EXHIBIT 1.01 (a)
SOUTHWEST GAS CORPORATION
7.625% SENIOR UNSECURED NOTES DUE 2012
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UNDERWRITING AGREEMENT
May 1, 2002
BANC OF AMERICA SECURITIES LLC
BNY CAPITAL MARKETS, INC.
As Representatives of the Underwriters
named on Schedule I to the Pricing Agreement
c/o Banc of America Securities LLC
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Ladies and Gentlemen:
From time to time Southwest Gas Corporation, a California corporation
(the "Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firm or firms
designated as representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives. This Underwriting Agreement shall not be construed as an
obligation of the Company to sell any of the Securities or as an obligation of
any of the Underwriters to purchase the Securities. The obligation of the
Company
to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal amount of
such Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities and
payment therefor. The Pricing Agreement shall also specify (to the extent not
set forth in the Indenture and the registration statement and prospectus with
respect thereto) the terms of such Designated Securities. A Pricing Agreement
shall be in the form of an executed writing (which may be in counterparts), and
may be evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-74520)
(the "Initial Registration Statement") in respect of the Securities has
been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any post-effective
amendment thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to the Initial
Registration Statement, but including all documents incorporated by
reference in the prospectus contained therein, to the Representatives
for each of the other Underwriters, has been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Act"), which became effective upon filing, no
other document with respect to the Initial Registration Statement or
document incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission (other than prospectuses
filed pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Act, each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective amendment thereto or
the Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the Act, is
hereinafter called a "Preliminary Prospectus"; the various parts of the
Initial Registration Statement, any post-effective amendment thereto and
the Rule 462(b) Registration Statement, if any, including all exhibits
thereto and the documents incorporated by reference in the prospectus
contained in the Initial Registration Statement at the time such part of
the Initial Registration Statement became effective but excluding Form
T-1, each as amended at the time such part of the Initial Registration
Statement became effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statement"; the
prospectus
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relating to the Securities, in the form in which it has most recently
been filed, or transmitted for filing, with the Commission on or prior
to the date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under
the Act, as of the date of such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated
by reference in such Preliminary Prospectus or Prospectus, as the case
may be; any reference to any amendment to the Initial Registration
Statement shall be deemed to refer to and include any annual report of
the Company filed pursuant to Sections 13(a) or 15(d) of the Exchange
Act after the effective date of the Initial Registration Statement that
is incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed
to refer to the Prospectus as amended or supplemented in relation to the
applicable Designated Securities in the form in which it is filed with
the Commission pursuant to Rule 424(b) of the rules and regulations of
the Commission under the Act in accordance with Section 5(a) hereof,
including any documents incorporated by reference therein as of the date
of such filing).
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder, and none of such documents 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, in light of
the circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities.
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue
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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; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Securities.
(d) Neither the Company nor Northern Pipeline Construction Co. or
Paiute Pipeline Company (together, the "Subsidiaries") has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus; and, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, neither the Company nor any of its subsidiaries has incurred
any liabilities or obligations, direct or contingent, or entered into
any transactions, not in the ordinary course of business, that are
material to the Company and its subsidiaries, there has not been any
change in the capital stock, except for issuances of capital stock
pursuant to the Company's dividend reinvestment program and employee
benefit plans existing on or prior to the date hereof, or long-term
debt, other than the repayment of current maturities of long-term debt,
of the Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company
and its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus.
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of California, with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus, is duly registered and
qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct
of its business requires such registration or qualification.
(f) Each Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus, is duly
registered and qualified to conduct its business and is in good standing
in each jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification.
(g) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable.
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(h) The Designated Securities have been duly authorized by the
Company, and, when the Designated Securities are issued and delivered
pursuant to this Agreement and the Pricing Agreement with respect to
such Designated Securities, such Designated Securities will have been
duly executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their respective terms and entitled to the benefits
provided by the Indenture, which will be substantially in the form filed
as an exhibit to the Registration Statement; the Indenture has been duly
authorized and duly qualified under the Trust Indenture Act and, at the
Time of Delivery for such Designated Securities (as defined in Section 4
hereof), the Indenture will constitute a valid and legally binding
obligation of the Company, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
fraudulent conveyance or other similar laws affecting creditors' rights
and general equitable principles (whether considered in equity or law);
and the Indenture conforms, and the Designated Securities will conform,
to the descriptions thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities.
(i) All of the Company's subsidiaries are listed in an exhibit to
the Company's Annual Report on Form 10-K for the year ended December 31,
2001, which is incorporated by reference into the Prospectus. Other than
the Subsidiaries, (i) no subsidiary of the Company is a "significant
subsidiary" as defined in Regulation S-X and (ii) no two or more
subsidiaries of the Company considered in the aggregate constitute a
"significant subsidiary" as defined in Regulation S-X.
(j) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the Indenture,
this Agreement and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated, will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
(with the giving of notice or lapse of time or both) constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or either of the
Subsidiaries is a party or by which the Company or either of the
Subsidiaries is bound or to which any of the property or assets of the
Company or either of the Subsidiaries is subject, nor will such action
result in: (i) any violation of the provisions of the Articles of
Incorporation or By-Laws of the Company or either of the Subsidiaries or
any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or
either of the Subsidiaries or any of their respective properties or (ii)
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or either of the Subsidiaries pursuant
to the terms of any agreement or instrument to which any of them is a
party or by which any of them may be bound or to which any of the
property or assets of any of them is subject; the execution, delivery
and performance of this Agreement, any Pricing Agreement and the
Indenture will not require the approval or consent of any holder or
trustee of any debt or other obligations or securities of the Company
which will not have been obtained and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale
of the Securities or the consummation by the Company of the transactions
contemplated by this Agreement or any Pricing Agreement or the
Indenture, except such
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as have been, or will have been prior to the Time of Delivery, obtained
(i) under the Act and the rules and regulations of the Commission
thereunder, (ii) under the Trust Indenture Act and the rules and
regulations of the Commission thereunder and (iii) from the Public
Utilities Commission of the State of California, and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or blue sky laws in connection with the
purchase and distribution of the Securities by the Underwriters.
(k) The statements set forth in the Prospectus under the captions
"Description of Debt Securities" and "Description of Notes", insofar as
they purport to constitute a summary of the terms of the Securities, and
under the captions "Plan of Distribution" and "Underwriting", insofar as
they purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair.
(l) Except as disclosed in the Prospectus, neither the Company
nor either of the Subsidiaries is: (i) in violation of its respective
Articles of Incorporation or By-Laws or to the best knowledge of the
Company after due inquiry, of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or either of
the Subsidiaries, the violation of which would reasonably be expected to
have a material adverse effect on the general affairs, management,
financial position, shareholders' equity or results of operations of the
Company and its subsidiaries (a "Material Adverse Effect") or of any
decree of any court or governmental agency or body having jurisdiction
over the Company or either of the Subsidiaries or (ii) is in default in
the performance or observance of any material obligation, agreement,
covenant or condition contained in any bond, debenture, note or any
other evidence of indebtedness, indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which the Company
or either of the Subsidiaries is a party or by which the Company or
either of the Subsidiaries or any of their respective properties may be
bound.
(m) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others.
(n) Arthur Andersen, LLP, who have certified certain financial
statements of the Company and the Subsidiaries, are independent public
accountants with respect to the Company as required by the Act and the
rules and regulations of the Commission thereunder.
(o) The financial statements, together with related schedules and
notes, included or incorporated by reference in the Registration
Statement and the Prospectus (and any amendment or supplement thereto),
present fairly the consolidated financial position, results of
operations and changes in financial position of the Company and the
Subsidiaries on the basis stated in the Registration Statement and the
Prospectus at the
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respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed therein;
and the other financial and statistical information and data included or
incorporated by reference in the Registration Statement and the
Prospectus (and any amendment or supplement thereto) are accurately
presented and prepared on a basis consistent with such financial
statements and the books and records of the Company and the
Subsidiaries.
(p) The execution and delivery of, and the performance by the
Company of its obligations under, this Agreement have been duly and
validly authorized by the Company, and this Agreement has been duly
executed and delivered by the Company and constitutes the valid and
legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as rights to indemnity and
contribution hereunder may be limited by applicable law and as limited
by bankruptcy, insolvency, reorganization, fraudulent conveyance or
other similar laws affecting creditors' rights and general equitable
principles (whether considered in equity or law).
(q) Each of the Company and the Subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities (the "permits") as are necessary to own its respective
properties and to conduct its business in the manner described in the
Prospectus, except where the failure to obtain such permits would not
reasonably be expected to have a Material Adverse Effect; to the best
knowledge of the Company after due inquiry, each of the Company and the
Subsidiaries has fulfilled and performed all its material obligations
with respect to such permits, except where the failure to fulfill or
perform any such obligation would not reasonably be expected to have a
Material Adverse Effect; and no event has occurred that allows, or after
notice or lapse of time would allow, revocation or termination of any
material permits or would result in any other material impairment of the
rights of the holder of any such material permits, subject in each case
to such qualifications as may be set forth in the Prospectus.
(r) No holder of any security of the Company has any right to
require registration of any security of the Company because of the
filing of the Registration Statement or consummation of the transactions
contemplated by this Agreement.
(s) Neither the Company nor any of its subsidiaries is currently
subject to regulation under the Public Utility Holding Company Act of
1935, as amended.
(t) The Company is not and, after giving effect to the offering
and sale of the Securities, will not be an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended.
(u) The Company and its subsidiaries maintain systems of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(iii) access
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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.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to the
Representatives at least forty-eight hours in advance or at such other place and
time and date as the Representatives and the Company may agree upon in writing,
such time and date being herein called the "Time of Delivery" for such
Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b)
of the rules and regulations of the Commission under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of the Pricing Agreement relating
to the applicable Designated Securities or, if applicable, such earlier
time as may be required by Rule 424(b); to make no further amendment or
any supplement to the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to such
Securities and prior to the Time of Delivery for such Securities which
shall be disapproved by the Representatives for such Securities promptly
after reasonable notice thereof; to advise the Representatives promptly
of any such proposed amendment or supplement after such Time of Delivery
and furnish the Representatives with copies thereof; to file promptly
all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or
sale of such Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any prospectus relating to the Securities, of the suspension
of the qualification of such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the
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Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to promptly use its
best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of such
Securities, provided that in connection therewith the Company shall not
be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day (as defined in Section 14 hereof) next succeeding the date
of this Agreement and from time to time as soon as practicable
thereafter, to furnish the Underwriters with written and electronic
copies of the Prospectus, as amended or supplemented, in New York City
in such quantities as the Representatives may reasonably request, and,
if the delivery of a prospectus is required at any time in connection
with the offering or sale of the Securities and if at such time any
event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify the
Representatives and upon their request to file such document and to
prepare and furnish without charge to each Underwriter and to any dealer
of the Securities as many written and electronic copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
of the rules and regulations of the Commission under the Act), an
earnings statement of the Company and the Subsidiaries (which need not
be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of
the Company, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the later of: (i) the termination of trading restrictions for such
Designated Securities, as notified to the Company by the Representatives
and (ii) the Time of Delivery for such Designated Securities, not to
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company which mature more than one year after such
Time of Delivery and which
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are substantially similar to such Designated Securities, without the
prior written consent of the Representatives; and
(f) If the Company elects to rely upon Rule 462(b) of the rules
and regulations of the Commission under the Act, the Company shall file
a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement, and the Company shall at the time of filing either pay
to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) of the rules and regulations of the Commission
under the Act.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (a) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (b) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any blue sky memoranda, closing documents (including any compilations
thereof) and any other documents in connection with the offering, purchase, sale
and delivery of the Securities; (c) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the blue sky survey; (d) any fees charged by securities rating
services for rating the Securities; (e) any filing fees incident to, and the
fees and disbursements of counsel for the Underwriters in connection with, any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities; (f) the cost of preparing the Securities;
(g) the fees and expenses of any Trustee and any agent of any Trustee and the
fees and disbursements of counsel for any Trustee in connection with any
Indenture and the Securities; and (h) all other costs and expenses incident to
the performance of the Company's obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Act within the applicable time
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period prescribed for such filing by the rules and regulations of the
Commission under the Act and in accordance with Section 5(a) hereof; if
the Company has elected to rely upon Rule 462(b) of the rules and
regulations of the Commission under the Act, the Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction.
(b) Counsel for the Underwriters shall have furnished to the
Representatives their written opinion (a draft of such opinion is
attached as Annex II(a) hereto), dated the Time of Delivery for such
Designated Securities, with respect to the matters covered in paragraphs
(i), (ii), (iii), (v), (vii) and (ix) and the final paragraph of
subsection (c) below as well as such other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters.
(c) O'Melveny & Myers LLP or other external counsel for the
Company satisfactory to the Representatives shall have furnished to the
Representatives their written opinion (a draft of such opinion is
attached as Annex II(b) hereto), dated the Time of Delivery for such
Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing in good standing under the laws of the State of
California, with corporate power to own and lease its properties,
to carry on its business as described in the Prospectus, as
amended or supplemented, to enter into this Agreement and the
Pricing Agreement for the Designated Securities and to issue and
deliver the Designated Securities as provided therein.
(ii) The statements in the Prospectus under the captions
"Description of Debt Securities" and "Description of Notes,"
insofar as they purport to constitute a summary of the terms of
the Indenture and the Designated Securities, fairly present the
information required to be included therein by the Act and the
Trust Indenture Act.
(iii) The Designated Securities have been duly authorized by
all necessary corporate action on the part of the Company and
executed by the Company and, upon payment for and delivery of the
Designated Securities in accordance with this Agreement, will
constitute legally valid and binding obligations of the Company,
entitled to the benefits provided by the Indenture.
(iv) The Registration Statement has been declared effective
under the Act and, to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement
has been issued or threatened by the Commission.
11
(v) The execution, delivery and performance of this
Agreement and the Pricing Agreement have been duly authorized by
all necessary corporate action on the part of the Company, and
this Agreement and the Pricing Agreement have been duly executed
and delivered by the Company.
(vi) No consent, approval, authorization or order of, any
federal, California or New York governmental authority is
required on the part of the Company for the issuance and sale of
the Designated Securities as contemplated by the Agreement or the
Pricing Agreement, except (A) such as have been obtained under
the Act or the Trust Indenture Act and the rules and regulations
of the Commission thereunder, (B) the authorization of the Public
Utilities Commission of the State of California referred to in
Section 2(j) of this Agreement which has been obtained and
remains in full force and effect and is, to the knowledge of such
counsel, not the subject of any pending or threatened application
for rehearing or petition for modification, and (C) such as may
be required under foreign or state securities or blue sky laws or
the by-laws and rules of the National Association of Securities
Dealers, Inc. in connection with the purchase and distribution of
the Designated Securities by the Underwriters.
(vii) The Indenture has been duly authorized by all necessary
corporate action on the part of the Company, executed and
delivered by the Company and qualified under the Trust Indenture
Act and constitutes the legally valid and binding obligation of
the Company, enforceable against the Company in accordance with
its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or
affecting creditors' rights generally (including, without
limitation, fraudulent conveyance laws) and by general principles
of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific performance or injunctive
relief, regardless of whether considered in a proceeding in
equity or at law.
(viii) The Company's execution, delivery and performance of
this Agreement, the Pricing Agreement, the Indenture and the
Designated Securities do not violate the Company's Articles of
Incorporation, By-Laws or any applicable California, New York or
federal law, ordinance, administrative or governmental rule or
regulation.
(ix) The Company is not an investment company required to
register under the Investment Company Act of 1940, as amended.
(x) The Registration Statement, at its effective date, and
the Prospectus, as of the date it was filed with the Commission,
and any further amendments and supplements thereto made by the
Company prior to the Time of Delivery for the Designated
Securities at their respective effective dates or respective
dates of filing, as applicable, appeared on their face to comply
as to form in all material respects with the requirements of the
Act and the Trust Indenture Act and the rules and regulations
thereunder, except that such counsel
12
need express no opinion concerning the financial statements and
other financial information contained or incorporated by
reference therein. The documents incorporated by reference in the
Prospectus, on the respective dates they were filed, appeared on
their face to comply in all material respects with the
requirements as to form for reports on Form 10-K, Form 10-Q and
Form 8-K, as the case may be, under the Exchange Act and the
rules and regulations of the Commission thereunder in effect at
such dates, except that such counsel need express no opinion
concerning the financial statements and other financial
information contained or incorporated by reference therein.
In connection with such counsel's participation in conferences in
connection with the preparation of the Registration Statement and the
Prospectus, such counsel need not independently verify the accuracy,
completeness or fairness of the statements contained or incorporated therein,
and the limitations inherent in the examination made by such counsel and the
knowledge available to it are such that such counsel need not assume any
responsibility for such accuracy, completeness or fairness (except as otherwise
specifically stated in subparagraph (ii) above). However, on the basis of such
counsel's review of the Registration Statement, the Prospectus, as amended or
supplemented, and any further amendments and supplements thereto made by the
Company prior to the Time of Delivery of the Designated Securities and the
documents incorporated by reference in the Prospectus and such counsel's
participation in conferences in connection with the preparation of the
Registration Statement and the Prospectus, as amended or supplemented, and any
further amendments and supplements thereto made by the Company prior to the Time
of Delivery of the Designated Securities, such counsel does not believe that the
Registration Statement, when the Registration Statement 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 such counsel does not believe that, as of its date and on
the date of such opinion, the Prospectus, as amended or supplemented, and any
further amendments and supplements thereto made by the Company prior to the Time
of Delivery of the Designated Securities (in each case including the documents
then incorporated by reference and considered as a whole as of such dates),
contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. However, such counsel need not express any opinion or belief: (i) as
to the financial statements and other financial information included or
incorporated by reference in the Registration Statement or the Prospectus as
amended or supplemented and any further amendments and supplements thereto made
by the Company prior to the Time of Delivery of the Designated Securities, (ii)
the statement of eligibility, as it may be amended, under the Trust Indenture
Act, of the Trustee under the Indenture or (iii) any document filed by the
Company under the Exchange Act, whether before or after the effective date of
the Registration Statement, except to the extent that any such document is a
document incorporated by reference in the Registration Statement on its
effective date, considered as a whole, or is a document incorporated by
reference and read together with the Prospectus at the time it was filed with
the Commission and considered as a whole. Counsel does not know of any contracts
or other documents of a character required to be filed as an exhibit to the
Registration Statement or the documents incorporated by reference therein which
are not filed as required.
13
(d) Robert M. Johnson, Assistant General Counsel for the Company,
shall have furnished to the Representatives his written opinion (a draft
of such opinion is attached as Annex II(a) hereto), dated the Time of
Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Subsidiaries have been duly incorporated and are
validly existing in good standing under the laws of the State of
Nevada, with corporate power to own and lease their respective
properties and to carry on their respective businesses as
described in the Prospectus.
(ii) The Company has an authorized capitalization as set
forth in the Prospectus as amended or supplemented and all of the
issued shares of capital stock of the Company have been duly
authorized by all necessary corporate action on the part of the
Company and are validly issued, fully paid and non-assessable.
(iii) The Company is duly qualified to do business as a
foreign corporation and is in good standing under the laws of the
States of Nevada and Arizona and neither the Company nor the
Subsidiaries own or lease material properties or conduct material
business in any other jurisdiction which would require such
qualification. All the outstanding shares of capital stock of the
Subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable, and are owned of record directly by
the Company free and clear of any perfected security interest,
or, to the best knowledge of such counsel after reasonable
inquiry, any other security interest, lien, adverse claim, equity
or other encumbrance.
(iv) To the best knowledge of such counsel after reasonable
inquiry, neither the Company nor either of the Subsidiaries is in
violation of or is in default in the performance of any
obligation contained in any bond, debenture, note or any other
evidence of indebtedness or in any material agreement, indenture,
lease or other instrument to which the Company or either of the
Subsidiaries is a party or by which any of them or any of their
respective properties may be bound which violation or default
could reasonably be expected to have a Material Adverse Effect.
(v) To the best knowledge of such counsel after reasonable
inquiry, there are no rights that entitle or will entitle any
person to acquire any security of the Company upon the issuance
of the Designated Securities by the Company; to the best
knowledge of such counsel after reasonable inquiry, there is no
holder of any security of the Company or any other person who has
the right, contractual or otherwise, to cause the Company to sell
or otherwise issue to them, or to permit them to underwrite the
sale of, any security of the Company as a result of the issuance
of the Designated Securities by the Company.
(vi) The Company's execution, delivery and performance of
this Agreement, the Pricing Agreement, the Indenture and the
Designated Securities do not: (A) violate, breach, or result in a
default under any existing obligation of
14
the Company or the Subsidiaries under any agreement, indenture,
lease or other instrument to which the Company or the
Subsidiaries is a party or by which it or any of its properties
is bound that is an exhibit to the Registration Statement or to
any document incorporated by reference in the Prospectus or any
other material agreement, indenture, lease or other instrument
known to such counsel after reasonable inquiry, (B) breach or
otherwise violate any existing obligation of the Company under
any order, judgment or decree of any Arizona, California or
Nevada or federal court or governmental authority binding on the
Company, or (C) violate any applicable Arizona or Nevada law,
ordinance, administrative or governmental rule or regulation.
(vii) No consent, approval, authorization or order of, or
filing with, any federal, California, Arizona or Nevada
governmental authority is required on the part of the Company for
the issuance and sale of the Designated Securities as
contemplated by this Agreement, except: (A) such as have been
obtained under the Act, the Trust Indenture Act or the rules and
regulations of the Commission thereunder, (B) the authorization
of the Public Utilities Commission of the State of California
referred to in Section 2(j) of this Agreement which has been
obtained, remains in full force and effect and is, to the best
knowledge of such counsel, not the subject of any pending or
threatened application for rehearing or petition for
modification, and (C) such as may be required under applicable
foreign or state securities or blue sky laws or the by-laws and
rules of the National Association of Securities Dealers, Inc. in
connection with the purchase and distribution of the Designated
Securities by the Underwriters.
(viii) To the best knowledge of such counsel after reasonable
inquiry, other than as described or contemplated in the
Prospectus, there are no legal or governmental proceedings
pending or threatened against the Company or any of its
subsidiaries, or to which the Company or any of its subsidiaries
or any of their property is subject, which are required to be
described in the Registration Statement or the Prospectus and are
not so described.
In addition, such counsel shall include in his opinion a statement
substantially to the effect set forth in the last paragraph of subsection (c)
above.
In rendering their opinions as aforesaid, counsel may rely upon an
opinion or opinions, each dated the Time of Delivery for such Designated
Securities, of other counsel retained by them or the Company as to laws of any
jurisdiction other than the United States or (x) in the case of O'Melveny &
Myers LLP, the States of California and New York and (y) in the case of Robert
M. Johnson, Esq., the States of Arizona and Nevada, provided that (1) such
reliance is expressly authorized by each opinion so relied upon, (2) a signed
copy of each such opinion is delivered to the Underwriters which states that the
Underwriters may rely thereon and is otherwise in form and substance
satisfactory to them and their counsel, and (3) counsel shall state in their
opinion that they believe that they and the Underwriters are justified in
relying thereon.
15
(e) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement
with respect to such Designated Securities and at the Time of Delivery
for such Designated Securities, Arthur Andersen LLP, independent
certified public accountants, shall have furnished to the
Representatives a letter, dated the date of the Pricing Agreement and a
letter dated such Time of Delivery, respectively, to the effect set
forth in Annex II hereto, and in form and substance satisfactory to the
Representatives.
(f) (i) Neither the Company nor either of the Subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended prior
to the date of the Pricing Agreement relating to the Designated
Securities any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus,
as amended prior to the date of the Pricing Agreement, relating to the
Designated Securities, and (ii) since the respective dates as of which
information is given in the Prospectus, as amended prior to the date of
the Pricing Agreement, relating to the Designated Securities there shall
not have been any change in the capital stock or long-term debt of the
Company or its subsidiaries or any change, or any development involving
a prospective change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of the
Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated Securities, the effect of
which, in any such case described in clause (i) or (ii), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as first amended or supplemented relating
to the Designated Securities.
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities: (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities or preferred securities by
any "nationally recognized statistical rating organization", as that
term is defined by the Commission for purposes of Rule 436(g)(2) of the
rules and regulations of the Commission under the Act, and (ii) no such
organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any of the Company's debt securities or preferred securities and no
notice shall have been 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.
(h) Moody's Investors Service, Inc., Standard & Poor's Ratings
Services and Fitch, Inc. shall have publicly assigned to the long-term
senior debt securities of the Company ratings of at least "Baa2", "BBB-"
and "BBB", respectively, and ratings at least at those "Baa2", "BBB-"
and "BBB" levels shall be in full force and effect at the Time of
Delivery.
16
(i) On or after the date of the Pricing Agreement relating to the
Designated Securities, there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange (the "NYSE"); (ii) a
suspension or material limitation in trading in the Company's securities
on the NYSE; (iii) a general moratorium on commercial banking activities
declared by either Federal or New York State authorities or a material
disruption in commercial banking or securities settlement or clearance
services in the United States; (iv) a material disruption in securities
settlement or clearance services; (v) a material adverse change in
financial markets or the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war; if the effect of any such event specified in clause
(v) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented relating to the Designated
Securities.
(j) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement.
(k) The Company shall have furnished or caused to be furnished to
the Representatives at the Time of Delivery for the Designated
Securities a certificate or certificates of officers of the Company
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (f) of this
Section and as to such other matters as the Representatives may
reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages, expenses or liabilities, joint or several,
to which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages, expenses or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus,
as amended or supplemented, and any other prospectus relating to the Securities,
or any amendment 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
will promptly reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, expense or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus, as amended or
supplemented, and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as
17
amended or supplemented relating to such Securities; and provided, further, that
the Company shall not be liable to any Underwriter under the indemnity agreement
in subsection (a) of this Section with respect to any Preliminary Prospectus to
the extent that any such loss, claim, damage, expense or liability of such
Underwriter results from the fact that such Underwriter sold the Designated
Securities to a person as to whom it shall be established that there was not
sent or given, at or prior to the written confirmation of such sale, a copy of
the Prospectus (excluding documents incorporated by reference) or of the
Prospectus, as then amended or supplemented (excluding documents incorporated by
reference), in any case where such delivery is required by the Act if the
Company has previously furnished copies thereof in sufficient quantity to such
Underwriter and the loss, claim, damage, expense or liability of such
Underwriter results from an untrue statement or omission of a material fact
contained in the Preliminary Prospectus which was identified in writing at such
time to such Underwriter and corrected in the Prospectus (excluding documents
incorporated by reference) or in the Prospectus, as then amended or supplemented
(excluding documents incorporated by reference), and such correction would have
cured the defect giving rise to such loss, claim, damage or liability.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages, expenses or liabilities to which
the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages, expenses or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus, as amended or supplemented, and any other
prospectus relating to the Securities, or any amendment 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, in each case
to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus, as amended or supplemented, and
any other prospectus relating to the Securities, or any such amendment
or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will promptly reimburse
the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or
claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the
18
indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any
legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry
of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or claim
and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages, expenses or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, damages, expenses or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters of
the Designated Securities on the other from the offering of the
Designated Securities to which such loss, claim, damage, expense or
liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give
the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company
on the one hand and the Underwriters of the Designated Securities on the
other in connection with the statements or omissions which resulted in
such losses, claims, damages, expenses or liabilities (or actions in
respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and such Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriters.
The relative fault 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 on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this
subsection (d) 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 which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid
or payable by an indemnified party as a result of the losses, claims,
damages, expenses or liabilities (or
19
actions in respect thereof) referred to above in this subsection (d)
shall be deemed to include 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 subsection (d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
applicable Designated Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages
which 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 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this
subsection (d) to contribute are several in proportion to their
respective underwriting obligations with respect to such Securities and
not joint.
(e) The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 8 shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company and to each person, if any, who
controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Designated Securities which it has agreed to purchase under the
Pricing Agreement relating to such Designated Securities, the
Representatives may in their discretion arrange for themselves or
another party or other parties to purchase such Designated Securities on
the terms contained herein. If within thirty-six hours after such
default by any Underwriter the Representatives do not arrange for the
purchase of such Designated Securities, then the Company shall be
entitled to a further period of thirty-six hours within which to procure
another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that,
within the respective prescribed period, the Representatives notify the
Company that they have so arranged for the purchase of such Designated
Securities, or the Company notifies the Representatives that it has so
arranged for the purchase of such Designated Securities, the
Representatives or the Company shall have the right to postpone the Time
of Delivery for such Designated Securities for a period of not more than
seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as
used in this Agreement shall include any person substituted under this
Section with like effect as if such person had originally been a party
to the Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters
by the Representatives
20
and the Company as provided in subsection (a) above, the aggregate
principal amount of such Designated Securities which remains unpurchased
does not exceed one-eleventh of the aggregate principal amount of the
Designated Securities, then the Company shall have the right to require
each non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase under
the Pricing Agreement relating to such Designated Securities and, in
addition, to require each non-defaulting Underwriter to purchase its pro
rata share (based on the principal amount of Designated Securities which
such Underwriter agreed to purchase under such Pricing Agreement) of the
Designated Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters
by the Representatives and the Company as provided in subsection (a)
above, the aggregate principal amount of Designated Securities which
remains unpurchased exceeds one-eleventh of the aggregate principal
amount of the Designated Securities, as referred to in subsection (b)
above, or if the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase
Designated Securities of a defaulting Underwriter or Underwriters, then
the Pricing Agreement relating to such Designated Securities shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the
Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Sections 6 and 8 hereof; but, if for any other reason
Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters, and
the parties hereto shall be
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entitled to act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by such Representatives jointly or by
such of the Representatives, if any, as may be designated for such purpose in
the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business. As used herein, "New York Business Day"
shall mean any day other than Saturday, Sunday or any day on which banks located
in the State of New York are authorized or obligated to close.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
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If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company and for each of the Representatives plus
one for each counsel counterparts hereof.
Very truly yours,
Southwest Gas Corporation
By: /s/ Jeffrey W. Shaw
---------------------------------------------
Name: Jeffrey W. Shaw
Title: Senior Vice-President/Finance and
Treasurer
Accepted as of the date hereof:
Banc of America Securities LLC
BNY Capital Markets, Inc.
As Representatives of the Underwriters
named in Schedule I to the Pricing Agreement
By: Banc of America Securities LLC
(On behalf of the Representatives)
By: /s/ Lily Chang
-----------------------------------
Name: Lily Chang
Title: Principal