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EXHIBIT 1.1
TERMS AGREEMENT
October 31, 1996
Apache Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
The undersigned underwriters (the "Underwriters") understand that
Apache Corporation (the "Company") proposes to issue and sell $150,000,000
aggregate principal amount of its debt securities (the "Offered Securities").
Subject to the terms and conditions set forth herein or incorporated by
reference herein, the Underwriters offer to purchase, severally and not
jointly, the principal amount of Offered Securities set forth below opposite
their respective names at 98.325% of the principal amount thereof together with
accrued interest thereon from November 1, 1996 to the Closing Time:
Principal
Amount of
Underwriter Debt Securities
----------- ---------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. $37,500,000
Citicorp Securities, Inc. $37,500,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. $37,500,000
Salomon Brothers Inc $37,500,000
---------------
Total $150,000,000
===============
The Offered Securities shall have the following terms:
Principal amount: $150,000,000
Form: registered book-entry form
Denomination: $1,000
Date of maturity: November 1, 2096
Interest rate, rates or formula
(or method of calculation
of interest accrual): 7.625% per annum
Date from which interest accrues: November 1, 1996
Interest payment dates, if any: May 1 and November 1
(commencing May 1, 1997)
Initial price to public: $149,175,000 (99.45%)
Closing Time: November 5, 1996
Place of delivery: New York, New York
Company account for wire
transfer of payment: Apache Corporation Master Account
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First Bank Minneapolis
No. 1502 5008 9953;
ABA No. ▇▇▇-▇▇▇-▇▇▇
Redemption provisions, if any: none
Lock-up pursuant to Section 3(i)
of the Basic Terms, as defined
below: yes
Securities Exchanges, if any, on
which application will be made
to list the Offered Securities: none
Delayed Delivery Contracts: not authorized
Delivery date:
Expiration date:
Compensation to Underwriters:
Minimum contract:
Maximum aggregate principal amount:
Other terms, if any:
The Underwriters agree to pay the reasonable fees and disbursements of
counsel for the Underwriters pursuant to Section 5(e) of the Basic Terms.
Upon the occurrence of a Tax Event (as defined in the Prospectus
relating to the Offered Securities) the Company will have the right to advance
the maturity date of the Offered Securities to the extent required, in the
written opinion of a nationally recognized independent tax counsel experienced
in such matters, such that, after advancing the maturity date, interest paid on
the Offered Securities will be deductible for Federal income tax purposes.
All the provisions contained in "Apache Corporation-Debt
Securities--Underwriting Agreement Basic Terms" (the "Basic Terms"), to be
filed as an exhibit to the Registration Statement relating to the Offered
Securities and attached hereto as Annex A, are herein incorporated by reference
in their entirety and shall be deemed to be a part of this Terms Agreement to
the same extent as if such provisions had been set forth in full herein. Terms
defined in such document are used herein as therein defined.
Any notice by the Company to the Underwriters pursuant to this Terms
Agreement shall be sufficient if given in accordance with Section 11 of the
Basic Terms addressed to:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇, Associate
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
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Citicorp Securities, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇/▇▇▇▇ ▇
▇▇▇ ▇▇▇▇, ▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Salomon Brothers Inc
Seven ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
which shall, for all purposes of this Agreement, be the "Representatives".
Very Truly yours,
▇▇▇▇▇▇▇, SACHS & CO.
CITICORP SECURITIES, INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
SALOMON BROTHERS INC
By: ▇▇▇▇▇▇▇, ▇▇▇▇▇ & C0.
Acting for themselves and as
Representative of the
Underwriters
By: /s/ ▇▇▇▇▇▇▇, SACHS & CO.
-----------------------------
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
Accepted:
APACHE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
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ANNEX A
[Apache Corporation--Debt Securities--
Underwriting Agreement Basic Terms]
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APACHE CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT BASIC TERMS
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Apache Corporation
Debt Securities
UNDERWRITING AGREEMENT BASIC TERMS
Apache Corporation, a Delaware corporation (the "Company"), may issue
and sell from time to time its debt securities (the "Debt Securities"). The
Debt Securities are issuable under an indenture, dated as of February 15, 1996
(the "Indenture"), between the Company and Chemical Bank, as trustee (the
"Trustee"). Each issue of Debt Securities may vary as to series, aggregate
principal amount, maturity, interest rate or rates and timing of payments
thereof, redemption provisions, if any, and any other variable terms as set
forth in the Terms Agreement (as defined below) relating thereto which the
Indenture contemplates may be set forth in the Debt Securities as issued from
time to time.
Whenever the Company determines to make an offering of Debt
Securities, the Company will enter into an agreement (the "Terms Agreement")
providing for the sale of such securities (the "Offered Securities") to, and
the purchase and offering thereof by, one or more underwriters specified in the
Terms Agreement (the "Underwriters", which term shall include any Underwriters
substituted pursuant to Section 10 hereof). The Terms Agreement relating to
the Offered Securities shall specify the names of the Underwriters
participating in such offering, the amount of Offered Securities which each
such Underwriter severally agrees to purchase, the price at which the Offered
Securities are to be purchased by the Underwriters from the Company, the
initial public offering price, the time and place of delivery and payment, such
other information as is indicated in Exhibit A hereto and such other terms as
are agreed by the Company and the Underwriters. In addition, each Terms
Agreement shall specify whether the Company has agreed to grant to the
Underwriters an option to purchase additional Offered Securities to cover
over-allotments, if any, and the amount of Offered Securities subject to such
option (the "Option Securities"). As used herein, the term "Offered
Securities" shall include the Option Securities, if any, and "Representatives"
shall mean the Underwriter or Underwriters so specified in the Terms Agreement
or, if no Underwriter is so specified, shall mean each Underwriter. The
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Terms Agreement may be in the form of an exchange of any standard form of
written telecommunication between the Underwriters and the Company. The
offering of the Offered Securities will be governed by the Terms Agreement, as
supplemented hereby (collectively, this "Agreement"), and this Agreement shall
inure to the benefit of and be binding upon each Underwriter participating in
the offering of the Offered Securities.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
33-63923) for the registration of Debt Securities, including the Offered
Securities, 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 Commission under the 1933 Act (the "1933 Act
Regulations"), and has prepared and filed such amendments thereto as may have
been required to the date hereof. Such registration statement, as amended, has
been declared effective by the Commission, and the Indenture has been qualified
under the Trust Indenture Act of 1939 (the "1939 Act"). As provided in Section
3(a), a prospectus supplement reflecting the terms of the Offered Securities,
the terms of the offering thereof and the other matters set forth therein has
been prepared and will be filed pursuant to Rule 424 under the 1933 Act. Such
prospectus supplement, in the form first filed after the date of the Terms
Agreement pursuant to Rule 424, is herein referred to as the "Prospectus
Supplement". Such registration statement, as amended at the date of the Terms
Agreement, including the exhibits thereto and the documents incorporated by
reference therein, is herein called the "Registration Statement". Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act
Regulations is herein referred to as the "Rule 462(b) Registration Statement,"
and after such filing the term "Registration Statement" shall include the Rule
462(b) Registration Statement. The basic prospectus included in the
Registration Statement relating to all offerings of Debt Securities under the
Registration Statement, as supplemented by the Prospectus Supplement, is herein
called the "Prospectus", except that, if such basic prospectus is amended or
supplemented on or prior to the date on which the Prospectus Supplement is
first filed pursuant to Rule 424, the term "Prospectus" shall refer to the
basic prospectus as so amended or supplemented and as supplemented by the
Prospectus Supplement or, if any revised prospectus shall be provided to the
Underwriters by the Company for their use in connection with the offering of
the Offered Securities which differs from such basic prospectus and Prospectus
Supplement (whether or not required to be filed by the Company pursuant to Rule
424), the term "Prospectus" shall refer to such revised prospectus (including
any prospectus supplement) from and after the time it is first provided to the
Underwriters
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for such use, in either case including the documents filed by the Company with
the Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), that are incorporated by reference therein.
SECTION 1. Representations and Warranties. The Company represents
and warrants to each Underwriter named in the Terms Agreement as of the date
thereof and as of the Closing Time referred to in Section 2(c) hereof, and as
of each Date of Delivery (if any) referred to in Section 2(b) hereof (in each
case, a "Representation Date"), as follows:
(a) 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 the State of 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.
(b) 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
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applicable), is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(c) At the time the Registration Statement and the Rule
462(b) Registration Statement, if any, became effective and as of each
Representation Date, the Registration Statement and the Rule 462(b)
Registration Statement, if any, complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the rules and regulations of the
Commission promulgated thereunder; the Registration Statement and the
Rule 462(b) Registration Statement, if any, each 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 Commission 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 each Representation Date, does not and 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 and the Rule 462(b) Registration Statement,
if any, or the Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by the Underwriters
expressly for use in the Registration Statement and the Rule 462(b)
Registration Statement, if any, or the Prospectus.
(d) The documents incorporated by reference in the
Prospectus, at the time they were or hereafter are filed with the
Commission, 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 of the Commission 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.
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(e) The accountants who certified the financial statements
included or incorporated by reference in the Registration Statement
and the Prospectus are independent public accountants with respect to
the Company as required by the 1933 Act and the 1933 Act Regulations.
(f) 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; and the pro forma financial
statements and the related notes thereto, if any, included or
incorporated by reference in the Registration Statement and the
Prospectuses present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in
the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(g) 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.
(h) This Agreement and the applicable Delayed Delivery
Contracts (as defined below), if any, have been duly authorized,
executed and delivered by the Company and, upon execution and delivery
by the Underwriters, will be valid and legally binding agreements of
the Company; on and after the Closing Time, the Indenture will have
been duly authorized, executed and delivered by the Company and,
assuming due 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
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further as enforcement thereof may be limited by (1) requirements that
a claim with respect to any Debt Securities 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 Offered Securities have been
duly and validly authorized for issuance, offer and sale pursuant to
this Agreement and each Delayed Delivery Contract, if any, and when
issued, authenticated and delivered pursuant to the provisions of this
Agreement and the Indenture against payment of the consideration
therefor, the Offered Securities 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 Offered
Securities 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 Offered Securities and the Indenture will be
substantially in the form heretofore delivered to the Underwriters
and conform in all material respects to all statements relating
thereto contained in the Prospectus; and each Holder (as defined in
the Indenture) of Offered Securities will be entitled to the benefits
of the Indenture.
(i) Since the respective dates as of which information is
given in the Registration Statement, any Rule 462(b) 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.
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(j) 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, each Delayed Delivery
Contract, if any, 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 subsidiary thereof 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 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.
(k) 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 Offered Securities
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").
(l) 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
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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.
(m) 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.
(n) 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 have 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 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.
(o) 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 the same 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
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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.
(p) 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 (1) 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 have a
material adverse effect on the condition, financial or otherwise, or
the results of operations, business affairs or business prospects of
the Company.
(q) 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 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.
(r) 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").
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(s) 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.
(t) Except as described in the Registration Statement,
(1) 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 (2)
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.
Any certificate signed by any director or officer of the Company and
delivered to the Representatives or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company as to the matters covered
thereby.
SECTION 2. Purchase and Sale.
(a) The several commitments of the Underwriters to purchase the
Offered Securities pursuant to this Agreement shall be deemed to have been made
on the basis of the representations and warranties herein contained and shall
be subject to the terms and conditions herein and therein set forth. Offered
Securities
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which are subject to Delayed Delivery Contracts are herein sometimes
referred to as "Delayed Delivery Offered Securities" and Offered Securities
which are not subject to Delayed Delivery Contracts are herein sometimes
referred to as "Immediate Delivery Offered Securities".
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company may grant, if so provided in the Terms Agreement, an option to the
Underwriters named in the Terms Agreement, severally and not jointly, to
purchase up to the principal amount of Option Securities set forth therein at
the same price per security (plus, except as otherwise provided in the Terms
Agreement, interest, if any, accrued and unpaid from the Closing Time until the
applicable Date of Delivery), as is applicable to the Offered Securities. Such
option, if granted, will expire 30 days after the date of the Terms Agreement,
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Offered Securities upon notice by the Representatives
to the Company setting forth the principal amount of Option Securities as to
which the several Underwriters are then exercising the option and the time and
date of payment and delivery for such Option Securities. Any such time and
date of delivery (a "Date of Delivery") shall be determined by the
Representatives, but shall not be later than seven full business days and not
earlier than two full business days after the exercise of said option, nor in
any event prior to the Closing Time, as hereinafter defined, unless otherwise
agreed upon by the Representatives and the Company. If the option is exercised
as to all or any portion of the Option Securities, each of the Underwriters,
acting severally and not jointly, will purchase the proportion of the total
principal amount of Option Securities then being purchased that the principal
amount of Immediate Delivery Offered Securities each such Underwriter has
agreed to purchase, as set forth in the Terms Agreement, bears to the total
principal amount of Immediate Delivery Offered Securities, subject to such
adjustments as the Representatives in their discretion shall make to eliminate
any sales or purchases in less than authorized denominations.
(c) Payment of the purchase price for, and delivery of, the
Immediate Delivery Offered Securities to be purchased by the Underwriters shall
be made at the place set forth in the Terms Agreement, or at such other place
as shall be agreed upon by the Representatives and the Company, on the third
business day (unless postponed in accordance with the provisions of Section 10)
following the date of the Terms Agreement or such other time as shall be agreed
upon by the Underwriters and the Company (such
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17
time and date being referred to as the "Closing Time"). Except as specified in
the Terms Agreement, payment shall be made to the Company by wire transfer in
same day funds to the account of the Company specified in the Terms Agreement
against delivery to the Underwriters for the respective accounts of the
Underwriters of the Immediate Delivery Offered Securities to be purchased by
them (unless the Offered Securities are issuable only in the form of one or more
global instruments registered in the name of a depository or a nominee of a
depository, in which event the Underwriters' interest in such global instrument
shall be noted in a manner satisfactory to the Underwriters and their counsel).
In addition, in the event that any or all of the Option Securities are purchased
by the Underwriters, payment of the purchase price for, and delivery of
certificates representing, such Option Securities shall be made at such place as
shall be agreed upon by the Representatives and the Company, on each Date of
Delivery as agreed by the Representatives and the Company. The Immediate
Delivery Offered Securities shall be in such denominations and registered in
such names as the Underwriters may request in writing at least two business days
prior to the Closing Time or relevant Date of Delivery, as the case may be. The
Immediate Delivery Offered Securities, which if agreed by the Representatives
may be in temporary form, will be made available for examination and packaging
by the Representatives on or before the first business day prior to the Closing
Time or relevant Date of Delivery, as the case may be.
(d) If authorized by the Terms Agreement, the Underwriters named
therein may solicit offers to purchase Offered Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit B hereto, with such changes therein as the
Company may approve. As compensation for arranging Delayed Delivery Contracts,
the Company will pay to the Representatives at the Closing Time, for the
account of the Underwriters, a fee equal to that percentage of the aggregate
principal amount of Delayed Delivery Offered Securities for which Delayed
Delivery Contracts are made at the Closing Time as is specified in the Terms
Agreement. Any Delayed Delivery Contracts are to be with institutional
investors of the types set forth in the Prospectus Supplement. At the Closing
Time the Company will enter into Delayed Delivery Contracts (for not less than
the minimum principal amount of Delayed Delivery Offered Securities per Delayed
Delivery Contract specified in the Terms Agreement) with all purchasers
proposed by the Underwriters and previously approved by the Company as provided
below, but not for an aggregate principal amount of Offered Securities in
excess of that specified in the Terms Agreement. The Underwriters will not
have any responsibility for the validity or performance of Delayed Delivery
Contracts.
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(e) The Representatives are to submit to the Company, at least two
business days prior to the Closing Time, the names of any institutional
investors with which it is proposed that the Company will enter into Delayed
Delivery Contracts and the principal amount of Delayed Delivery Offered
Securities to be purchased by each of them, and the names of the institutions
with which the making of Delayed Delivery Contracts is approved by the Company
and the principal amount of Delayed Delivery Offered Securities to be covered
by each such Delayed Delivery Contract.
(f) The principal amount of Offered Securities agreed to be
purchased by the respective Underwriters pursuant to this Agreement shall be
reduced by the principal amount of Delayed Delivery Offered Securities covered
by Delayed Delivery Contracts, as to each Underwriter as set forth in a written
notice delivered by the Underwriters to the Company; provided, however, that
the total principal amount of Immediate Delivery Offered Securities to be
purchased by all Underwriters shall be the total amount of the Offered
Securities covered by this Agreement, less the total principal amount of
Delayed Delivery Offered Securities covered by Delayed Delivery Contracts.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Immediately following the execution of the Terms
Agreement, the Company will prepare a Prospectus Supplement in form
approved by the Representatives setting forth the principal amount of
Offered Securities and their terms not otherwise specified in the
Indenture, if applicable, the names of the Underwriters and the
principal amount of the Offered Securities which each severally has
agreed to purchase, the names of the Underwriters, the price at which
the Offered Securities are to be purchased by the Underwriters from
the Company, the initial public offering price, the selling concession
and reallowance, if any, any delayed delivery arrangements, and such
other information as the Representatives and the Company deem
appropriate in connection with the offering of the Offered Securities.
The Company will promptly transmit copies of the Prospectus Supplement
to the Commission for filing pursuant to Rule 424 of the 1933 Act
Regulations and will furnish to the Underwriters named therein as many
copies of the Prospectus (including the Prospectus Supplement) as the
Representatives shall reasonably request.
(b) If at any time when the Prospectus is required by the
1933 Act to be delivered in connection with sales of the Offered
Securities any event shall occur or condition exist as a result of
which it is necessary, in the opinion of
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19
counsel for the Underwriters 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 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 the Prospectus comply with such
requirements.
(c) 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 Offered Securities.
(d) While the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Offered Securities, the
Company will give the Representatives notice of its intention to file
any additional registration statement with respect to the registration
of additional Debt Securities, any amendment to the Registration
Statement (including any filing under Rule 462(b)) or any amendment or
supplement to the Prospectus, whether pursuant to the 1934 Act, the
1933 Act or otherwise; will furnish the Underwriters with copies of any
such amendment or supplement or other documents proposed to be filed 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 Representatives or counsel to the
Underwriters reasonably object.
(e) While the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Offered Securities, the
Company will notify the Representatives immediately, and promptly
confirm the notice in writing, of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the transmittal to the
Commission for filing
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20
of any supplement to the Prospectus or any document to be filed
pursuant to the 1934 Act which will be incorporated by reference into
the Registration Statement or the Prospectus, (iii) the receipt of any
comments from the Commission with respect to the Registration
Statement, the Prospectus or the Prospectus Supplement, (iv) any
request by the Commission for any amendment to the Registration
Statement, or any amendment or supplement to the Prospectus or for
additional information, (v) the issuance by the Commission 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.
(f) The Company will deliver to each Underwriter one
conformed 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
Representatives as many conformed copies of the Registration Statement
as originally filed and of each amendment thereto (without exhibits)
as the Representatives may reasonably request. While the Prospectus
is required by the 1933 Act to be delivered in connection with sales
of the Offered Securities, the Company will furnish to the
Representatives as many copies of the Prospectus (including the
Prospectus Supplement) as the Representatives reasonably request.
(g) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Offered Securities for offering and sale
under the applicable securities laws of such states and other
jurisdictions of the United States as the Underwriters may designate,
and will maintain such qualifications in effect for as long as may be
required for the distribution of the Offered Securities; 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 Offered Securities have been qualified
as above
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21
provided. The Company will promptly advise the Representatives of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Offered Securities for sale in
any such state or jurisdiction or the initiating or threatening of any
proceeding for such purpose.
(h) 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 Offered Securities, will file all
documents required to be filed with the Commission 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.
(i) If specified in the Terms Agreement, between the date of
the Terms Agreement and the completion of the distribution of the
Offered Securities or the Closing Time, whichever is later, or such
other time as is specified in the Terms Agreement, the Company will
not, without the prior written consent of the Representatives, 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 Offered Securities (other than the Offered Securities that are to
be sold pursuant to such agreement or commercial paper in the ordinary
course of business).
SECTION 4. Conditions of Underwriters' Obligations. The obligations
of the Underwriters to purchase Offered Securities pursuant to this Agreement
are subject to the accuracy of the representations and warranties on the part
of the Company herein contained, to the accuracy of the statements which the
Company's officers made in any certificate furnished pursuant to the provisions
hereof, to the performance by the Company of all of its covenants and other
obligations hereunder and under the Terms Agreement, and to the following
further conditions:
(a) At the Closing Time, no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission.
(b) At the Closing Time, the Representatives shall have
received:
(1) The favorable opinion, dated as of the Closing
Time, of ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, P.C., counsel to the Company, to the
effect that:
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(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 and the applicable Delayed
Delivery Contracts, if any, have 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 Debt Securities 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 Offered Securities, in the form(s) certified
by the Company as of the Closing Time, have been duly
authorized for issuance, offer and sale pursuant to this
Agreement and, when issued, authenticated and delivered
pursuant to the provisions of this Agreement, any Delayed
Delivery Contract 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 Debt Securities 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
17
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇; and each holder of Offered Securities will
be entitled to the benefits of the Indenture.
(v) The Offered Securities 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.
(vi) The Indenture has been duly qualified under the
1939 Act.
(vii) The Registration Statement, including any Rule
462(b) Registration Statement, has been declared effective by
the Commission under the 1933 Act and, to the best of such
counsel's knowledge, no stop order suspending the effectiveness
of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(viii) The Registration Statement, including any Rule
462(b) 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
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.
(ix) The information contained in the Prospectus
under the caption "Certain United States Federal Income Tax
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 (i)
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 and (ii) as to the laws of the State
of New York applicable to the enforceability of the Notes [and the
Indenture] upon the opinion of ▇▇▇▇▇ & Wood.
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24
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 and the Delayed
Delivery Contracts, if any.
(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
the State of 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, pledge, lien, encumbrance, claim or equity (except
as described in the Prospectus).
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25
(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, any Delayed Delivery Contract 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 Delayed Delivery Contract, 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,
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26
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,
to the best knowledge and information of such counsel, the
Company and its subsidiaries own or possess or have obtained
all 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 authorizations 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, the Delayed Delivery
Contracts, if applicable, 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
21
27
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 operations, 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, the laws of the
State of Texas and the laws of the United States of America.
(3) The favorable opinion, dated as of the
Closing Time, of ▇▇▇▇▇ & Wood, counsel for the Underwriters, with
respect to the matters set forth in clauses (i) to (viii), inclusive,
of subsection (b)(1) of this Section.
(4) In giving their opinions required by
subsection (b)(1), (b)(2) and (b)(3), respectively, of this ▇▇▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, P.C., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇
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 the 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
Commission subsequent to the effectiveness of the ▇▇▇▇▇▇▇▇-
▇▇
▇▇
tion Statement, then at the time such amendment became effective or at
the time of the most recent such filing, as the case may be), contained
an untrue statement of a material fact or omitted 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 or any
amendment or supplement thereto, at the time the Prospectus was issued
at the time any such amendment or supplement was issued or, at the
Closing Time 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 the Registration Statement (including the Prospectus)
or those parts of the Registration Statement which constitute the Form
T-1).
(c) At the Closing Time, there shall not have been, since
the date of the Terms Agreement or since the respective dates as of
which information is given in the Registration Statement and 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, and the Representatives 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 Closing
Time, to the effect that (i) there has been no such material adverse
change with respect to the Company and its subsidiaries, (ii) the
representations and warranties of the Company contained in Section 1
are true and correct as of the Closing Time, (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 and (iv) no stop order suspending the effectiveness of
the Registration Statement or any Rule 462(b) Registration Statement
has been issued and no proceedings for that purpose have been initiated
or threatened by the Commission. As used in this Section 4(c), the
term "Prospectus" means the Prospectus in the form first provided to
the applicable Underwriter or Underwriters for use in confirming sales
of the Offered Securities.
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29
(d)(1) On the date of the Terms Agreement, the Underwriters
shall have received a letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, dated as of
the date hereof and in form and substance satisfactory to the
Underwriters, 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) 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
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 the 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 the 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 the 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
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30
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 the 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 the Prospectus disclose
have occurred or may occur or except for such exceptions
enumerated in such letter as shall have been agreed to by the
Underwriters 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.
(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
Underwriters, 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.
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31
(2) At the Closing Time, the Underwriters shall have
received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, a letter, dated as of the
Closing Time, to the effect that they reaffirm the statements
made in the letter furnished pursuant to subsection (d)(1) of
this Section, except that the specified date referred to shall
be a date not more than three days prior to the Closing Time.
(e) At the Closing Time, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Offered Securities 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 the Offered Securities as herein and in the Terms Agreement
contemplated shall be satisfactory in form and substance to the
Representatives.
(f) In the event that the Terms Agreement provides for Option
Securities and the Underwriters exercise their option pursuant to
Section 2(b) hereof to purchase all or any portion of the Option
Securities, the representations and warranties of the Company contained
herein and the statements in any certificates furnished by the Company
hereunder shall be true and correct as of each Date of Delivery, and
the Underwriters shall have received:
(1) Unless the Date of Delivery is the Closing Time, a
certificate, dated such Date of Delivery, 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, in their capacities as such, confirming that
the certificate delivered at the Closing Time pursuant to Section 4(c)
hereof remains true and correct as of such Date of Delivery.
(2) The favorable opinion of ▇▇▇▇▇▇▇, Hall & ▇▇▇▇▇,
P.C., counsel for the Company, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, General
Counsel for the Company, in form and substance satisfactory to counsel
for the Underwriters, dated such Date of Delivery, relating to the
Option Securities and otherwise substantially to the same effect as the
opinions required by subsections (1) and (2) of Section 4(b) hereof.
(3) The favorable opinion of ▇▇▇▇▇ & ▇▇▇▇, counsel for
the Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise to the same effect as
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32
the opinion required by subsection (3) to Section 4(b) hereof.
(4) Unless the Date of Delivery is the Closing Time, a
letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, in form and substance satisfactory to
the Underwriters and dated such Date of Delivery, substantially the
same in scope and substance as the letter furnished to the Underwriters
at the Closing Time pursuant to Section 4(d) hereof, except that the
"specified date" in the letter shall be a date not more than three days
prior to such Date of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Representatives by notice to the Company at any time at or
prior to the Closing Time, and such termination shall be without liability of
any party to any other party except as provided in Section 5.
SECTION 5. 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, including any Rule 462(b) 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 Delayed Delivery Contract(s), if applicable;
(c) the preparation, printing, issuance and delivery of
the Offered Securities, including any fees and expenses relating to
the eligibility and issuance of Offered Securities 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) except as otherwise provided in the Terms Agreement,
the reasonable fees and disbursements of counsel to the Underwriters;
(f) the qualification of the Offered Securities under
state securities laws in accordance with the provisions of Section
3(k) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the
27
33
Underwriters in connection therewith and in connection with the
preparation of any Blue Sky or Legal Investment Survey;
(g) the printing and delivery to the Underwriters 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
Underwriters of the Prospectus and any amendments or supplements
thereto in connection with solicitations or confirmations of sales of
the Offered Securities;
(h) the preparation, reproducing and delivery to the
Underwriters of copies of the Indenture and all amendments,
supplements and modifications thereto;
(i) any fees charged by nationally recognized statistical
rating organizations for the rating of the Offered Securities;
(j) the fees and expenses incurred in connection with any
listing of Offered Securities 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 out-of-pocket expenses of the Underwriters
incurred with the approval of the Company; and
(m) the cost of providing any CUSIP or other
identification numbers for the Offered Securities.
If this Agreement is terminated by the Underwriters in accordance with
the provisions of Section 9, the Company shall reimburse the Underwriters for
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 6. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter 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 any Rule
462(b) Registration Statement, including information deemed to be part
of the Registration
28
34
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 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 Underwriter 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 Underwriter),
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) Each Underwriter 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), any Rule 462(b) Registration Statement or
any preliminary prospectus or the Prospectus (or any amendment or
29
35
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such Underwriter expressly for use in the
Registration Statement (or any amendment thereto), any Rule 462(b) Registration
Statement or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) 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 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 Underwriter shall have the right to employ counsel to represent jointly the
Underwriters 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 Underwriters against the Company under this Section if, in the judgment
of any of the Underwriters, it is advisable for such Underwriter or Underwriters
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
30
36
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 6, 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 7. Contribution. If the indemnification provided for in
Section 6 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, 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 Underwriters on the other hand from the offering
of the Offered Securities 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
Underwriters 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 Underwriters on the other hand in
connection with the offering of the Offered Securities pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of the Offered Securities pursuant to this
Agreement (before deducting expenses) received by the Company and the total
commission or underwriting discount received by each Underwriter, in each case
as set forth on the cover of the Prospectus Supplement, bear to the aggregate
initial public offering price of the Offered Securities sold to or through such
Underwriter as set forth on such cover. The relative fault of the Company on
the one hand and the Underwriters 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 Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
31
37
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 7. The aggregate amount of losses, liabilities, claims, damages
and expenses incurred by an indemnified party and referred to above in this
Section 7 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 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities sold to or through such Underwriter 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 ▇▇▇▇ ▇▇▇) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person, if any, who
controls an Underwriter 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 such
Underwriter, 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
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the principal amount of Offered Securities sold
to or through each Underwriter and not joint.
SECTION 8. 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 any Underwriter or
controlling person of an Underwriter, or by or on behalf of the Company, and
shall survive each delivery of and payment for any Offered Securities.
32
38
SECTION 9. Termination.
(a) The Representatives may terminate this Agreement immediately upon
notice to the Company, at any time at or prior to the Closing Time if (i) there
has been, since the date of the Terms Agreement or since the respective dates as
of which information is given in the Registration Statement, 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 which is such as to make it, in the judgment of the
Representatives, impracticable to market the Offered Securities or enforce
contracts for the sale of the Offered Securities, or (iii) trading in any
securities of the Company has been suspended by the Commission 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
Commission 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 Offered Securities 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 the Terms 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 the Representatives 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 the Offered Securities, 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
9, the term "Prospectus" means the Prospectus in the form first provided to the
applicable Underwriter or Underwriters for use in confirming sales of the
related Offered Securities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party
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39
to any other party, except to the extent provided in Section 5.
Notwithstanding any such termination, (i) the covenants set forth in Section
3(b), (d), and (e) with respect to any offering of Offered Securities shall
remain in effect so long as any Underwriter owns any such Offered Securities
purchased from the Company pursuant to this Agreement and during the period
when the Prospectus is required to be delivered in connection with sales of the
Offered Securities and (ii) the covenants set forth in Section 3(c), (g), (h)
and, if applicable, (i), the provisions of Section 5, the indemnity agreement
set forth in Section 6, the contribution provisions set forth in Section 7 and
the provisions of Sections 8, 11, 12 and 13 shall remain in effect.
SECTION 10. Default. If one or more of the Underwriters shall fail
at the Closing Time or a Date of Delivery to purchase the Immediate Delivery
Offered Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), then the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth. If, however, during such 24 hours
the Representatives shall not have completed such arrangements for the purchase
of all of the Defaulted Securities, then:
(a) if the amount of Defaulted Securities does not exceed
10% of the amount of Immediate Delivery Offered Securities to be
purchased on such date, each of the non-defaulting Underwriters shall
be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the amount of Defaulted Securities exceeds 10% of
the number of Immediate Delivery Offered Securities to be purchased on
such date, this Agreement or, with respect to any Date of Delivery
which occurs after the Closing Time, the obligation of the Underwriters
to purchase and of the Company to sell the Option Securities to be
purchased and sold on such Date of Delivery shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement or, in the case of a Date of
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40
Delivery which is after the Closing Time, which does not result in a termination
of the obligation of the Underwriters to purchase and the Company to sell the
relevant Option Securities, as the case may be, either the Representatives or
the Company shall have the right to postpone the Closing Time or the relevant
Date of Delivery, as the case may be, for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or the
Prospectus or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing, either delivered by hand, by mail or by telex, telecopier
or telegram, and any such notice shall be effective when received at the
address specified in this Section 11. Notices to the Underwriters shall be
directed as provided in the Terms Agreement. Notices to the Company shall be
directed to Apache Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Vice President and Treasurer, with a copy to:
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, P.C., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇. Any party to this Agreement may from time to time
designate another address to receive notice pursuant to this Agreement by
notice duly given in accordance with the terms of this Section 11.
SECTION 12. Parties. This Agreement shall inure to the benefit of
and be binding upon the Underwriters 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 Sections 6 and 7 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 their 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 Offered Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 13. Governing Law. This Agreement and all the rights and
obligations of the parties hereto 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.
35
41
SECTION 14. Counterparts. Any Terms Agreement may be executed in one
or more counterparts and, if executed in more than one counterpart, the
executed counterparts thereof shall constitute a single instrument.
36
42
EXHIBIT A
TERMS AGREEMENT
___________ __, 19__
Apache Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: [Title]
Dear Sirs:
The undersigned underwriters (the "Underwriters") understand that
Apache Corporation (the "Company") proposes to issue and sell $___________
aggregate principal amount of its debt securities (the "Offered Securities").
Subject to the terms and conditions set forth herein or incorporated by
reference herein, the Underwriters offer to purchase, severally and not
jointly, the principal amount of Offered Securities set forth below opposite
their respective names at ___% of the principal amount thereof together with
accrued interest thereon from __________, 19__ to the Closing Time:
Principal
Amount of
Underwriter Debt Securities
----------- ---------------
_______________
Total $
===============
The Offered Securities shall have the following terms:
Principal amount:
Form and denomination:
Date of maturity:
Interest rate, rates or formula
(or method of calculation
of interest accrual):
Date from which interest accrues:
Interest payment dates, if any:
Initial price to public:
Closing Time:
▇-▇
▇▇
▇▇▇▇▇ of delivery and payment:
Company account for wire transfer of payment:
Redemption provisions, if any:
Lock-up pursuant to Section 3(i) of the
Underwriting Agreement Basic Terms: [yes] [no]
Securities Exchanges, if any, on which application will be made to
list the Offered Securities:
Delayed Delivery Contracts: [authorized] [not authorized]
Delivery date:
Expiration date:
Compensation to Underwriters:
Minimum contract:
Maximum aggregate principal amount:
Other terms, if any:
All the provisions contained in "Apache Corporation-Debt
Securities--Underwriting Agreement Basic Terms" (the "Basic Terms"), filed as
an exhibit to the Registration Statement relating to the Offered Securities and
attached hereto as Annex A, are herein incorporated by reference in their
entirety and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Terms defined
in such document are used herein as therein defined.
Any notice by the Company to the Underwriters pursuant to this Terms
Agreement shall be sufficient if given in accordance with Section 11 of the
Basic Terms addressed to: [insert name and address of the lead manager or
managers or, if only one underwriter is a party hereto, of such firm] which
shall, for all purposes of this Agreement, be the "Representatives".
Very truly yours,
REPRESENTATIVE[S]
By: ____________________________________________
[Acting for themselves and as
Representative[s] of the
Underwriters]
Accepted:
APACHE CORPORATION
By: _______________________________________________
Title:
A-2
44
ANNEX A
[Apache Corporation--Debt Securities--
Underwriting Agreement Basic Terms]
A-3
45
EXHIBIT B
APACHE CORPORATION
[Title of Offered Securities]
DELAYED DELIVERY CONTRACT
Apache Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Apache Corporation (the
"Company"), and the Company agrees to sell to the undersigned on ____________,
19__ (the "Delivery Date"), $_____________ principal amount of the Company's
__% Offered Securities due ___________ __, 19__ (the "Offered Securities"),
offered by the Company's Prospectus dated _________ __, 19__, as supplemented
by its Prospectus Supplement dated __________ __, 19__, receipt of which is
hereby acknowledged, at a purchase price of _____% of the principal amount
thereof, plus accrued interest from __________, ______, to the Delivery Date,
and on the further terms and conditions set forth in this contract.
Payment for the securities which the undersigned has agreed to
purchase on the Delivery Date shall be made to the Company or its order by wire
transfer in immediately available funds on the Delivery Date, upon delivery to
the undersigned of the Offered Securities to be purchased by the undersigned in
definitive or global form and in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than three full business days prior to the
Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Offered Securities on the Delivery Date shall be subject only to the
conditions that (1) the purchase of Offered Securities to be made by the
undersigned shall not on the Delivery Date be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company, on or
before ___________, ____, shall have sold to the Underwriters of the Offered
Securities (the "Underwriters") such principal amount of the Offered Securities
as is to be sold to them pursuant to the Terms Agreement dated ____________,
____ between the Company
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and the Underwriters. The obligation of the undersigned to take delivery of
and make payment for Offered Securities shall not be affected by the failure of
any purchaser to take delivery of and make payment for Offered Securities
pursuant to other contracts similar to this contract. The undersigned
represents and warrants to the Underwriters that its investment in the Offered
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which govern such
investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice
to such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to
the Company that all necessary corporate action for the due execution and
delivery of this contract and the payment for and purchase of the Offered
Securities has been taken by it and no further authorization or approval of any
governmental or other regulatory authority is required for such execution,
delivery, payment or purchase, and that, upon acceptance hereof by the Company
and mailing or delivery of a copy as provided below, this contract will
constitute a valid and binding agreement of the undersigned in accordance with
its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for an aggregate principal amount of Offered Securities in excess of
$__________ and that the acceptance of any Delayed Delivery Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first come first-served basis. If this contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance on a copy hereof
and mail or deliver a signed copy hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such copy is so mailed or delivered.
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47
This Agreement shall be governed by the laws of the State New York
applicable to agreements made and performed in said State.
Yours very truly,
______________________________
(Name of Purchaser)
By____________________________
(Title)
______________________________
______________________________
(Address)
Accepted as of the date
first above written.
Apache Corporation
By:___________________________
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date shall be discussed is as
follows: (Please print.)
Telephone No.
Name (Including Area Code)
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