EXHIBIT 1.1
M.D.C. HOLDINGS, INC.
$200,000,000
5 1/2% Senior Notes due 2013
Underwriting Agreement
New York, New York
December 8, 2003
Citigroup Global Markets Inc.
Banc One Capital Markets, Inc.
Wachovia Capital Markets, LLC
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
M.D.C. Holdings, Inc., a Delaware corporation (the "Company"),
proposes to sell to the several underwriters named in Schedule I hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, $200,000,000 aggregate principal amount of its 5 1/2% Senior
Notes due 2013 (the "Notes"), to be issued under the indenture dated as of
December 3, 2002, between the Company and U.S. Bank National Association, as
trustee (the "Trustee"), and a supplemental indenture dated May 19, 2003 by and
among the Company, certain subsidiaries of the Company and the Trustee pursuant
to which $150,000,000 of Notes of the same series were previously issued, as
supplemented pursuant to an authorizing resolution of the Company (such
indenture, as supplemented by such supplemental indenture and such authorizing
resolution, the "Indenture"). The Company's obligations under the Indenture and
the Notes will be unconditionally guaranteed (the "Guarantees"), jointly and
severally, by each of the wholly owned subsidiaries of the Company listed on the
signature pages hereof (the "Guarantors"). The Notes and the Guarantees are
collectively referred to herein as the "Securities." The Company and the
Guarantors are collectively referred to herein as the "Issuers." Certain
capitalized terms have the meanings given to them in Section 17. Any reference
herein to the "Registration Statement" or the "Prospectus" shall be deemed to
refer to and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of such
Prospectus, as the case may be; and any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the
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Registration Statement or the Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date of
the Registration Statement, or the issue date of any Prospectus, as the case may
be, deemed to be incorporated therein by reference.
1. Representations and Warranties. The Issuers, jointly and
severally, represent and warrant to, and agree with, each Underwriter as set
forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3
under the Act and has prepared and filed with the Commission a
registration statement (file number 333-107859) on Form S-3, including
a related base prospectus, for the registration under the Act of the
offering and sale of the Securities. The Registration Statement has
become effective under the Act. The Company may have filed one or more
amendments thereto, each of which has previously been furnished to you.
The Company will next file with the Commission one of the following:
(1) a final prospectus (including a prospectus supplement) in
accordance with Rules 430A and 424(b), or (2) a final prospectus
(including a prospectus supplement) in accordance with Rules 415 and
424(b). In the case of clause (1), the Company has included in such
registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in such registration statement and
the Prospectus. As filed, such amendment and form of final prospectus,
or such final prospectus, shall contain all Rule 430A Information,
together with all other such required information, and, except to the
extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior
to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other
changes as the Company has advised you, prior to the Execution Time,
will be included or made therein. If the Registration Statement
contains the undertaking specified by Regulation S-K Item 512(a), the
Registration Statement, at the Execution Time, meets the requirements
set forth in Rule 415(a)(1)(x).
(b) The Registration Statement, on the Effective Date and on
the date of the Prospectus and each amendment or supplement thereto,
and the Prospectus and each amendment or supplement thereto, at their
respective dates, did and will comply in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder; on the Effective
Date and at the Execution Time, the Registration Statement did not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading; on the Effective Date and
on the Closing Date the Indenture did and will comply in all material
respects with the requirements of the Trust Indenture Act and the rules
thereunder; and
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neither the Prospectus nor any amendment or supplement thereto, on any
date of filing thereof or on the Closing Date, did or will contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
(i) that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity
with information furnished herein or in writing to the Company by or on
behalf of any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Prospectus (or any
amendment or supplement thereto).
(c) Each Issuer and its subsidiaries has been duly organized
and is validly existing in good standing under the laws of the
jurisdiction in which it is chartered or organized with full power and
authority to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Prospectus, and
is duly qualified to do business and is in good standing under the laws
of each jurisdiction which requires such qualification, except in each
case as would not, singly or in the aggregate, have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course
of business (a "Material Adverse Effect"), except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto
subsequent to the Execution Time).
(d) All the outstanding shares of capital stock of each of the
Company's significant subsidiaries (as defined by Rule 1-02 of
Regulation S-X under the Exchange Act) (the "Significant Subsidiaries")
have been duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Prospectus,
all outstanding shares of capital stock of the Significant Subsidiaries
are owned by the Company either directly or through wholly owned
subsidiaries free and clear of any perfected security interest or any
other security interests, claims, liens or encumbrances.
(e) The Company's authorized equity capitalization is as set
forth in the Prospectus. The Securities conform in all material
respects to the description thereof contained in the Prospectus. The
Securities being sold hereunder by the Company shall be on the Closing
Date duly listed, and admitted and authorized for trading, subject to
official notice of issuance and evidence of satisfactory distribution
on the New York Stock Exchange (the "NYSE").
(f) There is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Prospectus, or to be filed as an
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exhibit thereto, which is not described or filed as required. The
statements in the Prospectus under the headings "Description of Notes,"
"Description of Debt Securities" and "Plan of Distribution" fairly
summarize the matters therein described.
(g) This Agreement has been duly authorized, executed and
delivered by each Issuer and constitutes a valid and binding obligation
of each Issuer enforceable in accordance with its terms.
(h) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended.
(i) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein, except such as have been
obtained under the Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated herein and in the Prospectus.
(j) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach or violation of, or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, (i) the charter or by-laws of the Company or
any of its subsidiaries, (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the
Company or any of its subsidiaries is a party or bound or to which its
or their property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any
of its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its subsidiaries or any of its
or their properties, except, in the case of clause (ii) or (iii), as
would not, singly or in the aggregate, have a Material Adverse Effect.
(k) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(l) The consolidated historical financial statements of the
Company and its consolidated subsidiaries included in the Prospectus
and the Registration Statement present fairly in all material respects
the financial condition, results of operations and cash flows of the
Company as of the dates and for the periods indicated, comply as to
form with the applicable accounting requirements of the Act and have
been prepared
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in conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved (except as otherwise
noted therein). The selected financial data set forth under the caption
"Summary -- Selected Financial and Other Data" in the Prospectus fairly
present, on the basis stated in the Prospectus, the information
included therein.
(m) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property is pending
or, to the best knowledge of the Company, threatened that (i) could
reasonably be expected to have a material adverse effect on the
performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (ii) could reasonably be expected
to have a Material Adverse Effect.
(n) Each of the Company and each of its subsidiaries owns or
leases all such properties as are necessary to the conduct of its
operations as presently conducted, except as would not have a Material
Adverse Effect.
(o) Neither the Company nor any subsidiary is in violation or
default of (i) any provision of its charter or bylaws, (ii) the terms
of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which it is a party or bound or to which its
property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or such subsidiary or any of its
properties, as applicable, except, in the case of clause (ii) or (iii),
as would not, singly or in the aggregate, have a Material Adverse
Effect.
(p) Each of PricewaterhouseCoopers LLP and Ernst & Young LLP,
who have certified certain financial statements of the Company and its
consolidated subsidiaries and delivered their report with respect to
the audited consolidated financial statements included in the
Prospectus, are independent public accountants with respect to the
Company within the meaning of the Act and the applicable published
rules and regulations thereunder. To the Issuers' knowledge, Ernst &
Young LLP is not in violation of the auditor independence requirements
of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
(q) There are no material transfer taxes or other similar fees
or charges under Federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the
execution and delivery of this Agreement or the issuance or sale by any
Issuer of the Securities.
(r) The Company and its subsidiaries have filed all foreign,
federal, state and local tax returns that are required to be filed or
has requested extensions thereof
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(except in any case in which the failure so to file would not have a
Material Adverse Effect) and have paid all taxes required to be paid by
them and any other assessment, fine or penalty levied against them, to
the extent that any of the foregoing is due and payable, except for any
such assessment, fine or penalty that is currently being contested in
good faith or as would not have a Material Adverse Effect.
(s) No labor problem or dispute with the employees of the
Company or any of its subsidiaries exists or is threatened or imminent,
and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or its subsidiaries'
principal suppliers, contractors or customers, that, in either case,
could have a Material Adverse Effect.
(t) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; all policies of insurance and
fidelity or surety bonds insuring the Company or any of its
subsidiaries or their respective businesses, assets, employees,
officers and directors are in full force and effect; the Company and
its subsidiaries are in compliance with the terms of such policies and
instruments in all material respects.
(u) Except as described in or contemplated by the Prospectus,
no Restricted Subsidiary (as defined in the Indenture) of the Company
(other than any Finance Subsidiary, as defined in the Supplemental
Indenture) is currently materially restricted, directly or indirectly,
from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the
Company any loans or advances to such subsidiary from the Company or
from transferring any of such subsidiary's property or assets to the
Company or any other subsidiary of the Company, in any case, to any
extent that the Company deems necessary.
(v) The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities necessary
to conduct their respective businesses, except where the failure to
possess any such license, certificate, permit or authorization would
not, singly or in the aggregate, have a Material Adverse Effect.
Neither the Company nor any of its subsidiaries has received any notice
of proceedings relating to the revocation or modification of any such
license, certificate, permit or authorization which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect.
(w) The Company and each of its subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable
assurance that, in all material respects, (i) transactions are executed
in accordance with management's general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of
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financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to assets
is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(x) 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, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(y) Except as would not, singly or in the aggregate, have a
Material Adverse Effect, the Company and its subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (ii) have received
and are in compliance with all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) except as set forth in the Prospectus,
have not received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants. Except as set
forth in the Prospectus, neither the Company nor any of its
subsidiaries has been named as a "potentially responsible party" under
the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended.
(z) Each of the Company and its subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of Section 302
of the United States Employee Retirement Income Security Act of 1974
("ERISA") and the regulations and published interpretations thereunder
with respect to each "plan" (as defined in Section 3(3) of ERISA and
such regulations and published interpretations) in which employees of
the Company and its subsidiaries are eligible to participate and each
such plan is in compliance in all material respects with the presently
applicable provisions of ERISA and such regulations and published
interpretations. The Company and its subsidiaries have not incurred any
unpaid liability to the Pension Benefit Guaranty Corporation (other
than for the payment of premiums in the ordinary course) or to any such
plan under Title IV of ERISA.
(aa) The Company and its subsidiaries own, possess, license or
have other rights to use, on reasonable terms, all material patents,
patent applications, trade and service marks, trade and service mark
registrations, trade names, copyrights, licenses, inventions, trade
secrets, technology, know-how and other intellectual property
(collectively, the "Intellectual Property") necessary for the conduct
of the Company's business as now conducted or as proposed in the
Prospectus to be conducted.
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(bb) Except as disclosed in the Registration Statement and the
Prospectus, the Company (i) does not have any material lending or other
relationship with any bank or lending affiliate of any Underwriter and
(ii) does not intend to use any of the proceeds from the sale of the
Securities hereunder to repay any outstanding debt owed to any
affiliate of any Underwriter.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale; Underwriting Compensation. The Company
agrees to sell to each Underwriter, and each Underwriter agrees, subject to the
terms and conditions and in reliance upon the representations and warranties
herein set forth, severally and not jointly, to purchase from the Company, at a
purchase price (the "Purchase Price") of 99.610% of the principal amount thereof
plus accrued interest thereon from November 15, 2003 to the Closing Date, the
principal amount of the Securities set forth opposite such Underwriter's name in
Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at 10:00 AM, New York City time, on December 16, 2003,
or at such time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and time may
be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof. Delivery of the Securities shall
be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct. The Purchase Price shall be paid by
the several Underwriters by wire transfer payable in same-day funds to an
account specified by the Company.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus initially at 100.235% of the principal amount thereof plus
accrued interest thereon from November 15, 2003 to the Closing Date.
5. Agreements. The Issuers agree with the several Underwriters
that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the Registration
Statement or supplement to the Prospectus or any Rule 462(b)
Registration Statement unless the Company has furnished you a copy for
your review prior to filing and will not file any such proposed
amendment
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or supplement to which you reasonably object. Subject to the foregoing
sentence, if the Registration Statement has become or becomes effective
pursuant to Rule 430A, or filing of the Prospectus is otherwise
required under Rule 424(b), the Company will cause the Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to
the Representatives of such timely filing. The Company will promptly
advise the Representatives (1) when the Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement
shall have been filed with the Commission, (2) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (3)
of any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement, or
for any supplement to the Prospectus or for any additional information,
(4) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (5) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such
stop order or the suspension of any such qualification and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then supplemented would include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or supplement the
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company promptly will (1) notify the
Representatives of such event; (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct such statement
or omission or effect such compliance; and (3) supply any supplemented
Prospectus to you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
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(d) The Company will furnish to the Representatives and to
counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by any Underwriter or
dealer may be required by the Act, as many copies the Prospectus and
any supplement thereto as the Representatives may reasonably request.
The Company will pay the expenses of printing or other production of
all documents relating to the offering.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of
the Securities and will pay any fee of the National Association of
Securities Dealers, Inc., in connection with its review of the
offering; provided that in no event shall the Company be obligated to
do business in any jurisdiction where it is not now so qualified or to
take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Securities
in any jurisdiction where it is not now so subject.
(f) 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, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Issuers
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Issuers made in any certificates pursuant to the
provisions hereof, to the performance by the Issuers of their obligations
hereunder and to the following additional conditions:
(a) If filing of the Prospectus, or any amendment or
supplement thereto, is required pursuant to Rule 424(b), the
Prospectus, and any such amendment or supplement, will be filed in the
manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have furnished to the Representatives
the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇, Senior Vice President and General Counsel
of the Company, and ▇▇▇▇▇▇ ▇▇▇▇▇, Secretary and Corporate Counsel of
the Company, dated the Closing Date and addressed to the
Representatives, to the effect that:
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(i) Each of the Company and its subsidiaries has been duly
organized and is validly existing in good standing under the laws of
the jurisdiction in which it is chartered or organized with full power
and authority to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Prospectus, and
is duly qualified to do business and is in good standing under the laws
of each jurisdiction which requires such qualification, except in each
case as would not, singly or in the aggregate, have a Material Adverse
Effect, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto subsequent to the Execution Time);
(ii) all the outstanding shares of capital stock of each
significant subsidiary of the Company (as defined by Rule 1-02 of
Regulation S-X) (individually a "Subsidiary" and collectively the
"Subsidiaries") have been duly and validly authorized and issued and
are fully paid and nonassessable, and, except as otherwise set forth in
the Prospectus, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through wholly
owned subsidiaries free and clear of any perfected security interest
and, to the knowledge of such counsel, after due inquiry, any other
security interest, claim, lien or encumbrance;
(iii) the Company's authorized equity capitalization is as set
forth in the Prospectus; the Securities being sold hereunder by the
Company are duly listed, and admitted and authorized for trading,
subject to official notice of issuance and evidence of satisfactory
distribution on the NYSE;
(iv) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Prospectus, and there is no
franchise, contract or other document of a character required to be
described in the Registration Statement or Prospectus, or to be filed
as an exhibit thereto, which is not described or filed as required;
(v) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended;
(vi) neither the execution and delivery of the Indenture, the
issue and sale of the Securities nor the consummation of any other of
the transactions herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation of or
imposition of any lien, charge or
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encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, (x) the charter or by-laws of the Company or
any of its subsidiaries, (y) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the
Company or any of its subsidiaries is a party or bound or to which its
or their property is subject, or (z) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any
of its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its subsidiaries or any of its
or their properties, except, in the case of clause (y) or (z), as would
not, singly or in the aggregate, have a Material Adverse Effect; and
(vii) no holders of securities of the Company have rights to
the registration of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely as to matters involving the
application of laws of any jurisdiction other than the States of New York or
Colorado, the Delaware General Corporation Law or the Federal laws of the United
States, to the extent he deems proper and specified in such opinion, upon the
opinion of other counsel of good standing whom he believes to be reliable and
who are satisfactory to counsel for the Underwriters. References to the
Prospectus in this paragraph (b) include any supplements thereto at the Closing
Date.
(c) ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇, counsel for the Issuers, dated the
Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by the Issuers;
(ii) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument enforceable against
the Issuers in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from
time to time in effect); and the 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
pursuant to this Agreement, will constitute legal, valid and binding
obligations of the Issuers entitled to the benefits of the Indenture;
-13-
(iii) the statements in the Prospectus under the headings
"Description of Notes," "Description of Debt Securities" and "Plan of
Distribution" fairly summarize the matters described therein;
(iv) no consent, approval, authorization, filing with or order
of any court or governmental agency or body is required with respect to
the Company or the Guarantors in connection with the transactions
contemplated herein, except such as have been obtained under the Act
and such as may be required under the blue sky laws of any jurisdiction
in connection with the purchase and distribution of the Securities by
the Underwriters in the manner contemplated in this Agreement and in
the Prospectus; and
(v) the Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); to the knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose have been
instituted or threatened and the Registration Statement and the
Prospectus (other than the financial statements and other financial
information contained therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust Indenture Act
and the respective rules thereunder.
In addition, such counsel shall also state that it has participated in
conferences with officers and other representatives of the Company and the
Guarantors (as you and your counsel have done); that at such conferences it has
made inquiries of such officers and representatives and discussed the contents
of the Registration Statement and Prospectus; that it has not itself
independently verified and, accordingly does not render any opinion upon, the
accuracy, completeness or fairness of the Registration Statement or the
Prospectus. However, subject to the foregoing, such counsel shall state that no
facts have come to its attention that have caused it to believe that, as of the
effective date of the Registration Statement, the Registration Statement
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that, as of the date of the Registration Statement or the
Closing Date, the Prospectus contained or contains an untrue statement of a
material fact or omits or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided that such
counsel may state that it expresses no view as to the financial statements,
financial schedules and other financial and statistical data included in the
Registration Statement or Prospectus.
-14-
In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the States of New York or
Colorado, the Delaware General Corporation Law or the Federal laws of the United
States, to the extent they deem proper and specified in such opinion, upon the
opinion of other counsel of good standing whom they believe to be reliable and
who are satisfactory to counsel for the Underwriters and (B) as to matters of
fact, to the extent they deem proper, on certificates of responsible officers of
the Company and public officials. References to the Prospectus in this paragraph
(c) include any supplements thereto at the Closing Date. The opinion or opinions
of such counsel shall be rendered to the Underwriters at the request of the
Company and shall so state therein.
(d) The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the issuance
and sale of the Securities, the Indenture, the Registration Statement, the
Prospectus (together with any supplement thereto) and other related matters as
the Representatives may reasonably require, and the Company shall have furnished
to such counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇, Executive Vice
President and Chief Financial Officer of the Company and Executive Vice
President, Vice President, manager or officer of the general partner of each of
the Guarantors, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Prospectus,
any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Issuers in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) to the Company's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto
subsequent to the Execution Time), there has been no material adverse
change in the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto subsequent to the Execution Time).
-15-
(f) At the Execution Time and at the Closing Date, ▇▇▇▇▇ &
Young LLP shall have furnished to the Representatives letters, dated
respectively as of the Execution Time and as of the Closing Date, in
form and substance satisfactory to the Representatives, confirming that
they are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable published rules and
regulations thereunder and that:
(i) in their opinion the audited financial statements
and financial statement schedules included or incorporated in
the Registration Statement and the Prospectus and audited by
them comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange
Act and the related published rules and regulations;
(ii) they have performed a review of the unaudited
interim financial information of the Company for the
nine-month period ended September 30, 2003 in accordance with
Statement on Auditing Standards No. 100 and that on the basis
of a reading of the latest unaudited financial statements made
available by the Company and its subsidiaries; their limited
review, in accordance with standards established under
Statement on Auditing Standards No. 100, of the unaudited
interim financial information for the nine-month period ended
September 30, 2003; carrying out certain specified procedures
(but not an examination in accordance with generally accepted
auditing standards) which would not necessarily reveal matters
of significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the
stockholders and board of directors (and committees thereof)
of the Company and its subsidiaries; and inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries as
to transactions and events subsequent to December 31, 2002,
nothing came to their attention which caused them to believe
that:
(1) any unaudited financial statements
included or incorporated in the Registration
Statement and the Prospectus do not comply as to form
in all material respects with applicable accounting
requirements of the Act and with the published rules
and regulations of the Commission with respect to
financial statements included or incorporated in
Quarterly Reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not
in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited financial
statements included or incorporated in the
Registration Statement and the Prospectus;
-16-
(2) with respect to the period subsequent to
September 30, 2003, there were any changes, at a
specified date not more than five days prior to the
date of the letter, in the long-term debt of the
Company and its subsidiaries or capital stock of the
Company or decreases in the stockholders' equity or
working capital of the Company as compared with the
amounts shown on the September 30, 2003 consolidated
balance sheet included or incorporated in the
Registration Statement and the Prospectus, or for the
period from September 30, 2003 to such specified date
there were any decreases, as compared with the
comparable period in the preceding year, in net
revenues or income before income taxes or in total or
per share amounts of net income of the Company and
its subsidiaries, except in all instances for changes
or decreases set forth in such letter, in which case
the letter shall be accompanied by an explanation by
the Company as to the significance thereof unless
said explanation is not deemed necessary by the
Representatives; and
(3) the information included in the
Registration Statement and Prospectus in response to
Regulation S-K, Item 301 (Selected Financial Data),
Item 302 (Supplementary Financial Information), Item
402 (Executive Compensation) and Item 503(d) (Ratio
of Earnings to Fixed Charges) is not in conformity
with the applicable disclosure requirements of
Regulation S-K; and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Prospectus and in Exhibit 12 to the
Registration Statement, including the information set forth
under the captions "Summary -- Selected Financial and Other
Data," "Capitalization" and "Business" in the Prospectus, the
information included or incorporated in Items 1, 2, 6, 7, 7A,
11 and 13 of the Company's Annual Report on Form 10-K,
incorporated in the Registration Statement and the Prospectus,
and the information included in the "Management's Discussion
and Analysis of Financial Condition and Results of Operations"
included or incorporated in the Company's Quarterly Reports on
Form 10-Q, incorporated in the Registration Statement and the
Prospectus, agrees with the accounting records of the Company
and its subsidiaries, excluding any questions of legal
interpretation.
References to the Prospectus in this paragraph (f) include any
supplement thereto at the date of the letter.
-17-
(g) At the Execution Time, PricewaterhouseCoopers LLP shall
have furnished to the Representatives a letter in the form previously
agreed upon with the Representatives.
(h) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Prospectus (exclusive of
any supplement thereto subsequent to the Execution Time), there shall
not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (f) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto subsequent to the Execution Time)
the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto subsequent to the
Execution Time).
(i) Subsequent to the Execution Time and prior to the Closing
Date, there shall not have been any decrease in the rating of any of
the Company's debt by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act) or
any notice given of any intended or potential decrease in any such
rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
(j) The Securities shall have been listed and admitted and
authorized for trading on the NYSE, and satisfactory evidence of such
actions shall have been provided to the Representatives.
(k) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
-18-
The documents required to be delivered by this Section 6 shall
be delivered at the office of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the
Underwriters, at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through Citigroup Global Markets Inc. on demand for all out-of-pocket
expenses (including reasonable fees and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLP) that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Issuers agree,
jointly and severally, to indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and each person
who controls any Underwriter within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the registration
statement for the registration of the Securities as originally filed or in any
amendment thereof, or in the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action.
Notwithstanding the foregoing, no Issuer will be liable in any
such case (I) to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion therein
or (II) to any Underwriter with respect to the Prospectus to the extent that any
such loss, claim, damage or liability of such Underwriter results from the fact
that such Underwriter sold Securities to a person as to whom it shall be
established in the related proceedings that there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the Prospectus (or of
the Prospectus as then amended or supplemented if the Company shall have
furnished such Underwriter with such amendment or supplement thereto prior to
the written confirmation of such sale), if such delivery was required by the
Act, and such loss, claim, damage or liability
-19-
results from an untrue statement or omission of a material fact contained in
such Prospectus that was completely corrected in any amendment or supplement
thereto if the Company shall have furnished such Underwriter with such amendment
or supplement thereto prior to the written confirmation of such sale) (it being
understood that no Underwriter shall be required to send or give any amendment
or supplement to any document incorporated by reference in the Prospectus to any
person in order to benefit from the indemnification provisions herein or
otherwise).
This indemnity agreement will be in addition to any liability
which the Issuers may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless each of the Issuers, each of their respective
directors, each of their respective officers who sign the Registration
Statement, and each person that controls any Issuer within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity to
any Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Company by or on behalf of such Underwriter through
the Representatives specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriters may otherwise have. The Issuers acknowledge
that, under the heading "Underwriting," the sentences related to concessions and
reallowances and the paragraph related to stabilization, syndicate covering
transactions and penalty bids in the Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in the Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and
-20-
expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Issuers and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively, "Losses") to which the Issuers
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Issuers on the one
hand and the Underwriters on the other from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting discount
or commission applicable to the Securities purchased by such Underwriters
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Issuers and the Underwriters shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Issuers and of the Underwriters in connection
with the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the Issuers shall
be deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by them, and benefits received by the Underwriters
shall be deemed to be equal to the total underwriting discounts and commissions,
in each case as set forth on the cover page of the Prospectus. Relative fault
shall be determined by reference to, among other things, whether any untrue or
any alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the Issuers
on the one hand or the Underwriters on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Issuers and the Underwriters
agree that it would not be just and equitable if
-21-
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person that
controls (within the meaning of either the Act or the Exchange Act) an
Underwriter and each director, officer, employee and agent of an Underwriter
shall have the same rights to contribution as any Underwriter, and each person
who controls any Issuer within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule I hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter set forth in this Section
9, the Closing Date shall be postponed for such period, not exceeding five
Business Days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Issuers prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in the Company's Common Stock shall have
been suspended by the Commission or the NYSE or trading in securities generally
on the NYSE shall have been suspended or limited or minimum prices shall have
been established on either of such Exchanges, (ii) a banking moratorium shall
have been declared either by Federal or New York State authorities or a material
disruption in commercial
-22-
banking or securities settlement or clearance services in the United States,
(iii) there shall have occurred any outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war or the occurrence of any other calamity or crisis or
any adverse change in financial, political or economic conditions in the United
States or elsewhere, the effect of which on financial markets is such as to make
it, in the sole judgment of the Representatives, impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the
Prospectus (exclusive of any supplement thereto subsequent to the Execution
Time).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Issuers or their respective officers and of the Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Issuers or
any of the officers, directors or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed or delivered to them c/o Citigroup Global Markets Inc. at its address set
forth above, Attention: Legal Department; or, if sent to the Issuers, will be
mailed or delivered to it at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or telefaxed to (▇▇▇) ▇▇▇-▇▇▇▇, Attention: General Counsel.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
-23-
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or becomes
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Prospectus" shall mean the prospectus (including any related
prospectus supplement) relating to the Securities that is first filed
pursuant to Rule 424(b) after the Execution Time or, if no filing
pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities included in the Registration
Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 424," "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the initial registration statement.
-24-
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission
promulgated thereunder.
[Signature Pages Follow]
S-1
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company, the Guarantors and the several Underwriters.
Very truly yours,
M.D.C. HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇
Title: Executive Vice President and
Chief Financial Officer
Guarantors:
M.D.C. LAND CORPORATION
RAH OF TEXAS, LP
RAH TEXAS HOLDINGS, LLC
RICHMOND AMERICAN CONSTRUCTION, INC.
RICHMOND AMERICAN HOMES OF ARIZONA, INC.
RICHMOND AMERICAN HOMES OF CALIFORNIA, INC.
RICHMOND AMERICAN HOMES OF
CALIFORNIA (INLAND EMPIRE), INC.
RICHMOND AMERICAN HOMES OF COLORADO, INC.
RICHMOND AMERICAN HOMES OF MARYLAND, INC.
RICHMOND AMERICAN HOMES OF NEVADA, INC.
RICHMOND AMERICAN HOMES OF TEXAS, INC.
RICHMOND AMERICAN HOMES OF UTAH, INC.
RICHMOND AMERICAN HOMES OF VIRGINIA, INC.
S-2
RICHMOND AMERICAN HOMES OF WEST VIRGINIA, INC.
RICHMOND AMERICAN HOMES OF FLORIDA, LP
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇
Title: Authorized officer or
representative of each Guarantor
S-3
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
CITIGROUP GLOBAL MARKETS INC.
BANC ONE CAPITAL MARKETS, INC.
WACHOVIA CAPITAL MARKETS, LLC
DEUTSCHE BANK SECURITIES INC.
BNP PARIBAS SECURITIES CORP.
COMERICA SECURITIES INC.
MCDONALD INVESTMENTS INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
SUN TRUST CAPITAL MARKETS, INC.
JMP SECURITIES LLC
By: CITIGROUP GLOBAL MARKETS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
SCHEDULE I
Principal Amount
of Securities
Underwriters to be Purchased
------------ ----------------
Citigroup Global Markets Inc.............................. $ 90,000,000
Banc One Capital Markets, Inc............................. 52,000,000
Wachovia Capital Markets, LLC............................. 20,000,000
BNP Paribas Securities Corp............................... 6,000,000
Deutsche Bank Securities Inc.............................. 6,000,000
Comerica Securities Inc................................... 6,000,000
McDonald Investments Inc.................................. 6,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated......... 6,000,000
Sun Trust Capital Markets, Inc. ......................... 6,000,000
JMP Securities LLC........................................ 4,000,000
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Total............................................ $ 200,000,000
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