "The Exchange Offer --
Procedures for Tendering -- Guaranteed Delivery Procedures" in the Prospectus.
Pursuant to such procedures: (i) such tender must be made by or through an
Eligible Institution (as defined below); (ii) a properly completed and duly
executed Notice of Guaranteed Delivery, substantially in the form made available
by the Company, must be received by the Exchange Agent on or prior to the
Expiration Date; and (iii) the Certificates (or a book-entry confirmation)
representing all tendered Old Notes, in proper form for transfer, together with
a Letter of Transmittal (or facsimile thereof), properly completed and duly
executed, with any required signature guarantees and any other documents
required by this Letter of Transmittal, must be received by the Exchange Agent
within three New York Stock Exchange trading days after the date of execution of
such Notice of Guaranteed Delivery, all as provided in "The Exchange Offer --
Procedures for Tendering -- Guaranteed Delivery Procedures" in the Prospectus.
The Notice of Guaranteed Delivery may be delivered by hand or
transmitted by facsimile or mail to the Exchange Agent, and must include a
guarantee by an Eligible Institution in the form set forth in such Notice of
Guaranteed Delivery. For Old Notes to be properly tendered pursuant to the
guaranteed delivery procedure, the Exchange Agent must receive a Notice of
Guaranteed Delivery on or prior to the Expiration Date. As used herein and in
the Prospectus, "Eligible Institution" means a firm or other entity identified
in Rule 17Ad-15 under the Exchange Act as "an eligible guarantor institution,"
including (as such terms are defined therein) (i) a bank; (ii) a broker, dealer,
municipal securities broker or dealer or government securities broker or dealer;
(iii) a credit union; (iv) a national securities exchange, registered securities
association or clearing agency; or (v) a savings association that is a
participant in a Securities Transfer Association.
THE METHOD OF DELIVERY OF CERTIFICATES, THIS LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE TENDERING
HOLDER, AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE
EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, OR OVERNIGHT DELIVERY SERVICE IS RECOMMENDED. IN
ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
The Company will not accept any alternative, conditional or contingent
tenders. Each tendering Holder, by execution of a Letter of Transmittal (or
facsimile thereof), waives any right to receive any notice of the acceptance of
such tender.
2. GUARANTEE OF SIGNATURES. No signature guarantee on this Letter of
Transmittal is required if:
(i) this Letter of Transmittal is signed by the registered
Holder (which term, for purposes of this document, shall include any
participant in DTC whose name appears on a security position listing as
the owner of the Old Notes (the "Holder")) of Old Notes tendered
herewith, unless such Holder(s) has completed either the box entitled
"Special Issuance Instructions" or the box entitled "Special Delivery
7
<PAGE>
Instructions" above, or
(ii) such Old Notes are tendered for the account of a firm
that is an Eligible Institution.
In all other cases, an Eligible Institution must guarantee the
signature(s) on this Letter of Transmittal. See Instruction 5.
3. INADEQUATE SPACE. If the space provided in the box captioned
"Description of Old Notes" is inadequate, the Certificate number(s) and/or the
principal amount of Old Notes and any other required information should be
listed on a separate signed schedule which is attached to this Letter of
Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. Tenders of Old Notes will be
accepted only in integral multiples of $1,000. If less than all the Old Notes
evidenced by any Certificate submitted are to be tendered, fill in the principal
amount of Old Notes which are to be tendered in the box entitled "Principal
Amount of Old Notes Tendered." In such case, new Certificate(s) for the
remainder of the Old Notes that were evidenced by your old Certificate(s) will
only be sent to the Holder of the Old Note, promptly after the Expiration Date.
All Old Notes represented by Certificates delivered to the Exchange Agent will
be deemed to have been tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Old Notes may be
withdrawn at any time on or prior to the Expiration Date. In order for a
withdrawal to be effective on or prior to that time, a written, telegraphic or
facsimile transmission of such notice of withdrawal must be timely received by
the Exchange Agent at one of its addresses set forth above or in the Prospectus
on or prior to the Expiration Date. Any such notice of withdrawal must specify
the name of the person who tendered the Old Notes to be withdrawn, the aggregate
principal amount of Old Notes to be withdrawn, and (if Certificates for Old
Notes have been tendered) the name of the registered Holder of the Old Notes as
set forth on the Certificate for the Old Notes, if different from that of the
person who tendered such Original Notes. If Certificates for the Old Notes have
been delivered or otherwise identified to the Exchange Agent, then prior to the
physical release of such Certificates for the Old Notes, the tendering Holder
must submit the serial numbers shown on the particular Certificates for the Old
Notes to be withdrawn and the signature on the notice of withdrawal must be
guaranteed by an Eligible Institution, except in the case of Old Notes tendered
for the account of an Eligible Institution. If Old Notes have been tendered
pursuant to the procedures for book-entry transfer set forth in the Prospectus
under "The Exchange Offer -- Procedures for Tendering -- Book Entry Interests,"
the notice of withdrawal must specify the name and number of the account at DTC
to be credited with the withdrawal of Old Notes, in which case a notice of
withdrawal will be effective if delivered to the Exchange Agent by written,
telegraphic, telex or facsimile transmission. Withdrawals of tenders of Old
Notes may not be rescinded. Old Notes properly withdrawn will not be deemed
validly tendered for purposes of the Exchange Offer, but may be retendered at
any subsequent time on or prior to the Expiration Date by following any of the
procedures described in the Prospectus under "The Exchange Offer -- Procedures
for Tendering."
All questions as to the validity, form and eligibility (including time
of receipt) of such withdrawal notices will be determined by the Company, in its
sole discretion, whose determination shall be final and binding on all parties.
The Company, any affiliates or assigns of the Company, the Exchange Agent or any
other person shall not be under any duty to give any notification of any
irregularities in any notice of withdrawal or incur any liability for failure to
give any such notification. Any Old Notes which have been tendered but which are
withdrawn will be returned to the Holder thereof without cost to such Holder
promptly after withdrawal.
5. SIGNATURES ON LETTER OF TRANSMITTAL, ASSIGNMENTS AND ENDORSEMENTS.
If this Letter of Transmittal is signed by the registered Holder(s) of the Old
Notes tendered hereby, the signature(s) must correspond exactly with the name(s)
as written on the face of the Certificate(s) without alteration, enlargement or
any change whatsoever.
If any of the Old Notes tendered hereby are owned of record by two or
more joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Old Notes are registered in different name(s) on
several Certificates, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal (or facsimiles thereof) as there are different
registrations of Certificates.
8
<PAGE>
If this Letter of Transmittal or any Certificates or bond powers are
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing and, unless waived by the
Company, must submit proper evidence satisfactory to the Company, in its sole
discretion, of each such person's authority so to act.
When this Letter of Transmittal is signed by the registered owner(s) of
the Original Notes listed and transmitted hereby, no endorsement(s) of
Certificate(s) or separate bond power(s) are required unless Exchange Notes are
to be issued in the name of a person other than the registered Holder(s).
Signature(s) on such Certificate(s) or bond power(s) must be guaranteed by an
Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of the Old Notes listed, the Certificates must be endorsed
or accompanied by appropriate bond powers, signed exactly as the name or names
of the registered owner(s) appear(s) on the Certificates, and also must be
accompanied by such opinions of counsel, certifications and other information as
the Company or the Trustee for the Old Notes may require in accordance with the
restrictions on transfer applicable to the Old Notes. Signatures on such
Certificates or bond powers must be guaranteed by an Eligible Institution.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If Exchange Notes are to
be issued in the name of a person other than the signer of this Letter of
Transmittal, or if Exchange Notes are to be sent to someone other than the
signer of this Letter of Transmittal or to an address other than that shown
above, the appropriate boxes on this Letter of Transmittal should be completed.
Certificates for Old Notes not exchanged will be returned by mail or, if
tendered by book-entry transfer, by crediting the account indicated above
maintained at DTC. See Instruction 4.
7. IRREGULARITIES. The Company will determine, in its sole discretion,
all questions as to the form of documents, validity, eligibility (including time
of receipt) and acceptance for exchange of any tender of Old Notes, which
determination shall be final and binding on all parties. The Company reserves
the absolute right to reject any and all tenders determined by it not to be in
proper form or the acceptance of which, or exchange for which, may, in the view
of counsel to the Company be unlawful. The Company also reserves the absolute
right, subject to applicable law, to waive any of the conditions of the Exchange
Offer set forth in the Prospectus under "The Exchange Offer -- Conditions" or
any conditions or irregularity in any tender of Old Notes of any particular
Holder whether or not similar conditions or irregularities are waived in the
case of other Holders. The Company's interpretation of the terms and conditions
of the Exchange Offer (including this Letter of Transmittal and the instructions
hereto) will be final and binding. No tender of Old Notes will be deemed to have
been validly made until all irregularities with respect to such tender have been
cured or waived. The Company, any affiliates or assigns of the Company, the
Exchange Agent, or any other person shall not be under any duty to give
notification of any irregularities in tenders or incur any liability for failure
to give such notification.
8. QUESTIONS, REQUESTS FOR THE ASSISTANCE AND ADDITIONAL COPIES.
Questions and requests for assistance may be directed to the Exchange Agent at
its address and telephone number set forth on the front of this Letter of
Transmittal. Additional copies of the Prospectus, the Notice of Guaranteed
Delivery and the Letter of Transmittal may be obtained from the Exchange Agent
or from your broker, dealer, commercial bank, trust company or other nominee.
9. 31% BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under the U.S. Federal
income tax law, a Holder whose tendered Old Notes are accepted for exchange is
required to provide the Exchange Agent with such Holder's correct taxpayer
identification number ("TIN") on Substitute Form W-9 below. If the Exchange
Agent is not provided with the correct TIN, the Internal Revenue Service (the
"IRS") may subject the Holder or other payee to a $50 penalty. In addition,
payments to such Holders or other payees with respect to Old Notes exchanged
pursuant to the Exchange Offer may be subject to 31% backup withholding.
The box in Part 3 of the Substitute Form W-9 may be checked if the
tendering Holder has not been issued a TIN and has applied for a TIN or intends
to apply for a TIN in the near future. If the box in Part 3 is checked, the
Holder or other payee must also complete the Certificate of Awaiting Taxpayer
Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 3 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Exchange Agent will
withhold 31% of all payments made prior to the time a properly certified TIN is
provided to the Exchange Agent. The Exchange Agent will retain such amounts
withheld during the 60-day period following the date of the Substitute Form W-9.
If the Holder
9
<PAGE>
furnishes the Exchange Agent with its TIN within 60 days after the date of the
Substitute Form W-9, the amounts retained during the 60-day period will be
remitted to the Holder and no further amounts shall be retained or withheld from
payments made to the Holder thereafter. If, however, the Holder has not provided
the Exchange Agent with its TIN within such 60-day period, amounts withheld will
be remitted to the IRS as backup withholding. In addition, 31% of all payments
made thereafter will be withheld and remitted to the IRS until a correct TIN is
provided.
The Holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the registered owner of
the Old Notes or of the last transferee appearing on the transfers attached to,
or endorsed on, the Old Notes. If the Old Notes are registered in more than one
name or are not in the name of the actual owner, consult the enclosed
"Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9" for additional guidance on which number to report.
Certain Holders (including, among others, corporations, financial
institutions and certain foreign persons) may not be subject to these backup
withholding and reporting requirements. Such Holders should nevertheless
complete the attached Substitute Form W-9 below, and write "exempt" on the face
thereof, to avoid possible erroneous backup withholding. A foreign person may
qualify as an exempt recipient by submitting a properly completed IRS Form W-8,
signed under penalties of perjury, attesting to that Holder's exempt status.
Please consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional guidance on which
Holders are exempt from backup withholding.
Backup withholding is not an additional U.S. Federal income tax.
Rather, the U.S. Federal income tax liability of a person subject to backup
withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained.
10. WAIVER OF CONDITIONS. The Company reserves the absolute right to
waive satisfaction of any or all conditions enumerated in the Prospectus.
11. NO CONDITIONAL TENDERS. No alternative, conditional or contingent
tenders will be accepted. All tendering Holders of Old Notes, by execution of
this Letter of Transmittal, shall waive any right to receive notice of the
acceptance of Old Notes for exchange.
Neither the Company, the Exchange Agent nor any other person is
obligated to give notice of any defect or irregularity with respect to any
tender of Old Notes nor shall any of them incur any liability for failure to
give any such notice.
12. LOST, DESTROYED OR STOLEN CERTIFICATES. If any Certificate(s)
representing Old Notes have been lost, destroyed or stolen, the Holder should
promptly notify the Exchange Agent. The Holder will then be instructed as to the
steps that must be taken in order to replace the Certificate(s). This Letter of
Transmittal and related documents cannot be processed until the procedures for
replacing lost, destroyed or stolen Certificate(s) have been followed.
13. SECURITY TRANSFER TAXES. Holders who tender their Old Notes for
exchange will not be obligated to pay any transfer taxes in connection
therewith. If, however, Exchange Notes are to be delivered to, or are to be
issued in the name of, any person other than the registered Holder of the Old
Notes tendered, or if a transfer tax is imposed for any reason other than the
exchange of Old Notes in connection with the Exchange Offer, then the amount of
any such transfer tax (whether imposed on the registered Holder or any other
persons) will be payable by the tendering Holder. If satisfactory evidence of
payment of such taxes or exemption therefrom is not submitted with the Letter of
Transmittal, the amount of such transfer taxes will be billed directly to such
tendering Holder.
10
<PAGE>
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE
THEREOF) AND ALL OTHER REQUIRED DOCUMENTS MUST BE
RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO
THE EXPIRATION DATE. TO BE COMPLETED BY
ALL TENDERING SECURITYHOLDERS
(SEE INSTRUCTION 9)
- --------------------------------------------------------------------------------
PAYOR'S NAME: AMERICAN STOCK TRANSFER AND TRUST COMPANY
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
SUBSTITUTE FORM W-9 PART 1 - PLEASE PROVIDE YOUR TIN ON THE LINE AT RIGHT Social Security Number
AND CERTIFY BY SIGNING AND DATING BELOW
OR
Employer Identification
Number
- ------------------------------- ---------------------------------------------------------------------------------------
DEPARTMENT OF THE TREASURY, PART 2 - Part 3
INTERNAL REVENUE SERVICE CERTIFICATION -- Under the Penalties of Perjury, I Check if TIN Applied For [ ]
certify that: (1) The number shown on this form
is my correct taxpayer identification number (or
I am waiting for a number to be issued to me),
(2) I am not subject to backup withholding
either because (i) I am exempt from backup
withholding, (ii) I have not been notified by
the Internal Revenue Service ("IRS") that I am
subject to backup withholding as a result of a
failure to report all interest or dividends, or
(iii) the IRS has notified me that I am no
longer subject to backup withholding, and (3)
any other information provided on this form is
true and correct.
- ------------------------------- ---------------------------------------------------------------------------------------
PAYOR'S REQUEST FOR TAXPAYER You must cross out item (iii) in Part (2) above if you have been notified by the IRS
IDENTIFICATION NUMBER ("TIN") that you are subject to backup withholding because of underreporting interest or
AND CERTIFICATION dividends on your tax return and you have not been notified by the IRS that you are
no longer subject to backup withholding.
SIGNATURE _________________________________ DATE __________, 1999
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY IN CERTAIN CIRCUMSTANCES
RESULT IN BACKUP WITHHOLDING OF 31% OF ANY AMOUNTS PAID TO YOU PURSUANT
TO THE EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR
CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9
FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN
PART 3 OF THE SUBSTITUTE FORM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (1) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (2)
I intend to mail or deliver an application in the near future. I understand that
if I do not provide a taxpayer identification number by the time of payment, 31%
of all payments made to me on account of the Exchange Notes shall be retained
until I provide a taxpayer identification number to the Exchange Agent and that,
if I do not provide my taxpayer identification number within 60 days, such
retained amounts shall be remitted to the Internal Revenue Service as backup
withholding and 31% of all reportable payments made to me thereafter will be
withheld and remitted to the Internal Revenue Service until I provide a taxpayer
identification number.
SIGNATURE __________________________________________ DATE ________________, 1999
11
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY
ENGLE HOMES, INC.
OFFER TO EXCHANGE ITS
9 1/4% SERIES C SENIOR NOTES DUE 2008
FOR ANY AND ALL OF ITS OUTSTANDING
9 1/4% SERIES B SENIOR NOTES DUE 2008
PURSUANT TO THE PROSPECTUS DATED __________________, 1999
This Notice of Guaranteed Delivery, or one substantially equivalent to
this form, must be used to accept the Exchange Offer (as defined below) if (i)
certificates for the Company's 9 1/4% Series B Senior Notes due 2008 (the "Old
Notes") are not immediately available, (ii) Old Notes, the Letter of Transmittal
and all other required documents cannot be delivered to American Stock Transfer
& Trust Company (the "Exchange Agent") on or prior to the Expiration Date or
(iii) the procedures for delivery by book-entry transfer cannot be completed on
a timely basis. This Notice of Guaranteed Delivery may be delivered by hand,
overnight courier or mail, or transmitted by facsimile transmission, to the
Exchange Agent. See "The Exchange Offer -- Procedures for Tendering --
Guaranteed Delivery Procedures" in the Prospectus. In addition, in order to
utilize the guaranteed delivery procedure to tender Old Notes pursuant to the
Exchange Offer, a completed, signed and dated Letter of Transmittal relating to
the Old Notes (or facsimile thereof) must also be received by the Exchange Agent
on or prior to the Expiration Date. Capitalized terms not defined herein have
the meanings assigned to them in the Prospectus.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
AMERICAN STOCK TRANSFER & TRUST COMPANY
BY REGISTERED OR CERTIFIED MAIL, OVERNIGHT COURIER OR HAND DELIVERY:
40 WALL STREET
NEW YORK, NEW YORK 10005
ATTENTION: EXCHANGE DEPARTMENT
FACSIMILE TRANSMISSIONS TO CONFIRM BY TELEPHONE
(ELIGIBLE INSTITUTIONS ONLY): OR FOR INFORMATION CALL:
(718) 234-5001 (718) 921-8200
---------------------------------
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN
AS SET FORTH ABOVE OR TRANSMISSION OF THIS NOTICE OF GUARANTEED DELIVERY VIA
FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID
DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE
SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE
GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH
SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE
SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Engle Homes, Inc., a Florida
corporation (the "Company"), upon the terms and subject to the conditions set
forth in the Prospectus dated ________________, 1999 (as the same may be amended
or supplemented from time to time, the "Prospectus"), and the related Letter of
Transmittal (which together constitute the "Exchange Offer"), receipt of which
is hereby acknowledged, the aggregate principal amount of Old Notes set forth
below pursuant to the guaranteed delivery procedures set forth in the Prospectus
under the caption "The Exchange Offer -- Procedures for Tendering -- Guaranteed
Delivery Procedures."
Aggregate Principal Amount Name(s) of Registered Holder(s):_____________
Amount Tendered: $_________* _____________________________________________
Certificate No(s) (if
available): ____________________________________________________________________
________________________________________________________________________________
$_______________________________________________________________________________
(Total Principal Amount Represented by Old Notes Certificate(s))
If Old Notes will be tendered by book-entry transfer, provide the following
information:
DTC Account Number: ____________________________________________________________
Date: __________________________________________________________________________
____________
* Must be in integral multiples of $1,000.
________________________________________________________________________________
All authority herein conferred or agreed to be conferred shall survive
the death or incapacity of the undersigned and every obligation of the
undersigned hereunder shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
________________________________________________________________________________
PLEASE SIGN HERE
X _______________________________________ _________________________________
X _______________________________________ _________________________________
Signature(s) of Owner(s) or Date
Authorized Signatory
Area Code and Telephone Number:____________________________________
Must be signed by the holder(s) of the Old Notes as their name(s)
appear(s) on certificates for Old Notes or on a security position listing, or by
person(s) authorized to become registered holder(s) by endorsement and documents
transmitted with this Notice of Guaranteed Delivery. If signature is by a
trustee, executor, administrator, guardian, attorney-in-fact, officer or other
person acting in a fiduciary or representative capacity, such person must set
forth his or her full title below and, unless waived by the Company, provide
proper evidence satisfactory to the Company of such person's authority to so
act.
2
<PAGE>
Please print name(s) and address(es)
Name(s): __________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
Capacity: __________________________________________________________
Address(es): __________________________________________________________
__________________________________________________________
__________________________________________________________
GUARANTEE OF DELIVERY
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm or other entity identified in Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended, as an "eligible guarantor
institution," including (as such terms are defined therein): (i) a bank; (ii) a
broker, dealer, municipal securities broker, government securities broker or
government securities dealer; (iii) a credit union; (iv) a national securities
exchange, registered securities association or clearing agency; or (v) a savings
association that is a participant in a Securities Transfer Association (each of
the foregoing being referred to as an "Eligible Institution"), hereby guarantees
to deliver to the Exchange Agent, at one of its addresses set forth above,
either the Old Notes tendered hereby in proper form for transfer, or
confirmation of the book-entry transfer of such Old Notes to the Exchange
Agent's account at The Depository Trust Company ("DTC"), pursuant to the
procedures for book-entry transfer set forth in the Prospectus, in either case
together with one or more properly completed and duly executed Letter(s) of
Transmittal (or facsimile thereof) and any other required documents within three
New York Stock Exchange trading days after the date of execution of this Notice
of Guaranteed Delivery.
The undersigned acknowledges that it must deliver the Letter(s) of
Transmittal (or facsimile thereof) and the Old Notes tendered hereby to the
Exchange Agent within the time period set forth above and that failure to do so
could result in a financial loss to the undersigned.
______________________________________ _____________________________________
Name of Firm Authorized Signature
______________________________________ _____________________________________
Address Title
______________________________________ _____________________________________
Zip Code (Please Type or Print)
Area Code and Telephone No. ____________ Dated: ________________
NOTE: DO NOT SEND CERTIFICATES FOR OLD NOTES WITH THIS FORM. CERTIFICATES FOR
ORIGINAL NOTES SHOULD ONLY BE SENT WITH YOUR LETTER OF TRANSMITTAL.
3
EXHIBIT 99.3
ENGLE HOMES, INC.
LETTER TO REGISTERED HOLDERS AND
DEPOSITORY TRUST COMPANY PARTICIPANTS
FOR
OFFER TO EXCHANGE ITS
9 1/4% SERIES C SENIOR NOTES DUE 2008
FOR ANY AND ALL OF ITS OUTSTANDING
9 1/4% SERIES B SENIOR NOTES DUE 2008
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW
YORK CITY TIME, ON , 1999, UNLESS THE OFFER IS EXTENDED (THE
"EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY
TIME, ON THE EXPIRATION DATE.
To Registered Holders and Depository Trust Company Participants:
We are enclosing herewith the material listed below relating to the
offer by Engle Homes, Inc., a Florida corporation (the "Company"), to exchange
its 9 1/4% Series C Senior Notes due 2008 (the "Exchange Notes"), which have
been registered under the Securities Act of 1933, as amended (the "Securities
Act"), for a like principal amount of its issued and outstanding 9 1/4% Series B
Senior Notes due 2008 (the "Old Notes") upon the terms and subject to the
conditions set forth in the Company's Prospectus, dated , 1999, and the related
Letter of Transmittal (which together constitute the "Exchange Offer").
Enclosed herewith are copies of the following documents:
1. Prospectus dated , 1999;
2. Letter of Transmittal (together with accompanying
Substitute Form W-9 Guidelines);
3. Notice of Guaranteed Delivery;
4. Letter which may be sent to your clients for whose account
you hold Old Notes in your name or in the name of your nominee; and
5. Letter which may be sent from your clients to you with such
client's instruction with regard to the Exchange Offer.
We urge you to contact your clients promptly. Please note that the
Exchange Offer will expire on the Expiration Date unless extended.
The Exchange Offer is not conditioned upon any minimum number of Old
Notes being tendered.
Pursuant to the Letter of Transmittal, each holder of Old Notes will
represent to the Company that (i) the Exchange Notes acquired in exchange for
Old Notes pursuant to the Exchange Offer are being acquired in the ordinary
course of business of the person receiving such Exchange Notes, (ii) the holder
is not participating in, and has no arrangement with any person to participate
in, the distribution of Exchange Notes received in exchange for Old Notes within
the meaning of the Securities Act, and (iii) neither the holder nor any such
other person is an "affiliate" (within the meaning of Rule 405 under the
Securities Act) of the Company or a broker-dealer tendering Old Notes acquired
directly from the Company. If the holder is a broker-dealer that will receive
Exchange Notes for its own account in exchange for Old Notes, it acknowledges
that it will deliver a prospectus in connection with any resale of such Exchange
Notes.
The enclosed Letter to Clients contains an authorization by the
beneficial owners of the Old Notes for you to make the foregoing
representations.
<PAGE>
The Company will not pay any fee or commission to any broker or dealer
or to any other persons (other than the Exchange Agent) in connection with the
solicitation of tenders of Old Notes pursuant to the Exchange Offer. The Company
will pay or cause to be paid any transfer taxes payable on the transfer of Old
Notes to it, except as otherwise provided in Instruction 13 of the enclosed
Letter of Transmittal.
Additional copies of the enclosed material may be obtained from the
undersigned.
Very truly yours,
AMERICAN STOCK TRANSFER & TRUST COMPANY
<PAGE>
ENGLE HOMES, INC.
LETTER TO CLIENTS
FOR
OFFER TO EXCHANGE ITS
9 1/4% SERIES C SENIOR NOTES DUE 2008
FOR ANY AND ALL OF ITS OUTSTANDING
9 1/4% SERIES B SENIOR NOTES DUE 2008
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW
YORK CITY TIME, ON , 1999, UNLESS THE OFFER IS EXTENDED (THE
"EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY
TIME, ON THE EXPIRATION DATE.
To Our Clients:
We are enclosing herewith a Prospectus, dated ,
1999, of Engle Homes, Inc., a Florida corporation (the "Company"), and a related
Letter of Transmittal (which together constitute the "Exchange Offer"), relating
to the offer by the Company to exchange its 9 1/4% Series C Senior Notes due
2008 (the "Exchange Notes"), which have been registered under the Securities Act
of 1933, as amended (the "Securities Act"), for a like principal amount of its
issued and outstanding 9 1/4% Series B Senior Notes due 2008 (the "Old Notes")
upon the terms and subject to the conditions set forth in the Exchange Offer.
The Exchange Offer is not conditioned upon any minimum number of Old
Notes being tendered.
We are the holder of record of Old Notes held by us for your account. A
tender of such Old Notes can be made only by us as the record holder and
pursuant to your instructions. The Letter of Transmittal is furnished to you for
your information only and cannot be used by you to tender Old Notes held by us
for your account.
We request instructions as to whether you wish to tender any or all of
the Old Notes held by us for your account pursuant to the terms and conditions
of the Exchange Offer. We also request that you confirm that we may on your
behalf make the representations and warranties contained in the Letter of
Transmittal.
Very truly yours,
<PAGE>
ENGLE HOMES, INC.
INSTRUCTION TO REGISTERED HOLDER AND/OR DEPOSITORY
TRUST COMPANY PARTICIPANT FROM BENEFICIAL OWNER
FOR
OFFER TO EXCHANGE ITS
9 1/4% SERIES C SENIOR NOTES DUE 2008
FOR ANY AND ALL OF ITS OUTSTANDING
9 1/4% SERIES B SENIOR NOTES DUE 2008
To Registered Holder and/or Participant of the Book-Entry Transfer Facility:
The undersigned hereby acknowledges receipt of the Prospectus, dated
, 1999, of Engle Homes, Inc., a Florida corporation (the
"Company"), and a related Letter of Transmittal (which together constitute the
"Exchange Offer"), relating to the offer by the Company to exchange its 9 1/4%
Series C Senior Notes due 2008 (the "Exchange Notes"), which have been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
for a like principal amount of its issued and outstanding 9 1/4% Series B Senior
Notes due 2008 (the "Old Notes") upon the terms and subject to the conditions
set forth in the Exchange Offer. Capitalized terms used but not defined herein
have the meanings ascribed to them in the Prospectus.
This will instruct you, the registered holder and/or Depository Trust
Company Participant, as to the action to be taken by you relating to the
Exchange Offer with respect to the Old Notes held by you for the account of the
undersigned.
The aggregate face amount of the Old Notes held by you for the account
of the undersigned is (FILL IN AMOUNT):
$________________________of the 9 1/4% Series B Senior Notes due 2008.
With respect to the Exchange Offer, the undersigned hereby instructs
you (CHECK APPROPRIATE BOX):
[ ] To TENDER the following Old Notes held by you for the account of
the undersigned (INSERT PRINCIPAL AMOUNT OF OLD NOTES TO BE TENDERED IF LESS
THAN ALL):
$____________________________________________________________________.
[ ] NOT to TENDER any Old Notes held by you for the account of the
undersigned.
<PAGE>
If the undersigned instructs you to tender the Old Notes held by you
for the account of the undersigned, it is understood that you are authorized to
make, on behalf of the undersigned (and the undersigned, by its signature below,
hereby makes to you), the representations and warranties contained in the Letter
of Transmittal that are to be made with respect to the undersigned as a
beneficial owner, including but not limited to the representations, that (i) the
Exchange Notes acquired in exchange for Old Notes pursuant to the Exchange Offer
are being acquired in the ordinary course of business of the person receiving
such Exchange Notes, (ii) the undersigned is not participating in, and has no
arrangement with any person to participate in, the distribution within the
meaning of the Securities Act of Exchange Notes received in exchange for Old
Notes, and (iii) neither the undersigned nor any such other person is an
"affiliate" (within the meaning of Rule 405 under the Securities Act) of the
Company or a broker-dealer tendering Old Notes acquired directly from the
Company. If the undersigned is a broker-dealer that will receive Exchange Notes
in exchange for Old Notes for its own account, it acknowledges that it will
deliver a prospectus in connection with any resale of such Exchange Notes.
________________________________________________________
SIGN HERE
________________________________________________________
Name of beneficial owner(s)
________________________________________________________
Signature(s)
________________________________________________________
Name(s) (please print)
________________________________________________________
________________________________________________________
(Address)
________________________________________________________
(Telephone Number)
________________________________________________________
(Taypayer Identification or Social Security Number)
________________________________________________________
Date
