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EXHIBIT 1.01
2,400,000 PREFERRED SECURITIES
SOUTHWEST GAS CAPITAL I
(A DELAWARE BUSINESS TRUST)
9.125% TRUST ORIGINATED PREFERRED SECURITIES ("TOPRS"(SM))
(LIQUIDATION AMOUNT OF $25 PER PREFERRED SECURITY)
UNDERWRITING AGREEMENT
October 26, 1995
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
XXXX XXXXXX XXXXXXXX INC.
PAINEWEBBER INCORPORATED
XXXXX XXXXXX INC.
c/x XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
Xxxxxxx Xxxxx World Headquarters
North Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
Southwest Gas Capital I (the "Trust"), a statutory business
trust organized under the Business Trust Act (the "Delaware Act") of the State
of Delaware (Title 12, Chapter 38 of the Delaware Code, 12 Del. C Section 3801
et seq.) and Southwest Gas Corporation, a California corporation (the "Company"
and, together with the Trust, the "Offerors") confirm their agreement (the
"Agreement") with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx"), Xxxx Xxxxxx Xxxxxxxx Inc., PaineWebber
Incorporated and Xxxxx Xxxxxx Inc. (collectively, the "Underwriters", which
term shall also include any underwriter substituted as
__________________________________
(SM) "Trust Originated Preferred Securities" and "TOPrS" are service marks
of Xxxxxxx Xxxxx & Co., Inc.
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hereinafter provided in Section 10 hereof) with respect to the sale by the
Trust and the purchase by the Underwriters, acting severally and not jointly,
of the respective numbers of 9.125% Trust Originated Preferred Securities
(liquidation amount of $25 per preferred security) of the Trust set forth in
Schedule A hereto (the "Preferred Securities") except as may otherwise be
provided in the Pricing Agreement, as hereinafter defined. The Preferred
Securities will be guaranteed by the Company with respect to distributions and
payments upon liquidation and redemption (the "Preferred Securities Guarantee")
pursuant to the Preferred Securities Guarantee Agreement (the "Preferred
Securities Guarantee Agreement"), dated as of October 31, 1995, between the
Company and Xxxxxx Trust and Savings Bank, as guarantee trustee (the "Guarantee
Trustee"), and entitled to the benefits of certain backup undertakings
described in the Prospectus (as defined herein) with respect to the Company's
agreement pursuant to the Supplemental Indenture (as defined herein) to pay all
expenses relating to administration of the Trust (the "Undertakings"). The
Preferred Securities and the related Preferred Securities Guarantee are
referred to herein as the "Securities".
Prior to the purchase and public offering of the Preferred
Securities by the several Underwriters, the Offerors and the Underwriters shall
enter into an agreement substantially in the form of Exhibit A hereto (the
"Pricing Agreement"). The Pricing Agreement may take the form of an exchange
of any standard form of written telecommunication between the Offerors and the
Underwriters and shall specify such applicable information as is indicated in
Exhibit A hereto. The offering of the Preferred Securities will be governed by
this Agreement, as supplemented by the Pricing Agreement. From and after the
date of the execution and delivery of the Pricing Agreement, this Agreement
shall be deemed to incorporate the Pricing Agreement.
The Company has filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended (the "1933 Act"), a registration statement
on Form S-3 (File No. 33-55621) (the "1994 Registration Statement") under the
1933 Act for the offering from time to time of its debt securities, preferred
stock and/or common stock, having an aggregate offering price of $300,000,000
and the 1994 Registration Statement has become effective. While an aggregate
offering price of $270,112,800 of such debt securities, preferred stock and/or
common stock remained unsold, the Offerors (a) filed with the Commission a
registration statement on Form S-3 (No. 33-62143) for the registration under
the 1933 Act of up to $270,400,000 aggregate offering price of securities,
including (i) the Preferred Securities, (ii) the Preferred Securities Guarantee
and the Undertakings, and (iii) up to $270,400,000 aggregate principal amount
of Subordinated Deferrable Interest Notes (the "Subordinated Debt Securities")
to be issued and sold to the Trust by the Company, (b) have filed such
amendments thereto, if any, as may have been required to the date hereof, and
(c) will file such additional amendments thereto as may hereafter be required.
Such registration statement (as amended, if applicable) and the combined
prospectus constituting a part thereof (including, in each case, all documents
incorporated or deemed to be incorporated by reference therein pursuant to Item
12 of Form S-3 under the 1933 Act and the information, if any, deemed to be
part thereof pursuant to Rule 430A(b) of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations")), as supplemented by
a Prospectus Supplement, dated October 26, 1995, relating to the Preferred
Securities, the Preferred Securities Guarantee and the Subordinated Debt
Securities, and as from time to time further amended or supplemented pursuant
to the 1933 Act, the Securities Exchange Act of 1934, as amended (the "1934
Act"), or
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otherwise are hereinafter referred to as the "1995 Registration Statement" and
the "Prospectus", respectively, except that if any revised prospectus shall be
provided to the Underwriters by the Offerors for use in connection with the
offering of the Preferred Securities, which differs from the Prospectus on file
at the Commission at the time the 1995 Registration Statement becomes effective
(whether or not such revised prospectus is required to be filed by the Offerors
pursuant to Rule 424(b) of the 1933 Act Regulations) (each, a "Revised
Prospectus"), the term "Prospectus" shall refer to such revised prospectus from
and after the time it is first provided to the Underwriters for such use. All
references in this Agreement to financial statements and schedules and other
information that is "contained," "included" or "stated" in the 1994
Registration Statement, the 1995 Registration Statement or the Prospectus (and
all other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information that are or are
deemed to be incorporated by reference in the 1994 Registration Statement, the
1995 Registration Statement or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the 1994
Registration Statement, the 1995 Registration Statement or the Prospectus shall
be deemed to mean and include the filing of any document under the 1934 Act
that is or is deemed to be incorporated by reference in the 1994 Registration
Statement, the 1995 Registration Statement or the Prospectus, as the case may
be, after the time of execution of this Agreement.
The Offerors understand that the Underwriters propose to make
a public offering of the Preferred Securities as soon as the Underwriters deem
advisable after the Pricing Agreement has been executed and delivered, and the
Declaration (as defined herein), the Indenture (as defined herein), and the
Preferred Securities Guarantee Agreement have been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). The entire proceeds from
the sale of the Preferred Securities will be combined with the entire proceeds
from the sale by the Trust to the Company of its common securities (the "Common
Securities") guaranteed by the Company, to the extent set forth in the
Prospectus, with respect to distributions and payments upon liquidation and
redemption (the "Common Securities Guarantee" and, together with the Preferred
Securities Guarantee, the "Guarantees") pursuant to the Common Securities
Guarantee Agreement (the "Common Securities Guarantee Agreement" and, together
with the Preferred Securities Guarantee Agreement, the "Guarantee Agreements"),
dated as of October 31, 1995, by the Company for the benefit of the holder of
the Common Securities and will be used by the Trust to purchase the
Subordinated Debt Securities issued by the Company. The Preferred Securities
and the Common Securities will be issued pursuant to the Amended and Restated
Declaration of Trust of the Trust, dated as of October 26, 1995 (the
"Declaration"), among the Company, as Sponsor, the trustees named therein (the
"Trustees"), including Xxxxxx Trust and Savings Bank, as property trustee under
the Declaration (the "Property Trustee"), and the holders from time to time of
undivided beneficial interests in the assets of the Trust. The Subordinated
Debt Securities will be issued pursuant to an indenture, dated as of October
31, 1995 (the "Base Indenture"), between the Company and Xxxxxx Trust and
Savings Bank, as indenture trustee (the "Indenture Trustee"), and a supplement
to the Base Indenture, dated as of October 31, 1995 (the "Supplemental
Indenture," and together with the Base Indenture and any other amendments or
supplements thereto, the "Indenture"), between the Company and the Indenture
Trustee.
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Section 1. Representations and Warranties. The Offerors
jointly and severally represent and warrant to each Underwriter as of the date
hereof and as of the date of the Pricing Agreement (such latter date being
hereinafter referred to as the "Representation Date") as follows:
(a) At the time the 1994 Registration
Statement became effective, at the time the 1995 Registration
Statement became effective and at the Representation Date, the 1994
Registration Statement and the 1995 Registration Statement complied in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and the 1939 Act and the rules and regulations of
the Commission under the 1939 Act (the "1939 Act Regulations"), and
did 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 not misleading. The Prospectus, at the
Representation Date (unless the term "Prospectus" refers to a
prospectus that has been provided to the Underwriters by the Trust for
use in connection with the offering of the Preferred Securities and
that differs from the Prospectus on file at the Commission at the time
the 1995 Registration Statement becomes effective, in which case, at
the time it is first provided to the Underwriters for such use) and at
the Closing Time, will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations
and warranties in this subsection shall not apply to statements in or
omissions from the 1994 Registration Statement, 1995 Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Offerors in writing by any Underwriter
expressly for use in the 1994 Registration Statement, the 1995
Registration Statement or Prospectus.
(b) The documents incorporated or deemed
to be incorporated by reference in the 1994 Registration Statement,
1995 Registration Statement or Prospectus, at the time they were or
(to the extent deemed to be incorporated by reference in the
Prospectus) hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1933 Act,
the 1933 Act Regulations, the 1934 Act and the rules and regulations
of the Commission under the 1934 Act (the "1934 Act Regulations"), as
applicable, and did not or 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 the light of
the circumstances under which they were made, not misleading.
(c) Xxxxxx Xxxxxxxx LLP, the accountants
who certified the financial statements and supporting schedules
included or incorporated by reference in the 1994 Registration
Statement and the 1995 Registration Statement, are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(d) The financial statements included in
the 1994 Registration Statement, the 1995 Registration Statement and
the Prospectus present fairly the consolidated financial position of
the Company and its consolidated subsidiaries as at the
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dates indicated and the results of their operations for the periods
specified; said financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis (except as otherwise specified in the notes thereto); the
Company's ratios of earnings to fixed charges included in the
Prospectus under the caption "Ratios of Earnings to Fixed Charges" and
in Exhibit 12 to each of the 1994 Registration Statement and the 1995
Registration Statement have been calculated in compliance with Item
503(d) of Regulation S-K of the Commission and the supporting
schedules included in the 1994 Registration Statement and the 1995
Registration Statement present fairly the information required to be
stated therein; and the other financial and statistical information
and data included or incorporated by reference in the 1994
Registration Statement, the 1995 Registration Statement and the
Prospectus are accurately presented and prepared on a basis consistent
with such financial statements and the books and records of the
Company and its consolidated subsidiaries.
(e) Each of the Offerors meets, and at
the respective times of commencement and consummation of the offering
of the Securities will meet, the registrant requirements for use of
Form S-3 and Rule 415 under the 1933 Act and the 1933 Act Regulations.
(f) Since the respective dates as of
which information is given in the 1994 Registration Statement, the
1995 Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change, or any
development involving a prospective material adverse change, in the
condition (financial or other), business, properties, net worth or
results of operations of the Company and the Subsidiaries (as defined
herein), taken as a whole (a "Material Adverse Effect") or of the
Trust, whether or not arising in the ordinary course of business, and
(B) neither the Company, any of the Subsidiaries nor the Trust has
incurred any liability or obligation, direct or contingent, or entered
into any transaction, not in the ordinary course of business, that is
material to the Trust or the Company and the Subsidiaries taken as a
whole.
(g) The Company is a corporation duly
organized and validly existing in good standing under the laws of the
State of California with full corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the 1994 Registration Statement, 1995 Registration
Statement and Prospectus, to enter into and perform its obligations
under this Agreement, the Pricing Agreement, the Declaration, the
Indenture and each of the Guarantees and to purchase, own, and hold
the Common Securities issued by the Trust; and the Company is duly
registered and qualified to conduct its business and is in good
standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration
or qualification, except where the failure so to register or qualify
does not have a Material Adverse Effect.
(h) All the outstanding shares of
capital stock of the Company have been duly authorized and validly
issued, are fully paid and nonassessable and are free of any
preemptive or similar rights.
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(i) All the Company's subsidiaries are
listed in an exhibit to the Company's Annual Report on Form 10-K for
the year ended December 31, 1994 (the "Form 10-K"), which is
incorporated by reference into the Prospectus. Except for The
Southwest Companies and its wholly owned subsidiary, PriMerit Bank,
none of the Company's subsidiaries are "significant subsidiaries" as
defined in Regulation S-X promulgated by the Commission.
(j) PriMerit Bank has been duly formed
and is validly existing as a federal savings bank duly chartered and
in good standing under the laws of the United States. All the
outstanding shares of capital stock of PriMerit Bank have been duly
authorized and validly issued, are fully paid and nonassessable, and
are owned by The Southwest Companies directly, free and clear of any
lien, adverse claim, security interest, equity, or other encumbrance.
The Southwest Companies and Paiute Pipeline Company ("Paiute" and,
together with The Southwest Companies and PriMerit Bank, the
"Subsidiaries") are corporations duly organized, validly existing and
in good standing in their respective jurisdictions of incorporation,
with full corporate power and authority to own their respective
assets. All of the outstanding shares of capital stock of The
Southwest Companies and Paiute have been duly authorized and validly
issued, are fully paid and nonassessable, and are owned by the Company
directly, free and clear of any lien, adverse claim, security
interest, equity, or other encumbrance.
(k) The Trust has been duly created and
is validly existing in good standing as a business trust under the
Delaware Act with the power and authority to own property and to
conduct its business as described in the 1995 Registration Statement
and Prospectus and to enter into and perform its obligations under
this Agreement, the Pricing Agreement, the Preferred Securities, the
Common Securities and the Declaration and is not required to be
authorized to do business in any other jurisdiction; the Trust is not
a party to or otherwise bound by any agreement other than those
described in the Prospectus; the Trust is not and will not be
classified as an association taxable as a corporation for United
States federal income tax purposes; and the Trust is and will be
treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(l) The Common Securities have been duly
authorized by the Declaration and, when issued and delivered by the
Trust to the Company against payment therefor as described in the 1995
Registration Statement and Prospectus, will be validly issued and
(subject to the terms of the Declaration) fully paid and
non-assessable undivided beneficial interests in the assets of the
Trust and will conform to all statements relating thereto contained in
the Prospectus; the issuance of the Common Securities is not subject
to preemptive or other similar rights; and at the Closing Time, all of
the issued and outstanding Common Securities of the Trust will be
directly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(m) This Agreement has been, and at the
Closing Time, the Pricing Agreement will have been, duly authorized,
executed and delivered by each of the Offerors.
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(n) The Declaration has been duly
authorized by the Company and, at the Closing Time, will have been
duly executed and delivered by the Company, and assuming due
authorization, execution and delivery of the Declaration by the
Property Trustee and the Delaware Trustee (as defined in the
Declaration), the Declaration will, at the Closing Time, be a valid
and binding obligation of the Company, enforceable against the Company
in accordance with its terms, except to the extent that enforcement
thereof may be limited by bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equitable principles (the "Bankruptcy
Exceptions") and will conform to all statements relating thereto in
the Prospectus; and at the Closing Time, the Declaration will have
been duly qualified under the 1939 Act.
(o) Each of (i) the Common Securities
Guarantee Agreement and (ii) the Preferred Securities Guarantee
Agreement has been duly authorized by the Company and, when validly
executed and delivered by the Company, will constitute a valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms (except to the extent enforcement thereof
may be limited by the Bankruptcy Exceptions) and the Guarantees and
the Guarantee Agreements will conform to all statements relating
thereto contained in the Prospectus; and, at the Closing Time, the
Preferred Securities Guarantee Agreement will have been duly qualified
under the 1939 Act.
(p) The Preferred Securities have been
duly authorized by the Declaration and, when issued and delivered
pursuant to this Agreement against payment of the consideration set
forth in the Pricing Agreement, will be validly issued and fully paid
and non-assessable undivided beneficial interests in the Trust, will
be entitled to the benefits of the Declaration and will conform to all
statements relating thereto contained in the Prospectus; the issuance
of the Preferred Securities is not subject to preemptive or other
similar rights; holders of Preferred Securities will be entitled to
the same limitation of personal liability extended to stockholders of
private corporations for profit.
(q) The Indenture has been duly
authorized by the Company and, when validly executed and delivered by
the Company, will constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms
except to the extent that enforcement thereof may be limited by the
Bankruptcy Exceptions; the Indenture will conform to all statements
relating thereto contained in the Prospectus; and, at the Closing
Time, the Indenture will have been duly qualified under the 1939 Act.
(r) The Subordinated Debt Securities
have been duly authorized by the Company and, at the Closing Time,
will have been duly executed by the Company and, when authenticated in
the manner provided for in the Indenture and delivered against payment
therefor as described in the Prospectus, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms (except to the extent enforcement thereof
may be limited by the Bankruptcy
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Exceptions), will be in the form contemplated by, and entitled to the
benefits of, the Indenture and will conform to all statements relating
thereto contained in the Prospectus.
(s) The Company's obligations under the
Preferred Securities Guarantee and the Common Securities Guarantee are
subordinate and junior in right of payment to all liabilities of the
Company and are pari passu with the most senior preferred stock issued
by the Company.
(t) The Subordinated Debt Securities are
subordinate and junior in right of payment to all Senior Indebtedness
(as defined in the Indenture) of the Company.
(u) Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxx,
as Trustees of the Trust (the "Regular Trustees"), are employees of
the Company and have been duly authorized by the Company to execute
and deliver the Declaration; the Declaration has been duly executed
and delivered by the Regular Trustees and is a valid and binding
obligation of each Regular Trustee.
(v) None of the Offerors is an
"investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "1940 Act").
(w) Neither the Company nor any of the
Subsidiaries is in violation of its articles of incorporation or
charter or by-laws; the Trust is not in violation of the Declaration
or its Certificate of Trust filed with the State of Delaware on August
17, 1995 (the "Certificate of Trust"); to the best knowledge of the
Offerors after due inquiry, none of the Company, any of the
Subsidiaries or the Trust is in violation of any law, ordinance,
administrative or governmental rule or regulation applicable to the
Company, any of the Subsidiaries or the Trust the violation of which
would reasonably be expected to have a Material Adverse Effect or of
any decree of any court or governmental agency or body having
jurisdiction over the Company, any of the Subsidiaries or the Trust,
or in default in any material respect in the performance of any
obligation, agreement or condition contained in any bond, debenture,
note or any other evidence of indebtedness or in any agreement,
indenture, lease or other instrument to which the Company, any of the
Subsidiaries or the Trust is a party or by which any of them or any of
their respective properties may be bound. The execution, delivery and
performance of this Agreement, the Pricing Agreement, the Declaration,
the Preferred Securities, the Common Securities, the Indenture, the
Subordinated Debt Securities, the Guarantee Agreements and the
Guarantees and the consummation of the transactions contemplated
herein and therein and compliance by the Offerors with their
respective obligations hereunder and thereunder have been duly and
validly authorized by all necessary action (corporate or otherwise) on
the part of the Offerors and do not and will not result in any
violation of the articles of incorporation or charter or by-laws of
the Company or any of the Subsidiaries, or the Declaration or
Certificate of Trust and do not and will not conflict with or do not
and will not constitute a breach of, or a default under, any
agreement, indenture, lease or other instrument to which the Company,
any of the Subsidiaries or the Trust is a party or by Subsidiaries or
the Trust is a party or by
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which any of them or any of their respective properties may be bound,
or violates or will violate any statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the Company, any
of the Subsidiaries or the Trust or any of their respective
properties, or will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company, any
of the Subsidiaries or the Trust pursuant to the terms of any
agreement or instrument to which any of them is a party or by which
any of them may be bound or to which any of the property or assets of
any of them is subject.
(x) There are no legal or governmental
proceedings pending or, to the best knowledge of the Company or the
Trust after due inquiry, threatened, against the Company, any of the
Subsidiaries or the Trust, or to which the Company, any of the
Subsidiaries or the Trust is subject, or to which any of their
respective properties is subject, that are required to be described in
the 1994 Registration Statement, the 1995 Registration Statement or
the Prospectus but are not described as required, and there are no
agreements, contracts, indentures, leases or other instruments that
are required to be described in the 1994 Registration Statement, the
1995 Registration Statement or the Prospectus or to be filed as an
exhibit to the 1994 Registration Statement or the 1995 Registration
Statement that are not described or filed as required by the 1933 Act,
the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations.
(y) No authorization, approval, consent or other
order of or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or official
is necessary in connection with the issuance and sale of the Common
Securities or the offering, issuance and sale of the Preferred
Securities, the Subordinated Debt Securities or the Guarantees
hereunder, except (i) such as may be required under the 1933 Act, the
1933 Act Regulations, the 1934 Act or the 1934 Act Regulations or
state securities laws and the qualification of the Declaration, the
Indenture and the Preferred Securities Guarantee under the 1939 Act,
(ii) the authorizations of the California Public Utilities Commission
issued June 5, 1991, May 8, 1992, February 3, 1993 and August 11, 1995
(which authorizations are, to the best knowledge of the Company, not
the subject of any pending or threatened application for rehearing or
petition for modification) and (iii) the opinion and order, dated May
18, 1983, and the limited waiver, dated August 8, 1995, of the Arizona
Corporation Commission (which order and waiver are final and not
subject to appeal), all of which have been or will be effected in
accordance with this Agreement.
(z) Each of the Company and the
Subsidiaries has such permits, licenses, franchises and authorizations
of governmental or regulatory authorities ("permits") as are necessary
to own its respective properties and to conduct its business in the
manner described in the Prospectus, except where the failure to
fulfill or perform any such obligation would not reasonably be
expected to have a Material Adverse Effect; each of the Trust, the
Company and the Subsidiaries has fulfilled and performed all its
material obligations with respect to such permits, except where the
failure to fulfill or perform any such obligation would not reasonably
be expected to have a Material Adverse Effect; and no event has
occurred which allows, or after notice or lapse of time would allow,
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revocation or termination of any material permits or results or would
result in any other material impairment of the rights of the holder of
any such material permits, subject in each case to such qualifications
as may be set forth in the Prospectus.
(aa) The Offerors have not taken,
directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or
manipulation of the price of the Preferred Securities.
(ab) Neither the Company nor any of its
Subsidiaries is currently subject to regulation under the Public
Utility Holding Company Act of 1935, as amended.
(ac) No holder of any outstanding
security of the Company has any right to require registration of such
security because of the filing of the 1995 Registration Statement or
consummation of the transactions contemplated by this Agreement.
Section 2. Sale and Delivery to Underwriters; Closing.
(a) On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Trust agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Trust, at
the price of $25 per Preferred Security and at an annual distribution rate per
Preferred Security set forth in the Pricing Agreement, the number of Preferred
Securities set forth in Schedule A opposite the name of such Underwriter
(except as otherwise provided in the Pricing Agreement), plus any additional
number of Preferred Securities that such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof.
In the event that the annual distribution rate has not been
agreed upon and the Pricing Agreement has not been executed and delivered by
all parties thereto by the close of business on the fourth business day
following the date of this Agreement, this Agreement shall terminate forthwith,
without liability of any party to any other party, unless otherwise agreed to
by the Offerors and the Underwriters. As compensation to the Underwriters for
their commitments hereunder and in view of the fact that the entire proceeds of
the sale of the Preferred Securities (together with the entire proceeds from
the sale by the Trust to the Company of the Common Securities) will be used to
purchase the Subordinated Debt Securities of the Company, the Company hereby
agrees to pay at the Closing Time (as defined below) to Xxxxxxx Xxxxx, for the
accounts of the several Underwriters, a commission per Preferred Security
determined by agreement between the Underwriters and the Company for the
Preferred Securities to be delivered by the Trust hereunder at the Closing
Time. The commission, when so determined, shall be set forth in the Pricing
Agreement.
(b) Payment of the purchase price for, and
delivery of certificates for, the Preferred Securities shall be made at the
office of O'Melveny & Xxxxx or at such other place as shall be agreed upon by
the Underwriters and the Trust, at 10:00 A.M. New York time on the third
business day (unless postponed in accordance with the provisions of Section 10)
after execution of the Pricing Agreement, or such other time not later than ten
business days after such
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date as shall be agreed upon by the Underwriters and the Offerors (such time
and date of payment and delivery being herein called the "Closing Time").
Payment shall be made to the Trust by certified or official bank check or
checks drawn in New York Clearing House funds or similar next day funds payable
to the order of the Trust to an account designated by the Trust, against
delivery to the Underwriters of certificates for the Preferred Securities to be
purchased by them. Certificates for the Preferred Securities shall be in such
denominations and registered in such names as the Underwriters shall request
not later than two full business days before the Closing Time or the relevant
Date of Delivery, as the case may be. It is understood that each Underwriter
has authorized Xxxxxxx Xxxxx, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Preferred Securities which
it has agreed to purchase. Xxxxxxx Xxxxx may (but shall not be obligated to)
make payment of the purchase price for the Preferred Securities to be purchased
by any Underwriter whose check has not been received by the Closing Time or the
relevant Date of Delivery, as the case may be, but such payment shall not
relieve such Underwriter from its obligations hereunder.
The certificates evidencing the Preferred Securities shall be
delivered to the Underwriters, through the facilities of The Depository Trust
Company for the account of the Underwriters with any transfer taxes payable in
connection with the transfer of the Preferred Securities duly paid, against
payment of the purchase price therefor.
At the Closing Time or the relevant Date of Delivery, as the
case may be, the Company will pay, or cause to be paid, the commission payable
at such time to the Underwriters under Section 2 hereof by certified or
official bank check or checks payable to Xxxxxxx Xxxxx in New York Clearing
House funds or other similar next day funds.
Section 3. Covenants of the Offerors. Each of the Offerors
jointly and severally covenant with each Underwriter as follows:
(a) The Offerors will advise the Underwriters
promptly and, if requested by the Underwriters, will confirm such advice in
writing: (i) of any request by the Commission for amendment of or a supplement
to the 1994 Registration Statement, the 1995 Registration Statement or the
Prospectus or for additional information; (ii) of the issuance by the
Commission of any stop order suspending the effectiveness of the 1994
Registration Statement, the 1995 Registration Statement or of the suspension of
qualification of the Preferred Securities for offering or sale in any
jurisdiction or the initiation of any proceeding for such purpose; and (iii)
within the period of time referred to in the first sentence of subsection (d)
below, of any change in the Company's condition (financial or other), business,
prospects, properties, net worth or results of operations, or of the happening
of any event, which makes any statement of a material fact made in the 1994
Registration Statement, the 1995 Registration Statement or the Prospectus (as
then amended or supplemented) untrue or which requires the making of any
additions to or changes in the 1994 Registration Statement, the 1995
Registration Statement or the Prospectus (as then amended or supplemented) in
order to state a material fact required by the 1933 Act or the 1933 Act
Regulations to be stated therein or necessary in order to make the statements
therein not misleading, or of the necessity to amend or supplement the
Prospectus (as then amended or supplemented) to comply with the 1933 Act or any
other law. If at any time the Commission shall issue any stop order suspending
the effectiveness of the 1994 Registration Statement or the 1995
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Registration Statement, the Offerors will make every reasonable effort to
obtain the withdrawal of such order at the earliest possible time.
(b) During such period as a prospectus is
required by the 1933 Act to be delivered in connection with sales by any
Underwriter or dealer, the Offerors will give the Underwriters notice of their
intention to file or prepare (i) any amendment to the 1994 Registration
Statement or the 1995 Registration Statement (including any post-effective
amendment), (ii) any amendment or supplement to the Prospectus (including any
revised prospectus which the Offerors propose for use by the Underwriters in
connection with the offering of the Preferred Securities which differs from the
prospectus on file at the Commission at the time the 1995 Registration
Statement becomes effective, whether or not such revised prospectus is required
to be filed pursuant to Rule 424(b) of the 1933 Act Regulations), or (iii) any
document that would as a result thereof be incorporated by reference in the
Prospectus whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Underwriters with copies of any such amendment, supplement or other
document a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file any such amendment, supplement or other
document or use any such prospectus to which the Underwriters or counsel for
the Underwriters shall reasonably object.
(c) The Offerors will furnish to you, without
charge (i) four copies of the 1994 Registration Statement and the 1995
Registration Statement certified by an officer of the Company to be in the form
originally filed with the Commission and of each amendment thereto, including
financial statements and all exhibits to the 1994 Registration Statement and
the 1995 Registration Statement, (ii) such number of conformed copies of the
1994 Registration Statement and the 1995 Registration Statement as originally
filed and of each amendment thereto, but without exhibits, as the Underwriters
may reasonably request, (iii) such number of copies of the documents
incorporated or deemed to be incorporated by reference therein, without
exhibits, as the Underwriters may reasonably request, and (iv) one copy of the
exhibits to the documents incorporated or deemed to be incorporated by
reference therein.
(d) As soon after the execution and delivery of
this Agreement as possible and thereafter from time to time for such period as
the Prospectus is required by the 1933 Act or the 1933 Act Regulations to be
delivered in connection with sales by any Underwriter or dealer, the Offerors
will expeditiously deliver to each Underwriter and each dealer, without charge,
as many copies of the Prospectus (and of any amendment or supplement thereto)
as the Underwriters may request. The Offerors consent to the use of the
Prospectus (and of any amendment or supplement thereto) in accordance with the
provisions of the 1933 Act, the 1933 Act Regulations and with the securities or
Blue Sky laws of the jurisdictions in which the Preferred Securities are
offered by the several Underwriters and by all dealers to whom the Preferred
Securities may be sold, both in connection with the offering and sale of the
Preferred Securities and for such period of time thereafter as the Prospectus
is required by the 1933 Act or the 1933 Act Regulations to be delivered in
connection with sales by any Underwriter or dealer. If during such period of
time any event shall occur that is required to be set forth in the Prospectus
(as then amended or supplemented) or should be set forth therein in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary to supplement or amend the
Prospectus (or to file under the 1934 Act or the
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1934 Act Regulations any document which, upon filing, will be incorporated or
deemed to be incorporated by reference therein) in order to comply with the
1933 Act, the 1933 Act Regulations or any other law, the Offerors will
forthwith prepare and, subject to the provisions of paragraph (b) above, file
with the Commission an appropriate supplement or amendment or document which,
upon filing, will be incorporated or deemed to be incorporated by reference
therein, and will expeditiously furnish to the Underwriters and dealers a
reasonable number of copies thereof. In the event that the Offerors and the
Underwriters agree that the Prospectus should be amended or supplemented, the
Offerors, if requested by the Underwriters, will promptly issue a press release
announcing or disclosing the matters to be covered by the proposed amendment or
supplement.
(e) The Offerors will cooperate with the
Underwriters and with counsel for the Underwriters in connection with the
registration or qualification of the Preferred Securities and Subordinated Debt
Securities for offering and sale by the Underwriters and by dealers under the
securities or Blue Sky laws of such jurisdictions as the Underwriters may
designate and will file such consents to service of process or other documents
necessary or appropriate in order to effect such registration or qualification,
provided that in no event shall the Offerors be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any
action which would subject it to service of process in suits, other than those
arising out of the offering or sale of the Preferred Securities and the
Subordinated Debt Securities, in any jurisdiction where it is not now so
subject.
(f) The Company will, on behalf of the Trust,
make generally available to the Trust's security holders as soon as practicable
but not later than 45 days (unless such period corresponds to the Company's
fiscal year, in which case 90 days) after the close of the period covered
thereby, an earning statement of the Company (in form complying with the
provisions of Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act
Regulations) covering a twelve-month period beginning not later than the first
day of the Company's fiscal quarter next following the "effective date" (as
defined in said Rule 158) of the 1995 Registration Statement.
(g) The Offerors will use their best efforts to
have the Preferred Securities listed, subject to notice of issuance, on the New
York Stock Exchange on or before the Closing Time; if the Preferred Securities
are exchanged for Subordinated Debt Securities, the Company will use its best
efforts to have the Subordinated Debt Securities listed on the exchange on
which the Preferred Securities were then listed.
(h) During a period of 90 days from the date of
the Pricing Agreement, neither the Trust nor the Company will, without the
Underwriters' prior written consent, directly or indirectly, sell, offer to
sell, grant any option for the sale of, or otherwise dispose of, any Preferred
Securities, any security convertible into exchangeable into or exercisable for
Preferred Securities or any equity securities substantially similar to the
Preferred Securities (except for Preferred Securities issued pursuant to this
Agreement).
(i) The Offerors will apply the net proceeds from
the sale of the Preferred Securities substantially in accordance with the
description set forth in the Prospectus under "Use of Proceeds."
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(j) Except as stated in the Prospectus, the
Offerors will not take, directly or indirectly, any action designed to or that
might reasonably be expected to cause or result in stabilization or maintenance
of the price of the Preferred Securities.
(k) The Offerors will use their best efforts to
have their registration statement on Form 8-A declared effective under the 1934
Act within 31 days of the effectiveness of the 1995 Registration Statement.
Section 4. Payment of Expenses. The Company will pay all
expenses incident to the performance of each Offeror's obligations under this
Agreement, including, but not limited to, (i) the printing and filing of the
1994 Registration Statement and the 1995 Registration Statement as originally
filed and of each amendment thereto, (ii) the preparation, issuance and
delivery of the certificates for the Preferred Securities to the Underwriters,
(iii) the fees and disbursements of the Company's counsel and accountants, (iv)
the qualification of the Preferred Securities and Subordinated Debt Securities
under securities laws in accordance with the provisions of Section 3(e) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of any Blue Sky survey, (v) the printing and delivery to the Underwriters of
copies of the 1994 Registration Statement and the 1995 Registration Statement
as originally filed and of each amendment thereto, of each preliminary
prospectus, and of the Prospectus and any amendments or supplements thereto,
(vi) the printing and delivery to the Underwriters of copies of any Blue Sky
survey, (vii) the fee of the National Association of Securities Dealers, Inc.,
if any, (viii) the fees and expenses of the Indenture Trustee, including the
fees and disbursements of counsel for the Indenture Trustee in connection with
the Indenture and the Subordinated Debt Securities, (ix) the fees and expenses
of the Property Trustee, including the fees and disbursements of counsel for
the Property Trustee in connection with the Declaration and the Certificate of
Trust, (x) any fees payable in connection with the rating of the Preferred
Securities and Subordinated Debt Securities, (xi) the fees and expenses
incurred in connection with the listing of the Preferred Securities and, if
applicable, the Subordinated Debt Securities on the New York Stock Exchange,
(xii) the cost and charges of any transfer agent or registrar and (xiii) the
cost of qualifying the Preferred Securities with The Depository Trust Company.
If this Agreement is terminated by the Underwriters in
accordance with the provisions of Section 5 hereof or if this Agreement shall
be terminated by the Underwriters because of any failure or refusal on the part
of the Company or the Trust to comply with the terms or fulfill any of the
conditions of this Agreement, the Company shall reimburse the Underwriters for
all of their reasonable out-of-pocket expenses, including the reasonable fees
and disbursements of counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The
several obligations of the Underwriters hereunder are subject to the accuracy
of the representations and warranties of the Offerors herein contained, to the
performance by the Offerors of their obligations hereunder, and to the
following further conditions:
(a) The 1995 Registration Statement shall be
effective as of the time of execution hereof; and at the Closing Time no stop
order suspending the effectiveness of the 1994
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Registration Statement or the 1995 Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or threatened by
the Commission. The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the 1933 Act Regulations and prior to the Closing Time the Offerors
shall have provided evidence satisfactory to the Underwriters of such timely
filing.
(b) At the Closing Time the Underwriters shall have received:
(1) The favorable opinion, dated as of
the Closing Time, of O'Melveny & Xxxxx, counsel for the Offerors, in form and
substance satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company has been duly
incorporated and is validly existing in good standing under the laws
of the State of California, with corporate power to own and lease its
properties, to carry on its business as described in the Prospectus,
to enter into this Agreement and to issue and deliver the Subordinated
Debt Securities, the Guarantees and the Undertakings as provided
herein.
(ii) PriMerit Bank has been duly organized,
is validly existing and in good standing under the laws of the United
States and has been authorized by the Office of Thrift Supervision to
conduct the business of a federal savings association. All the
outstanding shares of capital stock of PriMerit Bank have been duly
authorized and validly issued, are fully paid and nonassessable, and
are owned of record directly by The Southwest Companies.
(iii) Holders of outstanding securities of
the Company are not entitled to any statutory preemptive right or to
any right under its Articles of Incorporation to subscribe to any of
the Preferred Securities or Subordinated Debt Securities.
(iv) No consent, approval, authorization
or order of any federal or California governmental authority is
required on the part of the Company for the issuance and sale of the
Common Securities or the offering of the Preferred Securities, the
Subordinated Debt Securities, the Guarantees or the Undertakings,
except (a) such as have been obtained under the 1933 Act or the 1939
Act and such as have been applied for under the 1934 Act, (b) the
authorizations of the California Public Utilities Commission referred
to in Section 1(y) of this Agreement which have been obtained, remain
in full force and effect and are, to the knowledge of such counsel,
not the subject of any pending or threatened application for rehearing
or petition for modification, and (c) such as may be required by
applicable state securities or Blue Sky laws.
(v) The Company is not a "holding
company" or an "affiliate" or "subsidiary company" of a "registered
holding company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
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(vi) Each of the 1994 Registration
Statement and the 1995 Registration Statement is effective under the
1933 Act and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the 1994 Registration Statement or the
1995 Registration Statement has been issued under the 1933 Act or
threatened by the Commission.
(vii) The 1994 Registration Statement, at
the date of filing of the Form 10-K, the 1995 Registration Statement,
at the date it became effective, and the Prospectus, at the date it
was filed pursuant to Rule 424(b) under the 1933 Act (or, if a Revised
Prospectus, at the date it was first provided to the Underwriters for
use in offering the Preferred Securities) (other than the financial
statements and other financial information contained or incorporated
by reference therein, as to which no opinion need be rendered),
appeared on their face to comply in all material respects with the
requirements as to form for registration statements on Form S-3 under
the 1933 Act, the 1933 Act Regulations, the 1939 Act and the 1939 Act
Regulations in effect as of such dates.
(viii) Each of the documents incorporated
by reference in the 1994 Registration Statement, 1995 Registration
Statement or Prospectus at the time they were filed (other than the
financial statements and other financial information contained or
incorporated by reference therein as to which such counsel need
express no opinion), appeared on their face to comply in all material
respects with the requirements as to form for reports on Form 10-K,
Form 10-Q and Form 8-K, as the case may be, under the 1934 Act and the
1934 Act Regulations, as in effect on their respective dates of
filing.
(ix) The statements (i) in the Prospectus
Supplement referred to in the third paragraph hereof under the
captions "Risk Factors", "The Trust", "Description of the Preferred
Securities" (except under the subsection "Book-Entry Only Issuance-
The Depository Trust Company"), "Description of the Subordinated Debt
Securities" and "Effect of Obligations Under the Subordinated Debt
Securities and the Guarantee", and (ii) in the combined prospectus
referred to in such paragraph under the captions "The Trust",
"Particular Terms of Subordinated Debt Securities Issued in Connection
with Preferred Securities", "Description of the Preferred Securities"
and "Description of the Guarantee", insofar as such statements
constitute matters of California and federal law applicable to the
Offerors or summaries of documents, fairly present the information
required to be included therein pursuant to the 1933 Act, the 1933 Act
Regulations, the 1939 Act and the 1939 Act Regulations.
(x) The statements set forth in the
Prospectus Supplement referred to in the third paragraph hereof under
the caption "United States Federal Income Taxation" constitute a fair
and accurate summary of the matters addressed therein, based upon
current law and the assumptions stated or referred to therein.
(xi) All of the issued and outstanding
Common Securities of the Trust are owned of record by the Company.
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(xii) The execution, delivery and
performance of this Agreement and the Pricing Agreement have been duly
authorized by all necessary corporate action on the part of the
Company, and the Agreement and the Pricing Agreement have been duly
executed and delivered by the Company.
(xiii) The Declaration, the Indenture and
Preferred Securities Guarantee Agreement have been duly qualified
under the 1939 Act.
(xiv) The Guarantee Agreements have been
duly authorized by all necessary corporate action on the part of the
Company, and, upon payment for and the delivery of the Preferred
Securities in accordance with this Agreement, will constitute the
legally valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms, except
as rights to indemnity may be limited by applicable law and except as
may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or affecting creditors' rights generally
(including, without limitation, fraudulent conveyance laws) and by
general principles of equity, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at law.
(xv) The Indenture has been duly
authorized by all necessary corporate action on the part of the
Company, and constitutes the legally valid and binding obligation of
the Company, enforceable against the Company in accordance with its
terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally (including, without limitation, fraudulent
conveyance laws) and by general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing and the possible unavailability of specific
performance or injunctive relief, regardless of whether considered in
a proceeding in equity or at law.
(xvi) The Subordinated Debt Securities are
in the form contemplated by the Indenture. The Subordinated Debt
Securities have been duly authorized by all necessary corporate action
on the part of the Company and, upon payment for and the delivery of
the Subordinated Debt Securities in accordance with the Agreement,
will constitute the legally valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally (including, without limitation, fraudulent
conveyance laws), and by general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing and the possible unavailability of specific
performance or injunctive relief, regardless of whether considered in
a proceeding in equity or at law.
(xvii) The Declaration has been duly
authorized by all necessary corporate action on the part of the
Company, and constitutes the legally valid and binding obligation of
the Company, enforceable against the Company in accordance with its
terms,
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except as rights to indemnity may be limited by applicable law and
except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting creditors' rights
generally (including, without limitation, fraudulent conveyance laws),
and by general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing
and the possible unavailability of specific performance or injunctive
relief, regardless of whether considered in a proceeding in equity or
at law.
(xviii) The Company's execution, delivery
and performance of this Agreement, the Pricing Agreement, the
Declaration, the Guarantee Agreements, the Indenture, the Subordinated
Debt Securities and the Undertakings do not violate the Company's
Articles of Incorporation, Bylaws or any applicable California law,
ordinance, administrative or governmental rule or regulation.
In connection with such counsel's
participation in the preparation of the 1994 Registration Statement,
the 1995 Registration Statement and the Prospectus (excluding the
summary financial information attached to the Form 8-K dated April 17,
1995 incorporated by reference therein), such counsel need not
independently verify the accuracy, completeness or fairness of the
statements contained or incorporated therein, and the limitations
inherent in the examination made by such counsel and the knowledge
available to it are such that such counsel need not assume any
responsibility for such accuracy, completeness or fairness (except as
otherwise specifically stated in subparagraph (ix) above); however, on
the basis of such counsel's review of the 1994 Registration Statement,
the 1995 Registration Statement, the Prospectus and the documents
incorporated by reference therein and such counsel's participation in
conferences in connection with the preparation of the 1994
Registration Statement, the 1995 Registration Statement and the
Prospectus (excluding the summary financial statement attached to the
Form 8-K dated April 17, 1995 incorporated by reference therein), such
counsel does not believe that the 1994 Registration Statement, at the
date of filing of the Form 10-K, or the 1995 Registration Statement,
at the time it became effective (in each case including the documents
then incorporated by reference and considered as a whole as of such
dates), contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and such counsel does not
believe that the Prospectus, at the time the Prospectus was filed with
the Commission pursuant to Rule 424(b) of the 1933 Act Regulations
(or, if a Revised Prospectus, at the date it was first provided to the
Underwriters for use in offering the Preferred Securities) and on the
date of such opinion (in each case including the documents then
incorporated by reference and considered as a whole as of such dates),
contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading. However, such counsel need not
express any opinion or belief as to (x) any document filed by the
Company under the 1934 Act, whether before or after the date of the
filing of the Form 10-K or the effective date of the 1995 Registration
Statement, except to the extent that any such document is a document
incorporated by reference in the 1994 Registration Statement on the
date of the filing of the Form 10-K or the 1995 Registration Statement
at its effective date, read
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together with the 1994 Registration Statement or the 1995 Registration
Statement, as the case may be, and considered as a whole or is a
document incorporated by reference and read together with the
Prospectus at the time the Prospectus was filed with the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations and considered as
a whole, (y) the financial statements and other financial or
statistical data included or incorporated by reference in the 1994
Registration Statement, the 1995 Registration Statement or the
Prospectus or (z) those parts of the 1994 Registration Statement or
the 1995 Registration Statement that constitute statements of
eligibility of the Indenture Trustee, the Guarantee Trustee or the
Property Trustee under the 1939 Act.
(2) The favorable opinion, dated as of the
Closing Time, of Xxxxxx X. Xxxxxxx, Associate General Counsel for the Company,
in form and substance satisfactory to counsel for the Underwriters, to the
effect that:
(i) Paiute and The Southwest Companies have been
duly incorporated and are validly existing in good standing under the
laws of the State of Nevada, with corporate power to own and lease
their respective properties and with respect to Paiute to carry on its
business as described in the Prospectus.
(ii) The Company is duly qualified to do business
as a foreign corporation and is in good standing under the laws of the
States of Nevada and Arizona and neither the Company, Paiute nor The
Southwest Companies own or lease material properties or conduct
material business in any other jurisdiction which would require such
qualification. All the outstanding shares of capital stock of The
Southwest Companies and Paiute have been duly authorized and validly
issued, are fully paid and nonassessable, and are owned of record
directly by the Company free and clear of any perfected security
interest, or, to the best knowledge of such counsel after reasonable
inquiry, any other security interest, lien, adverse claim, equity or
other encumbrance.
(iii) There are no rights that entitle or will
entitle any person to acquire any capital stock of the Company upon
the issuance of the Preferred Securities by the Trust; there is no
holder of any security of the Company or any other person who has the
right contractual or otherwise, to cause the Company to sell or
otherwise issue to them, or to permit them to underwrite the sale of,
capital stock of the Company or the right to have any capital stock or
other securities of the Company included in the 1994 Registration
Statement or the 1995 Registration Statement or the right, as a result
of the filing of the 1994 Registration Statement or the 1995
Registration Statement, to require the registration under the 1933 Act
of any shares of capital stock or other securities of the Company.
(iv) There are no pending or, to the best knowledge
of such counsel after due inquiry, threatened legal or governmental
proceedings or, to the best knowledge of such counsel after due
inquiry, any statutes or regulations required to be described in the
Prospectus that are not described as required, nor any contracts or
documents of a character required to be described in the 1994
Registration Statement, 1995 Registration
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Statement or Prospectus or to be filed as exhibits to the 1994
Registration Statement or the 1995 Registration Statement that are not
described or filed as required.
(v) To the best knowledge of such counsel after
due inquiry, neither the Company nor any of the Subsidiaries is in
violation of or is in default in the performance of any obligation
contained in any bond, debenture, note or any other evidence of
indebtedness or in any material agreement, indenture, lease or other
instrument to which the Company or any of the Subsidiaries is a party
or by which any of them or any of their respective properties may be
bound, which violation or default could reasonably be expected to have
a Material Adverse Effect.
(vi) No consent, approval, authorization or order
of any court or regulatory authority is required in connection with
the issuance and sale of the Common Securities or the offering of the
Preferred Securities, the Subordinated Debt Securities, the Guarantees
or the Undertakings except (a) such as have been obtained under the
1933 Act or the 1939 Act and such as have been applied for under the
1934 Act, (b) the authorizations of the California Public Utilities
Commission referred to in Section 1(y) of this Agreement which have
been obtained, remain in full force and effect and are, to the
knowledge of such counsel, not the subject of any pending or
threatened application for rehearing or petition for modification, (c)
the opinion and order, dated May 18, 1983, and the limited waiver,
dated August 8, 1995, of the Arizona Corporation Commission (which
order and waiver are final and not subject to appeal), and (d) such as
may be required by applicable state securities or Blue Sky laws.
(vii) The Guarantee Agreements, the Indenture and
the Declaration have been duly executed and delivered by the Company.
(viii) The Company's execution, delivery and
performance of the Agreement, the Pricing Agreement, the Declaration,
the Guarantees, the Guarantee Agreements, the Indenture, the
Subordinated Debt Securities and the Undertakings do not (i) violate,
breach, or result in a default under, any existing obligation of the
Company under any agreement, indenture, lease or other instrument to
which the Company is a party or by which it or any of its properties
is bound that is an exhibit to the 1994 Registration Statement or the
1995 Registration Statement or to any document incorporated by
reference therein or any other material agreement, indenture, lease or
other instrument known to such counsel after due inquiry, (ii) breach
or otherwise violate any existing obligation of the Company under any
order, judgement or decree of any Arizona, California or Nevada or
federal court or governmental authority binding on the Company, or
(iii) violate any applicable Arizona or Nevada law, ordinance,
administrative or governmental rule or regulation.
(ix) The Trust is not a party to or otherwise
bound by any agreement other than those listed on Schedule A attached
to such opinion; the Trust is not subject to any judgment, order or
decree of any government, governmental instrumentality or court,
domestic or foreign, or any regulatory body or administrative agency
or other
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21
governmental body having jurisdiction over the Trust or any of its
properties; and the Trust is not required to file an application as a
foreign corporation in Nevada.
In addition, such counsel shall include in his opinion a
statement substantially to the effect set forth in the last paragraph of
subsection (b)(1) above.
In rendering their opinions as aforesaid in Sections 5(b)(1)
and 5(b)(2) above, counsel may rely upon an opinion or opinions, each dated the
Closing Time, of other counsel retained by them or the Company as to laws of
any jurisdiction other than the United States or (x) in the case of O'Melveny &
Xxxxx, the State of California and (y) in the case of Xxxxxx X. Xxxxxxx, Esq.,
the States of Arizona and Nevada, provided that (1) such reliance is expressly
authorized by each opinion so relied upon, (2) a signed copy of each such
opinion is delivered to the Underwriters which states that the Underwriters may
rely thereon and is otherwise in form and substance satisfactory to them and
their counsel, and (3) counsel shall state in their opinion that they believe
that they and the Underwriters are justified in relying thereon.
(3) The favorable opinion, dated as of
the Closing Time, of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx, special Delaware
counsel for the Offerors, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Trust has been duly created and is
validly existing in good standing as a business trust under the
Delaware Act; all filings required under the laws of the State of
Delaware with respect to the creation and valid existence of the Trust
as a business trust have been made; under the Delaware Act and the
Declaration the Trust has all necessary power and authority to own
property and to conduct its business as described in the Registration
Statement and Prospectus and to enter into and perform its obligations
under this Agreement, the Pricing Agreement, the Preferred Securities
and the Common Securities.
(ii) The Declaration has been duly executed and
delivered by the Trustees and is a valid and binding obligation of the
Company enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by the Bankruptcy
Exceptions.
(iii) The Common Securities have been duly
authorized by the Declaration and are validly issued and, except as
otherwise provided in the Declaration, represent fully paid and
non-assessable undivided beneficial interests in the assets of the
Trust; and the issuance of the Common Securities is not subject to
preemptive or other similar rights under the Delaware Act and the
Declaration.
(iv) The Preferred Securities have been duly
authorized by the Declaration and, subject to the qualifications set
forth herein, when delivered to and paid for in accordance with the
terms of this Agreement, will be validly issued, fully paid and
non-assessable undivided beneficial interests in the assets of the
Trust; the holders of the Preferred Securities will be entitled to the
same limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation
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Law of the State of Delaware; and the issuance of the Preferred
Securities is not subject to preemptive or other similar rights under
the Delaware Act or the Declaration. Such counsel may bring to the
attention of the Underwriters that the Preferred Securities holders
may be obligated, pursuant to the Declaration, to (i) provide
indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers of Preferred Securities
and the issuance of replacement Preferred Securities, and (ii) provide
security and indemnity in connection with requests of or directions to
the Property Trustee to exercise its rights and powers under the
Declaration.
(v) The issuance and sale by the Trust of the
Preferred Securities and Common Securities; the execution, delivery
and performance by the Trust of this Agreement, the Pricing Agreement
and the Guarantee Agreements; the consummation of the transactions
contemplated herein and therein; and compliance by the Trust with its
obligations hereunder and thereunder have been duly authorized by all
necessary actions of the Trust (corporate or otherwise) and do not and
will not result in any violation of the provisions of its Certificate
of Trust or the Declaration or any applicable Delaware law or
administrative regulation.
(vi) No consent, approval, authorization or order
of any Delaware court or Delaware governmental authority is required
in connection with the issuance and sale of the Common Securities or
the offering of the Preferred Securities, the Subordinated Debt
Securities or the Guarantees.
(vii) The statements (i) in the Prospectus
Supplement referred to in the third paragraph hereof under the
captions "Risk Factors", "The Trust", "Description of the Preferred
Securities" (except under the subsection "Book-Entry Only Issuance-The
Depository Trust Company"), "Description of the Subordinated Debt
Securities" and "Effect of Obligations Under the Subordinated Debt
Securities and the Guarantee", and (ii) in the combined prospectus
referred to in such paragraph under the captions "The Trust",
"Particular Terms of Subordinated Debt Securities Issued in Connection
with Preferred Securities", "Description of the Preferred Securities"
and "Description of the Guarantee", insofar as they constitute matters
of Delaware law, summaries of legal matters, documents or proceedings,
or legal conclusions, have been reviewed by them and are correct in
all material respects.
(viii) The Trust is not in violation of its
Certificate of Trust or the Declaration.
(ix) This Agreement and the Pricing Agreement have
been duly authorized, executed and delivered by the Trust.
(x) Neither the Company nor the Trust is subject
to registration as an "investment company" under the 1940 Act.
(xi) The Declaration and the Preferred Securities
Guarantee Agreement have been duly executed and delivered by the
Property Trustee, and constitute the legal,
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valid and binding obligations of the Property Trustee, enforceable
against the Property Trustee in accordance with their terms, except as
enforcement thereof may be limited by the Bankruptcy Exceptions.
(4) The favorable opinions, dated as of
the Closing Time, of Xxxxxx & Xxxxxx and internal counsel to Xxxxxx Trust and
Savings Bank, as the case may be, counsel to Xxxxxx Trust and Savings Bank, as
Property Trustee under the Declaration, and Guarantee Trustee under the
Preferred Securities Guarantee Agreement, in form and substance satisfactory to
counsel for the Underwriters, to the effect that,
(i) Xxxxxx Trust and Savings Bank is an
Illinois banking corporation with trust powers, duly organized,
validly existing and in good standing under the laws of the State of
Illinois adding necessary power and authority to execute and deliver,
and to carry out and perform its obligations under the terms of the
Declaration and the Preferred Securities Guarantee Agreement.
(ii) The execution, delivery and
performance by the Property Trustee of the Declaration and the
Preferred Securities Guarantee Agreement have been duly authorized by
all necessary corporate action on the part of the Property Trustee.
(iii) The execution, delivery and
performance of the Declaration and the Preferred Securities Guarantee
Agreement by the Property Trustee do not conflict with or constitute a
breach of the Articles of Organization or Bylaws of the Property
Trustee.
(iv) No consent, approval or
authorization of, or registration with or notice to, any Delaware or
federal banking authority is required for the execution, delivery or
performance by the Property Trustee of the Declaration and the
Preferred Securities Guarantee Agreement.
(5) The favorable opinion, dated as of the
Closing Time, of Winthrop, Xxxxxxx, Xxxxxx & Xxxxxxx ("WSP&R"), counsel for the
Underwriters, in form and substance satisfactory to the Underwriters with
respect to the Preferred Securities, the Indenture, the Preferred Securities
Guarantee Agreement, this Agreement, the Pricing Agreement, the 1994
Registration Statement, the 1995 Registration Statement, the Prospectus and
other related matters as the Underwriters may require.
In giving its opinion, WSP&R may rely (i) as to certain
matters of California law upon the opinion of O'Melveny & Xxxxx, counsel for
the Offerors, which shall be delivered in accordance of Section 5(b)(1) hereof,
(ii) as to certain matters of Arizona and Nevada law upon the opinion of Xxxxxx
X. Xxxxxxx, Associate General Counsel for the Company, which shall be delivered
in accordance with Section 5(b)(2) hereof and (iii) as to certain matters of
Delaware law upon the opinion of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx, special
Delaware counsel for the Offerors, which shall be delivered in accordance with
Section 5(b)(3) hereof.
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(c) Since the respective dates as of which
information is given in the 1994 Registration Statement, the 1995 Registration
Statement and the Prospectus, (i) there shall not have occurred a material
adverse change, or any development involving a prospective material adverse
change, in the condition (financial or other), business, properties,
management, net worth or results of operations of the Trust or the Company and
the Subsidiaries taken as a whole whether or not arising from transactions in
the ordinary course of business, in each case other than as set forth in or
contemplated by the Prospectus and (ii) neither the Trust, the Company nor any
of the Subsidiaries shall have sustained any loss or interference with its
business or properties from fire, explosion, flood or other casualty, whether
or not covered by insurance, or from any labor dispute or any court or
legislative or other governmental action, order or decree, which is not set
forth in the 1994 Registration Statement, the 1995 Registration Statement or
the Prospectus and which is material to the Trust or the Company and the
Subsidiaries taken as a whole, if in the judgment of the Underwriters any such
development makes it impracticable or inadvisable to consummate the sale and
delivery of the Preferred Securities by the Underwriters at the initial public
offering price.
(d) The representations and warranties of the
Company and the Trust contained in this Agreement shall be true and correct at
and as of the Closing Time as if made on and as of the Closing Time, and the
Underwriters shall have received a certificate, dated as of the Closing Time
and signed by the chief executive officer and the chief financial officer of
the Company (or such other officers as are acceptable to the Underwriters), and
a certificate of the Trustees of the Trust, dated as of the Closing Time, each
to the effect set forth in this Section 5(d) and in Sections 5(a), 5(e) and
5(f) hereof.
(e) The Company and the Trust shall have
performed or complied with their respective agreements and satisfied all
conditions which are required to be performed or complied with by them
hereunder at or prior to the Closing Time.
(f) Since the respective dates as of which
information is given in the 1994 Registration Statement, the 1995 Registration
Statement and the Prospectus, there shall have been no litigation or other
proceeding instituted against the Trust or the Company or any of the
Subsidiaries or any of their respective officers or directors in their
capacities as such, before or by any federal, state or local court, commission,
regulatory body, administrative agency or other governmental body, domestic or
foreign, in which litigation or proceeding an unfavorable ruling, decision or
finding would reasonably be expected to have a Material Adverse Effect.
(g) The Underwriters shall have received a letter
addressed to the Underwriters and dated the date hereof from Xxxxxx Xxxxxxxx
LLP, independent certified public accountants, substantially in the form
heretofore approved by the Underwriters, confirming that they are independent
accountants with respect to the Company as required by the 1933 Act and the
1933 Act Regulations, that the Trust is and will be treated as a consolidated
subsidiary of the Company pursuant to generally accepted accounting principles
and with respect to the financial and other statistical and numerical
information contained in the 1994 Registration Statement, the 1995 Registration
Statement and the Prospectus and in the documents incorporated by reference
therein. At the Closing Time, Xxxxxx Xxxxxxxx LLP shall have furnished to the
Underwriters a letter, dated the date of its delivery, which shall confirm, on
the basis of a review in accordance
-24-
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with the procedures set forth in the letter from Xxxxxx Xxxxxxxx LLP delivered
on the date hereof, that nothing has come to their attention during the period
from the date of the letter referred to in the prior sentence to a date
(specified in the letter) not more than five days prior to the Closing Time
which would require any change in their letter delivered on the date hereof if
it were required to be dated and delivered at the Closing Time.
(h) At the Closing Time and each Date of
Delivery, if any, counsel for the Underwriters shall have been furnished with
such documents and opinions as they may require for the purpose of enabling
them to pass upon the issuance and sale of the Preferred Securities as herein
contemplated and related proceedings, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Offerors in
connection with the issuance and sale of the Preferred Securities as herein
contemplated shall be satisfactory in form and substance to the Underwriters
and counsel for the Underwriters.
(i) At the Closing Time, the Preferred Securities
shall be rated at least BB+ or better by Standard & Poor's Ratings Group
("S&P") and ba1 or better by Xxxxx'x Investors Service, Inc. ("Moody's") and
the Trust shall have delivered to the Underwriters a letter, dated the Closing
Time, from S&P and Moody's, respectively, or other evidence satisfactory to the
Underwriters, confirming that the Preferred Securities have such ratings; and
there shall not have occurred any decrease in the ratings of any of the debt
securities of the Company by S&P or Moody's and S&P or Moody's shall not have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the debt securities of the Company.
(j) At the Closing Time, the Preferred Securities
shall have been approved for listing on the New York Stock Exchange upon notice
of issuance.
(k) The Underwriters shall have received a
reliance letter from O'Melveny & Xxxxx, dated as of the Closing Time, to the
effect that the Underwriters may rely on the opinion of such counsel addressed
to the Company with respect to the Trust qualifying as a grantor trust for
United States federal income tax purposes as if such opinion was addressed to
the Underwriters.
(l) The Underwriters shall have received a
certificate of the Trustees of the Trust, dated as of the Closing Time, to the
effect that (i) the Trust is not a party to or otherwise bound by any agreement
other than those attached to such certificate and (ii) the Trust is not subject
to any judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, or any regulatory body or
administrative agency or other governmental body having jurisdiction over the
Trust or any of its properties.
Any certificate or document signed by any officer of the
Company or any Trustee of the Trust and delivered to the Underwriters shall be
deemed a representation and warranty by the Company or the Trust, as the case
may be, to each Underwriter as to the statements made therein.
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If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriters by notice to the Offerors at any time at or
prior to the Closing Time, and such termination shall be without liability of
any party to any other party except as provided in Section 4 hereof.
Section 6. Indemnification.
(a) The Offerors will indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter
and each person, if any, who controls each Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, from and against any
and all losses, claims, liabilities, expenses and damages (including any and
all investigative, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or
any claim asserted), to which they, or any of them, may become subject under
the 1933 Act, the 1934 Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
liabilities, expenses or damages arise out of or are based on any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus relating to the Preferred Securities, the 1994
Registration Statement, the 1995 Registration Statement or the Prospectus or
any amendment or supplement to the 1994 Registration Statement, the 1995
Registration Statement or the Prospectus or in any documents filed under the
1934 Act and incorporated by reference into the Prospectus (when read together
with the Prospectus), or the omission or alleged omission to state in such
document a material fact required to be stated in it or necessary to make the
statements in it not misleading, provided that the Offerors will not be liable
to the extent that such loss, claim, liability, expense or damage arises from
the sale of the Preferred Securities in the public offering to any person by
such Underwriter and is based on an untrue statement or omission or alleged
untrue statement or omission made in reliance on and in conformity with
information relating to such Underwriter furnished in writing to the Offerors
by such Underwriter expressly for inclusion in the 1994 Registration Statement,
the 1995 Registration Statement, any preliminary prospectus relating to the
Preferred Securities or the Prospectus, and provided further that the Offerors
will not be liable to any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim, liability,
expense or damage purchased the Preferred Securities which are the subject
thereof if such person did not receive from such Underwriter a copy of the
Prospectus (or the Prospectus as amended or supplemented, excluding documents
incorporated by reference therein), if the Offerors shall have previously
furnished copies thereof to such Underwriter, at or prior to the confirmation
of the sale of such Preferred Securities to such person in any case where such
delivery is required by the 1933 Act and the untrue statement or omission of a
material fact contained in the preliminary prospectus (or the Prospectus) was
corrected in the Prospectus (or the Prospectus as amended or supplemented).
This indemnity agreement will be in addition to any liability that the Offerors
might otherwise have.
(b) The Company agrees to indemnify the Trust against all
loss, liability, claim, damage and expense whatsoever, which may become due
from the Trust under Section 6(a) hereof.
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(c) Each Underwriter will indemnify and hold harmless the
Offerors, each person, if any, who controls the Offerors within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, each of their
directors or trustees and each of their officers who signed the 1994
Registration Statement or the 1995 Registration Statement to the same extent as
the foregoing indemnity from the Offerors to each Underwriter, but only insofar
as losses, claims, liabilities, expenses or damages arise out of or are based
on any untrue statement or omission or alleged untrue statement or omission
made in reliance on and in conformity with information relating to such
Underwriter furnished in writing to the Offerors by such Underwriter expressly
for use in the 1994 Registration Statement, the 1995 Registration Statement,
any preliminary prospectus relating to the Preferred Securities or the
Prospectus. This indemnity will be in addition to any liability that each
Underwriter might otherwise have.
(d) Any party that proposes to assert the right to be
indemnified under this Section 6 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim is to
be made against an indemnifying party or parties under this Section 6, notify
each such indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission so to notify such indemnifying
party will not relieve it from any liability that it may have to any
indemnified party under the foregoing provisions of this Section 6 unless, and
only to the extent that, such omission results in the forfeiture of or
substantial prejudice to substantive rights or defenses by the indemnifying
party. If any such action is brought against any indemnified party and it
notifies the indemnifying party of its commencement, the indemnifying party
will be entitled to participate in and, to the extent that it elects by
delivering written notice to the indemnified party promptly after receiving
notice of the commencement of the action from the indemnified party, jointly
with any other indemnifying party similarly notified, to assume the defense of
the action, with counsel satisfactory to the indemnified party, and after
notice from the indemnifying party to the indemnified party of its election to
assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel will be at the expense of such
indemnified party unless (i) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party, (ii) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be
legal defenses available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party, (iii) a
conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (iv) the indemnifying
party has not in fact employed counsel to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or parties.
It is understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees, disbursements and other charges of more than
one separate firm at any one time (plus local counsel) for all such indemnified
party or parties. All such fees, disbursements and other charges will be
reimbursed by the indemnifying party promptly as they are incurred. An
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indemnifying party will not be liable for any settlement of any action or claim
effected without its written consent (which consent will not be unreasonably
withheld).
(e) No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened action, suit or proceeding in respect of which any indemnified
party is or could have been a party and indemnity has or could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such action, suit or proceeding.
Section 7. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnification provided
for in Section 6 is applicable in accordance with its terms but for any reason
is held to be unavailable from the Offerors or the Underwriters, the Offerors
and the Underwriters will contribute to the total losses, claims, liabilities,
expenses and damages (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claim asserted, but after deducting any
contribution received by the Offerors from persons other than the Underwriters,
such as persons who control the Offerors within the meaning of the 1933 Act,
officers of the Offerors who signed the 1994 Registration Statement or the 1995
Registration Statement and directors or trustees of the Offerors, who also may
be liable for contribution) to which the Offerors and any one or more of the
Underwriters may be subject in such proportion as shall be appropriate to
reflect the relative benefits received by the Offerors on the one hand and the
Underwriters on the other. The relative benefits received by the Offerors on
the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Offerors bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus. If, but only if, the allocation
provided by the foregoing sentence is not permitted by applicable law, the
allocation of contribution shall be made in such proportion as is appropriate
to reflect not only the relative benefits referred to in the foregoing sentence
but also the relative fault of the Offerors, on the one hand, and the
Underwriters, on the other, with respect to the statements or omissions which
resulted in such loss, claim, liability, expense or damage, or action in
respect thereof, as well as any other relevant equitable considerations with
respect to such offering. Such relative fault shall be determined by reference
to whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Offerors or the Underwriters, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Offerors and the Underwriters agree
that it would not be just and equitable if contributions pursuant to this
Section 7 were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, liability, expense or damage,
or action in respect thereof, referred to above in this Section 7 shall be
deemed to include, for purpose of this Section 7, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the underwriting discounts
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received by it, and no person found guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) will be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Section 7 are several in proportion to their respective underwriting
obligations and not joint. For purposes of this Section 7, any person who
controls a party to this Agreement within the meaning of the 1933 Act will have
the same rights to contribution as that party, and each officer of the Offerors
who signed the 1994 Registration Statement or the 1995 Registration Statement
will have the same rights to contribution as the Offerors, subject in each case
to the provisions hereof. Any party entitled to contribution, promptly after
receipt of notice of commencement of any action against such party in respect
of which a claim for contribution may be made under this Section 7, will notify
any such party or parties from whom contribution may be sought, but the
omission so to notify will not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have under
this Section 7. No party will be liable for contribution with respect to any
action or claim settled without its written consent (which consent will not be
unreasonably withheld). The Company shall be jointly and severally liable for
all contributions which the Trust may be required to make hereunder.
Section 8. Representations, Warranties and Agreements to
Survive. The indemnity agreements contained in Section 6 hereof and
contribution agreements contained in Section 7 hereof and all representations,
warranties and agreements contained in this Agreement and the Pricing
Agreement, or contained in certificates of officers or trustees of the Offerors
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Offerors and shall survive
delivery of the Preferred Securities to the Underwriters. In addition, such
indemnity and contribution agreements contained in Sections 6 and 7 shall
survive any termination of this Agreement.
Section 9. Termination of Agreement. This Agreement
shall be subject to termination in the absolute discretion of the Underwriters,
without liability on the part of any Underwriter to the Offerors by notice to
the Offerors, if prior to the Closing Time or each Date of Delivery, if any, as
the case may be, (i) trading in any of the equity securities of the Company
shall have been suspended by the Commission, the New York Stock Exchange or the
Pacific Stock Exchange, (ii) trading in securities generally on the New York
Stock Exchange, the Pacific Stock Exchange, the American Stock Exchange or the
Nasdaq National Market shall have been suspended or limited or minimum or
maximum prices shall have been generally established on such exchange, or
additional material governmental restrictions, not in force on the date of this
Agreement, shall have been imposed upon trading in securities generally by such
exchange or by order of the Commission or any court or other governmental
authority, (iii) a general banking moratorium in New York, Nevada, Arizona or
California shall have been declared by either federal or state authorities,
(iv) any material adverse change in the financial or securities markets in the
United States or in political, financial or economic conditions in the United
States or any outbreak or material escalation of hostilities or declaration by
the United States of a national emergency or war or other calamity or crisis
shall have occurred the effect of any of which is such as to make it, in the
sole judgment of the Underwriters, impracticable or inadvisable to market the
Preferred Securities on the terms and in the manner contemplated by the
Prospectus or to enforce contracts for the resale of the Preferred Securities
by the Underwriters, or (v) there shall have
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occurred any decrease in the ratings of any of the debt securities of the
Company or of the Preferred Securities by S&P or Xxxxx'x or S&P or Xxxxx'x
shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the debt securities of the
Company or of the Preferred Securities. Notice of such termination may be
given to the Offerors by telegram, telecopy or telephone and shall be
subsequently confirmed by letter.
Section 10. Default by One or More of the Underwriters. If
one or more of the Underwriters shall fail at the Closing Time to purchase the
Preferred Securities that it or they are obligated to purchase under this
Agreement and the Pricing Agreement (the "Defaulted Securities"), the
non-defaulting Underwriters shall have the right, within 48 hours thereafter,
to make arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the non-defaulting Underwriters shall not have completed
such arrangements within such 48-hour period, then:
(a) if the number of Defaulted Securities does
not exceed 10% of the number of Preferred Securities, each of the
non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds
10% of the number of Preferred Securities, this Agreement shall
terminate without liability on the part of any non-defaulting
Underwriter.
In the event of any such default which does not result in a
termination of this Agreement, either the non-defaulting Underwriters or the
Offerors shall have the right to postpone the Closing Time for a period not
exceeding ten days in order to effect any required changes in the 1994
Registration Statement, the 1995 Registration Statement or the Prospectus or in
any other documents or arrangements. No action taken pursuant to this Section
10 shall relieve any defaulting Underwriter from liability in respect of its
default.
Section 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to
the Underwriters shall be directed to Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated at Xxxxxxx Xxxxx World Headquarters, North Tower, World Financial
Center, New York, New York 10281-1201, attention of the general counsel;
notices to the Offerors shall be directed to them at 0000 Xxxxxx Xxxxxxxx Xxxx,
Xxx Xxxxx, Xxxxxx 00000, attention of the chief financial officer.
Section 12. Parties. This Agreement and the Pricing
Agreement shall each inure to the benefit of and be binding upon the
Underwriters and the Offerors and their respective successors. Nothing
expressed or mentioned in this Agreement or the Pricing Agreement is intended
or shall be construed to give any person, firm or corporation, other than the
Underwriters and the Offerors and their respective successors and the
controlling persons and officers, directors and trustees referred to in
Sections 6 and 7 and their heirs and legal
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representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or the Pricing Agreement or any provision herein or
therein contained. This Agreement and the Pricing Agreement and all conditions
and provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the Underwriters and the Offerors and their respective successors,
and said controlling persons and officers, directors and trustees and their
heirs and legal representatives, and for the benefit of no other person, firm
or corporation. No purchaser of Preferred Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
Section 13. Governing Law and Time. This Agreement and the
Pricing Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
in said State. Except as otherwise set forth herein, specified times of day
refer to New York City time.
Section 14. Counterparts. This Agreement may be
simultaneously executed in counterparts, each of which when so executed shall
be deemed to be an original. Such counterparts shall together constitute one
and the same instrument.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Trust a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Trust and the Company in accordance
with its terms.
Very truly yours,
SOUTHWEST GAS CORPORATION
By: /s/ XXXXXX X. XXXXXXX
------------------------
Title:
SOUTHWEST GAS CAPITAL I
By: /s/ XXXXXX X. XXXXX
------------------------
Title: Trustee
By: /s/ XXXXXXX X. XXXX
------------------------
Title: Trustee
33
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX INCORPORATED
XXXX XXXXXX XXXXXXXX INC.
PAINEWEBBER INCORPORATED
XXXXX XXXXXX INC.
By: XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX INCORPORATED
By /s/ XXXXXXX XXXXXXXXX
----------------------------
Authorized Signatory
34
SCHEDULE A
Number of
Preferred Securities
Underwriter to be Purchased
----------- -------------------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 600,000
Xxxx Xxxxxx Xxxxxxxx Inc. . . . . . . . . . . . . . . . . . . . . . . . . . 600,000
PaineWebber Incorporated . . . . . . . . . . . . . . . . . . . . . . . . . 600,000
Xxxxx Xxxxxx Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 600,000
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ---------
2,400,000
35
EXHIBIT A
2,400,000 Preferred Securities
SOUTHWEST GAS CAPITAL I
(A DELAWARE BUSINESS TRUST)
____% TRUST ORIGINATED PREFERRED SECURITIES ("TOPRS")
(LIQUIDATION AMOUNT OF $25 PER SECURITY)
PRICING AGREEMENT
___________ __, 1995
XXXXXXX XXXXX & CO.
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX INCORPORATED
XXXX XXXXXX XXXXXXXX INC.
PAINEWEBBER INCORPORATED
XXXXX XXXXXX INC.
c/x XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
Xxxxxxx Xxxxx World Headquarters
North Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated ______
__, 1995 (the "Underwriting Agreement"), relating to the several purchases by
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated, Xxxx
Xxxxxx Xxxxxxxx Inc., PaineWebber Incorporated and Xxxxx Xxxxxx Inc. of the
above ____% Trust Originated Preferred Securities (the "Preferred Securities"),
of SOUTHWEST GAS CAPITAL I, a Delaware business trust (the "Trust")
Pursuant to Section 2 of the Underwriting Agreement, the Trust
and Southwest Gas Corporation (the "Company"), a California corporation, agree
with each Underwriter as follows:
1. The annual distribution rate, determined as
provided in said Section 2, shall be ___% of the liquidation amount of
$25 per Preferred Security.
36
2. The compensation per Preferred Security to be
paid by the Company to the several Underwriters in respect of their
commitments hereunder shall be $_____; provided, however, that the
compensation per Preferred Security for sales of 10,000 or more
Preferred Securities to a single purchaser shall be $_____.
-3-
37
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Trust a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Trust and the Company in accordance
with its terms.
Very truly yours,
SOUTHWEST GAS CORPORATION
By: _______________________
Title:
SOUTHWEST GAS CAPITAL I
By: _______________________
Title: Trustee
By: _______________________
Title: Trustee
38
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX INCORPORATED
XXXX XXXXXX XXXXXXXX INC.
PAINEWEBBER INCORPORATED
XXXXX XXXXXX INC.
By: XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX INCORPORATED
By _____________________________
Authorized Signatory
