Exhibit 1.1
UNDERWRITING AGREEMENT
March 1, 2004
Xxxxxx Dodge Corporation
Xxx X. Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Dear Sirs:
We (the "MANAGER") are acting on behalf of the underwriters (including
ourselves) named below (such underwriters being herein called the
"UNDERWRITERS"), and we understand that Xxxxxx Dodge Corporation, a New York
corporation (the "COMPANY"), proposes to issue and sell $150,000,000 aggregate
principal amount of its 6 1/8% Notes due 2034 (the "OFFERED SECURITIES"). The
Offered Securities will be issued pursuant to the provisions of an Indenture
dated as of September 22, 1997 (the "INDENTURE") between the Company and First
Union National Bank, as successor Trustee (the "TRUSTEE"). To the extent there
are no additional Underwriters listed below other than us, the term Manager as
used herein shall mean us, as Underwriters, and the terms Managers and
Underwriters shall mean either the singular or plural as the context requires.
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the respective principal amounts of
Offered Securities set forth below opposite their names at a purchase price of
98.999% of the principal amount of the Offered Securities, plus in each case
accrued interest from March 4, 2004 to the date of payment and delivery:
Principal Amount of
Name Offered Securities
----------------------------- ------------------
Citigroup Global Markets Inc. $150,000,000
Total $150,000,000
The Underwriters will pay for the Offered Securities by wire transfer
in immediately available funds to the account designated by the Company at least
one business day prior to the Closing Date against delivery of such Offered
Securities at the office of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, New York, New
York at 10:00 a.m. (New York time) on March 4, 2004. The time and date of such
payment and delivery are hereinafter referred to as the "CLOSING DATE."
The Offered Securities shall have the terms set forth in the Prospectus
dated July 15, 2003 and the Prospectus Supplement dated March 1, 2004 (the
"PROSPECTUS SUPPLEMENT"), including the following:
Maturity Date: March 15, 2034
Interest Rate: 6 1/8%
Redemption Provisions: The Offered Securities are redeemable
by the Company in accordance with the
provisions set forth under "Description
of the Notes--Optional Redemption" in
the Prospectus Supplement and
"Description of the Debt
Securities--Redemption of Debt
Securities" in the Prospectus
Interest Payment Dates: March 15 and September 15, commencing
September 15, 2004 (Interest accrues
from March 4, 2004)
Form and Denomination: Book entry, $1,000 minimum denomination
and integral multiples thereof
Public Offering Price: 99.874% plus accrued interest
Dealer Concession: 0.50%
Reallowance Concession: 0.25%
All provisions contained in the document entitled Xxxxxx Dodge
Corporation Underwriting Agreement Standard Provisions (Debt Securities) dated
March 1, 2004, a copy of which is attached hereto, are herein incorporated by
reference in their entirety and shall be deemed to be a part hereof to the same
extent as if such provisions had been set forth in full herein, except that (i)
if any term defined in such document is otherwise defined herein, the definition
set forth herein shall control and (ii) all references in such document to a
type of agreement that has not been entered into in connection with the
transactions contemplated hereby shall not be deemed to be a part hereof.
[Remainder of Page Intentionally Left Blank]
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Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
CITIGROUP GLOBAL MARKETS INC.
By: Xxxx Xxxxxx III
-------------------------------
Name: Xxxx Xxxxxx III
Title: Director
Accepted:
XXXXXX DODGE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President & Treasurer
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XXXXXX DODGE CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
March 1, 2004
From time to time, Xxxxxx Dodge Corporation, a New York corporation
(the "COMPANY"), may enter into one or more underwriting agreements that provide
for the sale of designated securities to the several underwriters named therein.
The standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "UNDERWRITING AGREEMENT"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this "AGREEMENT." Terms defined in the Underwriting Agreement are
used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement, including a prospectus, relating to the
Debt Securities and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "PROSPECTUS SUPPLEMENT") specifically relating to the
Offered Securities pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "SECURITIES ACT"). The term "REGISTRATION STATEMENT" means the
registration statement, including the exhibits thereto, as amended to the date
of this Agreement and any registration statement relating to the Debt Securities
filed pursuant to Rule 462(b) under the Securities Act. The term "BASIC
PROSPECTUS" means the prospectus included in the Registration Statement. The
term "PROSPECTUS" means the Basic Prospectus together with the Prospectus
Supplement. The term "PRELIMINARY PROSPECTUS" means a preliminary prospectus
supplement specifically relating to the Offered Securities, together with the
Basic Prospectus. As used herein, the terms "BASIC PROSPECTUS," "PROSPECTUS" and
"PRELIMINARY PROSPECTUS" shall include in each case the documents, if any,
incorporated by reference therein. The terms "SUPPLEMENT" and "AMENDMENT" or
"AMEND" as used herein shall include all documents deemed to be incorporated by
reference in the Prospectus that are filed subsequent to the date of the Basic
Prospectus by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT").
1. Representations and Warranties. The Company represents and
warrants to each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of
the Commission thereunder, (ii) each part of the Registration
Statement, when such part became effective, did not contain, and each
such part, as amended or supplemented, if applicable, from the date of
its effectiveness through and including the Closing Date will not
contain, any 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, (iii) the Registration Statement and
the Prospectus comply, and, as amended or supplemented, if applicable,
from the date of effectiveness of the Registration Statement through
and including the Closing Date will comply, in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as
amended or supplemented, if applicable, from the date of effectiveness
of the Registration Statement through and including the Closing Date
will not contain, any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this
Section 1(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein or (B) to
that part of the Registration Statement that constitutes the Statement
of Eligibility and Qualification (Form T-l) under the Trust Indenture
Act of 1939, as amended (the "TRUST INDENTURE ACT"), of the Trustee.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own and lease its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified
or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting
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creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability.
(g) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, will be
entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company enforceable in accordance with their
respective terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration, if any, and the
availability of equitable remedies may be limited by equitable
principles of general applicability.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture and the Offered Securities will not contravene any
provision of applicable law or the certificate of incorporation or
by-laws of the Company or any agreement or other instrument binding
upon the Company or any of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or any judgment, order
or decree of any governmental body, agency or court having jurisdiction
over the Company or any subsidiary; and no consent, approval,
authorization or order of or qualification with any governmental body
or agency is required for the performance by the Company of its
obligations under this Agreement, the Indenture and the Offered
Securities, except such as have been obtained under the Securities Act
and the Trust Indenture Act and such as may be required by the
securities or Blue Sky laws of the various states in connection with
the offer and sale of the Offered Securities.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus.
(j) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party
or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(k) The Company is not an "INVESTMENT COMPANY" or an entity
"CONTROLLED" by an "INVESTMENT COMPANY," as such terms are defined in
the Investment Company Act of 1940, as amended.
(l) There are no stamp or other issuance or transfer taxes or
other similar fees or charges under Federal law required to be paid in
connection with the execution and
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delivery of the Underwriting Agreement or the issuance or the sale by
the Company of the Offered Securities.
(m) Prior to the date hereof, the Company has not taken,
directly or indirectly, any action designed to or which has constituted
or which might reasonably be expected to cause or result in a violation
of Regulation M under the Exchange Act.
2. Public Offering. (a) The Company is advised by the Manager
that the Underwriters propose to make a public offering of their respective
portions of the Offered Securities as soon after this Agreement has been entered
into as in the Manager's judgment is advisable.
(b) The terms of the public offering of the Offered Securities
are set forth in the Prospectus.
3. Purchase and Delivery. Except as otherwise provided in this
Section 3, payment for the Offered Securities shall be made in immediately
available funds at the time and place set forth in the Underwriting Agreement,
upon delivery to the Manager for the respective accounts of the several
Underwriters of the Offered Securities, registered in such names and in such
denominations as the Manager shall request prior to the date of delivery, with
any transfer taxes payable in connection with the transfer of the Offered
Securities to the Underwriters duly paid.
4. Conditions to Closing. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date,
(i) there shall not have occurred any
downgrading, nor shall any official notice have been given of
any intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's
securities by Xxxxx'x Investors Service Inc., Standard &
Poor's Corporation or Fitch Ratings Inc.;
(ii) there shall not have occurred any change, or
any development involving a prospective change, in the
condition, financial or otherwise, or in the earnings,
business or operations, of the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus, that,
in the reasonable judgment of the Manager, is material and
adverse and that makes it, in the reasonable judgment of the
Manager, impracticable to market the Offered Securities on the
terms and in the manner contemplated in the Prospectus; and
(iii) no stop order suspending the effectiveness
of the Registration Statement shall have been issued.
(b) The Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in
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clause (a) above and to the effect that the representations and
warranties of the Company contained in this Agreement are true and
correct as of the Closing Date and that the Company has complied with
all of the agreements and satisfied all of the conditions on its part
to be performed or satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(c) The Manager shall have received on the Closing Date an
opinion of S. Xxxxx Xxxxxx, Senior Vice President and General Counsel
of the Company, dated the Closing Date, to the effect set forth in
Exhibit A.
(d) The Manager shall have received on the Closing Date an
opinion of Debevoise & Xxxxxxxx, counsel for the Company, dated the
Closing Date, to the effect set forth in Exhibit B.
(e) The Manager shall have received on the Closing Date an
opinion of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, special counsel for the
Underwriters, dated the Closing Date, to the effect set forth in
Exhibit C.
(f) The Manager shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to
the Manager, from the Company's independent public accountants,
containing statements and information of the type ordinarily included
in accountants' "COMFORT LETTERS" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
(g) On the Closing Date special 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 Offered Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained.
5. Covenants of the Company. In further consideration of the
agreements of the Underwriters contained herein, the Company covenants as
follows:
(a) To furnish the Manager, without charge, a signed copy of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and, during the period mentioned
in paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto or to the Registration Statement as the Manager may reasonably
request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities, to
furnish to the Manager a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which the Manager reasonably objects. The Company will
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cause the Prospectus Supplement to be filed with the Commission
pursuant to Rule 424 under the Securities Act.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the reasonable opinion of
counsel for the Underwriters the Prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer, any
event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if, in the
opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare,
file with the Commission and furnish, at its own expense, to the
Underwriters, and to the dealers (whose names and addresses the Manager
will furnish to the Company) to which Offered Securities may have been
sold by the Manager on behalf of the Underwriters and to any other
dealer upon request, either amendments or supplements to the Prospectus
so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus, as
so amended or supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as
the Manager shall reasonably request and to pay all expenses (including
fees and disbursements of counsel) in connection with such
qualification and in connection with (i) the determination of the
eligibility of the Offered Securities for investment under the laws of
such jurisdictions as the Manager may designate and (ii) any review of
the offering of the Offered Securities by the National Association of
Securities Dealers, Inc.; provided, however, the Company shall not be
obligated to qualify as a foreign corporation or file any general
consent to service of process under the laws of any such jurisdiction
or subject itself to taxation as doing business in any such
jurisdiction.
(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earning statement
covering a twelve month period beginning on the first day of the first
full fiscal quarter after the date of this Agreement, which earning
statement shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission
thereunder, including Rule 158 thereunder.
(f) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company or warrants to purchase debt securities
of the Company substantially similar to the Offered Securities (other
than (i) the Offered Securities, (ii) commercial paper issued in the
ordinary course of business and (iii) bank borrowings), without the
prior written consent of the Manager.
(g) To pay all document production charges and expenses of
Cleary, Gottlieb, Xxxxx & Xxxxxxxx, special counsel to the Underwriters
(but not including their fees for professional services), in connection
with the preparation of this Agreement.
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(h) The Company will not take, directly or indirectly, any
action designed to or which has constituted or which might reasonably
be expected to cause or result in a violation of Regulation M under the
Exchange Act.
6. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with defending or investigating any such action
or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon and in conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter through the Manager expressly for use
therein.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Underwriter,
but only with reference to information relating to such Underwriter furnished to
the Company by such Underwriter in writing through the Manager expressly for use
in the Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing; provided that the
failure to so notify the indemnifying party will not relieve the indemnifying
party from any liability under the two preceding paragraphs to the extent the
indemnifying party is not materially prejudiced as a result thereof. The
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same
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jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties and that all
such fees and expenses shall be reimbursed as they are incurred. Such firm shall
be designated in writing by the Manager, in the case of parties indemnified
pursuant to the second preceding paragraph, and by the Company, in the case of
parties indemnified pursuant to the first preceding paragraph. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity 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 proceeding.
If the indemnification provided for in the first or second paragraph in
this Section 6 is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other hand
in connection with the offering of the Offered Securities shall be deemed to be
in the same respective proportions as the net proceeds from the offering of such
Offered Securities (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus Supplement,
bear to the aggregate public offering price of the Offered Securities. The
relative fault of the Company on the one hand and of the Underwriters on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
6 are several in proportion to the respective principal amounts of Offered
Securities purchased by each of such Underwriters and not joint.
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The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any 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 6, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 6
and the representations and warranties of the Company contained herein shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on behalf of the
Company, its directors or officers or any person controlling the Company and
(iii) acceptance of and payment for any of the Offered Securities.
7. Termination. This Agreement shall be subject to termination,
by notice given by the Manager to the Company, if (a) after the execution and
delivery of the Underwriting Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the reasonable judgment of the Manager, is material
and adverse and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event, singly or together with any other such event, makes
it, in the reasonable judgment of the Manager, impracticable to market the
Offered Securities on the terms and in the manner contemplated in the
Prospectus.
8. Defaulting Underwriters. If, on the Closing Date, any one or
more of the Underwriters shall fail or refuse to purchase Offered Securities
that it has or they have agreed to purchase hereunder on such date, and the
aggregate amount of Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate amount of the Offered Securities to be purchased on such date,
the
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other Underwriters shall be obligated severally in the proportions that the
amount of Offered Securities set forth opposite their respective names in the
Underwriting Agreement bears to the aggregate amount of Offered Securities set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as the Manager may specify, to purchase the Offered Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase on such date; provided that in no event shall the amount of Offered
Securities that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 8 by an amount in excess of
one-ninth of the amount of Offered Securities without the written consent of
such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Offered Securities and the aggregate amount of
Offered Securities with respect to which such default occurs is more than
one-tenth of the aggregate amount of Offered Securities to be purchased on such
date, and arrangements satisfactory to the Manager and the Company for the
purchase of such Offered Securities are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either the Manager
or the Company shall have the right to postpone the Closing Date but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of the Offered Securities.
9. Miscellaneous. The Underwriting Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
10. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Manager, will be mailed,
delivered or telefaxed to Citigroup Global Markets Inc. General Counsel (fax
no.: (000) 000-0000) and confirmed to Citigroup Global Markets Inc., 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; or, if sent to the Company, will be
mailed, delivered or telefaxed to (000) 000-0000 and confirmed to it at Xxx
Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000-0000, attention of the General
Counsel.
11. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
10
Exhibit A
Opinion of General Counsel
for the Company
The opinion of General Counsel for the Company, to be delivered
pursuant to Section 4(c) of the Underwriting Agreement shall be to the effect
that:
1. The statements (1) in "ITEM 3 - LEGAL PROCEEDINGS" of the
Company's most recent annual report on Form 10-K incorporated by reference in
the Prospectus and (2) in "ITEM 1 - LEGAL PROCEEDINGS" of Part II of the
Company's quarterly reports on Form 10-Q, if any, filed since such annual
report, in each case insofar as such statements constitute summaries of the
legal matters, documents or proceedings referred to therein, fairly present the
information called for under the Exchange Act with respect to such legal
matters, documents and proceedings.
2. To the best of my knowledge, the execution and delivery by the
Company of, and the performance by the Company of its obligations under, the
Underwriting Agreement, the Indenture and the Offered Securities will not
contravene any provision of any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole.
3. To the best of my knowledge, I do not know of any legal or
governmental proceedings pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or of any
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
I am delivering this opinion to you pursuant to Section 4(c) of the
Underwriting Agreement, and no persons other than the several Underwriters are
entitled to rely on this opinion.
The opinions expressed herein are limited to the Federal laws of the
United States and the laws of the State of Arizona.
A-1
Exhibit B
Opinion of Debevoise & Xxxxxxxx,
Counsel for the Company
The opinion of Debevoise & Xxxxxxxx, independent counsel for the
Company, to be delivered pursuant to Section 4(d) of the Underwriting Agreement
shall be to the effect that:
1. The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of New York, with
full corporate power and authority under such laws to own and lease its
properties and conduct its business as described in the Prospectus, and is duly
qualified to transact business as a foreign corporation and is in good standing
under the laws of the States of Arizona and New Mexico.
2. The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
3. The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms except that such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws
of general application affecting the rights and remedies of creditors and by
general equitable principles.
4. The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriter in accordance with the terms of
the Underwriting Agreement, will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the Company enforceable in
accordance with their respective terms except that such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws of general application affecting the rights and remedies of
creditors and by general equitable principles.
5. The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting Agreement,
the Indenture and the Offered Securities will not contravene any provision of
applicable law or the Restated Certificate of Incorporation or By-Laws of the
Company or, to the best of our knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company. To the
best of our knowledge, no consent, approval, authorization or order of or
qualification with any governmental body or agency is required for the
performance by the Company of its obligations under the Underwriting Agreement,
the Indenture and the Offered Securities, other than the order of the Securities
and Exchange Commission making the Registration Statement effective under the
Securities Act and qualifying the Indenture under the Trust Indenture Act of
1939, as amended, and except such as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale of the
Offered Securities.
6. The statements (a) in the Prospectus under the captions
"DESCRIPTION OF THE DEBT SECURITIES" and "DESCRIPTION OF THE NOTES" and (b) in
the Registration Statement under Item 15,
B-1
in each case insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein, fairly present the
information called for under the Securities Act with respect to such legal
matters, documents and proceedings.
7. The Company is not an "INVESTMENT COMPANY" or an entity
"CONTROLLED" by an "INVESTMENT COMPANY," as such terms are defined in the
Investment Company Act of 1940, as amended.
8. The opinions set forth in paragraphs 1 through 7 above are
subject to the following additional qualifications and assumptions:
(a) The opinions expressed in paragraphs 1 through 7
above are limited to the Federal laws of the United States of America and the
laws of the State of New York, in each case as currently in effect.
(b) In rendering the opinion set forth in paragraph 1
above concerning the valid existence and good standing of the Company, we have
relied solely on a good standing certificate of the Secretary of State of New
York.
(c) In rendering the opinion set forth in paragraph 1
above concerning the due qualification and good standing of the Company as a
foreign corporation under the laws of the States of Arizona and New Mexico, we
have relied solely on good standing certificates of the Secretary of State of
the States of Arizona and New Mexico.
(d) For purposes of the opinion set forth in paragraph 5
above, we have reviewed only those statutes, rules and regulations that in our
experience are normally applicable to transactions of the type contemplated by
the Underwriting Agreement and the Indenture.
We have not ourselves checked the accuracy and completeness
of, or otherwise verified, and are not passing upon and assume no responsibility
for the accuracy or completeness of, the statements contained in the
Registration Statement or the Prospectus except to the limited extent stated in
paragraph 6 above. The Registration Statement and Prospectus (except for the
financial statements, the related notes and other financial and statistical
information and schedules included therein or incorporated by reference as to
which we express no opinion) appear on their face to be appropriately responsive
in all material respects with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder. Each document, if
any, filed pursuant to the Exchange Act and incorporated by reference in the
Prospectus (except for financial statements, the related notes and other
financial and statistical information and schedules included therein or
incorporated by reference as to which we express no opinion) appears on its face
to be appropriately responsive in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder.
In the course of our review and discussion of the contents of the
Registration Statement and the Prospectus with certain officers and employees of
the Company and its independent accountants, but without independent check or
verification, no facts have come to our attention which cause us to believe that
the Registration Statement (other than the financial statements, the related
notes and other financial and statistical information and schedules contained
therein or incorporated by reference or the part of the Registration Statement
that constitutes the Form T-1,
B-2
as to which we express no belief) at the time it became effective contained, or
as of the date hereof contains, an untrue statement of a material fact or
omitted, or as of the date hereof omits, to state a material fact required to be
stated therein or necessary to make the statements contained therein not
misleading, or that the Prospectus (other than the financial statements, the
related notes and other financial and statistical information and schedules
contained therein or incorporated by reference as to which we express no belief)
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
* * * *
We are delivering this opinion to you pursuant to Section 4(d) of the
Underwriting Agreement, and no persons other than the Underwriter is entitled to
rely on this opinion and this letter may not be quoted or disclosed in whole or
in part without any prior written consent. We assume no obligation to supplement
this letter if any applicable laws change after the date hereof or if we become
aware of any facts that might change the opinions or beliefs expressed herein
after the date hereof.
X-0
Xxxxxxx X
Xxxxxxx xx Xxxxxx, Xxxxxxxx, Xxxxx & Xxxxxxxx,
Counsel for the Underwriters
The opinion of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, counsel for the
Underwriters, to be delivered pursuant to Section 4(e) of the Underwriting
Agreement shall be to the effect that:
1. The execution and delivery of the Underwriting Agreement have
been duly authorized by all necessary corporate action of the Company, and the
Underwriting Agreement has been duly executed and delivered by the Company.
2. The execution and delivery of the Indenture have been duly
authorized by all necessary corporate action of the Company, and the Indenture
has been duly executed and delivered by the Company, and qualified under the
Trust Indenture Act of 1939, as amended, and is a valid, binding and enforceable
agreement of the Company, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and to general principles of
equity.
3. The execution and delivery of the Offered Securities have been
duly authorized by all necessary corporate action of the Company and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters in accordance with the terms
of the Underwriting Agreement, will be valid, binding and enforceable
obligations of the Company, entitled to the benefits of the Indenture, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and to general principles of equity.
4. The statements set forth under the headings "DESCRIPTION OF
THE DEBT SECURITIES," "DESCRIPTION OF THE NOTES" and "UNDERWRITING" in the
Prospectus, insofar as such statements purport to summarize certain provisions
of the Offered Securities and the offering thereof, provide a fair summary of
such provisions.
5. No information has come to the attention of such counsel that
causes it to (1) believe that the Registration Statement, including the
documents incorporated by reference therein (except the financial statements and
schedules and other financial and statistical data included therein, as to which
such counsel need not express any view and except for that part of the
Registration Statement that constitutes the Form TA heretofore referred to), at
the time it became effective, 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 (2) believe that the
Prospectus, including the documents incorporated by reference therein (except
the financial statements and Schedules and other financial and statistical data
included therein, as to which such counsel need not express any view), as of the
date thereof or of the date such opinion is delivered, contained or contains an
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.
With respect to paragraph 4 above, such counsel may provide such
statements in a separate letter, and may state that their opinion and belief are
based upon their participation in the
C-1
preparation of the Prospectus Supplement and any amendments or supplements
thereto (other than the documents incorporated by reference) and upon review and
discussion of the contents of the Prospectus and of the Registration Statement
(including portions of certain of the documents incorporated by reference) but
are without independent check or verification, except as specified.
C-2
