M.D.C. HOLDINGS, INC.
$175,000,000
8-3/8% Senior Notes due 2008
Underwriting Agreement
New York, New York
January 23, 1998
Salomon Smith Barney
Salomon Brothers Inc
Morgan Stanley & Co. Incorporated
SBC Warburg Dillon Read Inc.
c/o Salomon Brothers Inc
388 Greenwich Street
New York, New York 10013
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, $175,000,000 principal amount of its 8-3/8% Senior Notes due
2008 (the "Securities"), to be issued under an indenture (the "Indenture") to be
dated as of January 28, 1998, between the Company and U.S. Bank National
Association, as trustee (the "Trustee"). To the extent there are no additional
Underwriters listed on Schedule I other than you, the term Representatives as
used herein shall mean you, as Underwriters, and the terms Representatives and
Underwriters shall mean either the singular or plural as the context requires.
Any reference herein to the "Registration Statement," a "Preliminary Prospectus"
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 Preliminary Prospectus or the Prospectus, as
the case may be; and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, any Preliminary
Prospectus 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 Preliminary Prospectus or the
Prospectus, as the case may be, deemed to be incorporated therein by reference.
Certain terms used herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and warrants to,
and agrees 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 333-36631) on Form S-3, including a
related preliminary prospectus, for the registration under the Act of
the offering and sale of the Securities. The Company may have filed one
or more amendments thereto, including a related preliminary prospectus,
each of which has previously been furnished to you. The Company will
next file with the Commission one of the following: (1) prior to the
Effective Date of such registration statement, a further amendment to
such registration statement, including the form of final prospectus,
(2) after the Effective Date of such registration statement, a final
prospectus in accordance with Rules 430A and 424(b), or (3) a final
prospectus in accordance with Rules 415 and 424(b). In the case of
clause (2), 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 (beyond that
contained in the latest Preliminary Prospectus) 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) On the Effective Date, the Registration Statement did or
will, and when the Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Prospectus
(and any supplements thereto) 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 or will 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 or will
comply in all material respects with the requirements of the Trust
Indenture Act and the rules thereunder; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 424(b), will not, and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date and
any settlement date, the Prospectus (together with any supplement
thereto) will not, include 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 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 supplement thereto).
(c) Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or
organized with full corporate 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 as
a foreign corporation 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) 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 such 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 are 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 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 the Company and constitutes a valid and binding obligation
of the Company 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 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.
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 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) Price Waterhouse 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.
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 by the Company
or sale by the Company of the Securities.
(r) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested
extensions thereof (except in any case in which the failure so to file
would not have a Material Adverse Effect) and has paid all taxes
required to be paid by it and any other assessment, fine or penalty
levied against it, 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; and
neither the Company nor any such subsidiary has any reason to believe
that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost
that would not have a Material Adverse Effect.
(u) Except as described in or contemplated by the Prospectus,
no subsidiary of the Company 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, and neither the Company nor any
such subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit 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
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 are (i) 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)
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 the
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.
(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 Salomon Smith Barney
Holdings Inc. 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 Salomon Smith Barney Holding Inc.
(cc) The Company is in compliance with the Commission's staff legal
bulletin No. 5 dated October 8, 1997 related to Year 2000 compliance.
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 99.598% of the principal amount thereof, the principal
amount of the Securities set forth opposite such Underwriter's name in Schedule
I hereto. The Company agrees to pay to each Underwriter underwriting discounts
and commissions equal to 1.375% of the principal amount of the Securities set
forth opposite such Underwriter's name in Schedule I hereto (the "Underwriting
Compensation").
3. Delivery and Payment. Delivery of and payment for the
Securities and payment of the Underwriting Compensation shall be made at 10:00
AM, New York City time, on January 28, 1998, 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, and payment of
the Underwriting Compensation, 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 Representatives. The Representatives, or
such other person as is designated by the Company, shall purchase from such
funds U.S. Governmental Obligations (as defined in the Indenture dated as of
December 15, 1993 among the Company, the U.S. Bank National Association, as
trustee (the "Old Trustee"), and the Guarantors and Pledgors named therein (the
"Old Indenture")) with the type of security, maturity date, rate and price
stated in the certificate required by Section 6(j) hereof and shall deliver such
U.S. Governmental Obligations on the Closing Date no later than 2:00 p.m. (New
York City time) by wire transfer to the Old Trustee to be held in accordance
with the terms of the Irrevocable Trust Agreement described in Section 6(k)
hereof. The balance of the purchase price shall be (x) delivered to or upon the
order of the Company by wire transfer payable in same-day funds to an account
specified by the Company or (y) at the direction of the Company, applied toward
the Underwriting Compensation. The Underwriting Compensation, to the extent not
deducted from the Purchase Price in accordance with clause (y) of the preceding
sentence, shall be paid by the Company by wire transfer payable in same-day
funds to an account specified by the Representatives. The Company and the
Representatives shall finalize all payment arrangements on the Business Day
preceding the Closing Date.
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.
5. Agreements. The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment thereof, to
become effective. 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 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 Registration
Statement, if not effective at the Execution Time, shall have become
effective, (2) 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, (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (4) 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, (5) 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 (6) 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.
The Company will furnish to the Representatives and 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 an Underwriter or dealer may be
required by the Act, as many copies of each Preliminary Prospectus and
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, without the prior written consent of
Salomon Smith Barney, for a period of 90 days following the Execution
Time, offer, sell or contract to sell, or otherwise dispose of (or
enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition
or effective economic disposition due to cash settlement or otherwise)
by the Company or any affiliate of the Company or any person in privity
with the Company or any affiliate of the Company), directly or
indirectly, or announce the offering of any debt securities issued or
guaranteed by the Company (other than the Securities).
(g) 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 Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
6. If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time, on the date of
determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time on
such date or (ii) 9:30 AM on the Business Day following the day on
which the public offering price was determined, if such determination
occurred after 3:00 PM New York City time on such date; if filing of
the Prospectus, or any supplement thereto, is required pursu ant to
Rule 424(b), the Prospectus, and any such supplement, will be filed in
the manner and within the time period required by Rule 424(b); and no
stop order sus pending 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 Daniel S. Japha, Secretary and General Counsel-Corporate
of the Company, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) Each of the Company and its subsidiaries has been duly
incor porated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is
chartered or organized with full corpo rate 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 as a foreign
corporation 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
Ad verse 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 Pro spectus, 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 In vestment 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 transac tions 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 its
subsidiaries pursuant to, (x) the charter or by-laws of the
Company or its subsidiaries, (y) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, cove nant
or instrument to which the Company or 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 its subsidiaries of any
court, regulatory body, administrative agency, govern mental
body, arbitrator or other authority having jurisdiction over
the Com pany or 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 appli cation 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) in clude any supplements thereto at the Closing Date.
(c) Holme Roberts & Owen LLP, counsel for the Company, dated
the Closing Date and addressed to the Representatives, to the effect
that:
(i) this Agreement has been duly authorized, executed and deliv ered by the
Company;
(ii) the Indenture has been duly authorized, executed and
deliv ered, has been duly qualified under the Trust Indenture
Act, and constitutes a legal, valid and binding instrument
enforceable against the Company in ac cordance 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 Company entitled to the benefits of the
Indenture;
(iii) the statements in the Prospectus under the headings
"Description of Notes", "Description of Debt Securities" and
"Plan of Dis tribution" 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
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 jurisdic tion
in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated in
this Agreement and in the Pro spectus; 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 re quired by Rule
424(b); to the knowledge of such counsel, no stop order sus
pending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been
instituted or threatened and the Reg istration 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; and such counsel has no reason to
believe that on the Effective Date or at the Execution Time
the Registration Statement contains or contained any untrue
statement of a material fact or omitted or omits to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospec
tus as of its date or on the Closing Date includes any untrue
statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements
and other financial information contained therein, as to which
such counsel need express no opinion).
In rendering such opinion, such counsel may rely (A) as to matters
involving the ap plication 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 Cahill Gordon
& Rein del, 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 Se curities, 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. The opin ion of such counsel shall be
rendered to the Underwriters at the request of the Com pany and shall
so state therein.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by Paris G. Reece III, Senior Vice
President and Chief Fi nancial Officer, and Michael Touff, Vice
President and General Counsel, dated the Closing Date, to the effect
that the signers of such certificate have carefully exam ined the
Registration Statement, the Prospectus, any supplements to the
Prospectus and this Agreement and that:
the representations and warranties of the Company 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 condi tions 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
ef fectiveness 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 con templated in the Prospectus
(exclusive of any supplement thereto subsequent to the
Execution Time).
(f) At the Execution Time and at the Closing Date, Price
Waterhouse 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 mean ing of the Act
and the Exchange Act and the respective applicable published rules and
regulations thereunder and that they have performed a review of the
unaudited interim financial information of the Company for the
nine-month periods ended September 30, 1996 and 1997 and as at
September 30, 1997, in accordance with Statement on Auditing Standards
No. 71, stating in effect that:
(i) in their opinion the audited financial statements
included or in corporated in the Registration Statement and
the Prospectus and reported on by them comply as to form in
all material respects with the applicable ac counting
requirements of the Act and the Exchange Act and the related
pub lished rules and regulations;
(ii) 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 Audit ing Standards
No. 71, of the unaudited interim financial information for the
nine-month periods ended September 30, 1996 and 1997 and as at
September 30, 1997, as indicated in their report included in
the Registration Statement and the Prospectus; carrying out
certain specified procedures (but not an ex amination in
accordance with generally accepted auditing standards) which
would not necessarily reveal matters of significance with
respect to the com ments 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, 1996, nothing came to
their attention which caused them to believe that:
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 Com mission 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 con sistent with that of the
audited financial statements included or incor
porated in the Registration Statement and the
Prospectus;
with respect to the period subsequent to
September 30, 1997, 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 com pared with the
amounts shown on the September 30, 1997 consoli dated
balance sheet included or incorporated in the
Registration Statement and the Prospectus, or for the
period from September 30, 1997 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 in come 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;
the information included in the Registration
Statement and Prospectus in response to Regulation
S-K, Item 301 (Selected Finan cial 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 re quirements 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, fi nancial or statistical nature (which is
limited to accounting, financial or sta tistical information
derived from the general accounting records of the Com pany
and its subsidiaries) set forth in the Registration Statement
and the Pro spectus and in Exhibit 12 to the Registration
Statement, including the infor mation set forth under the
captions "Summary -- Selected Financial and Other Data"
"Capitalization" and "Business" in the Prospectus, the informa
tion included or incorporated in Items 1, 2, 6, 7 and 11 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 Discus sion and Analysis of
Financial Condition and Results of Operations" included or
incorporated in the Company's Quarterly Reports on Form 10-Q,
incorpo rated in the Registration Statement and the
Prospectus, agrees with the ac counting records of the Company
and its subsidiaries, excluding any ques tions of legal
interpretation.
References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(g) 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 (e) 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 ordi nary 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).
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 securities 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.
(i) The Securities shall have been listed and admitted and
authorized for trading on the NYSE, and satisfactory evidence of such
actions shall have been pro vided to the Representatives.
(j) At least one full Business Day prior to the Closing Date
(or such shorter period as shall be satisfactory to the
Representatives), Price Waterhouse LLP shall have delivered to the
Company and the Representatives a certificate verifying the
mathematical accuracy of computations relating to the adequacy of cash
plus U.S. Governmental Obligations to be held in trust to pay the debt
service require ments on all of the Company's 11 1/8% Senior Notes due
2003 outstanding on the Closing Date.
(k) The Company shall have furnished to the Representatives a
copy of an Irrevocable Trust Agreement executed by the Company and the
Old Trustee, sub stantially in the form attached hereto as Exhibit A.
(l) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Repre sentatives may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been ful filled 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 here under
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.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Cahill Gordon & Reindel, counsel for the
Underwriters, at 80 Pine Street, New York, New York 10005, on the Closing Date.
Reimbursement of Underwriters' Expenses. If the sale of the
Securi ties 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 pur suant 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 Under writers
severally through Salomon Smith Barney on demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. Indemnification and Contribution. (a) The Company agrees to in demnify
and hold harmless each Underwriter (including SBC Warburg Dillon Read Inc. in
its capacity as "qualified independent underwriter" within the meaning of the
Conduct Rules of the National Association of Securities Dealers, Inc.), 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 any Preliminary Prospectus or the Pro spectus, 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 in curred by them in connection with investigating or
defending any such loss, claim, damage, liability or action.
Notwithstanding the foregoing, the Company will not 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 any Preliminary 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 confir mation of such sale, a copy of the
Prospectus (or of the Prospectus as then amended or sup plemented 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 re quired
by the Act, and such loss, claim, damage or liability results from an untrue
state ment or omission of a material fact contained in such Preliminary
Prospectus that was com pletely corrected in 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) (it being understood that no Under writer shall be
required to send or give any amendment or supplement to any document in
corporated by reference in any Preliminary Prospectus or 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 Com pany may otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity to each 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 agree ment will be in addition to any liability which any Underwriter
may otherwise have. The Company acknowledges that (i) the statements set forth
in the last paragraph of the cover page regarding delivery of the Securities,
(ii) the legend in block capital letters on page S-2 related to stabilization,
syndicate covering transactions and penalty bids and (iii) under the heading
"Underwriting," the sentences related to concessions and reallowances, the para
graph related to stabilization, syndicate covering transactions and penalty bids
and the para graph relating to the qualified independent underwriter in any
Preliminary Prospectus and the Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in any Preliminary Prospectus or 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 re spect 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 un less 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 in demnifying 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 re sponsible 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 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 em ployed
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 indemnify ing 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
indem nified 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 rea
son, the Company and the Underwriters severally agree to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably in curred in connection with investigating or defending
same) (collectively "Losses") to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and by 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 un derwriters 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 Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for any
reason, the Company and the Underwriters severally shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also
the rela tive fault of the Company and of the Underwriters in connection with
the statements or omissions which resulted in such Losses as well as any other
relevant equitable considera tions. Benefits received by the Company shall be
deemed to be equal to the total net pro ceeds from the offering (before
deducting expenses) received by it, and benefits received by the Underwriters
shall be deemed to be equal to the total underwriting discounts and com
missions, 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 un true statement of a material fact or the omission
or alleged omission to state a material fact relates to information provided by
the Company on the one hand or the Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and op portunity to
correct or prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if 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 para graph (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 who
con trols (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 con tribution as such Underwriter, and each person
who controls the Company 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
con ditions 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 Under writer 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 Underwrit ers 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
re maining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate prin cipal 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 nonde
faulting 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 de fault by any Underwriter as 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 Company prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in the Com pany's Common Stock shall have
been suspended by the Commission, the NYSE or the Pa cific Stock Exchange or
trading in securities generally on the NYSE or the Pacific Stock Exchange shall
have been suspended or limited or minimum prices shall have been estab lished on
either of such Exchanges, (ii) a banking moratorium shall have been declared ei
ther by Federal or New York State authorities or (iii) there shall have occurred
any out break or escalation of hostilities, declaration by the United States of
a national emergency or war or other calamity or crisis 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
agree ments, representations, warranties, indemnities and other statements of
the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will re main in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or the Company or any
of the officers, directors or controlling persons re ferred 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, delivered
or tele faxed to the Salomon Smith Barney General Counsel (fax no.: (212)
816-7912) and con firmed to the General Counsel, Salomon Smith Barney, at 388
Greenwich Street, New York, New York, 10013, Attention: General Counsel; or, if
sent to the Company, will be mailed, delivered or telefaxed to (303) 804-7980
and confirmed to it at 3600 South Yosem ite Street, Denver, Colorado 80237,
Attention: General Counsel.
13. Successors. This Agreement will inure to the benefit of and be bind ing
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.
13. 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 coun
terparts, 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.
"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 le gal 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 State ment, 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 exe cuted and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(a) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
"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) Reg istration Statement, as the case may be. Such term
shall include any Rule 430A In formation 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 Securi ties 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 cov ered by the initial registration
statement.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission
promulgated thereunder.
"Salomon Smith Barney" shall mean Smith Barney Inc. or Salomon Brothers Inc
to the extent that any such party is a signatory to this Agreement.
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 and the several Un derwriters.
Very truly yours,
M.D.C. HOLDINGS, INC.
By: /s/
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
Salomon Brothers Inc
Morgan Stanley & Co. Incorporated
SBC Warburg Dillon Read Inc.
By: Salomon Brothers Inc
By: /s/
Name:
Title:
SCHEDULE I
Principal Amount
of Securities
Underwriters to be Purchased
Salomon Brothers Inc ........................................... $ 96,250,000
Morgan Stanley & Co. Incorporated................................ $ 39,375,000
SBC Warburg Dillon Read Inc. ................................... $ 39,375,000
Total................................................... $175,000,000
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