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Title: |
Purchase Agreement |
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Entities: |
Cede & Co.; Gateway, Inc.; JYC Holdings Inc; UBS Warburg LLC; WCI Communities Inc.; Bank of New York; Latham & Watkins; Michael Best & Friedrich; Simpson Thacher & Bartlett |
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Date: |
2001 |
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Size: |
Preview shows 13KB of 135KB total |
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Price: |
$71 |
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ID: |
#1789833 |
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WCI COMMUNITIES, INC.
AND EACH OF THE GUARANTORS LISTED ON EXHIBIT A HERETO
$100,000,000
10 5/8% Senior Subordinated Notes due 2011
Purchase Agreement
June 4, 2001
UBS WARBURG LLC
{PAGE} 2
WCI Communities, Inc.
$100,000,000
10 5/8% Senior Subordinated Notes due 2011
PURCHASE AGREEMENT
June 4, 2001
New York, New York
UBS WARBURG LLC
299 Park Avenue
New York, New York 10171
Ladies & Gentlemen:
WCI Communities, Inc., a Delaware corporation (the "COMPANY"), proposes
to issue and sell to UBS Warburg LLC ("UBS") (the "INITIAL PURCHASER")
$100,000,000 in aggregate principal amount of 10 5/8% Series A Senior
Subordinated Notes due 2011 (the "SERIES A NOTES"), subject to the terms and
conditions set forth herein. The Series A Notes will be issued pursuant to an
indenture (the "INDENTURE"), to be dated the Closing Date (as defined), among
the Company, the Guarantors (as defined) and The Bank of New York, as trustee
(the "TRUSTEE"). The Notes (as defined) will be fully and unconditionally
guaranteed (the "GUARANTEES") as to payment of principal, interest, premium and
liquidated damages, if any, on an unsecured senior subordinated basis, jointly
and severally by each entity listed on Exhibit A hereto (collectively, the
"GUARANTORS"). Capitalized terms used herein and not otherwise defined shall
have the meanings assigned to such terms in the Indenture.
1 Issuance of Securities. The Company proposes, upon the terms and
subject to the conditions set forth herein, to issue and sell to the Initial
Purchaser an aggregate of $100,000,000 in principal amount of Series A Notes.
The Series A Notes and the Series B Notes (as defined) issuable in exchange
therefor are collectively referred to herein as the "NOTES."
Upon original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Securities Act of 1933,
as amended (the "ACT"), the Series A Notes (and all securities issued in
exchange therefor or in substitution thereof) shall bear the following legend:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
{PAGE} 3
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THE NOTE EVIDENCED HEREBY IN AN OFFSHORE
TRANSACTION, (2) AGREES THAT IT WILL NOT WITHIN THE TIME
PERIOD REFERRED TO UNDER RULE 144(k) (TAKING INTO ACCOUNT THE
PROVISIONS OF RULE 144(d) UNDER THE SECURITIES ACT, IF
APPLICABLE) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE
OF THE TRANSFER OF THIS SECURITY RESELL OR OTHERWISE TRANSFER
THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED
INVESTOR (AS DEFINED IN RULE 501 (a) (1), (2), (3) or (7)
UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER,
FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S.
BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS SECURITY),
(D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (F)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON
TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS SECURITY WITHIN ONE YEAR AFTER THE ORIGINAL ISSUANCE OF
THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT
TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT.
2 Offering. The Series A Notes will be offered and sold to the Initial
Purchaser pursuant to an exemption from the registration requirements under the
Act. The Company has prepared a final offering memorandum, dated June 4, 2001
(the "OFFERING MEMORANDUM"), relating to the Company and its subsidiaries and
the Series A Notes.
2
{PAGE} 4
The Initial Purchaser has advised the Company that the Initial
Purchaser will make offers (the "EXEMPT RESALES") of the Series A Notes on the
terms set forth in the Offering Memorandum, as amended or supplemented, solely
to (i) persons whom the Initial Purchaser reasonably believes to be "qualified
institutional buyers," as defined in Rule 144A under the Act ("QIBs") and (ii)
non U.S. persons outside the United States in reliance upon Regulation S
("REGULATION S") under the Act (each, a "REG S INVESTOR"). The QIBs and the
Reg S Investors are collectively referred to herein as the "ELIGIBLE
PURCHASERS." The Initial Purchaser will offer the Series A Notes to such
Eligible Purchasers initially at a price equal to 105.25% of the principal
amount thereof. Such price may be changed at any time without notice.
Holders (including subsequent transferees) of the Series A Notes will
have the registration rights set forth in the Registration Rights Agreement
dated June 8, 2001 relating thereto (the "REGISTRATION RIGHTS AGREEMENT"), to be
dated the Closing Date, for so long as such Series A Notes constitute "TRANSFER
RESTRICTED SECURITIES" (as defined in the Registration Rights Agreement).
Pursuant to the Registration Rights Agreement, the Company and the Guarantors
will agree to file with the Securities and Exchange Commission (the
"COMMISSION"), under the circumstances set forth therein, (i) a registration
statement under the Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") relating
to the Company's 10 5/8% Series B Senior Subordinated Notes due 2011 (the
"SERIES B NOTES") and Guarantees thereof to be offered in exchange for the
Series A Notes and Guarantees thereof (the "EXCHANGE OFFER") and (ii) a shelf
registration statement pursuant to Rule 415 under the Act (the "SHELF
REGISTRATION STATEMENT" and, together with the Exchange Offer Registration
Statement, the "REGISTRATION STATEMENTS") relating to the resale by certain
holders of the Series A Notes, and to use their reasonable best efforts to cause
such Registration Statements to be declared effective and to consummate the
Exchange Offer. This Agreement, the Notes, the Guarantees, the Indenture and the
Registration Rights Agreement are hereinafter referred to collectively as the
"OPERATIVE DOCUMENTS."
3 Purchase, Sale and Delivery. (a) On the basis of the representations,
warranties and covenants contained in this Agreement, and subject to its terms
and conditions, the Company agrees to issue and sell to the Initial Purchaser,
and the Initial Purchaser agrees to purchase from the Company, the principal
amount of Series A Notes set forth opposite the name of such Initial Purchaser
on Exhibit B. The purchase price for the Series A Notes will be $990 per $1,000
principal amount Series A Note.
(b) Delivery of the Series A Notes shall be made, against payment of
the purchase price therefor, at the offices of Latham & Watkins, New York, New
York or such other location as may be mutually acceptable. Such delivery and
payment shall be made at 9:00 a.m., New York City time, on June 8, 2001 or at
such other time as shall be agreed upon by the Initial Purchaser and the
Company. The time and date of such delivery and payment are herein called the
"CLOSING DATE."
(c) On the Closing Date, one or more Series A Notes in definitive
global form, registered in the name of Cede & Co., as nominee of The Depository
Trust Company ("DTC"), having an aggregate amount corresponding to the aggregate
principal amount of the Series A Notes (the "GLOBAL NOTE") sold pursuant to
Exempt Resales to Eligible Purchasers shall be delivered by the Company to the
Initial Purchaser (or as the Initial Purchaser directs), against
3
{PAGE} 5
payment by the Initial Purchaser of the purchase price therefor, by wire
transfer of same day funds, to an account designated by the Company, provided
that the Company shall give at least two business days' prior written notice to
the Initial Purchaser of the information required to effect such wire transfer.
The Global Note shall be made available to the Initial Purchaser for inspection
not later than 9:30 a.m. on the business day immediately preceding the Closing
Date.
4 Agreements of the Company and the Guarantors. Each of the Company and
the Guarantors covenants and agrees with the Initial Purchaser as follows:
(a) To advise the Initial Purchaser promptly upon becoming
aware and, if requested by the Initial Purchaser, confirm such advice
in writing, (i) of the issuance by any state securities commission of
any stop order suspending the qualification or exemption from
qualification of any Notes or the related Guarantees for offering or
sale in any jurisdiction, or the initiation of any proceeding for such
purpose by any state securities commission or other regulatory
authority and (ii) of the happening of any event that makes any
statement of a material fact made in the Offering Memorandum untrue or
that requires the making of any additions to or changes in the Offering
Memorandum in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading. The Company
and the Guarantors shall use their reasonable best efforts to prevent
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