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EXHIBIT 1.1
APACHE CORPORATION
REMARKETED NOTES
DISTRIBUTION AGREEMENT
______ __, 1995
FIRST CHICAGO CAPITAL MARKETS, INC.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ BROTHERS INC.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
Apache Corporation, a Delaware corporation (the "Company"), confirms
its agreement with First Chicago Capital Markets, Inc., ▇▇▇▇▇▇ Brothers Inc.
and ▇.▇. ▇▇▇▇▇▇ Securities Inc. (each, an "Agent", and collectively, the
"Agents") with respect to the issue and sale by the Company of its Remarketed
Notes in one or more series (the "Notes"). The Notes are to be issued pursuant
to an Indenture, dated as of _______, 1995, as amended, supplemented or
modified from time to time (the "Indenture"), between the Company and Chemical
Bank, as trustee (the "Trustee"). As of the date hereof, the Company has
authorized the issuance and sale of up to U.S. $250,000,000 aggregate initial
offering price of Notes to or through the Agents pursuant to the terms of this
Agreement.
This Agreement provides both for the sale of Notes by the Company to
one or more Agents as principal for resale to investors and other purchasers
and for the sale of Notes by the Company directly to investors (as may from
time to time be agreed to by the Company and the applicable Agent), in which
case such Agent will act as an agent of the Company in soliciting purchases of
the Notes.
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The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (No. 33-________) for the
registration of debt securities, including the Notes and a Special Mandatory
Purchase Right, under the Securities Act of 1933, as amended (the "1933 Act"),
and the offering thereof from time to time in accordance with Rule 415 of the
rules and regulations of the SEC under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been declared effective by the
SEC and the Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended (the "1939 Act"). Such registration statement (and any
further registration statements which may be filed by the Company for the
purpose of registering additional Notes and in connection with which this
Agreement is included or incorporated by reference as an exhibit) and the
prospectus constituting a part thereof, and any prospectus supplement and
pricing supplement relating to the Notes, including all documents incorporated
therein by reference, as from time to time amended or supplemented by the
filing of documents pursuant to the Securities Exchange Act of 1934, as amended
(the "1934 Act") or the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus," respectively, except that if any
revised prospectus shall be provided to the Agents by the Company for use in
connection with the offering of the Notes, whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b) of
the 1933 Act Regulations, the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the Agents for such
use.
SECTION 1. Appointment as Agent.
(a) Appointment. Subject to the terms and conditions stated
herein and subject to the reservation by the Company to sell Notes directly on
its own behalf, the Company hereby agrees that Notes will be sold exclusively
by, through or to the Agents, except as described below. The Company agrees
that it will not appoint any other agent or agents to act on its behalf, or to
assist it, in the placement of the Notes unless the Company has entered into an
agreement or agreements (which may incorporate by reference certain provisions
hereof and which shall incorporate and be subject to the commission schedule
set forth in Schedule A hereto with respect to any Notes sold through such
agent or agents, acting as an agent) with such agent or agents and has notified
the Agents promptly upon entering into any such agreement. The Company may
select, from time to time, any one or more Agents appointed hereby to offer and
sell any Notes in accordance with the terms hereof.
(b) Sale of Notes. The Company shall not sell or approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of the aggregate
initial offering price of Notes registered pursuant to the Registration
Statement. The Agents shall have no responsibility for maintaining records
with respect to the aggregate initial offering price of Notes sold, or of
otherwise
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monitoring the availability of Notes for sale, under the Registration
Statement.
(c) Purchases as Principal. The Agents shall not have any
obligation to purchase Notes from the Company as principal, except to the
extent that one or more Agents may agree subsequently from time to time to
purchase Notes as principal for resale to investors and other purchasers
determined by such Agent or Agents. Any such purchase of Notes by an Agent as
principal shall be made in accordance with Section 3(a) hereof.
(d) Solicitations as Agent. If agreed upon by an Agent and the
Company, such Agent, acting solely as agent for the Company and not as
principal, will solicit purchases of the Notes. Such Agent will communicate to
the Company, orally, each offer to purchase Notes solicited by it on an agency
basis, other than those offers rejected by such Agent. Such Agent shall have
the right, in its discretion reasonably exercised, to reject any proposed
purchase of Notes, as a whole or in part, and any such rejection shall not be
deemed a breach of its agreement contained herein. The Company may accept or
reject any proposed purchase of Notes, in whole or in part. Such Agent shall
make reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by it and accepted
by the Company. Such Agent shall not have any liability to the Company in the
event that any such purchase is not consummated for any reason. If the Company
shall default on its obligation to deliver Notes to a purchaser whose offer it
has accepted, the Company shall (i) hold such Agent harmless against any loss,
claim or damage arising from or as a result of such default by the Company and
(ii) pay to such Agent any commission to which it would otherwise be entitled
absent such default.
(e) Reliance. The Company and the Agents agree that any Notes
purchased by one or more Agents as principal shall be purchased, and any Notes
the placement of which an Agent arranges as agent shall be placed by such
Agent, in reliance on the representations, warranties, covenants and agreements
of the Company contained herein and on the terms and conditions and in the
manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to each Agent as of the
date hereof, as of the date of each acceptance by the Company of an offer for
the purchase of Notes (whether to such Agent as principal or through such Agent
as agent), as of the date of each delivery of Notes (whether to such Agent as
principal or through such Agent as agent) (the date of each such delivery to
the Agent as principal being hereafter referred to as a "Settlement Date"), and
(unless (i) the Agents shall have suspended solicitation of purchases of their
Notes in their capacity as agents pursuant to a request from the Company and
(ii) no Agent shall then hold Notes
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purchased as principal pursuant hereto) as of any time that the Registration
Statement or the Prospectus shall be amended or supplemented or there is filed
with the SEC any document incorporated by reference into the Prospectus (each
of the times referenced above being referred to herein as a "Representation
Date"), as follows:
(i) Due Incorporation and Qualification. The
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of Delaware
with corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus
and to enter into and perform its obligations under this Agreement; and
the Company is duly qualified as a foreign corporation to transact
business and is in good standing in Texas and in each other
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify and be in good standing would
not have a material adverse effect on the condition, financial or
otherwise, or the results of operations, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise.
(ii) Subsidiaries. Each "significant subsidiary"
of the Company as defined in Rule 405 of Regulation C of the 1933 Act
Regulations (collectively, the "Significant Subsidiaries") has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties
and conduct its business as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify and be in
good standing would not have a material adverse effect on the
condition, financial or otherwise, or the results of operations,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; and, except as described in
the Prospectus, all of the issued and outstanding capital stock of each
Significant Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and, except for directors' qualifying
shares (if applicable), is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(iii) Registration Statement and Prospectus. At
the time the Registration Statement became effective, the Registration
Statement complied, and as of each Representation Date will comply, in
all material respects with the requirements of
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the 1933 Act and the 1933 Act Regulations and the 1939 Act and the
rules and regulations of the SEC promulgated thereunder; the
Registration Statement, at the time it became effective, did not, and
at each time thereafter at which any amendment to the Registration
Statement becomes effective or any Annual Report on Form 10-K is filed
by the Company with the SEC and as of each Representation Date, will
not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Prospectus, as of the date
hereof does not, and as of each Representation Date will not, include
an 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 representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by the Agents expressly
for use in the Registration Statement or Prospectus.
(iv) Incorporated Documents. The documents
incorporated by reference in the Prospectus, at the time they were or
hereafter are filed with the SEC, complied or when so filed will
comply, as the case may be, in all material respects with the
requirements of the 1934 Act and the rules and regulations promulgated
thereunder (the "1934 Act Regulations"), and, when read together and
with the other information in the Prospectus, did not and will not
include an untrue statement of a material fact or omit to state 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 or are made, not misleading.
(v) Accountants. The accountants who certified
the financial statements included or incorporated by reference in the
Prospectus are independent public accountants within the meaning of the
1933 Act and the 1933 Act Regulations.
(vi) Financial Statements. The financial
statements and any supporting schedules of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the consolidated financial
position of the Company and its subsidiaries as of the dates indicated
and the consolidated results of their operations for the periods
specified; except as stated therein, said financial statements have
been prepared in conformity with U.S. generally accepted accounting
principles applied on a consistent basis; and the supporting schedules
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the information required to be stated
therein.
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(vii) Engineers. The petroleum engineers who have
consented to being named as having reviewed certain reserve data
included or incorporated by reference in the Prospectus are independent
engineers with respect to the Company and its subsidiaries.
(viii) Authorization and Validity of this Agreement,
the Indenture and the Notes. This Agreement has been duly authorized,
executed and delivered by the Company and, upon execution and delivery
by the Agents, will be a valid and legally binding agreement of the
Company; the Indenture has been duly authorized, executed and delivered
by the Company and, upon execution and delivery by the Trustee, will be
a valid and legally binding agreement of the Company enforceable in
accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting enforcement of creditors' rights generally or
by general equity principles, and except further as enforcement thereof
may be limited by (1) requirements that a claim with respect to any
Notes denominated other than in U.S. dollars (or a foreign currency or
composite currency judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (2) governmental authority to limit,
delay or prohibit the making of payments outside the United States. The
Notes have been duly and validly authorized for issuance, offer and
sale pursuant to this Agreement and, when issued, authenticated and
delivered pursuant to the provisions of this Agreement and the
Indenture against payment of the consideration therefor, the Notes will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting enforcement of
creditors' rights generally or by general equity principles, and except
further as enforcement thereof may be limited by (1) requirements that
a claim with respect to any Notes denominated other than in U.S.
dollars (or a foreign currency or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a rate or
exchange prevailing on a date determined pursuant to applicable law or
(2) governmental authority to limit, delay or prohibit the making of
payments outside the United States. The Notes and the Indenture will
be substantially in the form heretofore delivered to the Agents and
conform in all material respects to all statements relating thereto
contained in the Prospectus; and each Holder (as defined in the
Indenture) of Notes will be entitled to the benefits of the Indenture.
(ix) Authorization and Validity of the Remarketing
Agreement. The Remarketing Agreement (as defined in the Prospectus),
if applicable, has been duly and validly authorized, executed and
delivered by the Company and
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(assuming the Remarketing Agreement has been duly authorized, executed
and delivered by the applicable Remarketing Agent or Agents (as defined
in the Remarketing Agreement)) constitutes a legal, valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting enforcement of creditors' rights generally, or
by general equity principles.
(x) Material Adverse Changes or Material
Transactions. Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as may
otherwise be stated therein or contemplated thereby, (1) there has been
no material adverse change in the condition, financial or otherwise, or
in the results of operations, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business and (2) there have
been no material transactions entered into by the Company or any of its
subsidiaries other than those in the ordinary course of business.
(xi) No Defaults. Neither the Company nor any of
its subsidiaries is in violation of its charter or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which it is a party
or by which it or any of them or their properties may be bound, where
the consequences of such violation or default would have a material
adverse effect on the condition, financial or otherwise, or the results
of operations, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise; and the execution
and delivery of this Agreement, the Remarketing Agreement, if
applicable, and the Indenture and the consummation of the transactions
contemplated herein and therein have been duly authorized by all
necessary corporate action of the Company and will not conflict with or
constitute a breach of, or 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
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries is a party
or by which it or any of them may be bound or to which any of the
property or assets of the Company or any such subsidiary is subject,
nor will such action result in any violation of the provisions of the
charter or by-laws of the Company or any law, administrative regulation
or administrative or court order or decree, where the consequences of
such conflict, breach, creation, imposition, violation or default would
have a material adverse
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effect on the condition, financial or otherwise, or the results of
operations, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
(xii) Regulatory Approvals. No consent, approval,
authorization, order or decree of any court or governmental agency or
body is required for the consummation by the Company of the
transactions contemplated by this Agreement or in connection with the
sale of Notes hereunder, except such as have been obtained or rendered,
as the case may be, or as may be required under state securities laws
("Blue Sky").
(xiii) Legal Proceedings. Except as may be included
or incorporated by reference in the Registration Statement and the
Prospectus, there is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened against or affecting,
the Company or any of its subsidiaries, which might, in the opinion of
the Company, result in any material adverse change in the condition,
financial or otherwise, or in the results of operations, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, or could reasonably be expected to
materially and adversely affect the properties or assets thereof or
could reasonably be expected to materially and adversely affect the
consummation of this Agreement or the Indenture or any transaction
contemplated hereby or thereby.
(xiv) Contracts. There are no contracts or
documents of the Company or any of its subsidiaries which are required
to be filed as exhibits to the Registration Statement by the 1933 Act
or by the 1933 Act Regulations which have not been so filed.
(xv) Licenses. Neither the Company nor any of its
subsidiaries is in violation of any law, ordinance, governmental rule
or regulation or court decree to which it may be subject or has failed
to obtain any license, permit, franchise or other governmental
authorization necessary to the ownership of its property or to the
conduct of its business, which violation or failure would materially
adversely affect the condition, financial or otherwise, or the results
of operations, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise; and the Company and
its subsidiaries own or possess or have obtained all governmental
licenses, permits, consents, orders, approvals and other authorizations
and has properly filed with the appropriate authorities all notices,
applications and other documents necessary to lease or own their
respective properties and to carry on their respective businesses as
presently conducted, except where the failure to possess such
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licenses or authorizations or make such filings would not materially
adversely affect the condition, financial or otherwise, or the results
of operations, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise.
(xvi) Trademarks; Service Marks. The Company and
its subsidiaries own or possess, or can acquire on reasonable terms,
adequate trademarks, service marks and trade names necessary to conduct
the business now operated by them, except as set forth or incorporated
by reference in the Registration Statement or except where the failure
to own or possess would not materially adversely affect the condition,
financial or otherwise, or the results of operations, business affairs
or business prospects of the Company and its subsidiaries considered as
one enterprise, and neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with asserted rights
of others with respect to any trademarks, service marks or trade names
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially adversely affect the
condition, financial or otherwise, or the results of operations,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xvii) Property. The Company and its subsidiaries
have legal, valid and defensible title to all of their interests in oil
and gas properties and to all other real and personal property owned by
them and any other real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting
and enforceable leases in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or
encumbrances and defects of any kind, except such as (a) are described
in the Prospectus, (b) liens and encumbrances under operating
agreements, unitization and pooling agreements, production sales
contracts, farm-out agreements and other oil and gas exploration and
productions agreements, in each case that secure payment of amounts not
yet due and payable for the performance of other inchoate obligations
and are of a scope and nature customary in connection with similar
drilling and producing operations or (c) those that do not have a
material adverse effect on the condition, financial or otherwise, the
results of operations, business affairs or business prospects of the
Company.
(xviii) Reserves. The information underlying the
estimates of oil and gas reserves as described in the Prospectus is
complete and accurate in all material respects (or, with regard to any
information underlying the estimates prepared by any petroleum
engineers retained by the seller of such oil and gas reserves, is, to
the best knowledge of the Company after reasonable investigation,
complete and accurate
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in all material respects); other than production of the reserves in
the ordinary course of business and intervening product price
fluctuations described in the Prospectus, the Company is not aware of
any facts or circumstances that would result in a material adverse
change in the reserves or the present value of future net cash
flows therefrom as described in the Prospectus. Estimates of such
reserves and present values comply in all material respects with the
applicable requirements of Regulation S-X and Industry Guide 2 under
the 1933 Act.
(xix) Investment Company Act. Neither the Company
nor any of its subsidiaries is required to be registered under the
Investment Company Act of 1940, as amended (the "1940 Act").
(xx) Doing Business with Cuba. The Company has
complied and will comply with the provisions of Florida H.B. 1771,
codified as Section 517.075 of the Florida Statutes, 1987, as amended,
and all regulations promulgated thereunder relating to issuers doing
business in Cuba.
(xxi) Environmental Compliance. Except as
described in the Registration Statement, (A) neither the Company nor
any of its subsidiaries is in violation of any local or foreign laws or
regulations relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), except such violations as would not, singly or in the
aggregate, have a material adverse effect on the condition, financial
or otherwise, or the results of operations, business affairs or
business prospects of the Company and its subsidiaries considered as
one enterprise, and (B) to the best of the Company's knowledge, there
are no events or circumstances that could reasonably be expected to be
the basis of an order for clean-up or remediation, or an action, suit
or proceeding by any private party or governmental body or agency,
against or affecting the Company or any of its subsidiaries relating to
any Hazardous Materials or the violation of any Environmental Laws,
which, singly or in the aggregate, could reasonably be expected to have
a material adverse effect on the condition, financial or otherwise, or
the results of operations, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise.
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(b) Additional Certifications. Any certificate signed by any
director or officer of the Company and delivered to one or more Agents or to
counsel for the Agents in connection with an offering of Notes to one or more
Agents as principal or through an Agent as agent shall be deemed a
representation and warranty by the Company to such Agent or Agents as to the
matters covered thereby.
SECTION 3. Purchases as Principal; Solicitations as Agent.
(a) Purchases as Principal. Unless otherwise agreed by an Agent
and the Company, Notes shall be purchased by one or more Agents as principal,
severally and not jointly, in accordance with terms agreed upon by such Agent
or Agents and the Company (which terms, unless otherwise agreed, shall, to the
extent applicable, include those terms specified in Exhibit A hereto and be
agreed upon orally, with written confirmation prepared by such Agent or Agents
and mailed to the Company). An Agent's commitment to purchase Notes as
principal shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the
terms and conditions herein set forth. Unless the context otherwise requires,
references herein to "this Agreement" shall include the agreement of one or
more Agents to purchase Notes from the Company as principal. Each purchase of
Notes, unless otherwise agreed, shall be at a discount from the principal
amount of each such Note equivalent to the applicable commission set forth in
Schedule A hereto. The Agents may engage the services of any other broker or
dealer in connection with the resale of the Notes purchased by them as
principal and may allow all or any portion of the discount received in
connection with such purchases from the Company to such brokers and dealers.
At the time of each purchase of Notes by one or more Agents as principal, such
Agent or Agents shall specify the requirements for the stand-off agreement,
officers' certificate, opinions of counsel and comfort letter pursuant to
Sections 4(k), 7(b), 7(c) and 7(d) hereof.
(b) Solicitations as Agent. On the basis of the representations
and warranties herein contained, but subject to the terms and conditions herein
set forth, when agreed by the Company and an Agent, such Agent, as an agent of
the Company, will use its reasonable efforts to solicit offers to purchase the
Notes upon the terms and conditions set forth in the Prospectus. The Agents
are not authorized to appoint sub-agents with respect to Notes sold through
them as agent. All Notes sold through an Agent as agent will be sold at 100%
of their principal amount unless otherwise agreed to by the Company and such
Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through an Agent, as agent, commencing
at any time for any period of time or permanently. As soon as practicable
after receipt of instructions from the Company, such Agent will suspend
solicitation of purchases from
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the Company until such time as the Company has advised such Agent that such
solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent as
set forth in Schedule A hereto.
(c) Administrative Procedures. The purchase price, interest rate
or formula, maturity date and other terms of the Notes (as applicable)
specified in Exhibit A hereto shall be agreed upon by the Company and the
applicable Agent or Agents and specified in a pricing supplement to the
Prospectus (each, a "Pricing Supplement") to be prepared in connection with
each sale of Notes. Except as may be otherwise specified in the applicable
Pricing Supplement, the Notes will be issued in denominations of U.S. $100,000
or any larger amount that is an integral multiple of U.S. $1,000.
Administrative procedures with respect to the sale of Notes shall be agreed
upon from time to time by the Company, the Agents and the Trustee (the
"Procedures"). The Agents and the Company agree to perform, and the Company
agrees to cause the Trustee to agree to perform, their respective duties and
obligations specifically provided to be performed by them in the Procedures.
SECTION 4. Covenants of the Company.
The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will notify the Agents
immediately, and confirm such notice in writing, of (i) the effectiveness of
any amendment to the Registration Statement, (ii) the transmittal to the SEC
for filing of any amendment or supplement to the Prospectus or any document to
be filed pursuant to the 1934 Act (other than any amendment, supplement or
document relating solely to securities other than the Notes), (iii) the receipt
of any comments from the SEC with respect to the Registration Statement or the
Prospectus, (iv) any request by the SEC for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, (v) the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose and (vi) any change in the rating assigned by any
nationally recognized statistical rating organization to any debt securities of
the Company or the public announcement by any nationally recognized statistical
rating organization that it has under surveillance or review, with possible
negative implications, its rating of any debt securities of the Company. The
Company will make every reasonable effort to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) Notice of Certain Proposed Filings. The Company will give the
Agents advance notice of its intention to file or prepare
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any additional registration statement with respect to the registration of
additional Notes, any amendment to the Registration Statement or any amendment
or supplement to the Prospectus (other than an amendment or supplement
providing solely for a change in the interest rate or formula applicable to the
Notes or relating solely to the issuance and/or offering of securities other
than the Notes), whether by the filing of documents pursuant to the 1934 Act or
the 1933 Act or otherwise, and (subject to subsection (1) of this Section) will
furnish to the Agents copies of any such amendment or supplement or other
documents proposed to be filed or used a reasonable time in advance of such
proposed filing or use, as the case may be, and will not file any such
amendment or supplement or other documents in a form to which the Agents or
counsel for the Agents shall reasonably object.
(c) Copies of the Registration Statement and the Prospectus. The
Company will deliver to each Agent one signed copy of the Registration
Statement (as originally filed) and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and documents
incorporated by reference in the Prospectus) and will also deliver to the
Agents as many conformed copies of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) as the Agents reasonably
request. The Company will furnish to the Agents as many copies of the
Prospectus (as amended or supplemented) as the Agents reasonably request so
long as the Agents are required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Notes.
(d) Preparation of Pricing Supplements. The Company will prepare,
with respect to any Notes to be sold to or through one or more Agents pursuant
to this Agreement, a Pricing Supplement with respect to such Notes in a form
previously approved by the Agents and will file such Pricing Supplement
pursuant to Rule 424(b)(3) under the 1933 Act not later than the close of
business of the SEC on the fifth business day after the date on which such
Pricing Supplement is first used.
(e) Revisions of Prospectus -- Material Changes. Except as
otherwise provided in subsection (1) of this Section, if at any time during the
term of this Agreement any event shall occur or condition exist as a result of
which it is necessary, in the opinion of counsel for the Agents or counsel for
the Company, to amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time the Prospectus is
delivered to a purchaser, or if it shall be necessary, in the opinion of either
such counsel, to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company shall give immediate notice, confirmed in writing,
to the Agents to cease the solicitation of offers to
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purchase the Notes in their capacity as agents and to cease sales of any Notes
they may then own as principal, and the Company will promptly amend the
Registration Statement and the Prospectus, whether by filing documents pursuant
to the 1934 Act or the 1933 Act or otherwise, as may be necessary to correct
such untrue statement or omission or to make the Registration Statement and
Prospectus comply with such requirements.
(f) Prospectus Revisions -- Periodic Financial Information.
Except as otherwise provided in subsection (1) of this Section, on or prior to
the date on which there shall be released to the general public interim
financial statement information related to the Company with respect to each of
the first three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing, and shall cause the Prospectus
to be amended or supplemented to include or incorporate by reference financial
information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations as shall be necessary for an understanding thereof
or as shall be required by the 1933 Act or the 1933 Act Regulations.
(g) Prospectus Revisions -- Audited Financial Information. Except
as otherwise provided in subsection (1) of this Section, on or prior to the
date on which there shall be released to the general public financial
information included in or derived from the audited financial statements of the
Company for the preceding fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing, and shall cause the
Registration Statement and the Prospectus to be amended, whether by the filing
of documents pursuant to the 1934 Act or the 1933 Act or otherwise, to include
or incorporate by reference such audited financial statements and the report or
reports, and consent or consents to such inclusion or incorporation by
reference, of the independent accountants with respect thereto, as well as such
other information and explanations as shall be necessary for an understanding
of such financial statements or as shall be required by the 1933 Act or the
1933 Act Regulations.
(h) Earnings Statements. The Company will make generally
available to its security holders as soon as practicable, but not later than 90
days after the close of the period covered thereby, an earnings statement (in
form complying with the provisions of Rule 158 of the 1933 Act Regulations)
covering each twelve month period beginning, in each case, not later than the
first day of the Company's fiscal quarter next following the "effective date"
(as defined in such Rule 158) of the Registration Statement with respect to
each sale of Notes.
(i) Blue Sky Qualifications. The Company will endeavor, in
cooperation with the Agents, to qualify the Notes for offering and sale under
the applicable securities laws of such states and other
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jurisdictions of the United States as the Agents may designate, and will
maintain such qualifications in effect for as long as may be required for the
distribution of the Notes; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified. The
Company will file such statements and reports as may be required by the laws of
each jurisdiction in which the Notes have been qualified as above provided.
The Company will promptly advise the Agents of the receipt by the Company of
any notification with respect to the suspension of the qualification of the
Notes for sale in any such state or jurisdiction or the initiating or
threatening of any proceeding for such purpose.
(j) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act in
connection with sales of the Notes, will file all documents required to be
filed with the SEC pursuant to Sections 13, 14 or 15(d) of the 1934 Act within
the time periods prescribed by the 1934 Act and the 1934 Act Regulations.
(k) Stand-Off Agreement. If specified by the applicable Agent or
Agents in connection with a purchase of Notes from the Company as principal,
between the date of the agreement to purchase such Notes and the Settlement
Date with respect to such purchase, the Company will not, without the prior
written consent of such Agent or Agents, offer or sell, grant any option for
the sale of, or enter into any agreement to sell, any debt securities of the
Company substantially similar to the Notes (other than the Notes that are to be
sold pursuant to such agreement or commercial paper in the ordinary course of
business).
(l) Suspension of Certain Obligations. The Company shall not be
required to comply with the provisions of subsections (e), (f) or (g) of this
Section, or subsection (b) of this Section insofar as it relates to documents
filed pursuant to the 1934 Act, during any period from the time (i) the Agents
shall have suspended solicitation of purchases of the Notes in their capacity
as agents pursuant to a request from the Company and (ii) no Agent shall then
hold any Notes purchased as principal pursuant hereto, until such time as the
Company shall determine that solicitation of purchases of the Notes should be
resumed or an Agent shall subsequently purchase Notes from the Company as
principal.
SECTION 5. Conditions of Obligations.
The obligations of the Agents to purchase Notes from the Company as
principal and to solicit offers to purchase Notes as agent of the Company, and
the obligations of any purchasers of Notes sold through an Agent as agent, will
be subject to the accuracy of the representations and warranties on the part of
the Company herein and to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to
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the provisions hereof, to the performance and observance by the Company of all
its covenants and agreements herein contained and to the following additional
conditions precedent:
(a) Legal Opinions. On the date hereof, the Agents shall have
received the following legal opinions, dated as of the date hereof and in form
and substance satisfactory to the Agents:
(1) Opinion of Company Counsel. The favorable opinion of
▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, P.C., counsel to the Company, to the effect
that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware.
(ii) This Agreement has been duly authorized, executed
and delivered by the Company.
(iii) The Indenture has been duly authorized, executed
and delivered by the Company and (assuming the Indenture has
been duly authorized, executed and delivered by the Trustee)
constitutes a legal, valid and binding agreement of the
Company, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or
affecting enforcement of creditors' rights generally or by
general equity principles, and further as enforcement thereof
may be limited by (1) requirements that a claim with respect
to any Notes denominated other than in U.S. dollars (or a
foreign currency or composite currency judgment in respect of
such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to
applicable law or (2) governmental authority to limit, delay
or prohibit the making of payments outside the United States.
(iv) The Remarketing Agreement, if applicable, has been
duly and validly authorized, executed and delivered by the
Company and (assuming the Remarketing Agreement has been duly
authorized, executed and delivered by the applicable
Remarketing Agent or Agents (as defined in such Remarketing
Agreement)) constitutes a legal, valid and binding agreement
of the Company, enforceable against the Company in accordance
with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting enforcement of creditors' rights
generally, or by general equity principles.
(v) The Notes, in the form(s) certified by the Company
as of the date hereof, have been duly authorized
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for issuance, offer and sale pursuant to this Agreement and,
when issued, authenticated and delivered pursuant to the
provisions of this Agreement and the Indenture against payment
of the consideration therefor, will constitute valid and
legally binding obligations of the Company, enforceable in
accordance with their terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting enforcement
of creditors' rights generally or by general equity
principles, and except further as enforcement thereof may be
limited by (1) requirements that a claim with respect to any
Notes denominated other than in U.S. dollars (or a foreign
currency or composite currency judgment in respect of such
claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or
(2) governmental authority to limit, delay or prohibit the
making of payments outside the United States; and each holder
of Notes will be entitled to the benefits of the Indenture.
(vi) The Notes and the Indenture conform in all
material respects to the statements relating thereto in the
Prospectus; and the statements in the Prospectus under the
captions "Description of Notes" and "Description of Debt
Securities", insofar as they purport to summarize certain
provisions of documents specifically referred to therein, are
accurate summaries of such provisions.
(vii) The Indenture has been duly qualified under the
1939 Act.
(viii) The Registration Statement has been declared
effective by the SEC under the 1933 Act and, to the best of
such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
under the 1933 Act or proceedings therefor initiated or
threatened by the SEC.
(ix) The Registration Statement and the Prospectus
(except for financial statements and engineering reports and
other financial or engineering data, and except for those
parts of the Registration Statement that constitute the Form
T-1, as to the requirements of Form T-1, as to which such
counsel need not express any opinion), as of their respective
effective or issue dates, appeared on their face to be
appropriately responsive to the requirements of the 1933 Act
and the 1933 Act Regulations.
(x) The information contained in the Prospectus under
the captions "Certain United States Federal Income Tax
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Considerations", to the extent that such information
constitutes matters of law, summaries of legal matters or
legal conclusions, has been reviewed by such counsel and is
correct.
In rendering such opinion, counsel for the Company may rely as
to matters of fact upon the representations of officers of the Company
contained in any certificate delivered to such counsel and certificates
of public officials, which certificates shall be attached to or
delivered with such opinion. Such opinion shall be limited to the
General Corporation Law of the State of Delaware, the laws of the State
of Texas and the laws of the United States of America.
(2) The favorable opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, General
Counsel of the Company, to the effect that:
(i) The Company has the corporate power and authority
to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and
perform its obligations under this Agreement.
(ii) To the best knowledge and information of such
counsel, the Company is duly qualified as a foreign
corporation to transact business and is in good standing in
Texas and in each other jurisdiction in which such
qualification is required, except where the failure to so
qualify and be in good standing would not have a material
adverse effect on the condition, financial or otherwise, or
the results of operations, business affairs or business
prospects of the Company and its subsidiaries considered as
one enterprise.
(iii) Each Significant Subsidiary has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease
and operate its properties and conduct its business as
described in the Prospectus, and, to the best of such
counsel's knowledge and information, is duly qualified as a
foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, except where the failure to so qualify and be in
good standing would not have a material adverse effect on the
condition, financial or otherwise, or the results of
operations, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise; and
all of the issued and outstanding capital stock of each
Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable, and is owned by the
Company, directly or indirectly, free and clear of any
mortgage,
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pledge, lien, encumbrance, claim or equity (except as
described in the Prospectus).
(iv) Each document filed pursuant to the 1934 Act and
incorporated by reference in the Prospectus (except for
financial statements, supporting schedules and other
financial or statistical information as to which no opinion
need be rendered) appeared on their face to be appropriately
responsive when so filed to the requirements of the 1934 Act
and the 1934 Act Regulations.
(v) Neither the Company nor any of its subsidiaries is
required to be registered under the 1940 Act.
(vi) No consent, approval, authorization, order or
decree of any court or governmental authority or agency is
required that has not been obtained in connection with the
consummation by the Company of the transactions contemplated
by this Agreement or the Indenture, except such as have been
obtained or rendered, as the case may be, or as may be
required under the 1933 Act, the 1933 Act Regulations, the
1934 Act, the 1934 Act Regulations or state securities laws;
and the execution and delivery of this Agreement, the
Remarketing Agreement, if applicable, and the Indenture and
the consummation of the transactions contemplated herein and
therein have been duly authorized by all necessary corporate
action of the Company and, to the best knowledge and
information of such counsel, will not conflict with or
constitute a breach of, or 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 contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which it
or any of them may be bound or to which any of the property or
assets of the Company or any such subsidiary is subject, nor
will such action result in any violation of the provisions of
the charter or by-laws of the Company or any applicable law,
administrative regulation or, to the best knowledge and
information of such counsel, administrative or court order or
decree.
(vii) Neither the Company nor any of its Significant
Subsidiaries is in violation of its charter or by-laws.
(viii) To the best knowledge and information of such
counsel, neither the Company nor any of its subsidiaries is
in violation of any law, ordinance, governmental rule or
regulation or court decree to which it may be subject or has
failed to obtain any license, permit, franchise or other
governmental authorization necessary to the
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ownership of its property or to the conduct of its business,
which violation or failure would materially adversely affect
the condition, financial or otherwise, or the results of
operations, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise;
and, to the best knowledge and information of such counsel,
the Company and its subsidiaries own or possess or have
obtained all material governmental licenses, permits,
consents, orders, approvals and other authorizations necessary
to lease or own their respective properties and to carry on
their respective businesses as presently conducted, except
where the failure to obtain such licenses or consents would
not have a material adverse effect on the condition,
financial or otherwise, or the results of operations, business
affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(ix) To the best of such counsel's knowledge and
information, there is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or
foreign, now pending, or threatened against or affecting, the
Company or any of its subsidiaries, which would be reasonably
expected to result in any material adverse change in the
condition, financial or otherwise, or in the results of
operations, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, or
would materially and adversely affect the properties or assets
thereof or would materially and adversely affect the
consummation of this Agreement or the Indenture or any
transaction contemplated hereby or thereby.
(x) To the best of such counsel's knowledge and
information, there are no contracts or other documents
required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto, the descriptions thereof or
references thereto are correct in all material respects, and,
to the best of such counsel's knowledge and information, no
default exists in the due performance or observance of any
material obligation, agreement, covenant or conditions
contained in any contract, or other documents so described,
referred to, filed or incorporated by reference where the
consequences of such default would have a material adverse
effect on the condition, financial or otherwise, or the
results of operation, business affairs or business prospects
of the Company and its subsidiaries considered as one
enterprise.
In rendering such opinion, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ may rely as to
matters of fact upon the representations of officers of the Company contained
in any certificate delivered to such counsel and certificates of public
officials, which certificates shall be attached to or delivered with such
opinion. Such opinion shall be limited to the General Corporation Law of the
State of Delaware,
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the laws of the State of Texas and the laws of the United States of America.
(3) Opinion of Counsel to the Agents. The favorable
opinion of ▇▇▇▇▇ & Wood, counsel to the Agents, covering the matters
referred to in subsection (a)(1) under the subheadings (i) to (ix),
inclusive, above.
(4) Disclosure Documents. In giving their opinions
required by subsection (a)(1), (a)(2) and (a)(3), respectively, of this
▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, P.C., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇
& Wood shall each additionally state that in the course of the
preparation of the Registration Statement and the Prospectus such
counsel has considered the information set forth therein in light of
the matters required to be set forth therein, and has participated in
conferences with officers and representatives of the Company including
its independent public accountants, during the course of which the
contents of the Registration Statement and Prospectus and related
matters were discussed. Such counsel need not independently check the
accuracy or completeness of, or otherwise verify, and accordingly need
not pass upon, and accordingly need not assume responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus and such counsel may, in good
faith, rely as materiality upon the judgment of officers and
representatives of the Company. Such counsel shall additionally state
that, however, as a result of such consideration and participation,
nothing has come to such counsel's attention which causes such counsel
to believe that the Registration Statement, at the time it became
effective (or, if an amendment to the Registration Statement or an
Annual Report on Form 10-K has been filed by the Company with the SEC
subsequent to the effectiveness of the Registration Statement, then at
the time such amendment became effective or at the time of the most
recent such filing, as the case may be) or at the date hereof,
contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading or
that the Prospectus, at the date hereof (or, if such opinion is being
delivered in connection with the purchase of Notes from the Company by
one or more Agents as principal pursuant to Section 7(c) hereof, at the
date of any agreement by such Agent or Agents to purchase Notes as
principal and at the Settlement Date with respect thereto, as the case
may be) (included or) includes an untrue statement of a material fact
or (omitted or) omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading (it being understood that such
counsel need express no opinion with respect to the financial
statements and engineering reports and other financial or engineering
data contained in
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the Registration Statement (including the Prospectus) or those parts
of the Registration Statement which constitute the Form T-1).
(b) Officers' Certificate. At the date hereof, the Agents shall
have received a certificate of the Chief Executive Officer, President or Vice
President and the Treasurer, the Assistant Treasurer, the principal financial
officer or principal accounting officer of the Company, dated as of the date
hereof, to the effect that (i) since the respective dates as of which
information is given in the Prospectus or since the date of any agreement by
one or more Agents to purchase Notes from the Company as principal, there has
not been any material adverse change in the condition, financial or otherwise,
or in the results of operations, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, (ii) the representations and
warranties of the Company contained in Section 2 hereof are true and correct
with the same force and effect as though expressly made at and as of the date
of such certificate and (iii) the Company has performed or complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the date of such certificate. As used in this Section
5(b), the term "Prospectus" means the Prospectus in the form first provided to
the applicable Agent or Agents for use in confirming sales of the Notes.
(c) Comfort Letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP. On the date hereof,
the Agents shall have received a letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, dated as of
the date hereof and in form and substance satisfactory to the Agents, to the
effect that:
(i) They are independent accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act, the
1933 Act Regulations, the 1934 Act and the 1934 Act Regulations.
(ii) It is their opinion that the consolidated financial
statements and supporting schedule(s) and included or incorporated by
reference in the Registration Statement and the Prospectus and audited
by them and covered by their opinions therein comply in form in all
material respects with the applicable accounting requirements of the
1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations.
(iii) They have performed specified procedures, not
constituting an audit, including a reading of the latest available
interim financial statements of the Company and its indicated
subsidiaries, a reading of the minute books of the Company and such
subsidiaries since the end of the most recent fiscal year with respect
to which an audit report has been issued, inquiries of and discussions
with certain officials of
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the Company and such subsidiaries responsible for financial and
accounting matters with respect to the unaudited consolidated financial
statements included or incorporated by reference in the Registration
Statement and Prospectus and the latest available interim unaudited
financial statements of the Company and its subsidiaries, and such
other inquiries and procedures as may be specified in such letter, and
on the basis of such inquiries and procedures, nothing came to their
attention that caused them to believe that: (A) any material
modifications should be made to the unaudited consolidated financial
statements of the Company and its subsidiaries included or incorporated
by reference in the Registration Statement and Prospectus for them to
be in conformity with generally accepted accounting principles in the
United States, (B) the unaudited consolidated financial statements of
the Company and its subsidiaries included or incorporated by reference
in the Registration Statement and Prospectus do not comply as to form
in all material respects with the applicable accounting requirements of
the 1934 Act and the 1934 Act Regulations or (C) at a specified date
not more than three days prior to the date of such letter, there was
any change in the consolidated capital stock, any increase in
consolidated long-term debt or any decrease in the consolidated net
current assets or consolidated net assets of the Company and its
subsidiaries, in each case as compared with the amounts shown on the
most recent consolidated balance sheet of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement and Prospectus or, during the period from the date of such
balance sheet to a specified date not more than three days prior to the
date of such letter, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated revenues or
in the total or per-share amounts of income before extraordinary items
or of net income of the Company and its subsidiaries, except in all
instances for changes, increases or decreases that the Registration
Statement and Prospectus disclose have occurred or may occur or except
for such exceptions enumerated in such letter as shall have been agreed
to by the Agents and the Company.
(iv) They have performed specified procedures, not
constituting an audit, set forth in their letter, based upon which
nothing came to their attention that caused them to believe that the
unaudited pro forma consolidated condensed financial statements, if
any, included or incorporated by reference in the Registration
Statement or the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of Rule 11-02 of
Regulation S-X and that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements.
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(v) In addition to the audit referred to in their opinions
and the limited procedures referred to in clauses (iii) and (iv) above,
they have carried out certain specified procedures, not constituting an
audit, with respect to certain amounts, percentages and financial
information which are included or incorporated by reference in the
Registration Statement and the Prospectus and which are specified by
the Agents, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting,
financial and other records of the Company and its subsidiaries
identified in such letter.
(d) Other Documents. On the date hereof and on each Settlement
Date, counsel to the Agents shall have been furnished with such documents and
opinions as such counsel may reasonably require for the purpose of enabling
such counsel to pass upon the issuance and sale of Notes as herein contemplated
and related proceedings, or in order to evidence the accuracy and completeness
of any of the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of Notes as herein contemplated shall be
satisfactory in form and substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the applicable Agent or Agents by notice to the Company at any
time and any such termination shall be without liability of any party to any
other party, except that the covenant regarding provision of an earnings
statement set forth in Section 4(h) hereof, the provisions concerning payment
of expenses under Section 10 hereof, the indemnity and contribution agreement
set forth in Sections 8 and 9 hereof, the provisions concerning the
representations, warranties and agreements to survive delivery of Section 11
hereof, the provisions relating to governing law and forum set forth in Section
14 and the provisions relating to parties set forth in Section 15 hereof shall
remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold through an Agent.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, such Agent shall promptly notify the Company and deliver
such Note to the Company and, if such Agent has theretofore paid the Company
for such Note, the Company will promptly return such funds to such Agent. If
such failure occurred for any reason other than default by such Agent in the
performance of its obligations hereunder, the Company will reimburse such Agent
on an equitable basis for its
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loss of the use of the funds for the period such funds were credited to the
Company's account.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each
acceptance by the Company of an offer for the purchase of Notes (whether to one
or more Agents as principal or through an Agent as agent), and each delivery of
Notes (whether to one or more Agents as principal or through an Agent as
agent), shall be deemed to be an affirmation that the representations and
warranties of the Company contained in this Agreement and in any certificate
theretofore delivered to the Agents pursuant hereto are true and correct at the
time of such acceptance or sale, as the case may be, and an undertaking that
such representations and warranties will be true and correct at the time of
delivery to such Agent or Agents or to the purchaser or its agent, as the case
may be, of the Note or Notes relating to such acceptance or sale, as the case
may be, as though made at and as of each such time (and it is understood that
such representations and warranties shall relate to the Registration Statement
and Prospectus as amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for a change in the
interest rate or formula applicable to the Notes or relating solely to the
issuance and/or offering of securities other than the Notes), (ii) there is
filed with the SEC any document incorporated by reference into the Prospectus
(other than any Current Report on Form 8-K relating solely to the issuance
and/or offering of securities other than the Notes, unless the Agents shall
otherwise specify), (iii) (if required in connection with the purchase of Notes
from the Company by one or more Agents as principal) the Company sells Notes to
such Agent or Agents as principal, (iv) the Company sells Notes in a form not
previously certified to the Agents by the Company, the Company shall furnish or
cause to be furnished to the Agent(s), forthwith a certificate dated the date
of filing with the SEC of such supplement or document or (v) the Agents resume
solicitation of purchases of the Notes in their capacity as Agents at the
request of the Company following any suspension thereof, the date of
effectiveness of such amendment, or the date of such sale, as the case may be,
in form satisfactory to the Agent(s) to the effect that the statements
contained in the certificate referred to in Section 5(b) hereof which were last
furnished to the Agents are true and correct at the time of such amendment,
supplement, filing or sale, as the case may be, as though made at and as of
such time (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
time) or, in lieu of such certificate, a certificate of the same tenor as the
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26
certificate referred to in Section 5(b) hereof, modified as necessary to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for a change in the
interest rate or formula applicable to the Notes, providing solely for the
inclusion of additional financial information, or, unless the Agents shall
otherwise specify, relating solely to the issuance and/or offering of
securities other than the Notes), (ii) there is filed with the SEC any document
incorporated by reference into the Prospectus (other than any Current Report on
Form 8-K relating solely to the issuance and/or offering of securities other
than the Notes, unless the Agents shall otherwise specify), (iii) (if required
in connection with the purchase of Notes from the Company by one or more Agents
as principal) the Company sells Notes to such Agent or Agents as principal,
(iv) the Company sells Notes in a form not previously certified to the Agents
by the Company or (v) the Agents resume solicitation of purchases of the Notes
in their capacity as Agents at the request of the Company following any
suspension thereof, the Company shall furnish or cause to be furnished
forthwith to the Agent(s) and to counsel to the Agents the written opinion of
▇▇▇▇▇▇▇, Hall & ▇▇▇▇▇, P.C., counsel to the Company and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ or
other counsel satisfactory to the Agent(s), dated the date of filing with the
SEC of such supplement or document, the date of effectiveness of such
amendment, or the date of such sale, as the case may be, in form and substance
satisfactory to the Agent(s), of the same tenor as the opinions referred to in
Section 5(a)(1) and (2) respectively hereof, but modified, as necessary, to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion or, in lieu of such
opinion, counsel last furnishing such opinion to the Agents shall furnish the
Agent(s) with a letter substantially to the effect that the Agent(s) may rely
on such last opinion to the same extent as though it was dated the date of such
letter authorizing reliance (except that statements in such last opinion shall
be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that (i)
the Registration Statement or the Prospectus shall be amended or supplemented
to include additional financial information (other than by an amendment or
supplement relating solely to the issuance and/or offering of securities other
than the Notes), (ii) there is filed with the SEC any document incorporated by
reference into the Prospectus which contains additional financial information,
(iii) (if required in connection with the purchase of Notes from the Company by
one or more Agents as principal) the Company sells Notes to such Agent or
Agents as principal, or (iv) the Agents resume
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solicitation of purchases of the Notes in their capacity as Agents at the
request of the Company following any suspension thereof, the Company shall
cause ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP forthwith to furnish to the Agent(s) a letter, dated
the date of effectiveness of such amendment, supplement or document with the
SEC, or the date of such sale, as the case may be, in form satisfactory to the
Agent(s), of the same tenor as the portions of the letter referred to in
clauses (i) and (ii) of Section 5(c) hereof but modified to relate to the
Registration Statement and Prospectus as amended and supplemented to the date
of such letter, and of the same general tenor as the portions of the letter
referred to in clauses (iii) and (iv) of said Section 5(c) with such changes as
may be necessary to reflect changes in the financial statements and other
information derived from the accounting records of the Company and its
subsidiaries.
(e) Suspension of Certain Obligations. The Company shall not be
required to comply with the provisions of subsection (b), (c) or (d) of this
Section during any period from the time (i) the Agents shall have suspended
solicitation of purchases of the Notes in their capacity as agents pursuant to
a request from the Company and (ii) no Agent shall then hold any Notes
purchased as principal pursuant hereto, until such time as the Company shall
determine that solicitation of purchases of the Notes should be resumed or an
Agent shall subsequently purchase Notes from the Company as principal.
(f) Additional Matters. Each certificate, comfort letter and
legal opinion delivered pursuant to subsections (b), (c) and (d), respectively,
of this Section shall address such additional matters, if any, or be
accompanied by such supplements, if any, as may be reasonably required by the
Agent(s).
SECTION 8. Indemnification.
(a) Indemnification of the Agents. The Company agrees to
indemnify and hold harmless each Agent and each person, if any, who controls
such Agent within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including
information deemed to be part of the Registration Statement pursuant to
Rule 430A(b) of the 1933 Act Regulations, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact necessary in order to
make the
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28
statements therein, in the light of the circumstances under which they
were made, not misleading, unless such untrue statement or omission or
such alleged untrue statement or omission was made in reliance upon
and in conformity with written information furnished to the Company by
an Agent expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus
(or any amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission; provided that such
settlement is effected with the written consent of the Company, which
consent shall not be unreasonably withheld; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and expenses of counsel chosen by such Agent),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above.
(b) Indemnification of the Company. Each Agent agrees, severally
and not jointly, to indemnify and hold harmless the Company, its directors,
each of its officers who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Registration Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Agent expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) General. Each indemnified party shall give notice as promptly
as reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. If
any such claim or action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying party shall
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29
be entitled to participate therein and to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall
not be liable to the indemnified party under this Section for any legal or
other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation;
provided, however, that each Agent shall have the right to employ counsel to
represent jointly the Agents and their respective controlling persons who may
be subject to liability arising out of any claim in respect of which indemnity
may be sought by the Agents against the Company under this Section if, in the
judgment of any of the Agent or Agents, it is advisable for such Agent or
Agents and controlling persons to be jointly represented by separate counsel,
and in that event the fees and expenses of such separate counsel shall be paid
by the Company. In no event shall the indemnifying parties be liable for the
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties (which shall not unreasonably be withheld), settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 8 or Section 9 hereof (whether
or not the indemnified parties are actual or potential parties thereto),
unless such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) ▇▇▇▇▇. For purposes of this Section 8, all references to the
Registration Statement, any preliminary prospectus or the Prospectus, or any
amendment or supplement to any of the foregoing, shall be deemed to include,
without limitation, any electronically transmitted copies thereof, including,
without limitation, any copies filed with the Commission pursuant to ▇▇▇▇▇.
SECTION 9. Contribution.
If the indemnification provided for in Section 8 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses,
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30
liabilities, claims, damages and expenses incurred by such indemnified party,
as incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Agents on the other
hand from the offering of the Notes pursuant to this Agreement 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) above but also the relative fault of the Company on the one
hand and of the Agents on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Agents on the other
hand in connection with the offering of the Notes pursuant to this Agreement
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of the Notes pursuant to this Agreement (before
deducting expenses) received by the Company and the total commission or
underwriting discount received by each Agent, in each case as set forth on the
cover of the applicable pricing supplement, bear to the aggregate initial
public offering price of the Notes sold to or through such Agent as set forth
on such cover. The relative fault of the Company on the one hand and the
Agents on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Agents and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Agents agree that it would not
be just and equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation (even if the Agents were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
9. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 9 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 9, no Agent shall be required to
contribute any amount in excess of the amount by which the total price at which
the Notes sold to or through such Agent were offered to the public exceeds the
amount of any damages which such Agent 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 9, each person, if any, who controls an Agent within the
meaning of Section
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31
15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Agent, and each director of the Company, each officer of
the Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company. The Agents' respective obligations to contribute pursuant to this
Section 9 are several in proportion to the principal amount of Notes sold to
or through each Agent and not joint.
SECTION 10. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and
all amendments thereto and the Prospectus and any amendments or supplements
thereto;
(b) The preparation, filing and reproduction of this Agreement and
the Remarketing Agreement(s), if applicable;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the eligibility and issuance of
Notes in book-entry form;
(d) The fees and disbursements of the Company's accountants and
counsel, of the Trustee and its counsel, and of any calculation agent or
exchange rate agent;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the program relating to the
Notes and incurred from time to time in connection with the transactions
contemplated hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Agents in
connection therewith and in connection with the preparation of any Blue Sky or
Legal Investment Survey;
(g) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any amendments
thereto, and of the Prospectus and any amendments or supplements thereto, and
the delivery by the Agents of the Prospectus and any amendments or supplements
thereto in connection with solicitations or confirmations of sales of the
Notes;
(h) The preparation, reproducing and delivery to the Agents of
copies of the Indenture and all amendments, supplements and modifications
thereto;
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32
(i) Any fees charged by nationally recognized statistical rating
organizations for the rating of the Notes;
(j) The fees and expenses incurred in connection with any listing
of Notes on a securities exchange;
(k) The fees and expenses incurred with respect to any filing with
the National Association of Securities Dealers, Inc.;
(l) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of the Company; and
(m) The cost of providing any CUSIP or other identification
numbers for the Notes.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agents or any
controlling person of an Agent, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any
agreement by one or more Agents to purchase Notes from the Company as
principal) shall terminate upon the issuance and sale by the Company of all the
Notes covered hereby and may be terminated for any reason, at any time by
either the Company or an Agent, as to itself, upon the giving of 30 days'
written notice of such termination to the other party hereto.
(b) Termination of Agreement to Purchase Notes as Principal. Each
Agent may suspend its obligation to solicit purchases of Notes hereunder or
terminate any agreement by such Agent to purchase Notes from the Company as
principal, and each person that has agreed to purchase Notes from the Company
through an Agent acting as agent hereunder may terminate such agreement,
immediately upon notice to the Company, at any time prior to the Settlement
Date relating thereto, if (i) there has been, since the date of such agreement
or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the results of operations, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) there shall
have occurred any material adverse change in the financial markets in the
United States or any outbreak or escalation of hostilities or other national or
international calamity or crisis the effect of
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33
which is such as to make it, in the judgment of such Agent or purchaser, as the
case may be, impracticable to market the Notes or enforce contracts for the
sale of the Notes, or (iii) trading in any securities of the Company has been
suspended by the SEC or a national securities exchange, or if trading generally
on either the American Stock Exchange or the New York Stock Exchange shall have
been suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by either of said
exchanges or by order of the SEC or any other governmental authority, or if a
banking moratorium shall have been declared by either Federal, New York or
Texas authorities or if a banking moratorium shall have been declared by the
relevant authorities in the country or countries of origin of any foreign
currency or currencies in which the Notes are denominated or payable, or (iv)
the rating assigned by any nationally recognized statistical rating
organization to any debt securities of the Company as of the date of such
agreement shall have been lowered since that date or if any such rating
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any debt securities
of the Company, or (v) there shall have come to the attention of such Agent or
purchaser, as the case may be, any facts that would cause them to reasonably
believe that the Prospectus, at the time it was required to be delivered to a
purchaser of Notes, included an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein, in
light of the circumstances existing at the time of such delivery, not
misleading. As used in this Section 12(b), the term "Prospectus" means the
Prospectus in the form first provided to the applicable Agent or Agents for use
in confirming sales of the related Notes.
(c) General. In the event of any such termination, neither party
will have any liability to the other party hereto, except that (i) the Agents
shall be entitled to any commission earned in accordance with the third
paragraph of Section 3(b) hereof, (ii) if at the time of termination (a) any
Agent shall own any Notes purchased by it as principal with the intention of
reselling them or (b) an offer to purchase any of the Notes has been accepted
by the Company but the time of delivery to the purchaser or his agent of the
Note or Notes relating thereto has not occurred, the covenants set forth in
Sections 4 and 7 hereof shall remain in effect until such Notes are so resold
or delivered, as the case may be, and (iii) the covenant set forth in Section
4(h) hereof, the provisions of Section 10 hereof, the indemnity and
contribution agreements set forth in Sections 8 and 9 hereof, and the
provisions of Sections 11, 14 and 15 hereof shall remain in effect.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram,
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34
and any such notice shall be effective when received at the address specified
below.
If to the Company:
APACHE CORPORATION
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Vice President and Treasurer
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Agents:
FIRST CHICAGO CAPITAL MARKETS, INC.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, III, Managing Director
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ BROTHERS INC.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Medium-Term Note Department
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Medium-Term Note Trading Desk
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as such party may designate from time to time by
notice duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law.
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to
in
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35
Sections 8 and 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Notes shall be deemed to be
a successor by reason merely of such purchase.
SECTION 16. Counterparts.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
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36
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement between the Agents and the Company in accordance with its terms.
Very truly yours,
APACHE CORPORATION
By: _____________________________________
Name:
Title:
Confirmed and Accepted, as of the date
first above written:
FIRST CHICAGO CAPITAL MARKETS, INC.
By:__________________________________________
Name:
Title:
▇▇▇▇▇▇ BROTHERS INC.
By:__________________________________________
Name:
Title:
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By:_________________________________________
Name:
Title:
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37
EXHIBIT A
APACHE CORPORATION
$__________________
REMARKETED NOTES
TERMS AGREEMENT
Dated: __________ __, 1995
TO: Apache Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Distribution Agreement dated _________ __, 1995.
Registration Statement No. 33-_____
Agent or Principal
Transaction: [Agent] [Principal]
Principal Amount: $______________
Initial Interest Rate:
First Interest Rate
Adjustment Date:
Initial Interest Rate
Payment Date(s):
Date of Maturity: ______ __, ____
[Agent's Commission: ______% per Note.]
[Public Offering Price: ______%, plus accrued interest, if
any, from __________, 19__.
Purchase Price: _____%, plus accrued interest, if
any, from ____________, 19__
(payable in [same day][next day]
funds)]
38
Current ratings:
Closing date and location:
Additional [Agents]
[co-managers], if any:
Specify any requirement for:
Legal Opinions, if any, pursuant to Section 5(b) of the Distribution Agreement
[ ] ▇▇▇▇▇▇▇, Hall & ▇▇▇▇▇, P.C.
[ ] ▇▇▇▇▇ & Wood
[ ] Comfort Letter, if any, pursuant to Section 5(c) of the Distribution
Agreement
[ ] Officer's Certificate, if any, pursuant to Section 5(d) of the
Distribution Agreement
[ ] Stand-Off Agreement pursuant to Section 4(k) of the Distribution
Agreement:
* [Each Underwriter severally agrees, subject to the terms and provisions of
the above-referenced Distribution Agreement, which is incorporated herein in
its entirety and made a part hereof, to purchase the principal amount of Notes
set forth opposite its name.
Name Principal Amount of Notes
---- -------------------------
_________________________
Total . . . . . . . . . ]
=========================
[AGENT(S)]
[Managing Underwriters]
By_____________________________________
[Acting on behalf of themselves
and the other named Underwriters]
Accepted:
APACHE CORPORATION
By_____________________________________
__________________________________
* Applies only to principal transactions.
39
SCHEDULE A
REMARKETED NOTE FEE SCHEDULE
Maturity* Commission
--------- ----------
1 Day to ( 9 Months .100%
9 Months to (18 Months .150%
18 Months to ( 2 years .200%
2 years to ( 3 years .250%
3 years to ( 4 years .350%
4 years to ( 5 years .450%
5 years to ( 6 years .500%
6 years to ( 7 years .550%
7 years to ( 8 years .600%
8 years to ( 9 years .600%
9 years to (10 years .600%
10 years to (15 years .625%
15 years to (20 years .700%
20 years to (30 years** .750%
__________________________________
* Period to First Interest Rate Adjustment Date.
** Commissions with respect to Notes with a Maturity (as such term is used in
this Schedule) of 30 years or more will be negotiated between the Company
and the applicable Agent.