RANGE RESOURCES CORPORATION 8.000% Senior Subordinated Notes due 2019 Underwriting Agreement
Exhibit 1.1
$300,000,000
RANGE RESOURCES CORPORATION
8.000% Senior Subordinated Notes due 2019
Underwriting Agreement
May 11, 2009
X.X. Xxxxxx Securities Inc.
Banc of America Securities LLC
Wachovia Capital Markets, LLC
Banc of America Securities LLC
Wachovia Capital Markets, LLC
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
several Underwriters listed
in Schedule 1 hereto
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Range Resources Corporation, a Delaware corporation (the “Company”), proposes to issue and
sell to the several Underwriters listed in Schedule 1 hereto (the “Underwriters”), for whom you are
acting as representatives (the “Representatives”), $300,000,000 principal amount of its 8.000%
Senior Subordinated Notes due 2019 (the “Securities”). The Securities will be issued pursuant to
the Indenture dated as of May 14, 2009 among the Company, the Subsidiary Guarantors (as defined
below) and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), as
supplemented by the First Supplemental Indenture date as of May 14, 2009 among the Company, the
Subsidiary Guarantors and the Trustee (collectively, the “Indenture”).
The Company hereby confirms its agreement with the several Underwriters concerning the
purchase and sale of the Securities, as follows:
1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the “Securities Act”), an automatic
shelf registration statement on Form S-3 (File No. 333-159112), including a prospectus, relating to
the Securities. Such registration statement, including the information, if any, deemed pursuant to
Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement at the
time of its effectiveness (“Rule 430 Information”), is referred to herein as the
“Registration Statement”; and as used herein, the term “Preliminary Prospectus” means the base
prospectus included in such registration statement (and any amendments thereto), the prospectus
supplement filed with the Commission pursuant to Rule 424(b)(5) under the Securities Act on May 11,
2009, and the prospectus included in the Registration Statement at the time of its effectiveness
that omits Rule 430 Information, and the term “Prospectus” means the prospectus in the form first
used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act)
in connection with confirmation of sales of the Securities. Any reference in this Agreement to the
Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under
the Securities Act, as of the effective date of the Registration Statement or the date of such
Preliminary Prospectus or the Prospectus, as the case may be and any reference to “amend”,
“amendment” or “supplement” with respect to the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any documents filed after such date under
the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Exchange Act”) that are deemed to be incorporated by reference
therein. Capitalized terms used but not defined herein shall have the meanings given to such terms
in the Registration Statement and the Prospectus.
At or prior to the time when sales of the Securities were first made (the “Time of Sale”), the
Company had prepared the following information (collectively the “Time of Sale Information”): a
Preliminary Prospectus dated May 11, 2009, and each “free-writing prospectus” (as defined pursuant
to Rule 405 under the Securities Act) listed on Annex C hereto.
2. Purchase of the Securities by the Underwriters. (a) The Company agrees to issue
and sell the Securities to the several Underwriters as provided in this Agreement, and each
Underwriter, on the basis of the representations, warranties and agreements set forth herein and
subject to the other terms and conditions set forth herein, agrees, severally and not jointly, to
purchase from the Company the respective principal amount of Securities set forth opposite such
Underwriter’s name in Schedule 1 hereto at a price equal to 93.067% of the principal amount thereof
plus accrued interest, if any, from May 14, 2009 to the Closing Date (as defined below). The
public offering price of the Securities is not in excess of the price recommended by Tudor,
Pickering, Xxxx & Co. Securities, Inc. acting as a “qualified independent underwriter” within the
meaning of NASD Rule 2720 of the Financial Industry Regulatory Authority, Inc. (“FINRA”). The
Company will not be obligated to deliver any of the Securities except upon payment for all the
Securities to be purchased as provided herein.
(b) The Company understands that the Underwriters intend to make a public offering of the
Securities as soon after the effectiveness of this Agreement as in the judgment of the
Representatives is advisable, and initially to offer the Securities on the terms set forth in the
Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell
Securities to or through any affiliate of an Underwriter
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and that any such affiliate may offer and sell Securities purchased by it to or through any
Underwriter.
(c) Payment for and delivery of the Securities will be made at the offices of Xxxxx Xxxx &
Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 A.M., New York City time, on May
14, 2009, or at such other time or place on the same or such other date, not later than the fifth
business day thereafter, as the Representatives and the Company may agree upon in writing. The
time and date of such payment and delivery is referred to herein as the “Closing Date”.
(d) Payment for the Securities shall be made by wire transfer in immediately available funds
to the account(s) specified by the Company to the Representatives against delivery to the nominee
of The Depository Trust Company, for the account of the Underwriters, of one or more global notes
representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in
connection with the sale of the Securities duly paid by the Company. The Global Note will be made
available for inspection by the Representatives not later than 1:00 P.M., New York City time, on
the business day prior to the Closing Date.
(e) The Company acknowledges and agrees that the Underwriters are acting solely in the
capacity of an arm’s length contractual counterparty to the Company with respect to the offering of
Securities contemplated hereby (including in connection with determining the terms of the offering)
and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person.
Additionally, neither of the Representatives nor any other Underwriter is advising the Company or
any other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Company.
3. Representations and Warranties of the Company. The Company represents and warrants
to each Underwriter that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of
filing thereof, complied in all material respects with the Securities Act and did not contain any
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 made, not misleading; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such
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Underwriter through the Representatives expressly for use in any Preliminary Prospectus.
(b) Time of Sale Information. The Time of Sale Information, at the Time of Sale did not, and
at the Closing Date will not, contain any 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 that the Company makes no
representation and warranty with respect to any statements or omissions made in reliance upon and
in conformity with information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in such Time of Sale Information.
No statement of material fact included in the Prospectus has been omitted from the Time of Sale
Information and no statement of material fact included in the Time of Sale Information that is
required to be included in the Prospectus has been omitted therefrom.
(c) Issuer Free Writing Prospectus. Other than the Preliminary Prospectus and the Prospectus,
the Company (including its agents and representatives, other than the Underwriters in their
capacity as such) has not made, used, prepared, authorized, approved or referred to and will not
prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule
405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy
the Securities (each such communication by the Company or its agents and representatives (other
than a communication referred to in clause (i) below) an “Issuer Free Writing Prospectus”) other
than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the
Securities Act or Rule 134 under the Securities Act or (ii) the documents listed on Annex C hereto
and other written communications approved in writing in advance by the Representatives. Each such
Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been
filed in accordance with the Securities Act (to the extent required thereby) and, when taken
together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, such
Issuer Free Writing Prospectus, did not, and at the Closing Date will not, contain any 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 that the Company makes no representation and warranty with respect to any
statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus.
(d) Registration Statement and Prospectus. The Registration Statement is an “automatic shelf
registration statement” as defined under Rule 405 of the Securities Act that has been filed with
the Commission not earlier than three years prior to the date hereof; and no notice of objection of
the Commission to the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order
suspending the
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effectiveness of the Registration Statement has been issued by the Commission and no proceeding for
that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the
offering has been initiated or threatened by the Commission; as of the applicable effective date of
the Registration Statement and any amendment thereto, the Registration Statement complied and will
comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust
Indenture Act”), and did not and will not contain any 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 not misleading; and as of the date of the Prospectus and any amendment or supplement
thereto and as of the Closing Date, the Prospectus will not contain any 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 made, not
misleading; provided that the Company makes no representation and warranty with respect to
(i) that part of the Registration Statement that constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or
omissions made in reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the Representatives expressly for
use in the Registration Statement and the Prospectus and any amendment or supplement thereto.
(e) Incorporated Documents. The documents incorporated by reference in the Registration
Statement, the Prospectus or the Time of Sale Information, when they were filed with the
Commission, conformed in all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and none of such documents contained any 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, in the light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated by reference in the Registration
Statement, the Prospectus or the Time of Sale Information, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and will not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading.
(f) Financial Statements. The audited financial statements of the Company included or
incorporated by reference in the Registration Statement, the Time of Sale Information and the
Prospectus, together with the related notes and schedules, comply in all material respects with the
applicable requirements of the Securities Act and the Exchange Act, as applicable, and present
fairly in all material respects the consolidated financial position of the Company and its
subsidiaries as of the dates indicated and the consolidated results of operations and cash flows of
the Company and its subsidiaries for the periods specified and have been prepared in compliance in
all material respects with the requirements of the Exchange Act and in conformity with generally
accepted
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accounting principles (“GAAP”) applied on a consistent basis during the periods involved and the
supporting schedules included or incorporated by reference in the Registration Statement present
fairly the information required to be stated therein. The other financial and accounting data,
including the unaudited financial statements, included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus, have been derived from the
accounting records of the Company and its subsidiaries and present fairly the information shown
therein, in all material respects.
(g) No Material Adverse Change. Subsequent to the respective dates as of which information is
given or incorporated by reference in the Registration Statement, the Time of Sale Information and
the Prospectus, and except as may be otherwise stated or incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus, there has not been (A) any
material and unfavorable change, financial or otherwise, in the business, properties, prospects,
regulatory environment, results of operations or condition (financial or otherwise) of the Company
and its Subsidiaries, taken as a whole, (B) any transaction entered into by the Company or any of
its Subsidiaries, which is material to the Company and its Subsidiaries, taken as a whole, or (C)
any obligation, contingent or otherwise, directly or indirectly, incurred by the Company or any of
its Subsidiaries which is material to the Company and its Subsidiaries, taken as a whole.
(h) Organization and Good Standing of the Company. 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
full corporate power and authority to own, lease and operate its properties and conduct its
business in all material respects as described in the Registration Statement, the Time of Sale
Information and the Prospectus. The Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the ownership or leasing of its
properties or the conduct of its business requires such qualification, except where the failure to
be so qualified and in good standing would not, individually or in the aggregate, have a material
adverse effect on the operations, business, prospects, properties, financial condition or results
of operation of the Company and its Subsidiary Guarantors taken as a whole (a “Material Adverse
Effect”).
(i) Organization and Good Standing of Subsidiary Guarantors. American Energy Systems, LLC;
Mountain Front Partners, LLC; Range Energy I, Inc.; Range Energy Services Company; Range Holdco,
Inc.; Range Operating New Mexico, Inc.; Range Operating Texas, LLC; Range Production Company; Range
Resources — Appalachia, LLC; Range Resources — Midcontinent, LLC; Range Resources — Pine
Mountain, Inc.; Range Texas Production, LLC; and REVC Holdco, LLC (the “Subsidiary Guarantors”),
include each subsidiary of the Company that constitutes a “significant subsidiary” of the Company
as defined by Rule 1-02 of Regulation S-X; no other subsidiaries of the Company would, individually
or in the aggregate, constitute such a significant subsidiary; each Subsidiary Guarantor has been
duly organized and is validly existing as a corporation, limited liability company or limited
partnership and (in those jurisdictions in which good standing is a relevant concept for such type
of entity) is in good standing under
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the laws of the jurisdiction of its organization, with full corporate, limited liability company
or partnership power and authority to own, lease and operate its properties and to conduct its
business in all material respects as described in the Registration Statement, the Time of Sale
Information and the Prospectus; each Subsidiary Guarantor is duly qualified to do business as a
foreign corporation, limited liability company or limited partnership and (in those jurisdictions
in which good standing is a relevant concept for such type of entity) is in good standing in each
jurisdiction where the ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so qualified and in good standing would
not, individually or in the aggregate, have a Material Adverse Effect; all of the outstanding
shares of capital stock of each of the Subsidiary Guarantors that is a corporation have been duly
and validly authorized and issued, are fully paid and non-assessable, the outstanding membership
interest of American Energy Systems, LLC, has been issued in accordance with the organizational
documents of American Energy Systems, LLC, the outstanding membership interest of Mountain Front
Partners LLC, has been issued in accordance with the organizational documents of Mountain Front
Partners LLC, the outstanding membership interest of Range Operating Texas, LLC, has been issued in
accordance with the organizational documents of Range Operating
Texas, LLC, the outstanding membership interest of Range Resources — Appalachia, LLC, has been issued in
accordance with the organizational documents of Range Resources — Appalachia, LLC, the outstanding
membership interest of Range Resources — Midcontinent, LLC, has been issued in accordance with the
organizational documents of Range Resources — Midcontinent, LLC, the outstanding membership
interest of Range Texas Production, LLC, has been issued in accordance with the organizational
documents of Range Texas Production, LLC and the outstanding membership interest of REVC Holdco,
LLC, has been issued in accordance with the organizational documents of REVC Holdco, LLC, and,
except as described in the Registration Statement, the Time of Sale Information and the Prospectus,
are owned, directly or indirectly, by the Company, subject to no security interest, other
encumbrance or adverse claims.
(j) Capitalization. The Company had an authorized and outstanding capitalization as set forth
under the column heading entitled “Actual” in the section of the Registration Statement, the Time
of Sale Information and the Prospectus entitled “Capitalization” and, as adjusted to give effect to
the offering of the Securities and the application of the net proceeds therefrom as described in
the “Use of Proceeds” section of the Registration Statement, the Time of Sale Information and the
Prospectus; assuming the accuracy of the transaction expenses and the pricing terms for the
offering of the Securities used in the section of the Registration Statement, the Time of Sale
Information and the Prospectus entitled “Capitalization,” the Company would, as of March 31, 2009,
have had an authorized and outstanding capitalization as set forth under the column heading
entitled “As adjusted” in the section of the Registration Statement, the Time of Sale Information
and the Prospectus entitled “Capitalization”; all of the issued and outstanding shares of capital
stock of the Company have been duly authorized and validly issued and are fully paid and
non-assessable.
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(k) Due Authorization. The Company has full right, power and authority to execute and deliver
this Agreement, the Securities and the Indenture (collectively, the “Transaction Documents”) and to
perform its obligations hereunder and thereunder; and all action required to be taken for the due
and proper authorization, execution and delivery of each of the Transaction Documents and the
consummation of the transactions contemplated thereby has been duly and validly taken.
(l) The Indenture. The Indenture has been duly authorized, executed and delivered by the
Company and constitutes a legal, valid and binding agreement of the Company, enforceable in
accordance with its terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or similar laws affecting creditors’
rights generally and general principles of equity; the Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended.
(m) The Guarantees. The Guarantees, as defined in the Indenture, have been duly authorized,
executed and delivered by the Subsidiary Guarantors, and, assuming the due authorization, execution
and delivery of the Securities by the Trustee and upon payment for and delivery of the Notes in
accordance with the Underwriting Agreement, each Guarantee will constitute a legal, valid and
binding agreement of each Subsidiary Guarantor, enforceable against each Subsidiary Guarantor in
accordance with its terms except that (A) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or similar laws affecting creditors’
rights generally, or by general principles of equity, whether enforcement is considered in a
proceeding in equity or at law, and the discretion of the court before which any proceeding
therefor may be brought and (B) the rights to indemnity and contribution may be limited by
applicable law, rule, regulation or judicial determination or interpretation of the Commission.
(n) The Securities. The Securities have been duly authorized by the Company and when duly
executed and delivered by the Company and duly authenticated by the Trustee in accordance with the
terms of the Indenture and delivered to and paid for by the Underwriters in accordance with the
terms hereof, will constitute legal, valid and binding obligations of the Company, enforceable in
accordance with their terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or similar laws affecting creditors’
rights generally and general principles of equity, and will be entitled to the benefits of the
Indenture.
(o) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered
by the Company.
(p) Descriptions of the Transaction Documents. Each Transaction Document conforms in all
material respects to the description thereof contained in the Registration Statement, the Time of
Sale Information and the Prospectus.
(q) No Violation, Default or Conflicts. Neither the Company nor any of its Subsidiary
Guarantors is in breach or violation of, or in default under (nor has any event occurred which with
notice, lapse of time or both would result in any breach or violation
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of, or constitute a default), (i) its respective charter or bylaws or (ii) any indenture, mortgage,
deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any material
license, material lease, material contract or other material agreement or material instrument to
which the Company or any of its Subsidiary Guarantors is a party or by which any of them or any of
their properties may be bound or affected, or under any federal, state, local or foreign law,
regulation or rule or any decree, judgment or order applicable to the Company or any of its
Subsidiary Guarantors; and the execution, delivery and performance of the Transaction Documents and
consummation of the transactions contemplated hereby and thereby, including the issuance of the
Securities, will not conflict with, result in any breach or violation of or constitute a default
under (nor constitute any event which with notice, lapse of time or both would result in any breach
or violation of or constitute a default under), (x) the charter or bylaws of the Company or any of
the Subsidiary Guarantors or (y) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any material license, material lease, material
contract or other material agreement or material instrument to which the Company or any of the
Subsidiary Guarantors is a party or by which any of them or any of their properties may be bound or
affected, or under any federal, state, local or foreign law, regulation or rule or any decree,
judgment or order applicable to the Company or any of the Subsidiary Guarantors, which conflicts,
breaches, violations or defaults listed in clause (y) of this subparagraph (p) would, individually
or in the aggregate, have a Material Adverse Effect.
(r) No Consents Required. No approval, authorization, consent or order of or filing with any
federal, state, local or foreign governmental or regulatory commission, board, body, authority or
agency, or of or with the rules of the New York Stock Exchange, or approval of the stockholders of
the Company, is required in connection with the issuance and sale by the Company of the Securities
or the consummation of the transactions as contemplated hereby and by the Transaction Documents
other than as may be required under the securities or blue sky laws of the various jurisdictions in
which the Securities are being offered by the Underwriters.
(s) Legal Proceedings. Except as described in the Registration Statement, the Time of Sale
Information and the Prospectus, (i) there are no actions, suits, claims, investigations or
proceedings pending or threatened or, to the knowledge of the Company after due inquiry,
contemplated to which the Company or any of its Subsidiary Guarantors or any of their respective
directors or officers is or would be a party or of which any of their respective properties is or
would be subject, at law or in equity, or before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or agency, which would result in a
judgment, decree or order either (A) having a Material Adverse Effect or (B) preventing the
consummation of the transactions contemplated hereby and by the Indenture and the Securities, (ii)
there are no current or pending legal, governmental or regulatory actions, suits or proceedings
that are required under the Securities Act to be described in the Registration Statement that are
not so described in the Registration Statement, the Time of Sale Information and the Prospectus and
(iii) there are no statutes, regulations or contracts or other
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documents that are required under the Securities Act to be filed as exhibits to the Registration
Statement or described in the Registration Statement or the Prospectus that are not so filed as
exhibits to the Registration Statement or described in the Registration Statement, the Time of Sale
Information or the Prospectus.
(t) Independent Accountants. Ernst & Young LLP, whose report on the consolidated financial
statements of the Company is included or incorporated by reference in the Registration Statement,
the Time of Sale Information and the Prospectus, was at the time of such report independent public
accountants with respect to the Company, as required by the Securities Act and the Exchange Act,
and the applicable published rules and regulations thereunder.
(u) Title to Real and Personal Property. The Company and each of the Subsidiary Guarantors
has good and marketable title to all property (real and personal) described or incorporated by
reference in the Registration Statement, the Time of Sale Information and the Prospectus as being
owned by each of them, free and clear of all liens, claims, security interests or other
encumbrances, except as such do not materially interfere with the use of such property taken as a
whole as described in the Registration Statement, the Time of Sale Information and the Prospectus;
all the real property described in the Registration Statement, the Time of Sale Information and the
Prospectus as being held under lease by the Company or a Subsidiary Guarantor is held thereby under
valid, subsisting and enforceable leases with such exceptions as do not materially interfere with
the use of such property taken as a whole as described in the Registration Statement, the Time of
Sale Information and the Prospectus.
(v) Title to Intellectual Property. Each of the Company and its Subsidiary Guarantors own, or
have obtained valid and enforceable licenses for, or other adequate rights to use, all material
inventions, patent applications, patents, trademarks (both registered and unregistered),
tradenames, copyrights, trade secrets and other proprietary information described or incorporated
by reference in the Registration Statement, the Time of Sale Information and the Prospectus as
being owned or licensed by them or which are necessary for the conduct of their respective
businesses, except where the failure to own, license or have such rights would not, individually or
in the aggregate, have a Material Adverse Effect (collectively, “Intellectual Property”); and the
conduct of their respective businesses will not conflict in any material respect with, and neither
of the Company nor any of its Subsidiary Guarantors has received notice of any claim or conflict
with, any rights of others.
(w) Investment Company Act. Neither the Company nor any of the Subsidiary Guarantors is, nor
after giving effect to the offering and sale of the Securities and the application of the proceeds
thereof as described in the Registration Statement, the Time of Sale Information and the Prospectus
will any of them be, required to register as an “investment company” under the Investment Company
Act of 1940, as amended.
(x) Licenses and Permits. Each of the Company and its Subsidiary Guarantors has all necessary
licenses, authorizations, consents and approvals (collectively,
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“Consents”) and has made all necessary filings required under any federal, state, local or foreign
law, regulation or rule (“Filings”) and has obtained all necessary Consents from other persons, in
order to conduct their respective businesses, except where the failure to have any such Consent or
to have made any such Filing would not have a Material Adverse Effect; neither the Company nor any
of its Subsidiary Guarantors is in violation of, or in default under, any such Consent which
violation or default would have a Material Adverse Effect.
(y) No Labor Disputes. Neither the Company nor its Subsidiary Guarantors are involved in any
labor dispute with their respective employees nor, to the knowledge of the Company, is any such
dispute threatened except, in each case, for disputes which would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
(z) Compliance With Environmental Laws. The Company and its Subsidiary Guarantors and their
properties, assets and operations are in material compliance with, and hold all material permits,
authorizations and approvals required under, Environmental Laws (as defined below), except to the
extent that failure to so comply or to hold such permits, authorizations or approvals would not,
individually or in the aggregate, have a Material Adverse Effect; there are no past or present
events, conditions, circumstances, activities, practices, actions, omissions or plans that could
reasonably be expected to give rise to any material costs or liabilities to the Company or its
Subsidiary Guarantors under Environmental Laws except as would not, individually or in the
aggregate, have a Material Adverse Effect; except as would not, individually or in the aggregate,
have a Material Adverse Effect, the Company and each of the Subsidiary Guarantors (i) is not the
subject of any investigation, (ii) has not received any notice or claim, (iii) is not a party to or
affected by any pending or threatened action, suit or proceeding, (iv) is not bound by any
judgment, decree or order or (v) has not entered into any agreement, in each case relating to any
alleged violation of any Environmental Law or any actual or alleged release or threatened release
or cleanup at any location of any Hazardous Materials (as defined below) (as used herein,
“Environmental Law” means any federal, state, local or foreign law, statute, ordinance, rule,
regulation, order, decree, judgment, injunction, permit, license, authorization or other binding
requirement, or common law, relating to health, safety or the protection, cleanup or restoration of
the environment or natural resources, including those relating to the distribution, processing,
generation, treatment, storage, disposal, transportation, other handling or release or threatened
release of Hazardous Materials, and “Hazardous Materials” means any material (including, without
limitation, pollutants, contaminants, hazardous or toxic substances or wastes) that is regulated by
or may give rise to liability under any Environmental Law.
(aa) Disclosure Controls. The Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act); such
disclosure controls and procedures are designed to ensure that material information relating to the
Company, including its consolidated subsidiaries, is made known to the Company’s Chief Executive
Officer and its Chief
11
Financial Officer by others within those entities, and such disclosure controls and procedures are
effective to perform the functions for which they were established; the Company’s auditors and the
Audit Committee of the Board of Directors have been advised of: (i) any significant deficiencies in
the design or operation of internal controls which could adversely affect the Company’s ability to
record, process, summarize, and report financial data; and (ii) any fraud, whether or not material,
that involves management or other employees who have a role in the Company’s internal controls; any
material weaknesses in internal controls have been identified for the Company’s auditors; and since
the date of the most recent evaluation of such disclosure controls and procedures, there have been
no significant changes in internal controls or in other factors that could significantly affect
internal controls, including any corrective actions with regard to significant deficiencies and
material weaknesses.
(bb) Accounting Controls. The Company and each of the Subsidiary Guarantors maintains a
system of internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management’s general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any differences.
(cc) Insurance. The Company and its Subsidiary Guarantors maintain insurance of the types and
in the amounts reasonably believed to be adequate for their business and consistent in all material
respects with insurance coverage maintained by similar companies in similar businesses, all of
which insurance is in full force and effect.
(dd) No Other Underwriters. Except as described in the Registration Statement, the Time of
Sale Information and the Prospectus, no person has the right to act as an underwriter or as a
financial advisor to the Company in connection with the offer and sale of the Securities, whether
as a result of the sale of the Securities as contemplated hereby or otherwise.
(ee) No Stabilization. Neither the Company nor any affiliate has taken, directly or
indirectly, any action designed, or which has constituted or might reasonably be expected to cause
or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price
of any security of the Company to facilitate the sale of the Securities.
(ff) Reserves. Other than as disclosed in the Registration Statement, the Time of Sale
Information and the Prospectus, the proved reserves for crude oil and natural gas for each of the
periods presented in the Registration Statement, the Time of Sale Information and the Prospectus
were prepared in accordance with the Statement of Financial Accounting Standards No. 69 and Rule
4-10 of Regulation S-X.
12
(gg) Xxxxxxxx-Xxxxx Act. There is and has been no failure on the part of the Company and its
Subsidiary Guarantors or any of the officers and directors of the Company or any of its Subsidiary
Guarantors, in their capacities as such, to comply in all material respects with the provisions of
the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations in connection therewith, including
without limitation Section 402 related to loans and Sections 302 and 906 related to certifications.
(hh) Status under the Securities Act. The Company is not an ineligible issuer and is a
well-known seasoned issuer, in each case as defined under the Securities Act, in each case at the
times specified in the Securities Act in connection with the offering of the Securities.
4. Further Agreements of the Company. The Company covenants and agrees with each
Underwriter that:
(a) Required Filings. The Company will file the final Prospectus with the Commission within
the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act,
will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the
Securities Act; and will file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as
the delivery of a prospectus is required in connection with the offering or sale of the Securities;
and the Company will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to
the extent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New
York City time, on the business day next succeeding the date of this Agreement in such quantities
as the Representatives may reasonably request. The Company will pay the registration fees for this
offering within the time period required by Rule 456(b)(i) under the Securities Act prior to the
Closing Date.
(b) Delivery of Copies. The Company will make available to each Underwriter electronically
through XXXXX the Registration Statement as originally filed and each amendment thereto, in each
case including all exhibits and consents filed therewith and documents incorporated by reference
therein; and (ii) make available to each Underwriter electronically through XXXXX (A) a conformed
copy of the Registration Statement as originally filed and each amendment thereto filed prior to
the later of (x) Closing or (y) the expiration of the Prospectus Delivery Period or otherwise
relating to the Securities, in each case including all exhibits and consents filed therewith and
(B) deliver, without charge, during the Prospectus Delivery Period (as defined below), as many
copies of the Prospectus (including all amendments and supplements thereto and documents
incorporated by reference therein) and each Issuer Free Writing Prospectus as the Representatives
may reasonably request. As used herein, the term “Prospectus Delivery Period” means such period of
time after the first date of the public offering of the Securities as in the opinion of counsel for
the Underwriters a prospectus relating to the Securities is required by law to be delivered (or
required to be delivered but for Rule
13
172 under the Securities Act) in connection with sales of the Securities by any Underwriter or dealer.
(c) Amendments or Supplements; Issuer Free Writing Prospectuses. Prior to the later of (i)
Closing or (ii) the expiration of the Prospectus Delivery Period, before preparing, using,
authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before
filing any amendment or supplement to the Registration Statement or the Prospectus, whether before
or after the time that the Registration Statement becomes effective the Company will furnish to the
Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing
Prospectus, amendment or supplement for review and will not prepare, use, authorize, approve, refer
to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or
supplement to which the Representatives reasonably object.
(d) Notice to the Representatives. The Company will advise the Representatives promptly, and
confirm such advice in writing, (i) when any amendment to the Registration Statement filed prior to
the later of (x) Closing or (y) the expiration of the Prospectus Delivery Period or otherwise
relating to the Securities has been filed or becomes effective; (ii) when any supplement to the
Prospectus or any amendment to the Prospectus or any Issuer Free Writing Prospectus relating to the
Securities has been filed; (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or the receipt of any
comments from the Commission relating to the Registration Statement or any other request by the
Commission for any additional information relating to the Registration Statement or any document
incorporated therein as of the later of (x) Closing or (y) the expiration of the Prospectus
Delivery Period; (iv) of the issuance by the Commission of any order suspending the effectiveness
of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to
Section 8A of the Securities Act; (v) of the occurrence of any event within the Prospectus Delivery
Period as a result of which the Prospectus, the Time of Sale Information or any Issuer Free Writing
Prospectus as then amended or supplemented would include any 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 existing when the Prospectus, the Time of
Sale Information or any such Issuer Free Writing Prospectus is delivered to a purchaser, not
misleading; (vi) of the receipt by the Company of any notice of objection of the Commission to the
use of the Registration Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act; and (vii) of the receipt by the Company of any notice with
respect to any suspension of the qualification of the Securities for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company
will use its reasonable best efforts to prevent the issuance of any such order suspending the
effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification of the Securities and, if any
such order is issued, will use its reasonable best efforts to obtain as soon as possible the
withdrawal thereof.
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(e) Ongoing Compliance. (1) If during the Prospectus Delivery Period (i) any event shall
occur or condition shall exist as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it
is necessary to amend or supplement the Prospectus to comply with law, the Company will promptly
notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file
with the Commission and furnish to the Underwriters and to such dealers as the Representatives may
designate, such amendments or supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will not, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that
the Prospectus will comply with law and (2) if at any time prior to the Closing Date (i) any event
shall occur or condition shall exist as a result of which the Time of Sale Information as then
amended or supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances,
not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to
comply with law, the Company will promptly notify the Underwriters thereof and forthwith prepare
and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish
to the Underwriters and to such dealers as the Representatives may designate, such amendments or
supplements to the Time of Sale Information as may be necessary so that the statements in the Time
of Sale Information as so amended or supplemented will not, in the light of the circumstances, be
misleading or so that the Time of Sale Information will comply with law.
(f) Blue Sky Compliance. The Company will qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request
and will continue such qualifications in effect so long as required for distribution of the
Securities; provided that the Company shall not be required to (i) qualify as a foreign
corporation or other entity or as a dealer in securities in any such jurisdiction where it would
not otherwise be required to so qualify, (ii) file any general consent to service of process in any
such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not
otherwise so subject.
(g) Earning Statement. The Company will make generally available to its security holders and
the Representatives as soon as practicable an earning statement that satisfies the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering
a period of at least twelve months beginning with the first fiscal quarter of the Company occurring
after the “effective date” (as defined in Rule 158) of the Registration Statement.
(h) Clear Market. During the period from the date hereof through and including the date that
is 60 days after the date hereof, the Company will not, without the prior written consent of X.X.
Xxxxxx Securities Inc., offer, sell, contract to sell or
15
otherwise dispose of any debt securities issued or guaranteed by the Company and having a tenor of
more than one year.
(i) Use of Proceeds. The Company will apply the net proceeds from the sale of the Securities
as described in the Registration Statement, the Time of Sale Information and the Prospectus under
the heading “Use of Proceeds”.
(j) No Stabilization. The Company will not take, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Securities.
(k) Record Retention. The Company will, pursuant to reasonable procedures developed in good
faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission
in accordance with Rule 433 under the Securities Act.
5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and
agrees that:
(a) It has not and will not use, authorize use of, refer to, or participate in the planning
for use of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act (which
term includes use of any written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any press release issued by the
Company) other than (i) a free writing prospectus that, solely as a result of use by such
Underwriter, would not trigger an obligation to file such free writing prospectus with the
Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Annex C or
prepared pursuant to Section 3(c) or Section 4(c) above, or (iii) any free writing prospectus
prepared by such Underwriter and approved by the Company in advance in writing (each such free
writing prospectus referred to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”).
Notwithstanding the foregoing, the Underwriters may use a term sheet substantially in the form of
Annex D hereto without the consent of the Company.
(b) It is not subject to any pending proceeding under Section 8A of the Securities Act with
respect to the offering (and will promptly notify the Company if any such proceeding against it is
initiated during the Prospectus Delivery Period).
6. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to
purchase Securities on the Closing Date as provided herein is subject to the performance by the
Company of its covenants and other obligations hereunder and to the following additional
conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule
401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened
by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely
filed with
16
the Commission under the Securities Act (in the case of a Issuer Free Writing Prospectus, to the
extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof;
and all requests by the Commission for additional information shall have been complied with to the
reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The representations and warranties of the Company
contained herein shall be true and correct on the date hereof and on and as of the Closing Date;
and the statements of the Company and its officers made in any certificates delivered pursuant to
this Agreement shall be true and correct on and as of the Closing Date.
(c) No Downgrade. Between the time of execution of this Agreement and the Closing Date, there
shall not have occurred any downgrading, nor shall any notice have been given of (i) any intended
or potential downgrading or (ii) any watch, review or possible change that does not indicate an
affirmation or improvement in the rating accorded any securities of or guaranteed by the Company or
any Subsidiary Guarantor by any “nationally recognized statistical rating organization,” as that
term is defined in Rule 436(g)(2) under the Securities Act.
(d) No Material Adverse Change. Between the time of execution of this Agreement and the
Closing Date, (i) no material adverse change or development involving a prospective material
adverse change in the business, properties, management, financial condition or results of
operations of the Company and the Subsidiary Guarantors taken as a whole shall occur or become
known and (ii) no transaction which is material and unfavorable to the Company (other than as
disclosed in the Registration Statement, the Time of Sale Information and the Prospectus) shall
have been entered into by the Company or any of its Subsidiary Guarantors, the effect of which, in
any case under this Section 6(d), is so material and adverse as to make it impracticable to proceed
with the offering, sale or delivery of the Securities being delivered at the time of purchase on
the terms and in the manner contemplated in the Registration Statement, the Time of Sale
Information and the Prospectus.
(e) Officer’s Certificate. The Representatives shall have received on and as of the Closing
Date a certificate of its Chief Executive Officer and its Chief Financial Officer in the form
attached as Annex B hereto.
(f) Comfort Letters from Ernst & Young LLP. On the date of this Agreement and on the Closing
Date, Ernst & Young LLP shall have furnished to the Representatives, at the request of the Company,
letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form
and substance reasonably satisfactory to the Representatives, containing statements and information
of the type customarily included in accountants’ “comfort letters” to underwriters with respect to
the financial statements and certain financial information contained or incorporated by reference
in the Registration Statement, the Time of Sale Information and the
17
Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off”
date no more than three business days prior to the Closing Date.
(g) Opinion of Counsel for the Company. Xxxxxx & Xxxxxx LLP, counsel for the Company, shall
have furnished to the Representatives, at the request of the Company, their written opinion, dated
the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory
to the Representatives, to the effect set forth in Annex A hereto.
(h) Opinion of Counsel for the Underwriters. The Representatives shall have received on and
as of the Closing Date an opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, with
respect to such matters as the Representatives may reasonably request, and such counsel shall have
received such documents and information as they may reasonably request to enable them to pass upon
such matters.
(i) Qualified Independent Underwriter Letter. On the date hereof, the Company shall have
received an executed letter from Tudor, Pickering, Xxxx & Co. Securities, Inc. which sets forth a
recommendation for the yield on the Notes (the “QIU Letter”) and the Company shall have delivered a
copy of the QIU Letter to the Representatives.
(j) Additional Documents. On or prior to the Closing Date, the Company shall have furnished
to the Representatives such further certificates and documents as the Representatives may
reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities (including, without
limitation, reasonable legal fees and other expenses incurred in connection with any suit, action
or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several,
that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary in order to make the
statements therein, not misleading, (ii) or any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free
Writing Prospectus or any Time of Sale Information, or caused by any omission or alleged omission
to state therein a material fact necessary in order to make the statements therein, in light of the
circumstances
18
under which they were made, not misleading, in each case except insofar as such losses, claims,
damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with any information relating
to any Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use therein.
The Company also agrees to indemnify and hold harmless Tudor, Pickering, Xxxx & Co.
Securities, Inc., its affiliates, directors and officers and each person, if any, who controls
Tudor, Pickering, Xxxx & Co. Securities, Inc. within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and
liabilities incurred as a result of Tudor, Pickering, Xxxx & Co. Securities, Inc.’s acts or
omissions to act in connection with its participation as a “qualified independent underwriter”
within the meaning of NASD Rule 2720 of FINRA in connection with the offering of the Securities.
(b) Indemnification of the Company. Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise
out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to such Underwriter furnished
to the Company in writing by such Underwriter through the Representatives expressly for use in the
Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free
Writing Prospectus or any Time of Sale Information, it being understood and agreed that the only
such information consists of the following: the last two paragraphs of the section entitled
“Underwriting” in the Prospectus.
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such
person (the “Indemnified Person”) shall promptly notify the person against whom such
indemnification may be sought (the “Indemnifying Person”) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
under paragraphs (a) and (b) above except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under paragraphs (a) and (b)
above. If any such proceeding shall be brought or asserted against an Indemnified Person and it
shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the
Indemnified Person, be counsel to the Indemnifying Person) to represent the
19
Indemnified Person in such proceeding and shall pay the fees and expenses of such counsel related
to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, or (ii) the Indemnifying Person has failed within a reasonable
time to retain counsel reasonably satisfactory to the Indemnified Person. It is understood and
agreed that the Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred; provided, however that if indemnity may
be sought pursuant to the second paragraph of Section 7(a) above in respect of such proceeding,
then in addition to such separate firm of the Underwriters, their affiliates and such control
persons of the Underwriters the indemnifying party shall be liable for the fees and expenses of not
more than one separate firm (in addition to any local counsel) for Tudor, Pickering, Xxxx & Co.
Securities, Inc. in its capacity as a “qualified independent underwriter”, its affiliates,
directors, officers and all persons, if any, who control Tudor, Pickering, Xxxx & Co. Securities,
Inc. within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act. Any such separate firm for any Underwriter, its affiliates, directors and officers and any
control persons of such Underwriter shall be designated in writing by X.X. Xxxxxx Securities Inc.
and any such separate firm for the Company, its directors, its officers who signed the Registration
Statement and any control persons of the Company shall be designated in writing by the Company.
The Indemnifying Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final judgment for the
plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any
loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person
reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30 days after receipt
by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person,
effect any settlement of any pending or threatened proceeding in respect of which any Indemnified
Person is or could have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (x) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from
all liability on claims that are the subject matter of such proceeding and (y) does not include any
statement as to or any admission of fault, culpability or a failure to act by or on behalf of any
Indemnified Person.
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(d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be deemed to be in the same respective
proportions as the net proceeds (before deducting expenses) received by the Company from the sale
of the Securities and the total underwriting discounts and commissions received by the Underwriters
in connection therewith, in each case as set forth in the table on the cover of the Prospectus,
bear to the aggregate offering price of the Securities. The relative fault of the Company on the
one hand and the Underwriters on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company or by the
Underwriters, and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) Limitation on Liability. 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 that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Person in connection with any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Underwriter be required to contribute any amount
in excess of the amount by which the total underwriting discounts and commissions received by such
Underwriter with respect to the offering of the Securities exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations
to contribute pursuant to this Section 7 are several in proportion to their respective purchase
obligations hereunder and not joint.
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(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
8. Effectiveness of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
9. Termination. This Agreement may be terminated in the absolute discretion of the
Representatives, by notice to the Company, if after the execution and delivery of this Agreement
and prior to the Closing Date there shall have occurred (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the
NASDAQ; (ii) a suspension or material limitation in trading in the Company’s securities on the New
York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either
federal or New York State authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iv) an outbreak or escalation of
hostilities or acts of terrorism involving the United States or a declaration by the United States
of a national emergency or war; or (v) any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere, if the effect of any such event
specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in
the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
10. Defaulting Underwriter. (a) If, on the Closing Date, any Underwriter defaults on
its obligation to purchase the Securities that it has agreed to purchase hereunder, the
non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by
other persons satisfactory to the Company on the terms contained in this Agreement. If, within 36
hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for
the purchase of such Securities, then the Company shall be entitled to a further period of 36 hours
within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase
such Securities on such terms. If other persons become obligated or agree to purchase the
Securities of a defaulting Underwriter, either the non-defaulting Underwriters or the Company may
postpone the Closing Date for up to five full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the
Registration Statement and the Prospectus or in any other document or arrangement, and the Company
agrees to promptly prepare any amendment or supplement to the Registration Statement and the
Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter”
includes, for all purposes of this Agreement unless the context otherwise requires, any person not
listed in Schedule 1 hereto that, pursuant to this Section 10, purchases Securities that a
defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the
22
Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that
remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the
Securities, then the Company shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Securities that such Underwriter agreed to purchase hereunder plus
such Underwriter’s pro rata share (based on the principal amount of Securities that
such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the
Company shall not exercise the right described in paragraph (b) above, then this Agreement shall
terminate without liability on the part of the non-defaulting Underwriters. Any termination of
this Agreement pursuant to this Section 10 shall be without liability on the part of the Company,
except that the Company will continue to be liable for the payment of expenses as set forth in
Section 11 hereof and except that the provisions of Section 7 hereof shall not terminate and shall
remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its default.
11. Payment of Expenses. (a) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid
all costs and expenses incident to the performance of its obligations hereunder, including without
limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery
of the Securities and any taxes payable in that connection; (ii) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration Statement, the
Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information and the
Prospectus (including all exhibits, amendments and supplements thereto) and the distribution
thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv)
the fees and expenses of the Company’s counsel and independent accountants; (v) the fees and
expenses incurred in connection with the registration or qualification and determination of
eligibility for investment of the Securities under the laws of such jurisdictions as the
Representatives may designate and the preparation, printing and distribution of a Blue Sky
Memorandum (including the related fees and expenses of counsel for the Underwriters); (vi) any fees
charged by rating agencies for rating the Securities; (vii) all expenses and application fees
incurred in connection with any filing with, and clearance of the offering by, FINRA; (viii) the
fees and expenses of the Trustee and any paying agent (including related fees and expenses of any
counsel to such parties); and (ix) all expenses incurred by the Company in connection with any
“road show” presentation to potential investors.
23
(b) If (i) this Agreement is terminated pursuant to Section 9 (other than pursuant to clause
(v) of Section 9 if the Company and the Underwriters subsequently enter into another agreement for
the Underwriters to underwrite the same or substantially similar securities of the Company), (ii)
the Company for any reason fails to tender the Securities for delivery to the Underwriters or (iii)
the Underwriters decline to purchase the Securities for any reason permitted under this Agreement,
the Company agrees to reimburse the Underwriters for all out-of-pocket costs and expenses
(including the reasonable fees and expenses of their counsel) reasonably incurred by the
Underwriters in connection with this Agreement and the offering contemplated hereby.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to herein, and the affiliates of each
Underwriter referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein. No purchaser of Securities from any
Underwriter shall be deemed to be a successor merely by reason of such purchase.
13. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and the Underwriters contained in this Agreement or made
by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall
remain in full force and effect, regardless of any termination of this Agreement or any
investigation made by or on behalf of the Company or the Underwriters.
14. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth in
Rule 405 under the Securities Act.
15. Miscellaneous. (a) Authority of X.X. Xxxxxx Securities Inc. Any action by the
Underwriters hereunder may be taken by X.X. Xxxxxx Securities Inc. on behalf of the Underwriters,
and any such action taken by X.X. Xxxxxx Securities Inc. shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representatives c/o X.X.
Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: 000-000-0000); Attention:
Xx. Xxxxxxxx Xxxxxx, Notices to the Company shall be given to it at the offices of the Company at
000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxxx, Xxxxx 00000 (fax: (000) 000-0000); Attention:
Xxxxx X. Xxxxx.
24
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
25
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
Very truly yours,
RANGE RESOURCES CORPORATION |
||||
By | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Manny | |||
Title: | Executive Vice President and Chief Financial Officer |
|||
Accepted: May 11, 2009
X.X. XXXXXX SECURITIES INC.
For itself and on behalf of the several Underwriters listed in Schedule 1 hereto. |
||||
By | /s/ Xxxxxxxx Xxxxxx | |||
Name: | Xxxxxxxx Xxxxxx | |||
Title: | Executive Director | |||
Schedule 1
Underwriter | Principal Amount | |||
X.X. Xxxxxx Securities Inc. |
$ | 90,000,000 | ||
Banc of America Securities LLC |
36,000,000 | |||
Wachovia Capital Markets, LLC |
22,500,000 | |||
Barclays Capital Inc. |
15,000,000 | |||
BMO Capital Markets Corp. |
15,000,000 | |||
Credit Suisse Securities (USA) LLC |
15,000,000 | |||
Deutsche Bank Securities Inc. |
15,000,000 | |||
RBC Capital Markets Corporation |
15,000,000 | |||
Calyon Securities (USA) Inc. |
10,500,000 | |||
Citigroup Global Markets Inc. |
10,500,000 | |||
KeyBanc Capital Markets Inc. |
10,500,000 | |||
SunTrust Xxxxxxxx Xxxxxxxx, Inc. |
10,500,000 | |||
Fortis Securities LLC |
7,500,000 | |||
BBVA Securities, Inc. |
3,000,000 | |||
Capital One Southcoast, Inc. |
3,000,000 | |||
Comerica Securities, Inc. |
3,000,000 | |||
Natixis Bleichroeder Inc. |
3,000,000 | |||
Scotia Capital (USA) Inc. |
3,000,000 | |||
SG Americas Securities, LLC |
3,000,000 | |||
Tudor, Pickering, Xxxx & Co. Securities, Inc. |
3,000,000 | |||
U.S. Bancorp Investments, Inc. |
3,000,000 | |||
Wedbush Xxxxxx Securities Inc. |
3,000,000 | |||
Total |
$ | 300,000,000 | ||
A-1
Annex A
[Form of Opinion of Counsel for the Company]
(a) The Registration Statement is an “automatic shelf registration statement” as defined under
Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years
prior to the date of the Underwriting Agreement; each of the Preliminary Prospectus and the
Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424 under the
Securities Act specified in such opinion on the date(s) specified therein; and, to the knowledge of
such counsel, no order suspending the effectiveness of the Registration Statement has been issued,
no notice of objection of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been
received by the Company and no proceeding for that purpose or pursuant to Section 8A of the
Securities Act against the Company or in connection with the offering of Securities is pending by
the Commission.
(b) The Registration Statement, the Preliminary Prospectus and the Prospectus (other than (a)
the financial statements and related schedules thereto, including the notes thereto and the
independent registered public accounting firm’s report thereon, (b) the other financial and
statistical data that is included or incorporated by reference therein, or omitted therefrom (c)
the oil and gas reserve reports and related reserve information contained or incorporated by
reference therein, or omitted therefrom, and (d) the documents incorporated by reference in the
Time of Sale Information and the Prospectus or any further amendment or supplement thereto made by
the Company prior to the Closing Date, in each case as to which such counsel need express no
opinion) appear on their face to be appropriately responsive in all material respects to the
requirements of the Securities Act; each Issuer Free Writing Prospectus included in the Time of
Sale Information contains the legend required by Rule 433 of the Securities Act and has been filed
with the Commission to the extent, and within the time period, required pursuant to Rule 433 of the
Securities Act; and the Indenture complies as to form in all material respects with the
requirements of the Trust Indenture Act.
(c) The Company is validly existing and in good standing as a corporation under the laws of
the State of Delaware with all requisite corporate power and authority to own its properties and
conduct its business in all material respects as described in the Registration Statement, the Time
of Sale Information and the Prospectus.
(d) Each of the Subsidiary Guarantors (other than Mountain Front Partners LLC and Range
Resources — Midcontinent, LLC) is validly existing as a corporation or limited liability company,
as applicable, and in good standing under the laws of the State of Delaware; each of Mountain Front
Partners LLC and Range Resources — Midcontinent, LLC is validly existing as a limited liability
company under the laws of the State of Oklahoma; each of the Subsidiary Guarantors (other than
Mountain Front Partners LLC
A-2
and Range Resources —Midcontinent, LLC with respect to which such counsel need not opine) has all
requisite corporate or limited liability company power and authority to own its respective
properties and to conduct its respective business, in all material respects as described in the
Registration Statement, the Time of Sale Information and the Prospectus.
(e) The Company and each of the Subsidiary Guarantors listed on Schedule 1 of such
opinion are (i) duly qualified or licensed to do business as a foreign corporation or limited
liability company in each jurisdiction listed across from each such entity’s name in column A of
Schedule 1 of such opinion and (ii) in good standing in each jurisdiction listed across
from each such entity’s name in column B of Schedule 1 of such opinion, [other than those
jurisdictions in which good standing is not a relevant concept for such entity and, if verbal or
written confirmation of good standing is not available from New York by closing, may omit New York
from such opinion.].
(f) The documents incorporated by reference in the Time of Sale Information and the Prospectus
or any further amendment or supplement thereto made by the Company prior to the Closing Date
(except for (a) the financial statements and related schedules thereto, including the notes thereto
and the independent registered public accounting firm’s report thereon, (b) the other financial and
statistical data that is included or incorporated by reference therein or omitted therefrom and (c)
the oil and gas reserve reports and related reserve information contained or incorporated by
reference therein, in each case as to which we express no opinion), when they were filed with the
Commission, appear on their face to be appropriately responsive in all material respects with the
requirements of the Securities Act or the Exchange Act and the rules and regulations of the
Commission thereunder.
(g) The execution, delivery and performance of the Underwriting Agreement, the Indenture and
the Securities by the Company and the Subsidiary Guarantors, as applicable, and the consummation by
the Company of the transactions contemplated thereby and the issuance of the Securities by the
Company do not conflict with, or result in any breach of, or constitute a default under (nor
constitute any event which with notice, lapse of time, or both would constitute a breach or default
under) (A) any provisions of the Charter or Bylaws of the Company, (B) any Applicable Contract, or
(C) assuming compliance with all applicable state securities laws and assuming the accuracy of the
representations and warranties of the Underwriters contained in the Underwriting Agreement, any
federal or Texas or Delaware state law, regulation or rule or, to our knowledge and without having
investigated governmental records or court dockets, any decree, judgment or order applicable to the
Company or any of the Subsidiary Guarantors, except, in the case of clause (B) and (C), for such
conflicts, breaches or defaults that would not, individually or in the aggregate, result in a
Material Adverse Effect and, in the case of clause (C), such counsel need express no opinion with
respect to the anti-fraud provisions of federal securities laws or with respect to state securities
laws or Blue Sky laws.
(h) The Underwriting Agreement has been duly authorized, executed and delivered by the
Company.
A-3
(i) The Indenture has been duly authorized, executed and delivered by the Company and,
assuming the due authorization, execution and delivery thereof by the Trustee, constitutes a legal,
valid and binding agreement of the Company, enforceable against the Company and the Subsidiary
Guarantors in accordance with its terms except that (A) the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights
generally, or by general principles of equity, whether enforcement is considered in a proceeding in
equity or at law, and the discretion of the court before which any proceeding therefor may be
brought and (B) the rights to indemnity and contribution may be limited by applicable law, rule,
regulation or judicial determination or interpretation of the Commission.
(j) The Guarantees, as defined in the Indenture, have been duly authorized, executed and
delivered by the Subsidiary Guarantors (other than Mountain Front Partners, LLC and Range Resources
— Midcontinent, LLC, as to which such counsel need not opine), and, assuming the due
authorization, execution and delivery of the Securities by the Trustee and upon payment for and
delivery of the Notes in accordance with the Underwriting Agreement, each Guarantee will constitute
a legal, valid and binding agreement of each Subsidiary Guarantor, enforceable against each
Subsidiary Guarantor in accordance with its terms except that (A) the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’
rights generally, or by general principles of equity, whether enforcement is considered in a
proceeding in equity or at law, and the discretion of the court before which any proceeding
therefor may be brought and (B) the rights to indemnity and contribution may be limited by
applicable law, rule, regulation or judicial determination or interpretation of the Commission.
(k) The Securities have been duly authorized by the Company, and when executed and 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 the Underwriting Agreement, (A) will constitute legal,
valid and binding obligations of the Company, enforceable against the Company in accordance with
their terms, except that (i) the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally, or by general
principles of equity, whether enforcement is considered in a proceeding in equity or at law, and
the discretion of the court before which any proceeding therefor may be brought, and (ii) the
rights to indemnity and contribution may be limited by applicable law, rule, regulation or judicial
determination or interpretation of the Commission, and (B) will be entitled to the benefits of the
Indenture.
(l) No approval, authorization, consent or order of or filing with any federal, Texas or
Delaware governmental or regulatory commission, board, body, authority or agency is required in
connection with the issuance and sale by the Company of the Securities as contemplated in the
Underwriting Agreement, other than such as have been obtained under the Securities Act and the
Trust Indenture Act and as may be required under the securities or blue sky laws of the various
jurisdictions in which the Securities are being resold by the Underwriters.
A-4
(m) The statements set forth in the Time of Sale Information and the Prospectus under the
caption “Description of notes” (when taken together with the terms of the Securities set forth in
the Time of Sale Information) and in the Time of Sale Information and the Prospectus under the
caption “Description of debt securities,” insofar as they purport to constitute a summary of the
terms of the Securities, are accurate summaries in all material respects; and the statements set
forth in the Time of Sale Information and the Prospectus under the caption “Important U.S. federal
income tax considerations,” insofar as they purport to constitute summaries of matters of law or
regulation or legal conclusions, are accurate summaries in all material respects.
(n) The Company is not, and after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof as described in the Registration Statement, the Time of
Sale Information and the Prospectus will not be, required to register as an “investment company” as
defined in the Investment Company Act of 1940, as amended.
(o) Based upon our participation in conferences with officers and other representatives of the
Company, representatives of the independent public accountants of the Company and representatives
of the Underwriters and their counsel at which the contents of the Registration Statement, the Time
of Sale Information and the Prospectus and any amendment and supplement thereto and related matters
were discussed and without any additional inquiry or due diligence (except as necessary to express
the opinions set forth above), although we have not conducted any independent investigations with
regard to the information in the Registration Statement, the Time of Sale Information and the
Prospectus and are not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration Statement, the Time of
Sale Information and the Prospectus (except to the extent stated in paragraph (m) above), no facts
have come to our attention which lead us to believe that the Registration Statement, at the time of
its effective date (including the information, if any, deemed pursuant to Rule 430A, 430B or 430C
to be part of the Registration Statement at the time of effectiveness), contained any 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, that the Time of Sale Information, at the
Time of Sale (which such counsel may assume to be 4:45 p.m. Eastern time on the date of the
Underwriting Agreement) contained any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading or that the Prospectus or any amendment or supplement thereto
as of its date and the Closing Date contains any untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (except for (a) the financial statements and related
schedules thereto, including the notes thereto, and the independent registered public accounting
firm’s report thereon, (b) the other financial and statistical data that is included or
incorporated by reference therein or omitted therefrom, (c) the oil and gas reserve reports and
related reserve information contained or incorporated by reference therein and (d)
representations and warranties in the exhibits to
A-5
the Registration Statement, in each case as to
which such counsel need not express any view, belief or comment).
A-6
SCHEDULE 1
A | B | |||
Duly Qualified or | ||||
Licensed | Good Standing | |||
Range Resources Corporation |
Delaware | Delaware | ||
Texas | Texas | |||
Oklahoma | Oklahoma | |||
American Energy Systems, LLC |
Delaware | Delaware | ||
Mountain Front Partners, LLC |
Oklahoma | Oklahoma | ||
Range Energy I, Inc. |
Alabama | Delaware | ||
Delaware | Louisiana | |||
Louisiana | Mississippi | |||
Mississippi | ||||
Range Energy Services Company |
Delaware | Delaware | ||
Oklahoma | Oklahoma | |||
Range Holdco, Inc. |
New York | Delaware | ||
Delaware | Ohio | |||
Ohio | Oklahoma | |||
Oklahoma | ||||
Pennsylvania | ||||
Range Operating New Mexico, Inc. |
Delaware | Delaware | ||
Range Operating Texas, LLC |
Delaware | Delaware | ||
Texas | Texas | |||
Range Production Company |
Alabama | Alabama | ||
Louisiana | Louisiana | |||
Mississippi | Mississippi | |||
Oklahoma | Oklahoma | |||
Texas | Texas | |||
Range Resources—Appalachia, LLC |
Delaware | Delaware | ||
Michigan | Michigan | |||
New York | ||||
Ohio | ||||
Pennsylvania | ||||
West Virginia | ||||
Range Resources—Midcontinent, |
Oklahoma | Oklahoma | ||
LLC |
A-7
A | B | |||
Duly Qualified or | ||||
Licensed | Good Standing | |||
Range Resources—Pine Mountain, |
West Virginia | |||
Inc. |
||||
Range Texas Production, LLC |
Alabama | Alabama | ||
Louisiana | Louisiana | |||
Mississippi | Mississippi | |||
Texas | Texas | |||
REVC Holdco, LLC |
Delaware | Delaware |
A-8
Annex B
OFFICERS’ CERTIFICATE
1. | I have reviewed the Registration Statement, the Time of Sale Information and the Prospectus. | |
2. | The representations and warranties of the Company as set forth in the Underwriting Agreement are true and correct as of the time of purchase. | |
3. | The Company has performed all of its obligations under the Underwriting Agreement as are to be performed at or before the time of purchase. | |
4. | The condition set forth in Section 6(d) (No Material Adverse Change) of the Underwriting Agreement has been met. |
B-1
Annex C
a. Time of Sale Information
1. Term sheet containing the terms of the Securities, substantially in the form of Annex D.
X-0
Xxxxx X
X-0