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EXHIBIT 1.1
▇▇▇▇▇▇ OIL CORPORATION
8 3/4% SENIOR SUBORDINATED NOTES DUE 2007
UNDERWRITING AGREEMENT
June 5, 1997
NationsBanc Capital Markets, Inc.
Chase Securities Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Inc.
c/o NationsBanc Capital Markets, Inc.
NationsBank Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
SECTION 1. Introductory. ▇▇▇▇▇▇ Oil Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell to the several
Underwriters named in Schedule I hereto (the "Underwriters"), $175,000,000
aggregate principal amount of its 8 3/4% Senior Subordinated Notes due 2007
(the "Securities"). The Securities are to be issued pursuant to the provisions
of an indenture, to be dated as of June 10, 1997 (the "Original Indenture"),
between the Company and Texas Commerce Bank National Association, as Trustee
(the "Trustee"), a first supplement to the Original Indenture, to be dated as
of June 10, 1997 (the "First Supplemental Indenture"), between the Company and
the Trustee, and a second supplement to the Original Indenture, to be dated as
of June 10, 1997 (the "Second Supplemental Indenture" and, together with the
Original Indenture and the First Supplemental Indenture, the "Indenture"),
among the Company, certain subsidiaries of the Company (the "Subsidiary
Guarantors") and the Trustee. As provided in the Indenture, the
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Securities are to be guaranteed on a senior subordinated basis pursuant to
guarantees (the "Subsidiary Guarantees") by the Subsidiary Guarantors, provided
that the Subsidiary Guarantees will terminate under certain circumstances. The
Company and the Subsidiary Guarantors hereby agree with the Underwriters as
follows:
SECTION 2. Representations, Warranties and Agreements of the
Company and the Subsidiary Guarantors. The Company and the Subsidiary
Guarantors, jointly and severally, represent and warrant to, and agree with,
the several Underwriters that:
(a) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933, as amended (the "Act"), and two
registration statements on Form S-3 (Nos. 33-52807 and 333-27363),
including a prospectus, relating to the Securities have been filed
with and declared effective by the Securities and Exchange Commission
(the "Commission"). Such registration statements as amended at the
time when each of them became effective, including information (if
any) contained in a prospectus subsequently filed with the Commission
and deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A under the Act, or, if a
post-effective amendment is required to be filed pursuant to Rule 430A
under the Act, as amended by such post-effective amendment, are
hereinafter referred to collectively as the "Registration Statement,"
and the prospectus and prospectus supplement in the form first used to
confirm sales of Securities are hereinafter referred to collectively
as the "Prospectus." No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceeding for that
purpose has been initiated or, to the knowledge of the Company,
threatened by the Commission.
(b) When the Registration Statement became effective and
at all times subsequent thereto up to the Closing Date hereinafter
mentioned, the Registration Statement and the Prospectus, and any
amendments or supplements thereto, have conformed and will conform in
all material respects with the requirements of the Act and the rules
and regulations (the "Rules and Regulations") of the Commission
thereunder, and at such effective time the Registration Statement did
not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, and the Prospectus, as amended
or supplemented at the Closing Date, if applicable, will not contain
any untrue statement of a material fact or omit to state a material
fact necessary to make the statements contained therein, in the light
of the circumstances under which they were made, not misleading;
except that the foregoing does not apply to (i) that part of the
Registration Statement that constitutes the Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of 1939, as
amended (the "1939
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Act"), of the Trustee, and (ii) statements or omissions in the
Registration Statement or the Prospectus, as amended or supplemented
if applicable, based upon written information furnished to the Company
by any Underwriter through you specifically for use therein.
(c) The consolidated financial statements included in the
Registration Statement and Prospectus present fairly the consolidated
financial position of the Company and its consolidated subsidiaries as
at the dates indicated and the results of their operations and the
changes in their consolidated financial position for the periods
specified; said financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis during the periods involved, except as indicated therein; and
the supporting schedules included in the Registration Statement
present fairly the information required to be stated therein. The pro
forma financial statements included in the Prospectus have been
prepared on a basis consistent with such historical statements, except
for the pro forma adjustments specified therein, and give effect to
the assumptions made on a reasonable basis and present fairly the
information specified therein. The reserve reports of Netherland,
▇▇▇▇▇▇ & Associates, Inc. ("Netherland ▇▇▇▇▇▇") and ▇▇▇▇▇ ▇▇▇▇▇
Company Petroleum Engineers ("▇▇▇▇▇ ▇▇▇▇▇") present the proved
reserves, future net revenues therefrom and discounted present value
thereof in compliance with the applicable Rules and Regulations, and
all of the information furnished by the Company to Netherland ▇▇▇▇▇▇
and ▇▇▇▇▇ ▇▇▇▇▇ and used in connection with the preparation of such
reports (including, but not limited to, information regarding working
interests, net revenue interests and pricing) was true and correct in
all material respects as of the applicable effective date of such
reports and audits and conformed with the applicable Rules and
Regulations. The other financial and statistical information and data
set forth in the Registration Statement and the Prospectus are
accurately presented and prepared on a basis consistent with such
financial statements or reserve reports or audits and the books and
records of the Company.
(d) Since the date as of which information is given in
the Prospectus, except as otherwise stated therein, (i) there has been
no material adverse change in the condition, financial or otherwise,
earnings, affairs or business prospects of the Company and the
Subsidiaries (as hereinafter defined) considered as a whole, whether
or not arising in the ordinary course of business and (ii) there have
been no material transactions entered into by the Company or any of
the Subsidiaries other than those in the ordinary course of business.
(e) The documents which are incorporated by reference in
the Registration Statement and the Prospectus, and any amendments or
supplements thereto, when they were
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filed with the Commission or were or hereafter are last amended,
complied in all material respects with the requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
the Rules and Regulations promulgated under the Exchange Act, and when
read together with the information in the Prospectus, no such
document, when it was filed with the Commission or was or hereafter is
last amended, contained or will contain an untrue statement of a
material fact or omitted or will omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading.
(f) The Company is a corporation duly organized and
validly existing in good standing under the laws of the State of
Delaware, and is duly registered and qualified to conduct its business
and is in good standing in each jurisdiction or place where the nature
of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to register
or qualify will not have a material adverse effect on the business,
prospects, financial condition or results of operations of the Company
and the Subsidiaries, taken as a whole.
(g) All the outstanding shares of common stock, par value
$.01 per share ("Common Stock"), and preferred stock, par value $.01
per share ("Preferred Stock"), of the Company have been duly
authorized and validly issued, are fully paid and nonassessable and
are free of any preemptive or similar rights. There are no
outstanding options, warrants or other rights to acquire from the
Company any capital stock except pursuant to the stock option plans
and agreements referred to and otherwise described or incorporated by
reference in the Registration Statement or the Prospectus.
(h) The Subsidiary Guarantees have been duly authorized
and, when issued and delivered pursuant to this Agreement, will have
been duly executed, authenticated, issued and delivered and will
constitute valid and binding obligations of the Subsidiary Guarantors;
and the Subsidiary Guarantees will conform to the descriptions thereof
in the Prospectus.
(i) The fair salable value of the assets of each of the
Company and the Subsidiary Guarantors exceed the amount that will be
required to be paid on or in respect of the existing debts and other
liabilities (including contingent liabilities) of the Company and the
Subsidiary Guarantors, respectively, as they mature; the respective
assets of the Company and the Subsidiary Guarantors do not constitute
unreasonably small capital to carry out their respective businesses as
conducted or as proposed to be conducted; neither the Company nor the
Subsidiary Guarantors intend to, and do not believe that they will,
incur debts beyond their ability to pay such debts as they mature;
upon the issuance of the Securities and the Subsidiary Guarantees, the
fair salable value of the assets of the Company and the
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Subsidiaries, taken as a whole, will exceed the amount that will be
required to be paid on or in respect of the existing debts and other
liabilities (including contingent liabilities) of the Company and the
Subsidiaries, taken as a whole, as they mature; the assets of the
Company and the Subsidiaries do not, and upon the issuance of the
Securities and the Subsidiary Guarantees will not, constitute
unreasonably small capital for the Company and the Subsidiaries to
carry out their respective businesses as now conducted or as proposed
to be conducted including the capital needs of the Company and the
Subsidiaries, and projected capital requirements of the business
conducted by the Company and each of the Subsidiaries, and projected
capital requirements and capital availability thereof; and neither the
Company nor Subsidiary Guarantors intend to, and do not intend to
permit any of their subsidiaries to, incur debts beyond their
respective ability to pay such debts as they mature.
(j) Neither the Company nor any of the Subsidiaries has
violated any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), or any provisions of the Employee Retirement
Income Security Act or the rules and regulations promulgated
thereunder, except for such violations which, singly or in the
aggregate, would not have a material adverse effect on the business,
prospects, financial condition or results of operation of the Company
and the Subsidiaries, taken as a whole.
(k) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate,
have a material adverse effect on the business, prospects, financial
condition or results of operations of the Company and the
Subsidiaries, taken as a whole.
(l) The Company and the Subsidiaries have all requisite
power and authority, and have obtained all necessary authorizations,
approvals, orders, licenses, franchises, certificates and permits of
and from all governmental regulatory officials and bodies ("Permits"),
including, without limitation, under any applicable Environmental
Laws, to own, lease and operate their respective properties and
conduct their respective businesses as described in the Registration
Statement and the Prospectus, except where the failure to obtain such
Permits will not have a material adverse effect on the business,
prospects, financial condition or
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results of operations of the Company and the Subsidiaries taken as a
whole. Each of the Company and the Subsidiaries has fulfilled and
performed all its current material obligations with respect to such
Permits and no event has occurred which allows, or after notice or
lapse of time, or both, would allow, revocation or termination thereof
or result in any other material impairment of the rights of the holder
of any such Permit, subject in each case to such qualification as may
be set forth in the Registration Statement and the Prospectus and
except where the failure to do so will not have a material adverse
effect on the business, prospects, financial condition or results of
operations of the Company and the Subsidiaries, taken as a whole.
Except as described in the Registration Statement and the Prospectus
and as is customary in the oil and gas industry or in the areas where
the properties of the Company or the Subsidiaries are located, such
Permits contain no restrictions that are materially burdensome to the
Company and the Subsidiaries, taken as a whole. The Company and the
Subsidiaries own, or possess adequate rights to use, all trademarks,
service marks and other rights necessary for the conduct of their
business as presently conducted and described in the Registration
Statement and the Prospectus, and neither the Company nor any of the
Subsidiaries has received any notice of conflict with the asserted
rights of others in any such respect that would materially adversely
affect their business and neither the Company nor any Subsidiary knows
of any basis therefor. The property and business of the Company and
the Subsidiaries taken as a whole conform in all material respects to
the descriptions thereof contained in the Registration Statement and
the Prospectus.
(m) All of the Company's subsidiaries that are required
to be listed in an exhibit to the Registration Statement or to any
document incorporated by reference therein are so listed
(collectively, the "Subsidiaries"). Each of the Subsidiaries of the
Company has been duly organized, is validly existing and in good
standing in the jurisdiction of its organization, has the requisite
power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement and is
duly qualified to transact business and is in good standing in each
jurisdiction or place in which it owns or leases properties or in
which the conduct of its business requires such qualification, except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
the Subsidiaries considered as a whole; all of the issued and
outstanding capital stock of, or other equity interests in, each
Subsidiary has been duly authorized and validly issued and is fully
paid and nonassessable and, except as set forth in the Prospectus, all
such capital stock or other equity interests of each Subsidiary is
owned by the Company, directly or through subsidiaries, free and clear
of any mortgage, pledge, lien, encumbrance, claim or equity except for
any lien granted pursuant to the bank credit facility referenced in
the Prospectus.
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(n) Neither the Company nor any of the Subsidiaries is in
violation of its or any of their charters or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any material contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which it or any of
them is a party or by which it or any of them or their properties may
be bound; no consent, approval, authorization or order of any court or
governmental authority or agency is required for the consummation by
the Company or the Subsidiary Guarantors of the transactions
contemplated by this Agreement, except such as may be required under
the Act, the 1939 Act, the Rules and Regulations or state securities
or Blue Sky laws; and the execution and delivery of this Agreement,
the Original Indenture, the First Supplemental Indenture and the
Second Supplemental Indenture and the consummation of the transactions
contemplated herein and therein 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 the Subsidiaries pursuant to any material contract,
indenture, mortgage, loan agreement, note, lease or other instrument
to which the Company or any of the 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 of the Subsidiaries is subject, nor will
such action result in any violation of the provisions of the charter
or by-laws or other organizational documents of the Company or any
Subsidiary or any law, administrative regulation or administrative or
court decree.
(o) Except as set forth or incorporated by reference in
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 the Subsidiaries, which might result
in any material adverse effect on the business, prospects, financial
condition or results of operations of the Company and the
Subsidiaries, taken as a whole, or might materially and adversely
affect the properties or assets thereof or might materially and
adversely affect the offering of the Securities; and there are no
material contracts or other documents which are required to be filed
as exhibits to the Registration Statement by the Act or by the Rules
and Regulations which have not been so filed.
(p) Each of the Company and the Subsidiaries, except with
respect to its respective interests in oil and gas leases, has good
and marketable title in fee simple to all material real property owned
by it, valid and defensible title to all material personal property
owned by it and enforceable interests in leases of material real and
personal property owned
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by it, in each case free and clear of all security interests,
mortgages, pledges, liens, encumbrances, charges and defects except
(i) such as are referred to in the Prospectus or (ii) such as do not
materially adversely affect the value of such property to the Company
or such Subsidiary, and do not interfere with the use made and
proposed to be made of such property by the Company or such Subsidiary
to an extent that such interference would have a material adverse
effect on the Company or such Subsidiary. Each of the Company and the
Subsidiaries has good and defensible title to all of its respective
interests in oil and gas leases, free and clear of any encumbrances,
except encumbrances granted to secure the indebtedness specified in
the Registration Statement, subject only to liens for taxes or charges
of mechanics or materialmen not yet due and to encumbrances under gas
sales contracts, operating agreements, unitization and pooling
agreements and other similar agreements customarily found in
connection with comparable drilling and producing operations and to
title defects that are, singly and in the aggregate, not material in
amount and do not interfere with its use or enjoyment of its oil and
gas properties. Each of the Company and the Subsidiaries has
conducted such title investigations and has acquired its respective
interests in oil and gas leases in such manner as is customary in the
oil and gas industry. Each of the Company and the Subsidiaries has
complied in all material respects with the terms of the oil and gas
leases in which it purports to own an interest, and all of such leases
are in full force and effect (except where the failure so to comply or
to be in full force and effect would not have a material adverse
effect on the business, prospects, financial condition or results of
operations of the Company and its Subsidiaries, taken as a whole).
(q) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, the accountants for the Company
who have certified the financial statements and the related financial
statement schedules included in the Company's most recent Annual
Report on Form 10-K, which is incorporated by reference in the
Prospectus, are independent public accountants with respect to the
Company and the Subsidiaries as required by the Act.
(r) Netherland ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇, whose reserve
reports are filed as exhibits to the Company's most recent Annual
Report on Form 10-K, are independent petroleum engineers with respect
to the Company and the Subsidiaries.
(s) This Agreement has been duly authorized, executed and
delivered by the Company and the Subsidiary Guarantors and is a valid
and binding agreement of the Company and the Subsidiary Guarantors,
except as rights to indemnity hereunder may be limited by applicable
law.
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(t) The Original Indenture has been duly authorized, and
when executed and delivered by the Company, will be a valid and
binding agreement of the Company that has been duly qualified under
the 1939 Act. The First Supplemental Indenture has been duly
authorized, and when executed and delivered by the Company, will be a
valid and binding agreement of the Company, and the execution and
delivery of the First Supplemental Indenture will not affect the
qualification of the Original Indenture under the 1939 Act. The
Second Supplemental Indenture has been duly authorized, and when
executed and delivered by the Company and the Subsidiary Guarantors,
will be a valid and binding agreement of the Company and the
Subsidiary Guarantors, and the execution and delivery of the Second
Supplemental Indenture will not affect the qualification of the
Original Indenture under the 1939 Act.
(u) The Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with this Agreement, will be valid and binding obligations
of the Company and will be entitled to the benefits of the Indenture.
(v) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, without
taking account of any exemption arising out of the number of holders
of the Company's securities.
(w) To the Company's knowledge, neither the Company nor
any of the Subsidiaries nor any employee or agent of the Company or
any Subsidiary has made any payment of funds of the Company or any
Subsidiary or received or retained any funds in violation of any law,
rule or regulation, which payment, receipt or retention of funds is of
a character required to be disclosed in the Prospectus.
(x) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act
with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in
the securities registered pursuant to the Registration Statement or in
any securities being registered pursuant to any other registration
statement filed by the Company under the Act.
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(y) Except as disclosed in the Prospectus, there are no
business relationships or related party transactions required to be
disclosed therein by Item 404 of Regulation S-K of the Commission.
(z) To the Company's knowledge, neither the Company nor
any of its Subsidiaries nor any employee or agent of the Company or
any Subsidiary has made any payment of funds of the Company or any
Subsidiary or received or retained any funds in violation of any law,
rule or regulation, which payment, receipt or retention of funds is of
a character required to be disclosed in the Prospectus.
(aa) Neither the Company nor any of the Subsidiaries is
involved in any labor dispute nor, to the knowledge of the Company, is
any such dispute threatened.
(bb) Each of the Company and the Subsidiaries has filed
all federal, state and local tax returns that are required to be filed
or has obtained extensions thereof, and has paid all taxes shown on
such returns and all assessments received by it to the extent that the
same have become due or is contesting such taxes in good faith by
appropriate proceedings.
(cc) Except for the shares of capital stock, or other
equity interests, of each of the Subsidiaries, neither the Company nor
any of the Subsidiaries owns any share of stock or any other
securities of any corporation or has any equity interest in any firm,
partnership, association or other entity material in amount in
relation to the net assets of the Company and the Subsidiaries taken
as a whole, other than as disclosed in the Prospectus or as reflected
in the consolidated financial statements included or incorporated by
reference in the Registration Statement and the Prospectus.
SECTION 3. Purchase, Sale and Delivery of Securities. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Underwriters, and each Underwriter agrees, severally and
not jointly, to purchase from the Company at a purchase price of 96.452% of the
principal amount per Security (the "purchase price per Security") plus accrued
interest, if any, from June 10, 1997 to the date of payment and delivery, the
respective principal amount of Securities set forth opposite such Underwriter's
name in Schedule I hereto.
The Company will deliver the Securities to you for the
accounts of the Underwriters, against payment of the purchase price therefor by
wire transfer payable in same day funds to the order of the Company, at the
office of NationsBanc Capital Markets, Inc., Charlotte, North Carolina
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at 10:00 A.M., Charlotte time, on June 10, 1997 or at such other place or time
not later than seven full business days thereafter as you and the Company
determine, such time being referred to herein as the "Closing Date."
The certificates for all the Securities so to be delivered
will be in such denominations and registered in such names as you request two
full business days prior to the Closing Date and will be made available at the
office of NationsBanc Capital Markets, Inc., Charlotte, North Carolina or, upon
your request, through the facilities of The Depository Trust Company, for
checking and packaging at least one full business day prior to the Closing
Date.
SECTION 4. Offering by Underwriters. After the Registration
Statement becomes effective, the several Underwriters will offer the Securities
for sale to the public on the terms as set forth in the Prospectus.
SECTION 5. Covenants of the Company and the Subsidiary
Guarantors. The Company and the Subsidiary Guarantors, jointly and severally,
covenant and agree with the several Underwriters that:
(a) The Company will advise you promptly of any proposal
to amend or supplement the Registration Statement or the Prospectus,
and will not effect such amendment or supplement without your consent,
which will not be unreasonably withheld; the Company will also advise
you promptly of receipt of notification of the institution by the
Commission of any stop order proceedings in respect of the
Registration Statement or the initiation or threatening of any
proceeding for such purpose, and will use every reasonable effort to
prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(b) If, during such period of time after the first date
of the public offering of the Securities as in the opinion of counsel
for the Underwriters a prospectus relating to the Securities is
required by law to be delivered in connection with sales by an
Underwriter or dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would, in the judgment of
the Underwriters and their counsel, include an untrue statement of a
material fact, or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend
the Prospectus to comply with the Act or any other law, the Company
promptly will prepare and file with the Commission an
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amendment or supplement which will correct such statement or omission
or an amendment which will effect such compliance and will notify you
and, upon your request, prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as you may
from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance.
(c) The Company will make generally available to the
Company's security holders as soon as practicable an earning statement
covering a period of at least 12 months beginning after the date of
the Prospectus that satisfies the provisions of Section 11 (a) of the
Act and the Rules and Regulations (including Rule 158).
(d) The Company will deliver to each of you as many
signed and conformed copies of the registration statement (as
originally filed) and of each amendment thereto (including exhibits
filed therewith) as you may reasonably request and will also deliver
to you a conformed copy of the Registration Statement and each
amendment thereto for each of the Underwriters.
(e) The Company and the Subsidiary Guarantors will
endeavor, in cooperation with you, to qualify the Securities for
offering and sale under the applicable securities laws of such states
and other jurisdictions of the United States as you may designate, and
will maintain such qualifications in effect for as long as may be
required for the distribution of the Securities. The Company and the
Subsidiary Guarantors will file such statements and reports as may be
required by the laws of each jurisdiction in which the Securities have
been qualified as above provided.
(f) During the period of three years hereafter, the
Company will furnish to you and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year, and
the Company will furnish to you (i) as soon as available, a copy of
each report or definitive proxy statement of the Company filed with
the Commission under the Exchange Act or mailed to stockholders, and
(ii) from time to time, such other information concerning the Company
as you may reasonably request.
(g) The Company has not taken, nor will it take, directly
or indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the
price of its capital stock or debt securities to facilitate the sale
or resale of the Securities.
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SECTION 6. Conditions of the Obligations of the Underwriters.
The obligations of the several Underwriters to purchase and pay for the
Securities on the Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company and the Subsidiary
Guarantors herein as of the date hereof and as of the Closing Date with the
same force and effect as if made as of that date, to the performance by the
Company and the Subsidiary Guarantors of their obligations hereunder and to the
following additional conditions precedent:
(a) Prior to the Closing Date no stop order suspending
the effectiveness of the Registration Statement shall have been issued
and no proceedings for that purpose shall have been instituted, or to
the knowledge of the Company or you, shall be contemplated by the
Commission.
(b) You shall not have advised the Company that the
Registration Statement or Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact or omits to state a fact
which, you have concluded, is material and in the case of an omission
is required to be stated therein or is necessary to make the
statements therein not misleading.
(c) You shall have received a favorable opinion of ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, General Counsel of the Company and the Subsidiary
Guarantors, dated the Closing Date to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of Delaware with corporate power and authority to own,
lease and operate its properties and conduct its business as
described in the Registration Statement; and the Company is
duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which it owns
or leases property or in which the conduct of its business
requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not
have a material adverse effect on the business, prospects,
condition (financial or other) or results of operations of the
Company and the Subsidiaries, taken as a whole.
(ii) Each of the Subsidiaries of the Company has
been duly organized and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its
organization, has the requisite corporate power and authority
to own, lease and operate its properties and conduct its
business as described in the Registration
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Statement, and is duly qualified to transact business and is
in good standing in each jurisdiction or place in which it
owns or leases properties or in which the conduct of its
business requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the business,
prospects, condition (financial or other) or results of
operations of the Company and the Subsidiaries, taken as a
whole; all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and validly issued and is
fully paid and non-assessable, and all of such capital stock,
except as described in the Prospectus, is owned by the Company
free and clear of any perfected security interest, or, to the
best knowledge of such counsel, any other security interest,
lien, adverse claim or other encumbrance except for the lien
granted pursuant to the bank credit facility referenced in the
Prospectus.
(iii) The authorized and outstanding capital stock
of the Company is as set forth under the caption
"Capitalization" in the Prospectus; all the outstanding shares
of capital stock of the Company have been duly authorized and
validly issued and are fully paid and nonassessable.
(iv) This Agreement has been duly authorized,
executed and delivered by the Company and the Subsidiary
Guarantors, and constitutes a valid and binding agreement of
the Company and the Subsidiary Guarantors, except as rights to
indemnity hereunder may be limited by applicable law.
(v) The Original Indenture has been duly
authorized, executed and delivered by the Company, is a valid
and binding agreement of the Company, conforms in all material
respects to the applicable requirements of the 1939 Act and
has been duly qualified under the 1939 Act; the First
Supplemental Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement
of the Company; the Second Supplemental Indenture has been
duly authorized, executed and delivered by the Company and the
Subsidiary Guarantors and is a valid and binding agreement of
the Company and the Subsidiary Guarantors.
(vi) The Securities have been duly authorized and,
when executed and authenticated in accordance with the
provisions of the Indenture, and delivered to and paid for by
the Underwriters in accordance with the terms of this
Agreement, will be valid and binding obligations of the
Company and will be entitled to the benefits of the Indenture.
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(vii) The Subsidiary Guarantees have been duly
authorized, executed and delivered by the Subsidiary
Guarantors and, when the Securities have been duly
authenticated in accordance with the terms of the Indenture
and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, the Subsidiary
Guarantees will constitute valid and binding obligations of
the Subsidiary Guarantors; the Subsidiary Guarantees do not
violate any law applicable to the Subsidiary Guarantors or the
offering and issuance of the Securities and the Subsidiary
Guarantees.
(viii) The form of certificate for the Securities
contemplated by the Indenture conforms to the requirements of
New York law.
(ix) The Registration Statement is effective under
the Act and no stop order suspending the effectiveness of the
Registration Statement has been issued under the Act or
proceedings therefor initiated or, to the best knowledge of
such counsel, threatened by the Commission.
(x) Statements set forth in the Prospectus under
the headings "Risk Factors--Environmental and Other
Regulation", "Description of the Credit Facility" and
"Description of Notes" and as set forth in the Company's
Annual Report on Form 10-K for the year ended December 31,
1996 under the headings "Business and Properties--Regulation"
and "Legal Proceedings" insofar as such statements constitute
a summary of the legal matters, documents or proceedings
referred to therein fairly present the information called for
with respect to such legal matters, documents and proceedings.
(xi) To the best knowledge of such counsel,
neither the Company nor any of the Subsidiaries (A) is in
violation of its charter or bylaws, (B) is in breach of, or in
default (nor has an event occurred that with notice, lapse of
time or both would constitute such a default) under any
indenture, mortgage, deed of trust, note, bond, debenture,
bank loan or credit agreement, or any other evidence of
indebtedness, agreement or instrument to which the Company or
any of the Subsidiaries is a party or by which any of them or
any of their property is or may be bound or affected, (C) is
in violation of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or
any of the Subsidiaries or of any decree of any court or
governmental agency or body having jurisdiction over the
Company or
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any of the Subsidiaries or (D) has received any notice of
conflict with the asserted rights of others in respect of
trademarks, service marks or other rights necessary for the
conduct of their business, in each case in which such breach,
default, violation or conflict would have a material adverse
effect on the business, properties or operations of the
Company and the Subsidiaries taken as a whole.
(xii) No consent, approval, authorization or order
of any court or governmental authority or agency is required
in connection with the transactions contemplated by this
Agreement, except such as may be required under the Act, the
1939 Act, the Rules and Regulations or state securities or
Blue Sky laws; and, to the best knowledge of such counsel, the
execution and delivery of this Agreement, the Securities, the
Subsidiary Guarantees, the Original Indenture, the First
Supplemental Indenture and the Second Supplemental Indenture
and the consummation of the transactions contemplated herein
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 the Subsidiaries pursuant to any material
contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of the
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 of the Subsidiaries is subject, nor will such action
result in any violation of the provisions of the charter or
bylaws of the Company, or any law, administrative regulation
or administrative or court decree.
(xiii) To the best knowledge of such counsel, there
is no legal or governmental proceeding pending or threatened
to which the Company or any of the Subsidiaries is a party or
to which any of the properties of the Company or any
Subsidiary is subject that is required to be described in the
Prospectus and is not so described or any material contract or
other document that is required to be described in the
Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement that is not so described
or filed as required.
(xiv) To the best knowledge of such counsel, each
of the Company and the Subsidiaries holds all necessary
governmental authorizations, approvals, orders, licenses,
certificates, franchises and permits of and from all
governmental regulatory officials and bodies, including,
without limitation, under any applicable Environmental Laws,
for the conduct of the material businesses in which it is
engaged and owns, or possesses adequate rights to use all
material rights necessary for the conduct of such businesses,
and to such counsel's knowledge, none of the
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Company or the Subsidiaries has received any notice of
conflict with the asserted rights of others in respect
thereto, except where the failure to hold, or the conflict
with the asserted rights of others with respect to, such
authorizations, approvals, orders, licenses, certificates,
franchises or permits would not have a material adverse effect
on the business, prospects, condition (financial or other) or
results of operations of the Company and the Subsidiaries,
taken as a whole.
(xv) Except as described in the Prospectus, such
counsel knows of no outstanding option, warrant or other right
calling for the issuance of, and such counsel knows of no
commitment, plan or arrangement to issue, any share of capital
stock of the Company or any security convertible into or
exchangeable or exercisable for capital stock of the Company;
and except as described in the Prospectus, such counsel does
not know of any holder of any securities of the Company or any
other person who has the right, contractual or otherwise, to
cause the Company to issue to such holder or such person, or
permit such holder or such person to underwrite the sale of,
any shares of capital stock of the Company upon and as the
result of the issuance and sale of the Securities to you
hereunder or the right to require registration under the Act
of an offering of shares of capital stock of the Company as a
result of the filing of the Registration Statement.
(xvi) Such counsel is of the opinion that the
Registration Statement (other than the financial statements
included therein, as to which no opinion need be expressed)
complies as to form in all material respects with the
requirements of the Act and the Rules and Regulations.
(xvii) Although such counsel is not passing upon and
does not assume any responsibility for the accuracy or
completeness of the statements contained in the Registration
Statement and Prospectus (except with respect to paragraphs
(iii), (x) and (xvi) above), such counsel advises you that, on
the basis of his participation in conferences with other
officers and employees of the Company, representatives of the
independent accountants and independent petroleum consultants
of the Company and representatives of the Underwriters at
which the contents of the Registration Statement and the
Prospectus and related matters were discussed, no facts have
come to his attention that lead him to believe that the
Registration Statement or any amendment thereof (other than
the financial statements and the notes thereto and the
schedules and other financial, statistical and engineering
data or information included
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therein and the exhibits thereto and that part of the
Registration Statement that constitutes the Form T-1), at the
time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading or that the Prospectus or any supplement
thereto (other than the financial statements and the notes
thereto and the schedules and other financial, statistical and
engineering data or information included therein), as of its
date or the Closing Date, as the case may be, contains an
untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
are made, not misleading.
(d) You shall have received from ▇▇▇▇▇ & ▇▇▇▇▇, L.L.P.,
counsel for the Underwriters, an opinion, dated such Closing Date,
with respect to the matters set forth in subparagraphs (iv), (v),
(vi), (x) (but only as to the statements in the Prospectus under
"Description of Notes") and (xvii) of paragraph (c) of this Section.
(e) At the Closing Date there shall not have been, since
the date of this 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, earnings,
business affairs or business prospects of the Company and the
Subsidiaries considered as a whole, whether or not arising in the
ordinary course of business, and you shall have received a certificate
of an executive officer of each of the Company and the Subsidiary
Guarantors, dated as of the Closing Date, to the foregoing effect and
to the further effect that the representations and warranties of the
Company and the Subsidiary Guarantors contained in Section 2 are true
and correct with the same force and effect as though made on and as of
the Closing Date.
(f) You shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
independent public accountants, two letters, the first delivered the
day of but prior to the execution of, and dated the date of, this
Agreement and the other dated the Closing Date, addressed to the
Underwriters (with conformed copies for each of the Underwriters), in
the form heretofore agreed (and in the case of the second such letter
consistent with the first such letter) with such variations as are
reasonably acceptable to you.
(g) At the Closing Date, counsel for the Underwriters
shall have been furnished with such other documents and opinions as
they may reasonably require.
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SECTION 7. Payment of Expenses. The Company and its
Subsidiaries, jointly and severally, will pay all costs, expenses, fees and
taxes incident to (i) the preparation by the Company, printing, filing and
distribution under the Act of the Registration Statement (including financial
statements and exhibits), the Prospectus, each preliminary prospectus and all
amendments and supplements to any of them prior to or during the period
specified in Section 5(b), (ii) the preparation, printing (including word
processing and duplication costs) and delivery of this Agreement, the Original
Indenture, the First Supplemental Indenture, the Second Supplemental Indenture,
Preliminary and Supplemental Blue Sky Memoranda and all other agreements,
memoranda, correspondence and other documents printed and delivered in
connection with the offering of the Securities, (iii) the registration with the
Commission, and the issuance by the Company of the Securities (iv) the
registration or qualification of the Securities for offer and sale under the
securities or Blue Sky laws of the several states as described in Section 5(e)
(including the reasonable fees and disbursements of your counsel relating to
such registration or qualification), (v) the fees and expenses of rating
agencies and (vi) the performance by the Company and the Subsidiary Guarantors
of their other obligations under this Agreement.
If this Agreement is terminated by you in accordance with the
provisions of Section 6 or Section 10(i), the Company shall reimburse you for
all of your out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 8. Indemnification and Contribution. (a) Each of the
Company and the Subsidiary Guarantors, jointly and severally, 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 Act or Section
20 of the Exchange Act, from and against any and all losses, claims, damages,
liabilities or judgments (including without limiting the foregoing the
reasonable legal and other expenses incurred in connection with any action,
suit or proceeding or any claim asserted) arising out of any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus or any preliminary prospectus, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or expenses are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information furnished in writing to the Company by any
Underwriter through you expressly for use therein; provided, however, that with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus, the indemnity agreement contained
in this subsection (a) shall not inure to the benefit of any Underwriter (or
any person who controls such Underwriter) from whom the person asserting any
such losses, claims,
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damages or liabilities purchased the Securities concerned, to the extent that
any such loss, claim, damage, liability or judgement of such Underwriter
results from the fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Securities to such
person, a copy of the Prospectus if the Company had previously furnished copies
thereof to such Underwriter and such untrue statement or omission or alleged
untrue statement or omission made in a preliminary prospectus was corrected in
the Prospectus. This indemnity agreement will be in addition to any liability
which the Company or the Subsidiary Guarantors may otherwise have to the
persons referred to above in this Section 8(a).
(b) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, the Subsidiary Guarantors, the
directors of the Company, the officers of the Company who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages and liabilities caused by
any untrue statement or alleged untrue statement of a material fact contained
in the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary prospectus,
or caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only with reference to information relating to such Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use in the Registration Statement, the Prospectus, any amendment or
supplement thereto, or any preliminary prospectus.
(c) In case any action or proceeding (including any
governmental or regulatory investigation or proceeding) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such person (hereinafter called the
indemnified party) shall promptly notify the person against whom such indemnity
may be sought (hereinafter called the indemnifying party) in writing and the
indemnifying party, upon request of the indemnified party, shall assume the
defense thereof, including the employment of counsel reasonably satisfactory to
the indemnified party to represent the indemnified party and any others the
indemnifying party may designate and shall pay the fees and disbursements of
such counsel related to such proceeding. In any such action or proceeding, any
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (a) the reasonable
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fees and expenses of more than one separate firm (in addition to any local
counsel) for all Underwriters and all persons, if any, who control Underwriters
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act and (b) the reasonable fees and expenses of more than one
separate firm (in addition to any local counsel) for the Company, the
Subsidiary Guarantors, the directors of the Company, the officers of the
Company who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either such Section and that all
such fees and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for the Underwriters and such control persons of
Underwriters, such firm shall be designated in writing by NationsBanc Capital
Markets, Inc. In the case of any such separate firm for the Company, the
Subsidiary Guarantors, and such directors, officers and control persons of the
Company, such firm shall be designated in writing by the Company. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
(d) If the indemnification provided for in this Section 8
is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities and expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Subsidiary Guarantors on the one hand and the Underwriters on the other from
the offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Subsidiary Guarantors on the one
hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Subsidiary Guarantors on the one hand
and the Underwriters on the other shall be deemed to be in the same proportions
as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover page of the
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Prospectus. The relative fault of the Company and the Subsidiary Guarantors on
the one hand and the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information
supplied by the Company, the Subsidiary Guarantors or by the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(e) The Company, the Subsidiary Guarantors and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to Section 8(d) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of Section 8(d), in no event shall any
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which each Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to Section 8(d) are several in proportion to the respective
principal amount of Securities set forth opposite their names in Schedule I
hereto.
SECTION 9. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company
submitted hereto, including indemnity and contribution agreements, shall remain
operative and in full force and effect, regardless of any termination of this
Agreement, or any investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter by or on behalf of the Company, the
Subsidiary Guarantors, the officers or directors of the Company, and shall
survive acceptance and payment for the Securities hereunder.
SECTION 10. Effectiveness of Agreement and Termination. This
Agreement shall become effective upon the execution and delivery hereof by the
parties hereto.
This Agreement may be terminated for any reason at any time
prior to the Closing Date by NationsBanc Capital Markets, Inc. upon the giving
of written notice of such termination to
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the Company, if prior to the Closing Date (i) there has been, since the
respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition, financial or
otherwise, earnings, business affairs or business prospects of the Company and
the Subsidiaries considered as a whole, whether or not arising in the ordinary
course of business, or (ii) there has occurred any outbreak or escalation of
hostilities or other calamity or crisis or material change in existing
financial, political, economic or securities market conditions, the effect of
which is such as to make it, in the judgment of NationsBanc Capital Markets,
Inc., impracticable or inadvisable to market the Securities in the manner
contemplated in the Prospectus or enforce contracts for the sale of the
Securities, or (iii) trading in the Common Stock or Preferred Stock of the
Company has been suspended by the Commission or the New York Stock Exchange, or
trading generally on either the American Stock Exchange or the New York Stock
Exchange has 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 has been declared by either
Federal, New York or Texas authorities. In the event of any such termination,
the provisions of Section 7, the indemnity agreement and contribution
provisions set forth in Section 8, and the provisions of Sections 9 and 14
shall remain in effect.
SECTION 11. Default. If, on the Closing Date, any one or
more of the Underwriters shall fail or refuse to purchase Securities that it or
they have agreed to purchase hereunder on such date, and the aggregate
principal amount of Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate principal amount of the Securities to be purchased
on such date, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule I bears to the aggregate principal amount of
Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided that in no event shall the
principal amount of Securities that any Underwriter has agreed to purchase
pursuant to Section 3 be increased pursuant to this Section 11 by an amount in
excess of one-ninth of such principal amount of Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities and the aggregate principal amount of Securities
with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Securities to be purchased on such date, and
arrangements satisfactory to you and the Company for the purchase of such
Securities are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any
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non-defaulting Underwriter, Subsidiary Guarantor or the Company. In any such
case either you or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
SECTION 12. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to you c/o NationsBanc Capital Markets, Inc.,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate;
notices to the Company and the Subsidiary Guarantors shall be directed to them
at ▇▇▇▇▇▇ Oil Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, attention
of the Secretary with copy to the Treasurer.
SECTION 13. Parties. This Agreement shall inure to the
benefit of and be binding upon the Company, the Subsidiary Guarantors, the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person, firm or corporation
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. No purchaser of Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 14. Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 15. Counterparts. This Agreement may be signed in
two or more counterparts each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
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If the foregoing is in accordance with your understanding of
our agreement, please sign this Agreement and return it to us.
Very truly yours,
▇▇▇▇▇▇ OIL CORPORATION
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President - Finance
SUBSIDIARY GUARANTORS:
▇▇▇▇▇▇ PETROLEUM, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
MEXICAN FLATS SERVICE COMPANY
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
▇▇▇▇▇▇ FLUID TECHNOLOGIES, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
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▇▇▇▇▇▇ GAS MARKETING, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
SOCO GAS SYSTEMS, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
SOCO HOLDINGS, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
SOCO LOUISIANA LEASING, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
SOCO OFFSHORE, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
26
27
WESTERN TRANSMISSION
CORPORATION
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
WYOMING GATHERING AND
PRODUCTION COMPANY
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
Confirmed and Accepted, as of the date
first above written:
NATIONSBANC CAPITAL MARKETS, INC.
CHASE SECURITIES INC.
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO., INC.
As Underwriters.
By: NATIONSBANC CAPITAL MARKETS, INC.
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇, ▇▇.
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Name: ▇.▇. ▇▇▇▇▇▇▇▇, ▇▇.
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Title: Managing Director
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27
28
SCHEDULE I
Principal Amount
Of Securities To
Underwriter Be Purchased
----------- ----------------
NationsBanc Capital Markets, Inc. $ 87,500,000
Chase Securities Inc. 52,500,000
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. 26,250,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Inc. 8,750,000
------------
Total $175,000,000
============
28
