EXHIBIT 1.1
NEWMONT MINING CORPORATION
as Issuer
NEWMONT USA LIMITED
as Guarantor
Debt Securities
Underwriting Agreement
March 17, 2005
Citigroup Global Markets Inc.
J.P. Morgan Securities Inc.
As Representatives of the several Underwriters
listed in Schedule I to the Terms Agreement (defined below)
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, NY 10013
Ladies and Gentlemen:
1. Introductory. Newmont Mining Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell from time to time certain of its debt
securities registered under the registration statement referred to in Section
2(a) ("Registered Securities"). Payment of principal of, and interest, if any,
and premium, if any, on the Debt Securities will be unconditionally guaranteed
by Newmont USA Limited, a Delaware corporation, as Guarantor (the "Guarantor"),
pursuant to the terms and conditions of the guaranty issued under the Indenture
(as defined below)(the "Guaranty"). The Registered Securities will be issued
under an indenture, dated as of March 22, 2005 (the "Indenture"), among the
Company, the Guarantor and Citibank, N.A., as Trustee, in one or more series,
which series may vary as to interest rates, maturities, redemption provisions,
selling prices and other terms, with all such terms for any particular series of
the Registered Securities being determined at the time of sale.
The issuance and sale of Registered Securities and the related Guaranty
have been registered under the registration statement referred to in Section
2(a). Particular series of the Registered Securities will be sold pursuant to a
Terms Agreement referred to in Section 3 in the form of Annex I attached hereto,
for resale in accordance with terms of offering determined at the time of sale.
The Registered Securities and related Guaranty are hereunder referred to as the
"Securities". The firm or firms which agree to purchase the Securities are
hereinafter referred to as the "Underwriters" of such Securities, and the
representative or representatives of the Underwriters, if any, specified in a
Terms Agreement referred to in Section 3 are hereinafter referred to as the
"Representatives"; provided, however, that if the Terms Agreement does not
specify any representative of the Underwriters, the term "Representatives", as
used in this Agreement (other than in Section 5(c) and the second sentence of
Section 3) shall mean the Underwriters.
The Company and the Guarantor have prepared and filed with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Securities Act"), a registration statement (File No.
333-112142), including a prospectus, relating to the Securities. Such
registration statement, as amended at the time of any Terms Agreement referred
to in Section 3, is hereinafter referred to as the "Registration Statement", and
the prospectus included in the Registration Statement, as supplemented as
contemplated by Section 3 to reflect the terms of the Securities and the terms
of offering thereof, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Securities Act, and
including any prospectus used to offer the Securities in any other jurisdiction,
is hereinafter referred to as the "Prospectus".
Any reference in this Agreement to the Registration Statement or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as
of the effective date of the Registration Statement or the date of such
preliminary prospectus or the Prospectus, as the case may be, and any reference
to "amend", "amendment" or "supplement" with respect to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to refer
to and include any documents filed after such date under the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Exchange Act") that are deemed to be incorporated
by reference therein.
2. Representations and Warranties of the Company and the Guarantor. The
Company and the Guarantor, jointly and severally, represent and warrant to, and
agree with, each Underwriter that:
(a) Registration Statement and Prospectus. The Registration Statement
has been declared effective by the Commission. No order suspending the
effectiveness of the Registration Statement has been issued by the
Commission and, to the knowledge of the Company and the Guarantor, no
proceeding for that purpose has been initiated or threatened by the
Commission. On the applicable effective date of the Registration Statement
and any amendment thereto, the Registration Statement complied in all
material respects with the Securities Act and did not include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and on the date of the Terms Agreement referred to in Section
3, the Registration Statement and the Prospectus will conform in all
material respects to the requirements of the Securities Act, and neither of
such documents will include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not
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misleading, except that the foregoing representations do not apply to
statements in or omissions from any of such documents made in reliance upon
and in conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter through the Representatives
expressly for use in the Registration Statement, the Prospectus or any
amendment or supplement thereto.
(b) Incorporated Documents. Each document filed by the Company or the
Guarantor pursuant to the Exchange Act that is incorporated by reference in
the Prospectus complied when so filed in all material respects with the
Exchange Act, and each document (other than documents incorporated by
reference therein relating solely to securities other than the Securities),
if any, hereafter so filed and incorporated by reference in the Prospectus,
when such documents are filed with the Commission will comply in all
material respects with the Exchange Act and did not or will not, as the
case may be, when so filed contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(c) Financial Statements. The financial statements and the related
notes thereto included or incorporated by reference in the Registration
Statement and the Prospectus comply in all material respects with the
applicable requirements of the Securities Act and the Exchange Act, as
applicable, and present fairly the financial position of the Company and
its subsidiaries taken as a whole as of the dates indicated and the results
of their operations and the changes in their cash flows for the periods
specified; such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods covered thereby, and the supporting schedules
included or incorporated by reference in the Registration Statement present
fairly the information required to be stated therein; the other financial
information included or incorporated by reference in the Registration
Statement and the Prospectus has been derived from the accounting records
of the Company and its subsidiaries and presents fairly the information
shown thereby; and any pro forma financial information and the related
notes thereto included or incorporated by reference in the Registration
Statement and the Prospectus has been prepared in accordance with the
applicable requirements of the Securities Act and the Exchange Act, as
applicable, and the assumptions underlying any such pro forma financial
information were reasonable when originally filed with the Commission and
are set forth in the Registration Statement and the Prospectus or the
relevant document incorporated by reference therein.
(d) No Material Adverse Change. Since the date of the most recent
financial statements of the Company included or incorporated by reference
in the Registration Statement and the Prospectus, (i) there has not been
any change in the capital stock (other than as a result of the exercise of
outstanding stock options or warrants of the Company), increase in
long-term debt of the Company and its subsidiaries taken as a whole, or any
dividend or distribution of any kind declared, set aside for payment, paid
or made by the Company on any class of capital stock of the Company or
Newmont Mining Corporation of Canada Limited (except for the dividends
declared on February 2, 2005 to be paid on March 24, 2005), or any material
adverse change, or any development involving a
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prospective material adverse change, in or affecting the business,
properties, management, financial position, stockholders' equity, results
of operations or prospects of the Company and its subsidiaries taken as a
whole; (ii) neither the Company nor any of its subsidiaries has entered
into any transaction or agreement that is material to the Company and its
subsidiaries taken as a whole or incurred any liability or obligation,
direct or contingent, that is material to the Company and its subsidiaries
taken as a whole; and (iii) neither the Company nor any of its subsidiaries
has sustained 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 disturbance or dispute or any action, order or
decree of any court or arbitrator or governmental or regulatory authority,
except in each case as otherwise disclosed in or contemplated by the
Registration Statement and the Prospectus.
(e) Organization and Good Standing. The Company, the Guarantor and
each of their Significant Subsidiaries, as defined in Rule 1-02 of
Regulation S-X (the "Significant Subsidiaries"), have been duly organized
and are validly existing and in good standing under the laws of their
respective jurisdictions of organization, are duly qualified to do business
and are in good standing in each jurisdiction in which their respective
ownership or lease of property or the conduct of their respective
businesses requires such qualification, and have all power and authority
necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to be so
qualified or have such power or authority would not, individually or in the
aggregate, have a material adverse effect on the business, properties,
management, financial position, stockholders' equity, results of operations
or prospects of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect").
(f) Capitalization. All the outstanding shares of capital stock of the
Company and the Guarantor have been duly and validly authorized and issued
and are fully paid and non-assessable and are not subject to any
pre-emptive or similar rights; except as described in or expressly
contemplated by the Prospectus, there are no outstanding rights (including,
without limitation, pre-emptive rights), warrants or options to acquire, or
instruments convertible into or exchangeable for, any shares of capital
stock or other equity interest in the Company or the Guarantor, or any
contract, commitment, agreement, understanding or arrangement of any kind
relating to the issuance of any capital stock of the Company or the
Guarantor, any such convertible or exchangeable securities or any such
rights, warrants or options, other than this Agreement; the capital stock
of the Company conforms in all material respects to the description thereof
contained in the Registration Statement and the Prospectus; and all the
outstanding shares of capital stock or other equity interests of each
Significant Subsidiary have been duly and validly authorized and issued,
are fully paid and non-assessable and are owned directly or indirectly by
the Company, free and clear of any lien, charge, encumbrance, security
interest, restriction on voting or transfer or any other claim of any third
party, except as described in Schedule 2(f) hereto.
(g) Due Authorization. Each of the Company and the Guarantor has full
right, power and authority to execute and deliver this Agreement, the Terms
Agreement, the
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Indenture, the Registered Securities and the related Guaranty
(collectively, the "Transaction Documents") to the extent a party thereto
and to perform its obligations hereunder and thereunder.
(h) Transaction Documents. This Agreement and the Terms Agreement have
been duly authorized, executed and delivered by the Company and the
Guarantor and constitute a valid and binding obligation of each of the
Company and the Guarantor, enforceable against the Company and the
Guarantor in accordance with their respective terms, subject as to the
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, or other laws affecting creditors' rights
generally, from time to time in effect and to general principles of equity
and except as to the provisions with respect to indemnification or
contribution may be limited by applicable law, regulation or public policy.
The Indenture has been duly authorized by the Company and the Guarantor
and, assuming due authorization, execution and delivery thereof by the
Trustee, when executed and delivered by the Company and the Guarantor will
constitute the legal, valid and binding instrument of each of the Company
and the Guarantor, enforceable against the Company and the Guarantor in
accordance with its terms, subject as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium, or other
laws affecting creditors' rights generally, from time to time in effect and
to general principles of equity. The Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act").
(i) The Securities. The Registered Securities have been duly
authorized by the Company for issuance and sale pursuant to this Agreement
and the Indenture, and, when executed by the Company and authenticated by
the Trustee in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters, will constitute the legal,
valid and binding obligations of the Company, will be in the form
contemplated by the Indenture, entitled to the benefits of the Indenture
and enforceable against the Company in accordance with their terms, subject
as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, or other laws affecting creditors'
rights generally, from time to time in effect and to general principles of
equity. The Guaranty has been duly authorized by the Guarantor and, when
executed and delivered by the Guarantor and affixed to the Registered
Securities, will constitute the legal, valid and binding obligation of the
Guarantor, will be in the form contemplated by the Indenture, entitled to
the benefits of the Indenture and enforceable against the Guarantor in
accordance with its terms, subject as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium, or other
laws affecting creditors' rights generally, from time to time in effect and
to general principles of equity.
(j) No Violation or Default. Neither the Company nor any of its
subsidiaries is (i) in violation of its charter or by-laws or similar
organizational documents; (ii) in default, and no event has occurred that,
with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by
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which the Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its subsidiaries is
subject; or (iii) in violation of any law or statute or any judgment,
order, rule or regulation of any court or arbitrator or governmental or
regulatory authority, except, in the case of clauses (ii) and (iii) above,
for any such default or violation that would not, individually or in the
aggregate, have a Material Adverse Effect.
(k) No Conflicts. The execution, delivery and performance by the
Company and the Guarantor of each of the Transaction Documents to which it
is a party, the issuance and sale of the Securities and the consummation of
the transactions contemplated by the Transaction Documents will not (i)
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject, (ii) result
in any violation of the provisions of the charter or by-laws or similar
organizational documents of the Company or any of its subsidiaries or (iii)
result in the violation of any law or statute or any judgment, order, rule
or regulation of any court or arbitrator or governmental or regulatory
authority.
(l) No Consents Required. No consent, approval, authorization, order,
registration or qualification of or with any court or arbitrator or
governmental or regulatory authority is required for the execution,
delivery and performance by the Company of each of the Transaction
Documents, the issuance and sale of the Securities and the consummation of
the transactions contemplated by the Transaction Documents, except for the
registration of the Securities under the Securities Act and such consents,
approvals, authorizations, orders and registrations or qualifications as
may be required under applicable state or other securities laws in
connection with the purchase and distribution of the Securities by the
Underwriters.
(m) Independent Accountants. PricewaterhouseCoopers LLP, who have
certified certain financial statements of the Company and its subsidiaries,
are a registered independent public accounting firm with respect to the
Company and its subsidiaries as required by the Securities Act.
(n) Compliance With Environmental Laws. The Company and its
subsidiaries (i) are in compliance with any and all applicable federal,
state, local and foreign laws, rules, regulations, decisions and orders
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, "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 in any such
case for any such failure to comply, or failure to receive
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required permits, licenses or approvals, or liability as would not,
individually or in the aggregate, have a Material Adverse Effect.
(o) Accounting Controls. 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 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.
(p) No Broker's Fees. Neither the Company nor any of its subsidiaries
is a party to any contract, agreement or understanding with any person
(other than this Agreement) that would give rise to a valid claim against
the Company or any of its subsidiaries or any Underwriter for a brokerage
commission, finder's fee or like payment in connection with the offering
and sale of the Securities.
3. Purchase and Offering of Securities. The obligation of the Company to
issue and sell any Registered Securities, the obligation of the Guarantor to
guarantee such Registered Securities and the obligation of the Underwriters to
purchase the Securities will be set forth in a Terms Agreement (the "Terms
Agreement"), which shall be in the form of an executed writing (which may be
handwritten), and may be evidenced by an exchange of telegraphic, facsimile or
any other rapid transmission device designed to produce a written record of
communications transmitted at the time the Company determines to sell the
Securities. The Terms Agreement will incorporate by reference the provisions of
this Agreement, except as otherwise provided therein, and will specify the firm
or firms which will be Underwriters, the names of any Representatives, the
aggregate principal amount of the Registered Securities, the principal amount of
Registered Securities to be purchased by each Underwriter, the initial public
offering price of the Registered Securities, the purchase price to be paid by
the Underwriters and the terms of the Registered Securities not already
specified in the Indenture, including, but not limited to, dates of payment and
rate of interest, if any, maturity, any redemption or repayment provisions and
any sinking fund requirements and whether any of the Securities may be sold to
institutional investors pursuant to Delayed Delivery Contracts (as defined
below). The Terms Agreement will also specify the time and date of delivery and
payment (such time and date, or such other time not later than seven full
business days thereafter as the Representatives, the Company and the Guarantor
agree as the time for payment and delivery, being herein and in the Terms
Agreement referred to as the "Closing Date"), the place of delivery and payment
and any details of the terms of offering that should be reflected in the
prospectus supplement relating to the offering of the Securities. The
obligations of the Underwriters to purchase the Securities will be several and
not joint. It is understood that the Underwriters propose to offer the
Securities for sale as set forth in the Prospectus. The Securities delivered to
the Underwriters on the Closing Date will be in definitive fully registered
form, in such denominations and registered in such names as the Underwriters may
request.
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If the Terms Agreement provides for sales of Securities pursuant to delayed
delivery contracts, the Company and the Guarantor authorize the Underwriters to
solicit offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex II attached hereto ("Delayed Delivery
Contracts") with such changes therein as the Company and the Guarantor may
authorize or approve. Delayed Delivery Contracts are to be with institutional
investors, including commercial and savings banks, insurance companies, pension
funds, investment companies and educational and charitable institutions. On the
Closing Date, the Company or the Guarantor will pay, as compensation, to the
Representatives for the accounts of the Underwriters, the fee set forth in such
Terms Agreement in respect of the principal amount of Securities to be sold
pursuant to Delayed Delivery Contracts ("Contract Securities"). The Underwriters
will not have any responsibility in respect of the validity or the performance
of Delayed Delivery Contracts. If the Company and the Guarantor execute and
deliver Delayed Delivery Contracts, the Contract Securities will be deducted
from the Securities to be purchased by the several Underwriters and the
aggregate principal amount of Securities to be purchased by each Underwriter
will be reduced pro rata in proportion to the principal amount of Securities set
forth opposite each Underwriter's name in such Terms Agreement, except to the
extent that the Representatives determine that such reduction shall be otherwise
than pro rata and shall so advise the Company and the Guarantor. The Company
will advise the Representatives not later than 5:00 p.m., New York time, on the
business day prior to the Closing Date of the principal amount of Contract
Securities.
4. Certain Agreements of the Company and the Guarantor. Each of the Company
and the Guarantor, jointly and severally, covenants and agrees with the several
Underwriters that in connection with each offering of Securities:
(a) The Company and the Guarantor will file the Prospectus with the
Commission pursuant to and in accordance with Rule 424(b). The Company and
the Guarantor will file on a timely basis all reports and any definitive
proxy or information statements required to be filed by the Company or the
Guarantor with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act during the Prospectus Delivery Period (as defined
below); and the Company will furnish copies of the Prospectus to the
Underwriters in New York City prior to 10:00 A.M., New York City time, on
the business day next succeeding the date of the Terms Agreement or as
promptly as practicable thereafter in such quantities as the
Representatives may reasonably request.
(b) The Company will deliver, without charge to each Underwriter (A) a
conformed copy of the Registration Statement as originally filed and each
amendment thereto (without exhibits) and (B) during the Prospectus Delivery
Period, as many copies of the Prospectus (including all amendments and
supplements thereto and documents incorporated by reference therein) as the
Representatives may reasonably request. As used herein, the term
"Prospectus Delivery Period" means such period of time after the first date
of the public offering of the Securities as in the opinion of counsel for
the Underwriters a prospectus relating to the Securities is required by law
to be delivered in connection with sales of the Securities by any
Underwriter or dealer.
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(c) Before filing any amendment or supplement to the Registration
Statement or the Prospectus during the Prospectus Delivery Period, the
Company will furnish to the Representatives and Sullivan & Cromwell LLP,
counsel for the Underwriters ("Underwriters' Counsel"), a copy of the
proposed amendment or supplement for review and will not file any such
proposed amendment or supplement to which the Representatives reasonably
object.
(d) During the Prospectus Delivery Period, the Company will advise the
Representatives promptly, and confirm such advice in writing, (i) when any
amendment to the Registration Statement has been filed or becomes
effective; (ii) when any supplement to the Prospectus or any amendment to
the Prospectus has been filed; (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement
to the Prospectus or the receipt of any comments from the Commission
relating to the Registration Statement or any other request by the
Commission for any additional information; (iv) of the issuance by the
Commission of any order suspending the effectiveness of the Registration
Statement or preventing or suspending the use of any preliminary prospectus
or the Prospectus or the initiation or threatening of any proceeding for
that purpose; and (v) of the receipt by the Company of any notice with
respect to any suspension of the qualification of the Securities for offer
and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and the Company will use its best efforts to
prevent the issuance of any such order suspending the effectiveness of the
Registration Statement, preventing or suspending the use of any preliminary
prospectus or the Prospectus or suspending any such qualification of the
Securities and, if any such order is issued, will obtain as soon as
possible the withdrawal thereof.
(e) If during the Prospectus Delivery Period (i) any event shall occur
or condition shall exist 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 required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not
misleading or (ii) it is necessary to amend or supplement the Prospectus to
comply with law, the Company will immediately notify the Representatives
thereof and forthwith prepare and, subject to paragraph (c) above, file
with the Commission and furnish to the Representatives and to such dealers
as the Representatives may designate, such amendments or supplements to the
Prospectus as may be necessary so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances
existing when the Prospectus is delivered to a purchaser, be misleading, or
so that the Prospectus will comply with law. Neither the Representatives'
consent to, nor the Underwriters' delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in
Section 5.
(f) The Company will make generally available to its security holders
and the Representatives as soon as practicable, an earnings statement of
the Company and its subsidiaries that satisfies the provisions of Section
11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder covering a period of at least twelve
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months beginning with the first fiscal quarter of the Company occurring
after the "effective date" (as defined in Rule 158) of the Registration
Statement.
(g) The Company and the Guarantor will arrange for the qualification
of the Securities for offer and sale and the determination of their
eligibility for investment under the securities and Blue Sky laws of such
jurisdictions as the Representatives designate and will continue such
qualifications in effect so long as required for the distribution of the
Securities; provided, however, that in no event shall either the Company or
the Guarantor be required to qualify as a foreign corporation or as a
dealer in securities or to file a general or unlimited consent for service
of process in any such jurisdiction.
(h) The Company and the Guarantor will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's and
the Guarantor's counsel and accountants in connection with the registration
of the Securities under the Securities Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any preliminary prospectus supplement and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing any
Agreement among Underwriters, this Agreement, any Terms Agreement, any
Indenture, any Securities, any Delayed Delivery Contracts, any Blue Sky
Memoranda and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all expenses in
connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 4(g), including the
reasonable fees and disbursements of Underwriters' Counsel in connection
with such qualification and in connection with the Blue Sky surveys; (iv)
any fees charged by securities rating services for rating the Securities;
(v) any filing fees incident to any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; (vii) 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; (viii) expenses incurred by the Company or the
Guarantor in connection with any "road show" presentation to potential
investors; and (ix) all other costs and expenses incident to the
performance of its obligations hereunder and under any Delayed Delivery
Contracts which are not otherwise specifically provided for in this
Section; provided, however, that, except as provided in this Section,
Section 6 and Section 8 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.
(i) For a period beginning at the time of execution of the Terms
Agreement and ending the earlier of (i) the termination of trading
restrictions for the Securities, as notified to the Company and the
Guarantor by the Representatives, and (ii) the Closing Date, without the
prior consent of the Representatives, the Company and the Guarantor will
not offer, sell, contract to sell or otherwise dispose of any securities
substantially similar to the Securities.
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(j) The Company will apply the net proceeds from the sale of the
Securities as described in the Prospectus under the heading "Use of
Proceeds".
(k) The Company will not take, directly or indirectly, any action
designed to or that could reasonably be expected to cause or result in any
stabilization or manipulation of the price of the Securities.
5. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Securities will be subject
to the accuracy of the written statements of the officers of the Company and the
Guarantor made pursuant to the provisions hereof, to the performance by each of
the Company and the Guarantor of its covenants and other obligations hereunder
and to the following additional conditions precedent:
(a) On the date of the Terms Agreement and on the Closing Date,
PricewaterhouseCoopers LLP shall have furnished to the Representatives, at
the request of the Company and the Guarantor, letters, dated the respective
dates of delivery thereof and addressed to the Underwriters, in form and
substance satisfactory to the Representatives, containing statements and
information of the type customarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained or incorporated by reference in the
Registration Statement and the Prospectus; provided, that the letter
delivered on the Closing Date may use a "cut-off" date no more than three
business days prior to such Closing Date.
(b) The Prospectus shall have been timely filed with the Commission in
accordance with the Securities Act and Section 4(a) of this Agreement. No
order suspending the effectiveness of the Registration Statement or of any
part thereof shall have been issued and no proceeding for that purpose
shall be pending before or, to the knowledge of the Company or the
Guarantor, threatened by the Commission; and all requests by the Commission
for additional information that affect the Registration Statement or the
Prospectus shall have been complied with to the reasonable satisfaction of
the Representatives.
(c) The representations and warranties of the Company and the
Guarantor contained herein shall be true and correct on the date hereof and
on and as of the Closing Date; and the statements of the Company and the
Guarantor and their respective officers made in any certificates delivered
pursuant to this Agreement shall be true and correct on and as of the
Closing Date.
(d) Subsequent to the execution and delivery of the Terms Agreement,
there shall not have occurred (i) any downgrading in the rating accorded
any securities or preferred stock of or guaranteed by the Company or the
Guarantor by any "nationally recognized statistical rating organization"
(as such term is defined by the Commission for purposes of Rule 436(g)(2)
under the Securities Act), or any public announcement that any such
organization has under surveillance or review, or that it has changed its
outlook with respect to, its rating of any securities or preferred stock of
or guaranteed by the Company or the Guarantor (other than an announcement
with positive implications of a
-11-
possible upgrading); or (ii) any event or condition of a type described in
Section 2(d) hereof, which event or condition is not described in the
Prospectus (excluding any amendment or supplement thereto) and the effect
of which in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the
Securities on the Closing Date on the terms and in the manner contemplated
by this Agreement or the Prospectus.
(e) The Representatives shall have received on and as of the Closing
Date a certificate of the Chairman of the Board of Directors and Chief
Executive Officer, the President, any Executive Vice President, any Senior
Vice President or any Vice President and the Chief Financial Officer or
Chief Accounting Officer of the Company and the Guarantor (i) confirming
that such officers have carefully reviewed the Registration Statement and
the Prospectus and, to the best knowledge of such officers, the
representation set forth in Section 2(a) hereof is true and correct, (ii)
confirming that the other representations and warranties of the Company and
the Guarantor in this Agreement are true and correct and that each of the
Company and the Guarantor has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at or
prior to such Closing Date and (iii) to the effect set forth in paragraphs
(b) and (d) (i) above.
(f) The Representatives shall have received an opinion, dated the
Closing Date, of White & Case LLP, counsel for the Company and the
Guarantor, to the effect that:
(i) Each of the Company and the Guarantor has been duly
incorporated and is an existing corporation in good standing under the
laws of the State of Delaware, with corporate power and authority to
own its properties and conduct its business as described in the
Prospectus;
(ii) The Indenture has been duly authorized, executed and
delivered by each of the Company and the Guarantor and has been duly
qualified under the Trust Indenture Act; the Indenture constitutes a
valid and legally binding obligation of the Company enforceable in
accordance with its terms, except as the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization,
fraudulent transfer or other similar laws affecting the enforcement of
creditors' rights generally, or by general equitable principles
(regardless of whether the issue of enforceability is considered in a
proceeding in equity or at law), provided, however, that such counsel
need express no opinion with respect to U.S. federal and state laws
dealing with fraudulent conveyances; the Securities have been duly
authorized; the Registered Securities other than any Contract
Securities have been duly executed, issued and delivered by the
Company; the Registered Securities other than any Contract Securities
constitute, and any Contract Securities, when executed, authenticated,
issued and delivered in the manner provided in the Indenture and sold
pursuant to Delayed Delivery Contracts, will constitute, valid and
legally binding obligations of the Company enforceable in accordance
with their terms, except as the enforceability thereof may be limited
by applicable bankruptcy, insolvency, reorganization, fraudulent
-12-
transfer or other similar laws affecting the enforcement of creditors'
rights generally, or by general equitable principles (regardless of
whether the issue of enforceability is considered in a proceeding in
equity or at law), provided, however, that such counsel need express
no opinion with respect to U.S. federal and state laws dealing with
fraudulent conveyances; the related Guaranty has been duly executed,
authenticated, issued and delivered by the Guarantor; the Guaranty
constitutes a valid and legally binding obligation of the Guarantor
enforceable in accordance with its terms, except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent transfer or other similar laws affecting
the enforcement of creditors' rights generally, or by general
equitable principles (regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law),
provided, however, that such counsel need express no opinion with
respect to U.S. federal and state laws dealing with fraudulent
conveyances; and the Securities other than any Contract Securities
conform, and any Contract Securities, when issued and delivered in the
manner provided for in the Indenture and sold pursuant to Delayed
Delivery Contracts, will conform, in all material respects to the
description thereof contained in the Prospectus;
(iii) No consent, approval, authorization or order of, or filing
with, any New York State or Federal governmental agency or body or any
New York State or Federal court having jurisdiction over either the
Company or the Guarantor or any of its respective material properties
is required to be obtained or made by either the Company or the
Guarantor for the consummation of the transactions contemplated by the
Terms Agreement (including the provisions of this Agreement) in
connection with the issuance or sale of the Securities by the Company,
except such as have been obtained and made under the Securities Act
and the Trust Indenture Act and such as may be required under state
securities or Blue Sky laws (as to which such counsel need express no
opinion);
(iv) The execution, delivery and performance of the Indenture,
the Terms Agreement (including the provisions of this Agreement) and
any Delayed Delivery Contracts and the issuance and sale of the
Securities and compliance with the terms and provisions thereof will
not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, the Certificate of Incorporation or
By-Laws of either the Company or the Guarantor or any statute, rule,
regulation or order applicable to the Company, the Guarantor or any of
their respective subsidiaries of which such counsel is aware of any
federal or New York State governmental agency or body or court having
jurisdiction over the Company, the Guarantor or any of their
respective material properties (other than those that may be required
under the Securities Act and under applicable state securities or Blue
Sky laws as to which such counsel need express no opinion), and the
Company has full corporate power and authority to authorize, issue and
sell the Securities as contemplated by the Terms Agreement (including
the provisions of this Agreement) and the Guarantor has full corporate
power and authority to authorize and issue the Guaranty as
contemplated by the Terms Agreement (including the provisions of this
Agreement);
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(v) The Registration Statement was declared effective under the
Securities Act as of the date and time specified in such opinion; the
Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b) under the Securities Act specified in such opinion on
the date specified therein; and no order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for
that purpose is pending or, to the knowledge of such counsel,
threatened by the Commission;
(vi) The statements set forth in the Prospectus under the heading
"Description of Debt Securities and Guarantees", to the extent that
they constitute summaries of the terms of the Securities, fairly
summarize in all material respects the matters described therein;
(vii) The registration statement relating to the Securities, as
of its effective date, the Registration Statement and the Prospectus,
as of the date of the Terms Agreement, and any amendment or supplement
thereto, as of its date, appeared on their face to comply as to form
in all material respects with the requirements of the Securities Act
and the Trust Indenture Act; nothing has come to such counsel's
attention which causes it to believe that such registration statement,
as of its effective date, the Registration Statement or the
Prospectus, as of the date of the Terms Agreement, or any such
amendment or supplement, as of its date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading; it being understood that
such counsel need express no opinion as to the financial statements
and schedules or other financial or statistical data contained in any
of the above-mentioned documents; and
(viii) This Agreement, the Terms Agreement (including the
provisions of this Agreement) and any Delayed Delivery Contracts have
been duly authorized, executed and delivered by each of the Company
and the Guarantor.
(g) The Representatives shall have received an opinion, dated the
Closing Date, from Sharon E. Thomas, Esq., Vice President and Secretary of
the Company and Secretary of the Guarantor, to the effect that:
(i) Each of the Company and each of the Significant Subsidiaries
(including the Guarantor) has been duly incorporated and is an
existing corporation in good standing in its jurisdiction of
organization and has been duly qualified to do business and is in good
standing as a foreign corporation in all jurisdictions in which its
ownership of property or the conduct of its business requires such
qualification (except where the failure to so qualify would not have a
Material Adverse Effect), and has all power and authority necessary to
own its properties and conduct the business in which it is engaged as
described in the Prospectus;
-14-
(ii) The execution, delivery and performance of the Indenture,
the Terms Agreement (including the provisions of this Agreement) and
any Delayed Delivery Contracts and the issuance and sale of the
Securities and compliance with the terms and provisions thereof will
not result in a breach or violation of any of the terms and provisions
of, or constitute a default under any order, rule or regulation
applicable to the Company, the Guarantor or any of their respective
subsidiaries of which such counsel is aware of any court or
governmental agency or body having jurisdiction over the Company, the
Guarantor or any of their respective material properties or, any
material agreement or instrument to which the Company, the Guarantor
or any of their respective subsidiaries is a party or by which the
Company, the Guarantor or any such subsidiary is bound or to which any
of the properties of the Company, the Guarantor or any such subsidiary
is subject, or the Certificate of Incorporation or By-Laws of the
Company, the Guarantor or any such subsidiary, which breach or
violation, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect;
(iii) Such counsel is not aware of any consent, approval,
authorization or order of, or filing with, any governmental agency or
body or any court having jurisdiction over the Company, the Guarantor
or any of their material properties that is required to be obtained or
made by the Company or the Guarantor for the consummation of the
transactions contemplated by the Terms Agreement (including the
provisions of this Agreement) in connection with the issuance or sale
of the Securities by the Company and the Guarantor, except such as may
be required under the Securities Act, the Trust Indenture Act and
under state securities or Blue Sky laws (as to which such counsel need
express no opinion);
(iv) To the best knowledge of such counsel, except as described
in the Prospectus, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which the
Company or any of its subsidiaries is or may be a party or to which
any property of the Company or any of its subsidiaries is or may be
the subject which, individually or in the aggregate, if determined
adversely to the Company or any of its subsidiaries, could reasonably
be expected to have a Material Adverse Effect; and to the knowledge of
such counsel, and except as described in the Prospectus, no such
investigations, actions, suits or proceedings are threatened or
contemplated by any governmental or regulatory authority or threatened
by others;
(v) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules and other
financial and statistical data contained therein, as to which such
counsel need express no opinion), when they were filed with the
Commission complied as to form in all material respects with the
requirements of the Exchange Act; and nothing has come to such
counsel's attention that causes him to believe that any of such
documents, when such documents were so filed contained an untrue
statement of a material fact and omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so
filed, not misleading;
-15-
(vi) Nothing has come to such counsel's attention that causes him
to believe that the Registration Statement relating to the Securities,
as of its effective date, the Registration Statement or the
Prospectus, as of the date of the Terms Agreement, or any such
amendment or supplement, as of its date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading; it being understood that
such counsel need express no opinion as to the financial statements
and schedules or other financial or statistical data contained in any
of the above-mentioned documents; and
(vii) The statements contained in the Company's Annual Reports on
Form 10-K under the heading "Item 3. Legal Proceedings", and the
statements contained in the Company's Quarterly Reports on Form 10-Q
under the heading "Item 1. Legal Proceedings", in each case, which are
incorporated or deemed to be incorporated by reference in the
Prospectus, insofar as such statements constitute a summary of the
legal documents, matters or proceedings referred to therein, fairly
present the information called for with respect to such legal
documents, matters and proceedings; and, to the best knowledge of such
counsel, (A) there are no current or pending legal, governmental or
regulatory actions, suits or proceedings that are required under the
Securities Act to be described in the Prospectus and that are not so
described and (B) there are no statutes, regulations or contracts and
other documents that are required under the Securities Act to be filed
as exhibits to the Registration Statement or described in the
Prospectus and that have not been so filed or described.
(h) The Representatives shall have received from Underwriters'
Counsel, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Company and the
Guarantor, the validity of the Securities, the Registration Statement, the
Prospectus and other related matters as they may require, and the Company
and the Guarantor shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(i) On or prior to the Closing Date, the Company and the Guarantor
shall have furnished to the Representatives such further certificates and
documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters. The Company and the Guarantor will furnish the
Representatives with such conformed copies of such opinions, certificates,
letters and documents as they reasonably request.
6. Indemnification and Contribution. (a) The Company and the Guarantor,
jointly and severally, agree to indemnify and hold harmless each Underwriter,
its affiliates, directors and officers and each person, if any, who controls
such Underwriter within the meaning
-16-
of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including, without
limitation, reasonable legal fees and other expenses incurred in connection with
any suit, action or proceeding or any claim asserted, as such fees and expenses
are incurred), joint or several, that arise out of, or are based upon, any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectus (or any amendment or supplement thereto)
or any preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except insofar as such losses, claims,
damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for
use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
subsection (b) below; provided, that with respect to any such untrue statement
in or omission from any preliminary prospectus, the indemnity agreement
contained in this paragraph (a) shall not inure to the benefit of any
Underwriter to the extent that the sale to the person asserting of any such
loss, claim, damage or liability was an initial resale by such Underwriter and
any such loss, claim, damage or liability of or with respect to such Underwriter
results from the fact that both (i) to the extent required by applicable law, a
copy of the Prospectus was not sent or given to such person at or prior to the
written confirmation of the sale of such Securities to such person and (ii) the
untrue statement in or omission from such preliminary prospectus was corrected
in the Prospectus unless, in either case, such failure to deliver the Prospectus
was a result of non-compliance by the Company with the provisions of Section 4
hereof.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Guarantor and their respective directors and
officers who signed the Registration Statement and each person, if any, who
controls the Company or the Guarantor within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity set forth in paragraph (a) above, but only with respect to any losses,
claims, damages or liabilities that arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information relating to such Underwriter agreed
to be furnished to the Company in writing by the Representatives pursuant to the
Terms Agreement.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such person (the "Indemnified Person") shall
promptly notify the person against whom such indemnification may be sought (the
"Indemnifying Person") in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 6 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 6. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof,
-17-
the Indemnifying Person shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others entitled
to indemnification pursuant to this Section 6 that the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding, as incurred. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Person unless (i)
the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary; (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be paid or reimbursed as they are incurred. Any
such separate firm for any Underwriter, its affiliates, directors and officers
and any control persons of such Underwriter shall be designated in writing by
Citigroup Global Markets Inc. and any such separate firm for the Company and the
Guarantor and their respective directors and officers who signed the
Registration Statement and any control persons of the Company or the Guarantor
shall be designated in writing by the Company. The Indemnifying Person shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (x) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding and (y) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(d) If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantor on the one hand and the Underwriters on the other from
the offering of the Securities or (ii) if the allocation provided by clause (i)
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Company and the Guarantor on the one hand and the
Underwriters on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Guarantor on the one hand and the Underwriters on
-18-
the other shall be deemed to be in the same respective proportions as the net
proceeds (before deducting expenses) received by the Company from the sale of
the Securities and the total underwriting discounts and commissions received by
the Underwriters in connection therewith, in each case as set forth in the table
on the cover of the Prospectus, bear to the aggregate offering price of the
Securities. The relative fault of the Company and the Guarantor on the one hand
and the Underwriters on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Guarantor, on the one hand, or by the
Underwriters, on the other hand, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(e) The Company, the Guarantor and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 6 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount paid
or payable by an Indemnified Person as a result of the losses, claims, damages
and liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Person in connection with any such action or claim.
Notwithstanding the provisions of this Section 6, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total underwriting discounts and commissions received by such
Underwriter with respect to the offering of the Securities exceeds the amount of
any damages that such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 6 are several in proportion
to their respective purchase obligations hereunder and not joint.
(f) The remedies provided for in this Section 6 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
Indemnified Person at law or in equity.
7. Termination. This Agreement and the Terms Agreement may be terminated in
the absolute discretion of the Representatives, by notice to the Company, if
after the execution and delivery of this Agreement and the Terms Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by any of the New York Stock Exchange; (ii) trading of
any securities issued or guaranteed by the Company or the Guarantor shall have
been suspended on any exchange; (iii) a general moratorium on commercial banking
activities shall have been declared by federal or New York State authorities; or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis, either within or outside
the United States, that, in the judgment of the Representatives, is material and
adverse and makes it impracticable or inadvisable to proceed with the offering,
sale or delivery of the Securities on the Closing Date on the terms and in the
manner contemplated by this Agreement, the Terms Agreement and the Prospectus.
-19-
8. Default of Underwriters. (a) If any Underwriter shall default in its
obligation to purchase the Securities which it has agreed to purchase under the
Terms Agreement relating to such Securities, the Representatives may in their
discretion arrange for themselves or another party or other parties to purchase
such 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 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 Securities on such
terms. In the event that, within the respective prescribed period, the
Representatives notify the Company and the Guarantor that they have so arranged
for the purchase of such Securities, or the Company notifies the Representatives
that it has so arranged for the purchase of such Securities, the Representatives
or the Company shall have the right to postpone the Closing Date for such
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 each of the Company and the Guarantor agrees to file promptly
any amendments or supplements to the Registration Statement or the Prospectus
which in the reasonable 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 Terms Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Registered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Registered Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Registered Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Registered
Securities which such Underwriter agreed to purchase under the Terms Agreement
relating to such Registered Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Registered Securities which such Underwriter agreed to
purchase under such Terms Agreement) of the Registered 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
Registered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Registered Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Registered
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 Registered Securities of a defaulting Underwriter or
Underwriters, then the Terms Agreement relating to such Registered Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter, the Company or the Guarantor, except for the expenses to be borne
by the Company, the Guarantor and the Underwriters as provided in Section 4(h)
and the indemnity and contribution agreements in Section 6; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
-20-
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company, the Guarantor or their officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Company, the Guarantor or any of
their respective representatives, officers or directors or any controlling
person and will survive delivery of and payment for the Securities. If the Terms
Agreement is terminated pursuant to Section 7 or if for any reason the purchase
of the Securities by the Underwriters under the Terms Agreement is not
consummated, the Company and the Guarantor shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 4(h) and the
respective obligations of the Company, the Guarantor and the Underwriters
pursuant to Section 6 shall remain in effect. If the purchase of the Securities
by the Underwriters is not consummated for any reason, other than solely because
of the termination of this Agreement pursuant to Section 7 or the occurrence of
any event specified in Section 8, the Company and the Guarantor will reimburse
the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Securities, but the Company and the Guarantor shall be under no
further liability to any Underwriter except as provided in Section 6.
10. Notices. All statements, requests, notices and agreements hereunder
shall be in writing and if to the Underwriters shall be sufficient in all
respects, if delivered or sent by first class mail, telex, or facsimile
transmission (confirmed in writing by overnight courier sent on the day of such
facsimile transmission) to the address of the Representatives as set forth in
the Terms Agreement; and if to the Company or the Guarantor shall be sufficient
in all respects if delivered or sent by first class mail or facsimile
transmission (confirmed in writing by overnight courier sent on the day of such
facsimile transmission) to the address of the Company and the Guarantor set
forth in the Registration Statement, Attention: Secretary.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the Company, the Guarantor and such Underwriters as are identified in Terms
Agreements and their respective successors and the officers and directors and
controlling persons referred to in Section 6, and no other person will acquire
or have any right or obligation hereunder or by virtue of this Agreement. No
purchaser of any of the Securities from any Underwriter shall be deemed a
successor or assign merely by reason of such purchase.
12. Representatives. In all dealings under any Terms Agreement and
hereunder, the Representatives shall act on behalf of each of the Underwriters,
and the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any underwriter made or given by the
Representatives.
13. Certain Defined Terms. For purposes of this Agreement, (a) except where
otherwise expressly provided, the term "affiliate" has the meaning set forth in
Rule 405 under the Securities Act; (b) the term "business day" means any day
other than a day on which banks are permitted or required to be closed in New
York City; and (c) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act.
14. Time of Essence. Time shall be of the essence of each Terms Agreement.
-21-
15. GOVERNING LAW. THIS AGREEMENT AND EACH TERMS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. Counterparts. This Agreement and each Terms Agreement may be executed
by any one or more of the parties hereto and thereto in any number of
counterparts (which may include counterparts delivered by any standard form of
telecommunication), each of which shall be deemed to be an original, but all
such respective counterparts shall together constitute one and the same
instrument.
17. Amendments or Waivers. No amendment or waiver of any provision of this
Agreement or each Terms Agreement, nor any consent or approval to any departure
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the parties hereto.
18. Headings. The headings herein are included for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement or each Terms Agreement.
-22-
If the foregoing is in accordance with your understanding, please sign and
return three counterparts hereof.
Very truly yours,
NEWMONT MINING CORPORATION
By: /s/ Russell Ball
----------------------------------------
Name: Russell Ball
Title: Vice President and Controller
NEWMONT USA LIMITED
By: /s/ Russell Ball
----------------------------------------
Name: Russell Ball
Title: Vice President and Controller
Accepted as of the date hereof:
CITIGROUP GLOBAL MARKETS INC.
J.P. MORGAN SECURITIES INC.
Acting on behalf of themselves and as the
Representatives of the several Underwriters
By: CITIGROUP GLOBAL MARKETS INC.
By: /s/ W. Brennan Smith
----------------------------------
Authorized Signatory
By: J.P. MORGAN SECURITIES INC.
By: /s/ Heather X. Towner
----------------------------------
Authorized Signatory
-23-
Schedule 2(f)
ANNEX I
NEWMONT MINING CORPORATION
as Issuer
NEWMONT USA LIMITED
as Guarantor
Debt Securities
Terms Agreement
March 17, 2005
Citigroup Global Markets Inc.
J.P. Morgan Securities Inc.
As Representatives of the several Underwriters
listed in Schedule I hereto
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, NY 10013
Dear Sirs:
Newmont Mining Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated March 17, 2005 (the "Underwriting Agreement"),
between the Company and Newmont USA Limited, a Delaware corporation (the
"Guarantor"), on the one hand, and Citigroup Global Markets Inc. and J.P. Morgan
Securities Inc., as Representatives of the several Underwriters listed in
Schedule I hereto, on the other hand, to issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") the securities specified in
Schedule II hereto (the "Registered Securities"). Payment of principal of, and
interest, if any, and premium, if any, on the Securities will be unconditionally
guaranteed by the Guarantor pursuant to the terms and conditions of the guaranty
issued under the Indenture (the "Guaranty"). The Registered Securities and
related Guaranty are referred to as the "Securities". Each of the provisions of
the Underwriting Agreement is incorporated herein by reference in its entirety,
and shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Terms Agreement, except that, if this Terms Agreement and the
Underwriting Agreement are dated different dates, each representation and
warranty with respect to the Prospectus in Section 2 of the Underwriting
Agreement shall be deemed to be a representation and warranty as of the date of
the Underwriting Agreement in relation to the Prospectus (as therein defined)
and also a representation and warranty as of the date of this Terms Agreement in
relation to the Prospectus as amended or supplemented relating to the Securities
which are the subject of the Terms Agreement. Each reference to the
Representatives
herein and in the provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you. Unless otherwise defined herein,
terms defined in the Underwriting Agreement are used herein as therein defined.
The Representatives are designated to act on behalf of each of the Underwriters
of Securities.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at a purchase price to the Underwriters set forth in Schedule II hereto, the
principal amount of Securities set forth opposite the name of such Underwriter
in Schedule I hereto, less the principal amount of Securities covered by Delayed
Delivery Contracts, if any, as may be specified in such Schedule II. The
Guarantor agrees, pursuant to the terms and conditions, set forth in the
Indenture, to endorse the Guaranty on such Securities.
If the foregoing is in accordance with your understanding, please sign and
return to us five counterparts hereof, and upon acceptance hereof by you, on
behalf of the Underwriters, this letter and such acceptance hereof, including
the provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement among each of the Underwriters, the Company
and the Guarantor. It is understood that your acceptance of this letter on
behalf of each of the Underwriters is or will be pursuant to the authority set
forth in a form of Agreement among Underwriters, the form of which shall be
supplied to the Company and the Guarantor upon request.
Very truly yours,
NEWMONT MINING CORPORATION
By:
--------------------------------------
Name:
Title:
NEWMONT USA LIMITED
By:
--------------------------------------
Name:
Title:
Accepted as of the date hereof:
CITIGROUP GLOBAL MARKETS INC.
J.P. MORGAN SECURITIES INC.
Acting on behalf of themselves and as the
Representatives of the several Underwriters
By: CITIGROUP GLOBAL MARKETS INC.
By:
------------------------------------
Authorized Signatory
By: J.P. MORGAN SECURITIES INC.
By:
------------------------------------
Authorized Signatory
SCHEDULE I
Principal Amount of
Designated Securities
Underwriter to be Purchased
Citigroup Global Markets Inc.............................$252,000,000
J.P. Morgan Securities Inc............................... 108,000,000
UBS Securities LLC....................................... 60,000,000
Scotia Capital (USA) Inc................................. 30,000,000
RBS Greenwich Capital Markets, Inc....................... 30,000,000
HSBC Securities (USA) Inc................................ 30,000,000
ANZ Securities, Inc...................................... 18,000,000
Bear, Stearns & Co. Inc.................................. 18,000,000
BNY Capital Markets, Inc................................. 18,000,000
CIBC World Markets Corp.................................. 18,000,000
RBC Dan Rauscher Inc..................................... 18,000,000
-----------
Total..................................$600,000,000
===========
SCHEDULE II
Title of Securities:
5.875% Notes due 2035
Aggregate principal amount:
$600,000,000
Price to Public:
99.550% of the principal amount of the Securities, plus accrued interest ,
if any, from March 22, 2005 to issuance
Purchase Price by Underwriters:
98.675% of the principal amount of the Securities, plus accrued interest,
if any, from March 22, 2005 to issuance
Specified funds for payment of purchase price:
New York Clearing House funds
Ranking:
Senior
Indenture:
Indenture, dated as of March 22, 2005, among the Company, the Guarantor and
Citibank, N.A., as Trustee
Maturity:
April 1, 2035
Interest Rate:
5.875%
Interest Payment Dates:
April 1 and October 1, commencing October 1, 2005
Schedule II
Page 2
Redemption Provisions:
The Securities may be redeemed, in whole or in part at the option of the
Company at any time or from time to time at the greater of the following
redemption prices:
(i) 100% of the principal amount of the Securities being redeemed; or
(ii) the sum of the present values of the remaining scheduled payments of
principal and interest on the Securities being redeemed on the redemption
date (not including any portion of any payments of interest accrued to the
redemption date) discounted to the redemption date on a semiannual basis at
the Treasury Rate (as defined below), as determined by the Reference
Treasury Dealer (as defined below) plus 25 basis points;
plus, in each case, accrued and unpaid interest on the Securities to the
redemption date.
Notwithstanding the foregoing, installments of interest on Securities that
are due and payable on interest payment dates falling on or prior to a
redemption date will be payable on the interest payment date to the
registered holders as of the close of business on the relevant record date
according to the Securities and the indenture. The redemption price will be
calculated on the basis of a 360-day year consisting of twelve 30-day
months.
The Company will mail notice of any redemption at least 30 days but not
more than 60 days before the redemption date to each registered holder of
the Securities to be redeemed. Once notice of redemption is mailed, the
Securities called for redemption will become due and payable on the
redemption date and at the applicable redemption price, plus accrued and
unpaid interest to the redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Reference Treasury Dealer as having a maturity comparable
to the remaining term of the Securities to be redeemed that would be
utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of the securities.
"Comparable Treasury Price" means, with respect to any redemption date, (A)
the average of the Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (B) if the trustee obtains fewer than three such Reference
Treasury
Schedule II
Page 3
Dealer Quotations, the average of all such Quotations, or (C) if only one
Reference Treasury Dealer Quotation is received, such Quotation.
"Reference Treasury Dealer" means (A) Citigroup Global Markets Inc. or J.P.
Morgan Securities Inc. (or their respective affiliates which are Primary
Treasury Dealers), and their respective successors; provided, however, that
if any of the foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), the
Company will substitute therefor another Primary Treasury Dealer; and (B)
any other Primary Treasury Dealer(s) selected by the Company.
"Reference Treasury Dealer Quotation" means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the trustee by such Reference Treasury Dealer at 5:00 p.m. (New
York City time) on the third business day preceding such redemption date.
On and after the redemption date, interest will cease to accrue on the
Securities or any portion of the Securities called for redemption (unless
the Company defaults in the payment of the redemption price and accrued
interest).
On or before the redemption date, the Company will deposit with a paying
agent (or the trustee) money sufficient to pay the redemption price of and
accrued interest on the Securities to be redeemed on that date. If less
than all of the Securities of any series are to be redeemed, the Securities
to be redeemed shall be selected by lot by DTC, in the case of Securities
represented by a global security, or by the trustee by a method the trustee
deems to be fair and appropriate, in the case of Securities that are not
represented by a global security.
Sinking Fund Provisions:
No sinking fund provisions
Closing Date:
10:00 a.m. New York time on March 22, 2005
Closing Location:
Sullivan & Cromwell LLP
125 Broad Street
New York, New York 10004
Delayed Delivery:
None
Schedule II
Page4
Names and addresses of Representatives:
Citigroup Global Markets Inc.
388 Greenwich Street
New York, NY 10013
J.P. Morgan Securities
277 Park Avenue
New York, NY 10028
Address for Notices, etc.:
Citigroup Global Markets Inc.
388 Greenwich Street
New York, NY 10013
J.P. Morgan Securities
277 Park Avenue
New York, NY 10028
Other:
Each Underwriter represents, warrants and agrees to each of the
representations, warranties and agreements in the 5th paragraph of the section
captioned "Underwriting" in the Prospectus as supplemented relating to the
Securities that are the subject of the Terms Agreement.