EXHIBIT 1.1
$200,000,000
SWIFT ENERGY COMPANY
9 3/8% SENIOR SUBORDINATED NOTES DUE 2012
UNDERWRITING AGREEMENT
April 11, 2002
CREDIT SUISSE FIRST BOSTON CORPORATION,
As Representative of the Several Underwriters,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Swift Energy Company, a Texas corporation ("COMPANY"),
proposes to issue and sell $200,000,000 principal amount of its 93/8% senior
subordinated notes ("SECURITIES") to be issued under an indenture ("ORIGINAL
INDENTURE") to be dated as of April 16, 2002, as amended and supplemented by the
First Supplemental Indenture thereto to be dated as of April 16, 2002 (the
Original Indenture, as so amended and supplemented, the "INDENTURE"). The
Company hereby agrees with the several Underwriters named in Schedule A hereto
("UNDERWRITERS") as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. 333-64692), including a
prospectus, relating to the Securities has been filed with the Securities and
Exchange Commission ("COMMISSION") and has become effective. Such registration
statement, as amended at the time of this Agreement, is hereinafter referred to
as the "REGISTRATION STATEMENT", and the prospectus included in such
Registration Statement, as supplemented by the prospectus supplement thereto and
as further supplemented to reflect the terms of the Securities and the terms of
the offering thereof, in each case as first filed with the Commission pursuant
to and in accordance with Rule 424(b) ("RULE 424(b)") under the Securities Act
of 1933 ("ACT"), including all material incorporated by reference therein, is
hereinafter referred to as the "PROSPECTUS".
(b) On the effective date of the Registration Statement
relating to the Securities, such Registration Statement conformed in all
respects to the requirements of the Act, the Trust Indenture Act of 1939 ("TRUST
INDENTURE ACT") and the rules and regulations of the Commission ("RULES AND
REGULATIONS") and did not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and on the date of this Agreement,
the Registration Statement and the Prospectus conform in all respects to the
requirements of the Act, the Trust Indenture Act and the Rules and Regulations,
and neither of such documents includes any untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, except that the foregoing does
not apply to statements in or omissions from any of such documents based upon
written information furnished to the Company by any Underwriter through the
Representative, if any, specifically for use therein.
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(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Texas, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified to do
business as a foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its business requires
such qualification.
(d) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus; and each subsidiary of the Company is duly qualified to do business
as a foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires such
qualification; all of the issued and outstanding capital stock of each
subsidiary of the Company has been duly authorized and validly issued and is
fully paid and nonassessable; and the capital stock of each subsidiary owned by
the Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(e) The Indenture has been duly authorized and has been duly
qualified under the Trust Indenture Act with respect to the Securities
registered thereby; the Securities have been duly authorized; and when the
Securities are delivered and paid for pursuant to this Agreement on the Closing
Date, the Indenture will have been duly executed and delivered, such Securities
will have been duly executed, authenticated, issued and delivered and will
conform to the description thereof contained in the Prospectus and the Indenture
and such Securities will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
(f) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection with this
offering.
(g) Except for the registration rights relating to 220,000
shares of the Company's Common Stock, which are the subject of the registration
statement on Form S-3 (No. 333-84530) filed by the Company with the Commission
on March 19, 2002, which registration statement the Company is obligated to keep
effective one year, there are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the Company
to file a registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the Act.
(h) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in connection
with the issuance and sale of the Securities by the Company, except such as have
been obtained and made under the Act, the Trust Indenture Act and such as may be
required under state securities laws.
(i) The execution, delivery and performance of the Indenture
and this Agreement, and the issuance and sale of the Securities and compliance
with the terms and provisions thereof will not result in a breach or violation
of any of the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, or any agreement or
instrument to which the Company or any such subsidiary is a party or by which
the Company or any such subsidiary is bound or to which any of the properties of
the Company or any such subsidiary is subject, or the charter or by-laws of the
Company or any such subsidiary, and the Company has full power and authority to
authorize, issue and sell the Securities as contemplated by this Agreement.
(j) This Agreement has been duly authorized, executed and
delivered by the Company.
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(k) 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, in each case free and clear of
all mortgages, pledges, security interests, claims, liens, encumbrances,
restrictions and defects of any kind, except (1) such as are described in the
Prospectus, (2) liens and encumbrances under operating agreements, unitization
and pooling agreements, production sales contracts, farm-out agreements and
other oil and gas exploration and production 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 (3) those that do not materially
affect or interfere with the use made and proposed to be made of such properties
taken as a whole; and any property held under lease or sublease by the Company
or any of its subsidiaries is held under valid, subsisting and enforceable
leases or subleases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such properties taken as
a whole by the Company and its subsidiaries or except such as are described in
the Prospectus; and neither the Company nor any of its subsidiaries has any
notice or knowledge of any material claim of any sort that has been, or may be,
asserted by anyone adverse to the Company's or any of its subsidiaries rights as
lessee or sublessee under any lease or sublease described above, or affecting or
questioning the Company's or any of its subsidiaries' rights to the continued
possession of the leased or subleased premises under any such lease or sublease
in conflict with the terms thereof.
(l) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental agencies
or bodies necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or modification of
any such certificate, authority or permit that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate have
a material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries taken as
a whole ("MATERIAL ADVERSE EFFECT").
(m) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that might
have a Material Adverse Effect.
(n) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other rights
to inventions, know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary
to conduct the business now operated by them, or presently employed by them, and
have not received any notice of infringement of or conflict with asserted rights
of others with respect to any intellectual property rights that, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect.
(o) Except as disclosed in the Prospectus, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any court,
domestic or foreign, relating to the use, disposal or release of hazardous or
toxic substances or relating to the protection or restoration of the environment
or human exposure to hazardous or toxic substances (collectively, "ENVIRONMENTAL
LAWS"), owns or operates any real property contaminated with any substance that
is subject to any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any claim
relating to any environmental laws, which violation, contamination, liability or
claim would individually or in the aggregate have a Material Adverse Effect; and
the Company is not aware of any pending investigation which might lead to such a
claim.
(p) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company, any of
its subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect, or would materially and adversely
affect the ability of the Company to perform its obligations under the Indenture
or this Agreement, or which are otherwise material in the context of the sale of
the Securities; and no such actions, suits or proceedings are threatened or, to
the Company's knowledge, contemplated.
(q) The financial statements included in the Registration
Statement and the Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and, except as
otherwise disclosed in the Prospectus, such
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financial statements have been prepared in conformity with the generally
accepted accounting principles in the United States applied on a consistent
basis and the schedules included in the Registration Statement and the
Prospectus present fairly the information required to be stated therein.
(r) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole, and, except as disclosed in or contemplated by
the Prospectus, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(s) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company" as defined
in the Investment Company Act of 1940.
(t) The Company is subject to the reporting requirements of
either Section 13 or Section 15(d) of the Securities Exchange Act of 1934 and
files reports with the Commission on the Electronic Data Gathering, Analysis,
and Retrieval (▇▇▇▇▇) system.
3. Purchase, Sale and Delivery of Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of 97.5% of the principal amount thereof
plus accrued interest from April 16, 2002 to the Closing Date (as hereinafter
defined), the respective principal amounts of Securities set forth opposite the
names of the Underwriters in Schedule A hereto.
The Company will deliver against payment of the purchase price the
Securities in the form of one or more permanent global Securities in definitive
form (the "GLOBAL SECURITIES") deposited with the Trustee as custodian for The
Depository Trust Company ("DTC") and registered in the name of Cede & Co., as
nominee for DTC. Interests in any Global Securities will be held only in
book-entry form through DTC, except in the limited circumstances described in
the Prospectus. Payment for the Securities shall be made by the Underwriters in
Federal (same day) funds by official bank check or checks or wire transfer to an
account at a bank acceptable to Credit Suisse First Boston Corporation ("CSFBC")
drawn to the order of Swift Energy Company at the office of Jenkens & ▇▇▇▇▇▇▇▇▇,
P.C., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, at 10:00 A.M., New York time,
on April 16, 2002, or at such other time not later than seven full business days
thereafter as the Representative and the Company determine, such time being
herein referred to as the "CLOSING DATE", against delivery to the Trustee as
custodian for DTC of the Global Securities representing all of the Securities.
The Global Securities will be made available for checking at the above office of
Jenkens & ▇▇▇▇▇▇▇▇▇ at least 24 hours prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the
several Underwriters that:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if
consented to by the Representative, subparagraph (5)) not later than the second
business day following the execution and delivery of this Agreement.
(b) The Company will advise the Representative promptly of any
proposal to amend or supplement the Registration Statement or the Prospectus and
will afford the Representative a reasonable opportunity to comment on any such
proposed amendment or supplement; and the Company will also advise the
Representative promptly of the filing of any such amendment or supplement and of
the institution by the Commission of any stop order proceedings in respect of
the Registration Statement or of any part thereof and will use its best efforts
to prevent the issuance of any such stop order and to obtain as soon as possible
its lifting, if issued.
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(c) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act in connection with sales by
any Underwriter or dealer, any event occurs as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus to comply
with the Act, the Company promptly will notify the Representative of such event
and will promptly prepare and file with the Commission, at its own expense, an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither the Representative's
consent to, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 5
hereof.
(d) As soon as practicable, but not later than 16 months,
after the date of this Agreement, the Company will make generally available to
its securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective date of the registration
statement relating to the Securities, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become effective prior
to the date of this Agreement and (iii) the date of the Company's most recent
Annual Report on Form 10-K filed with the Commission prior to the date of this
Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representative copies of
the Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus and
all amendments and supplements to such documents, in each case as soon as
available and in such quantities as the Representative reasonably requests. The
Company will pay the expenses of printing and distributing to the Underwriters
all such documents.
(f) The Company will arrange for the qualification of the
Securities for sale and the determination of their eligibility for investment
under the laws of such jurisdictions as the Representative designates and will
continue such qualifications in effect so long as required for the distribution.
(g) During the period of three years hereafter, the Company
will furnish or make available to the Representative and, upon request, to each
of the other Underwriters, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year; and the Company
will furnish to the Representative (i) as soon as available, a copy of each
report and any definitive proxy statement of the Company filed with the
Commission under the Securities Exchange Act of 1934 or mailed to stockholders,
and (ii) from time to time, such other information concerning the Company as the
Representative may reasonably request.
(h) The Company will pay all expenses incident to the
performance of its obligations under this Agreement, for any filing fees or
other expenses (including fees and disbursements of counsel) incurred in
connection with qualification of the Securities for sale under the laws of such
jurisdictions as the Representative designates and the printing of memoranda
relating thereto, for any fees charged by investment rating agencies for the
rating of the Securities, and for expenses incurred in distributing preliminary
prospectus supplements, and the Prospectus (including any amendments and
supplements thereto) to the Underwriters. The Company and the Underwriters will
pay for their respective travel expenses and any other expenses in connection
with attending or hosting meetings with prospective purchasers of the
Securities.
(i) For a period of 60 days after the date of the initial
offering of the Securities, the Company will not offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to, any additional
Securities or other debt securities, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior written
consent of the Representative.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Securities on the
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
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(a) The Representative shall have received a letter, dated the
date of this Agreement, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP confirming that they are
independent public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and any
schedules and any summary of earnings examined by them and
included in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on any unaudited financial statements included in
the Registration Statement;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, if any, inquiries of
officials of the Company who have responsibility for financial
and accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements, if
any, and any summary of earnings included in the
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements
of the Act and the related published Rules and
Regulations or any material modifications should be
made to such unaudited financial statements and
summary of earnings, if any, for them to be in
conformity with generally accepted accounting
principles;
(B) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of the such letter,
there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt
of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet
read by such accountants, there was any decrease in
consolidated net current assets or net assets, as
compared with amounts shown on the latest balance
sheet included in the Prospectus; or
(C) for the period from the closing date of
the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such accountants
there were any decreases, as compared with the
corresponding period of the previous year and with
the period of corresponding length ended the date of
the latest income statement included in the
Prospectus, in consolidated net sales, net operating
income per share amounts of consolidated income
before extraordinary items or net income or in the
ratio of earnings to fixed charges;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter;
and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Prospectus (in each
case to the extent that such dollar amounts, percentages and
other financial information are derived from the general
accounting records of the Company and its subsidiaries subject
to the internal controls of the Company's accounting system or
are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in
such letter.
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All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus for
purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 4(a) of this Agreement.
No stop order suspending the effectiveness of the Registration Statement or of
any part thereof shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge of the Company or any
Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) a change in U.S. or international
financial, political or economic conditions or currency exchange rates or
exchange controls that, in the good faith judgment of the Representative, is
material and adverse and makes it impracticable or inadvisable to proceed with
completion of the public offering or the sale of and payment for the Securities;
or (ii) (A) any change, or any development or event involving a prospective
change, in the condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries taken as one enterprise which,
in the judgment of a majority in interest of the Underwriters including the
Representative, is material and adverse and makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and payment for
the Securities; (B) any downgrading in the rating of any debt securities of the
Company by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating of any
debt securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating) or any announcement that the Company has been
placed on negative outlook; (C) any material suspension or material limitation
of trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (D) any banking moratorium declared by U.S. Federal or
New York authorities; (E) any attack on, outbreak or escalation of hostilities
or act of terrorism involving the United States, any declaration of war by
Congress or any other national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters including the
Representative, the effect of any such attack, outbreak, escalation, act,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment for
the Securities; or (F) in the case of any of the foregoing factors listed in (i)
or (ii)(E) above existing at the time of the execution of this Agreement, a
material acceleration or worsening thereof.
(d) The Representative shall have received two opinions, both
dated the Closing Date, one of Jenkens & ▇▇▇▇▇▇▇▇▇, counsel for the Company, as
to the matters set forth below relating to the Company and its domestic
subsidiaries where applicable, and one of ▇▇▇▇▇▇▇ Grierson, counsel for the
Company's New Zealand subsidiaries, as to the matters set forth below in (ii)
relating to the Company's New Zealand subsidiaries, to the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of Texas, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business
as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification,
except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect;
(ii) Each of the Company's subsidiaries that is a
corporation 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 to 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 so to
qualify or to be in good standing would not result in a
Material Adverse Effect. All of the issued and outstanding
capital stock or other equity interests of each of the
Company's subsidiaries has
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been duly authorized and validly issued, is fully paid and
non-assessable and, to such counsel's knowledge and
information, is owned by the Company, directly or through
subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity, other
than as described in the Prospectus;
(iii) The statements in the Prospectus under the
headings "Description of the Notes" and "Certain U.S. Federal
Income Tax Considerations", to the extent that they constitute
summaries of matters of law or regulation or legal
conclusions, have been reviewed by such counsel and accurately
summarize the matters described therein in all material
respects; to the knowledge of such counsel, there are no
franchises, contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments that should be described in
the Prospectus that are not described or referred to in or
incorporated by reference into the Prospectus;
(iv) The Indenture conforms in all material respects
with the requirements of the Trust Indenture Act and the rules
and regulations of the Commission applicable to an indenture
which is qualified thereunder;
(v) The Company has full corporate power and
authority to execute and deliver each of the Indenture and
this Agreement and to perform its obligations thereunder and
hereunder, and all corporate or other action required to be
taken for the due and proper authorization, execution and
delivery of each of the Indenture and this Agreement and the
consummation of the transactions contemplated thereby and
hereby have been duly and validly taken on the part of the
Company;
(vi) The Indenture has been duly authorized, executed
and delivered by the Company and has been duly qualified under
the Trust Indenture Act; the Securities have been duly
authorized; the Securities have been duly executed,
authenticated, issued and delivered; the Indenture and the
Securities constitute valid and legally binding obligations of
the Company enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; and the Securities conform to
the description thereof contained in the Prospectus;
(vii) To such counsel's knowledge, there are no
pending actions or suits or judicial, arbitral, rule-making,
administrative or other proceedings to which the Company or
any of its subsidiaries is a party or of which any property or
assets of the Company or any of its subsidiaries is the
subject which (A) if determined adversely to the Company or
any of its subsidiaries, could reasonably be expected to have
a Material Adverse Effect or (B) questions the validity or
enforceability of the Indenture or this Agreement or any
action taken or to be taken pursuant thereto or hereto; and to
our knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(viii) The Company is not and, after giving effect to
the offering and sale of the Securities and the application of
the proceeds thereof as described in the Prospectus, will not
be an "investment company" as defined in the Investment
Company Act of 1940.
(ix) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required for the consummation of the transactions
contemplated by this Agreement (including the provisions of
this Agreement) in connection with the issuance or sale of the
Securities by the Company, except such as have been obtained
and made under the Act and the Trust Indenture Act and such as
may be required under state securities laws;
(x) The execution, delivery and performance of the
Indenture, this Agreement and the issuance and sale of the
Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the
terms and provisions of, or constitute a default
- 8 -
under, any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction
over the Company or any subsidiary of the Company or any of
their properties, or any agreement or instrument to which the
Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject,
or the charter or by-laws of the Company or any such
subsidiary, and the Company has full power and authority to
authorize, issue and sell the Securities as contemplated by
this Agreement;
(xi) The Registration Statement has become effective
under the Act, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion on the date specified therein, and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part
thereof has been issued by the Commission and no proceedings
for that purpose have been instituted or are pending or
threatened by the Commission under the Act, and the
Registration Statement relating to the Securities, as of its
effective date, the Registration Statement and the Prospectus,
as of the date of this Agreement, and any amendment or
supplement thereto, as of its date, complied as to form in all
material respects with the applicable requirements of Form S-3
under the Act, the Trust Indenture Act and the Rules and
Regulations; such counsel have no reason to believe that such
registration statement, as of its effective date, the
Registration Statement, as of the date of this Agreement or as
of the Closing Date, or any amendment thereto, as of its date
or as of the Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as of the date
of this Agreement or as of such Closing Date, or any amendment
or supplement thereto, as of its date or as of the Closing
Date, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading; the descriptions
in the Registration Statement and Prospectus of statutes,
legal and governmental proceedings and contracts and other
documents are accurate and fairly present the information
required to be shown; and such counsel does not know of any
legal or governmental proceedings required to be described in
the Prospectus which are not described as required or of any
contracts or documents of a character required to be described
in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement which are not described
and filed as required; it being understood that such counsel
need express no opinion as to the financial statements or
other financial data contained in the Registration Statement
or the Prospectus; and
(xii) This Agreement has been duly authorized,
executed and delivered by the Company.
(e) The Representative shall have received from ▇▇▇▇▇▇ &
▇▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Company, the validity of
the Securities delivered on the Closing Date, the Registration Statement, the
Prospectus and other related matters as the Representative may require, and the
Company shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(f) The Representative shall have received a certificate,
dated the Closing Date, of the President or any Vice President and the principal
financial or accounting officer of the Company in which such officers, to the
best of their knowledge after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement are true and
correct, that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no proceedings
for that purpose have been instituted or are contemplated by the Commission and
that, subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the condition
(financial or
- 9 -
other), business, properties or results of operations of the Company and its
subsidiaries taken as a whole except as set forth in or contemplated by the
Prospectus or as described in such certificate.
(g) The Representative shall have received a letter, dated the
Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP pursuant to which ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
affirms as of the Closing Date all statements made in the letter delivered by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP on the date hereof pursuant to subsection (a) of this
Section, except that the date specified in paragraphs 4 and 5 of such letter
will be a date not more than three days prior to the Closing Date for the
purposes of this subsection.
(h) The Representative shall have received a certificate,
dated the Closing Date, of the principal financial officer and the principal
accounting officer of the Company in which such officers, to the best of their
knowledge, shall confirm the substance of the provisions of Sections
6(a)(iii)(B) and 6(a)(iii)(C).
The Company will furnish the Representative with such conformed copies
of such opinions, certificates, letters and documents as the Representative
reasonably requests. The Representative may in its sole discretion waive on
behalf of the Underwriters compliance with any conditions to the obligations of
the Underwriters hereunder, whether in respect of the Closing Date or otherwise.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each
Underwriter, its partners, directors and officers and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Act, against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon the failure of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to deliver their letter on
and as of the date of this Agreement and on and as of the Closing Date
confirming and stating the matters identified in Section 6(a) of this Agreement,
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representative specifically for
use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
subsection (b) below.
(b) Each Underwriter will severally and not jointly indemnify
and hold harmless the Company, its directors and officers and each person, if
any, who controls the Company within the meaning of Section 15 of the Act,
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representative specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of (i) the following
information in the Prospectus furnished on behalf of each Underwriter: the
concession and reallowance figures appearing in the third paragraph under the
- 10 -
caption "Underwriting" and the information contained in the ninth and tenth
paragraphs under the caption "Underwriting"; and (ii) the following information
in the Prospectus furnished on behalf of CSFBC: the information regarding the
use of a QIU (as hereinafter defined) contained in the sixth paragraph under the
caption "Underwriting".
(c) Promptly after receipt by an indemnified party under this
Section or Section 9 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above or Section 9, notify the
indemnifying party of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any liability which it may have
to any indemnified party otherwise than under subsection (a) or (b) above or
Section 9. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section or Section 9, as the case may be, for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action 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 an indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other from the offering
of the Securities or (ii) if the allocation provided by clause (i) above 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 the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section or
Section 9 shall be in addition to any liability which the Company may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter or the QIU (as hereinafter defined) within the
meaning of the Act; and
- 11 -
the obligations of the Underwriters under this Section shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Company, to
each officer of the Company who has signed the Registration Statement and to
each person, if any, who controls the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Securities hereunder on the Closing Date and
the aggregate principal amount of Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of Securities that the Underwriters are obligated to purchase
on such Closing Date, the Representative may make arrangements satisfactory to
the Company for the purchase of such Securities by other persons, including any
of the Underwriters, but if no such arrangements are made by such Closing Date,
the non-defaulting Underwriters shall be obligated severally, in proportion to
their respective commitments hereunder, to purchase the Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate principal amount of
Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of Securities that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to the
Representative and the Company for the purchase of such Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or the
Company, except as provided in Section 10 (provided that if such default occurs
with respect to Securities after the Closing Date, this Agreement will not
terminate as to the Securities purchased prior to such termination). As used in
this Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Qualified Independent Underwriter. The Company hereby confirms that
at its request CSFBC has without compensation acted as "qualified independent
underwriter" (in such capacity, the "QIU") within the meaning of Rule 2720 of
the Conduct Rules of the National Association of Securities Dealers, Inc. in
connection with the offering of the Securities. The Company will indemnify and
hold harmless the QIU against any losses, claims, damages or liabilities, joint
or several, to which the QIU may become subject, under the Act or otherwise, but
only insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based solely upon the QIU's acting (or
alleged failing to act) as such "qualified independent underwriter" and will
reimburse the QIU for any legal or other expenses reasonably incurred by the QIU
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
10. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Securities. If this Agreement is terminated pursuant to
Section 8 or if for any reason the purchase of the Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Underwriters pursuant to Section 7 and the
obligations of the Company pursuant to Section 9 shall remain in effect, and if
any Securities have been purchased hereunder the representations and warranties
in Section 2 and all obligations under Section 5 shall also remain in effect. If
the purchase of the Securities by the Underwriters is not consummated for any
reason other than solely because of the termination of this Agreement pursuant
to Section 8 or the occurrence of any event specified in clause (i), (ii)(C),
(ii)(D), (ii)(E) or (ii)(F) of Section 6(c), the Company will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Securities.
11. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representative, c/o Credit Suisse First Boston Corporation, Eleven
Madison Avenue, New York, N.Y. 10010-3629, Attention: Transactions Advisory
Group, or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
- ▇▇ -
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; provided, however, that any
notice to an Underwriter pursuant to Section 7 will be mailed, delivered or
telegraphed and confirmed to such Underwriter.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
13. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representative will be binding upon all the
Underwriters.
14. Counterparts. This may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
15. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York but without giving effect
to applicable principles of conflicts of law to the extent that the application
of the laws of another jurisdiction would be required thereby.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
- 13 -
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement between the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
SWIFT ENERGY COMPANY
By:
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Senior Vice President, Finance and
Chief Financial Officer
Theforegoing Underwriting Agreement is hereby confirmed
and accepted as of the date first above written.
Acting on behalf of itself and as the Representative of the
several Underwriters.
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Managing Director
- 14 -
SCHEDULE A
UNDERWRITER PRINCIPAL
----------- AMOUNT OF
------------
Credit Suisse First Boston Corporation................................. $106,000,000
CIBC World Markets Corp................................................ 22,000,000
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc............................................... 14,000,000
▇▇▇▇▇▇▇▇▇ & Company, Inc............................................... 14,000,000
▇.▇. ▇▇▇▇▇▇ Securities, Inc............................................ 10,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated...................................... 10,000,000
UBS Warburg LLC........................................................ 10,000,000
Banc One Capital Markets, Inc.......................................... 4,000,000
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc.................................. 4,000,000
BNP Paribas Securities Corp............................................ 2,000,000
Credit Lyonnais Securities (USA) Inc................................... 2,000,000
2,000,000
------------
Total....................................... $200,000,000
============