Exhibit 1.5
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FOREST OIL CORPORATION
$65,000,000
8% Senior Notes due 2008
UNDERWRITING AGREEMENT
October 11, 2001
X.X. XXXXXX SECURITIES INC.
000 XXXX XXXXXX, 0XX XXXXX
XXX XXXX, XXX XXXX 00000
Ladies and Gentlemen:
Forest Oil Corporation, a New York corporation, (the "COMPANY"), proposes
to issue and sell $65,000,000 aggregate principal amount of its 8% Senior Notes
due 2008 (the "SECURITIES"). The Securities will be issued pursuant to an
Indenture to be dated as of June 21, 2001 (the "INDENTURE") between the Company
and State Street Bank and Trust Company, as trustee (the "TRUSTEE"). The Company
hereby confirms its agreement with X.X. Xxxxxx Securities Inc. (the
"UNDERWRITER"), concerning the purchase of the Securities from the Company by
the Underwriter. Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference. Capitalized terms
used but not defined herein shall have the meanings given to such terms in the
Final Prospectus.
The Company hereby confirms that it has authorized the use of the Final
Prospectus in connection with the offering and sale of the Securities by the
Underwriter in accordance with Section 2.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The Company
represents and warrants to, and agrees with, the Underwriter on and as of the
date hereof and the Closing Date (as defined in Section 3) that:
(a) The Company meets the requirements for use of Form S-3 under the Act
and has prepared and filed with the Commission a registration statement (File
Number: 333-35270) on Form S-3, including a related basic prospectus, for
registration under the Act of the offering and sale of the Securities. The
Company may have filed one or more amendments thereto, including a Preliminary
Final Prospectus, each of which has previously been furnished to
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you. The Company will next file with the Commission one of the following: (1)
after the Effective Date of such registration statement, a final prospectus
supplement relating to the Securities in accordance with Rules 430A and 424(b),
(2) prior to the Effective Date of such registration statement, an amendment to
such registration statement (including the form of final prospectus supplement)
or (3) a final prospectus in accordance with Rules 415 and 424(b). In the case
of clause (1), the Company has included in such registration statement, as
amended at the Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to be included in such
registration statement and the Final Prospectus. As filed, such final prospectus
supplement or such amendment and form of final prospectus supplement shall
contain all Rule 430A Information, together with all other such required
information, and, except to the extent the Representatives shall agree to a
modification, shall be in all substantive respects in the form furnished to you
prior to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the Execution Time, will be
included or made therein. The Registration Statement, at the Execution Time,
meets the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed in accordance with Rule 424(b) and on
the Closing Date (as defined herein), the Final Prospectus (and any supplement
thereto) will, comply in all material respects with the applicable requirements
of the Act, the Exchange Act and the Trust Indenture Act and the respective
rules thereunder; on the Effective Date and at the Execution Time the
Registration Statement did not or will not contain 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 not misleading; on the
Effective Date and on the Closing Date the Indenture did or will comply in all
material respects with the applicable requirements of the Trust Indenture Act
and the rules thereunder; and, on the Effective Date, the Final Prospectus, if
not filed pursuant to Rule 424(b), will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus (together
with any supplement thereto) will not, include 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, HOWEVER, that the Company makes no
representations or warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of the Trustee or (ii) the information contained
in or omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of the Underwriter
specifically for inclusion in the Registration Statement or the Final Prospectus
(or any supplement thereto) as specified in Section 16 hereof (the "Underwriter
Information").
(c) The Company is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company Act"),
without taking account of any exemption arising out of the number of holders of
the securities thereof, and after giving effect to the offer and sale of the
Securities and the application of the net proceeds of such
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offer and sale as described in the Final Prospectus, will not be an "investment
company" as defined in the Investment Company Act.
(d) The Company is subject to and in full compliance with the reporting
requirements of Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT").
(e) Each of the Company and its Subsidiaries (as defined below) has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or organized with
full corporate power and authority to own its properties and conduct its
business in a manner consistent with any description thereof in the Final
Prospectus, and is duly qualified to do business as a foreign corporation and is
in good standing under the laws of each jurisdiction which requires such
qualification, except where the failure to be so qualified and in good standing
does not have a material adverse effect on the condition (financial or
otherwise), business, properties, results of operations or prospects of the
Company and its Subsidiaries taken as a whole, or materially and adversely
affect the ability of the Company to perform its obligations under this
Agreement, the Indenture, or the Securities or to consummate the transactions
contemplated hereby and thereby (a "MATERIAL ADVERSE EFFECT"). The term
"Subsidiary" means each person of which a majority of the voting equity
securities or other interests is owned, directly or indirectly, by the Company.
(f) All the outstanding shares of capital stock of each Subsidiary have
been duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Final Prospectus, all
outstanding shares of capital stock of the Subsidiaries are owned by the
Company, either directly or through wholly owned subsidiaries, free and clear of
any perfected security interest or any other security interests, claims, liens
or encumbrances and, except as set forth in the Final Prospectus, no options,
warrants or other rights to purchase, agreements or other obligations to issue,
or rights to convert any obligations into or exchange any securities for, shares
of capital stock of or ownership interests in the Company are outstanding.
(g) Neither the Company nor any Subsidiary thereof is in violation of its
articles or by-laws or in default in the performance of its obligations under
any indenture or other agreement or instrument to which it is a party or by
which it is bound or to which it or any of its properties is subject which
default or defaults individually or in the aggregate would have a Material
Adverse Effect.
(h) (i) The issuance and sale of the Securities to the Underwriter by the
Company pursuant to this Agreement, (ii) the execution, delivery and performance
of this Agreement, the Indenture and an amendment to the Indenture, if
necessary, by the Company, (iii) compliance by the Company with all the
provisions hereof and thereof and (iv) consummation of the transactions
contemplated hereby and thereby by the Company do not require any consent,
permission, authorization, approval or order of, or filing or registration with
or notice to, any court, regulatory body, administrative agency or other
governmental body (except such as may be required under the Act or under blue
sky laws of the various states of the United States and under the Canadian
Securities Laws and those consents, permissions, authorizations, approvals,
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orders, filings, registrations or notices which have been obtained or made, as
the case may be) and do not and will not conflict with, or constitute a breach
or a violation of any of the terms or provisions of, or a default under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its Subsidiaries under, (w) its
articles, by-laws or other governing documents, (x) any applicable statute, rule
or regulation or any order of any governmental agency or body or any court
having jurisdiction over the Company and its Subsidiaries or any of their
respective properties, (y) any agreement or instrument relating to borrowed
money to which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound or to which any of their respective
properties is subject, or (z) any other material agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries is bound or to which any of their respective
properties is subject.
(i) (i) The Company has (or, with respect to the Indenture, had) full
corporate power and authority to enter into this Agreement, the Indenture and an
amendment to the Indenture, if necessary (the "Indenture Amendment"), and to
issue the Securities, as applicable, and to perform the transactions
contemplated hereby and thereby, and the execution and delivery of this
Agreement, the Indenture, the Indenture Amendment, if necessary, and the
Securities and the consummation of the transactions contemplated herein and
therein have been duly authorized by all necessary corporate action on the part
of the Company; (ii) this Agreement has been duly executed and delivered by the
Company; and (iii) when duly executed and delivered by the Company and any other
parties thereto, the Indenture and Indenture Amendment will constitute a valid
and binding obligation of the Company, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and to general
principles of equity. The Indenture conforms in all material respects to the
requirements of the Trust Indenture Act and the rules and regulations of the
Commission applicable to an indenture which is qualified thereunder.
(j) The Securities have been duly authorized for issuance and sale by the
Company to the Underwriter and will when issued, executed and delivered in
accordance with the Indenture and paid for in accordance with the terms of this
Agreement, constitute valid and binding obligations of the Company enforceable
against the Company in accordance with their terms and be entitled to the
benefits of the Indenture, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights
generally and to general principles of equity.
(k) KPMG LLP are independent certified public accountants with respect to
the Company and its subsidiaries as required by the Securities Act and the rules
and regulations of the Commission thereunder.
(l) Except as disclosed in the Final Prospectus, there are no legal or
governmental actions, suits or proceedings pending or, to the best of the
Company's knowledge, threatened to which the Company or any of its Subsidiaries
is or is threatened to be made a party or of which property owned or leased by
the Company or any of its Subsidiaries is or is threatened to be made the
subject, which actions, suits or proceedings could, individually or in the
aggregate, have a Material Adverse Effect.
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(m) The Company and its Subsidiaries are conducting business in compliance
with all applicable laws, rules and regulations of the jurisdictions in which
they are conducting business, including, without limitation, the regulations of
the United States Mineral Management Service and all applicable Environmental
Laws (as defined below), except where the failure to be so in compliance would
not have a Material Adverse Effect. As used herein, "Environmental Laws" means
any Canadian or U.S. federal, state, provincial or local law, regulation,
permit, rule or order of any governmental authority, administrative body or
court applicable to the Company's or any of its Subsidiaries' business
operations or the ownership or possession of any of their properties or assets
relating to environmental matters.
(n) There are no defects in title to, or encumbrances upon the leasehold
interests in, the oil and gas producing properties of the Company and its
Subsidiaries or the assets or facilities used by the Company and its
Subsidiaries in the production and marketing of oil and gas which, individually
or in the aggregate, have a Material Adverse Effect, except any such defects
that are customary in the oil and gas industry and are in the ordinary course of
business of the Company.
(o) The consolidated financial statements (including all notes thereto)
included in (or incorporated by reference into) the Final Prospectus present
fairly the financial position of the Company and its consolidated subsidiaries
as of the dates shown and their results of operations and cash flows for the
periods shown, and such financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent basis. The
selected financial data and all operating data included in (or incorporated by
reference into) the Final Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the audited
consolidated financial statements included in (or incorporated by reference
into) the Final Prospectus. The oil and gas reserve data included in (or
incorporated by reference into) the Final Prospectus have been prepared in
conformity with industry standards and accurately reflect the oil and gas
reserves of the Company and its Subsidiaries as of the dates indicated therein.
Since the date of the latest audited consolidated financial statements included
in (or incorporated by reference into) the Final Prospectus there has been no
change, development or event not disclosed in the Final Prospectus (exclusive of
any supplement thereto) which could reasonably be expected to have a Material
Adverse Effect.
(p) Neither the Company nor any of its affiliates has taken and none of
them will take, directly or indirectly, any action prohibited by Regulation M
under the Exchange Act in connection with the offering of the Securities.
(q) The oil and gas reserve estimates of the Company and its subsidiaries
contained in (or incorporated by reference into) the Final Prospectus have been
prepared in accordance with the Commission guidelines applied on a consistent
basis throughout the periods involved, and neither the Company nor any of its
subsidiaries has any reason to believe that such estimates do not fairly reflect
the oil and gas reserves of the Company and its subsidiaries at the dates
indicated in the Final Prospectus.
2. PURCHASE AND SALE OF THE SECURITIES. (a) On the basis of the
representations, warranties and agreements contained herein, and subject to the
terms and
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conditions set forth herein, the Company agrees to issue and sell to the
Underwriter, and the Underwriter agrees to purchase from the Company, the
principal amount of Securities set forth opposite the name of the Underwriter on
Schedule 1 hereto at a purchase price equal to 97.846% of the principal amount
thereof, plus accrued interest, if any. The Company shall not be obligated to
deliver any of the Securities except upon payment for all of the Securities to
be purchased as provided herein.
(b) The Underwriter agrees that, prior to or simultaneously with the
confirmation of sale by the Underwriter to any purchaser of any of the
Securities purchased by the Underwriter from the Company pursuant hereto, the
Underwriter shall furnish to that purchaser a copy of the Final Prospectus (and
any amendment or supplement thereto that the Company shall have furnished to the
Underwriter prior to the date of such confirmation of sale).
(c) The Company acknowledges and agrees that the Underwriter may sell
Securities to any of its affiliates.
It is understood that the Underwriter proposes to offer the Securities for
sale to the public as set forth in the Final Prospectus.
3. DELIVERY OF AND PAYMENT FOR THE SECURITIES. (a) Delivery of and
payment for the Securities shall be made at the offices of Xxxxxxx Xxxxxxx &
Xxxxxxxx, 425 Lexington Ave., New York, New York, or at such other place as
shall be agreed upon by the Underwriter and the Company, at 10:00 A.M., New York
City time, on October 17, 2001, or at such other time or date, not later than
seven full business days thereafter, as shall be agreed upon by the Underwriter
and the Company (such date and time of payment and delivery being referred to
herein as the "Closing Date").
(b) On the Closing Date, payment of the purchase price for the Securities
shall be made to the Company by wire or book-entry transfer of same-day funds to
such account or accounts as the Company shall specify prior to the Closing Date
or by such other means as the parties hereto shall agree prior to the Closing
Date against delivery to the Underwriter of the certificates evidencing the
Securities. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligations
of the Underwriter hereunder. Upon delivery, the Securities shall be in global
form, registered in such names and in such denominations as the Underwriter
shall have requested in writing not less than two full business days prior to
the Closing Date. The Company agrees to make one or more global certificates
evidencing the Securities available for inspection by the Underwriter in New
York, New York at least 24 hours prior to the Closing Date.
4. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees with the
Underwriter:
(a) that the Company will use its reasonable best efforts to cause a
post-effective amendment No. 1 to the Registration Statement that amends the
Registration Statement to include the Indenture as an exhibit thereto to become
effective as soon as possible, but in any event at least one business day prior
to the Closing Date. Prior to the termination of the offering
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of the Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus or any Preliminary Final
Prospectus) to the Basic Prospectus or any Rule 462(b) Registration Statement
unless the Company has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, if the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the Final
Prospectus is otherwise required under Rule 424(b), the Company will cause the
Final Prospectus, properly completed, and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to the
Underwriter of such timely filing. The Company will promptly advise the
Representatives (1) when the Registration Statement, if not effective at the
Execution Time, shall have become effective, (2) when the Final Prospectus, and
any supplement thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall
have been filed with the Commission, (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement shall
have been filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Final Prospectus or for any
additional information, (5) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (6) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the institution or threatening
of any proceeding for such purpose. The Company will use its reasonable best
efforts to prevent the issuance of any such stop order or the suspension of any
such qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) if, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
the Final Prospectus as then 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 under which they were
made not misleading (in each case, in the opinion of counsel to the Underwriter
or in the opinion of counsel to the Company, as the case may be), or if it shall
be necessary to amend the Registration Statement or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the respective rules
thereunder, the Company promptly will (1) notify the Underwriter of such event,
(2) prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will correct
such statement or omission or effect such compliance and (3) supply any
supplemented Final Prospectus to you in such quantities as you may reasonably
request.
(c) as soon as practicable, the Company will make generally available to
its security holders and to the Underwriter an earnings statement or statements
of the Company and its Subsidiaries which will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act.
(d) the Company will furnish to the Underwriter and Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel for the Underwriter, without charge, signed copies of the
Registration Statement
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(including exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of each
Preliminary Final Prospectus and the Final Prospectus and any supplement thereto
as the Underwriter may reasonably request. The Company will pay the expenses of
printing or other production of all documents relating to the offering.
(e) to promptly take from time to time such actions as the Underwriter may
reasonably request to qualify the Securities for offering and sale under the
securities or Blue Sky laws of such jurisdictions as the Underwriter may
designate and to continue such qualifications in effect for so long as required
for the distribution of the Securities; and to arrange for the determination of
the eligibility for investment of the Securities under the laws of such
jurisdictions as the Underwriter may reasonably request; PROVIDED that the
Company and its subsidiaries shall not be obligated to qualify as foreign
corporations in any jurisdiction in which they are not so qualified or to file a
general consent to service of process in any jurisdiction;
(f) to assist the Underwriter in arranging for the Securities to be
eligible for clearance and settlement through The Depository Trust Company
("DTC");
(g) for a period of 90 days from the date of the Final Prospectus, not to
offer for sale, sell, contract to sell or otherwise dispose of, directly or
indirectly, or file a registration statement for, or announce any offer, sale,
contract for sale of or other disposition of any debt securities issued or
guaranteed by the Company or any of its subsidiaries (other than the Securities)
without the prior written consent of the Underwriter;
(h) in connection with the offering of the Securities, until the
Underwriter shall have notified the Company of the completion of the
distribution of the Securities, not to, and to cause its affiliated purchasers
(as defined in Regulation M under the Exchange Act) not to, either alone or with
one or more other persons, bid for or purchase, for any account in which it or
any of its affiliated purchasers has a beneficial interest, any Securities, or
attempt to induce any person to purchase any Securities; and not to, and to
cause its affiliated purchasers not to, make bids or purchase for the purpose of
creating actual, or apparent active trading in or of raising the price of the
Securities;
(i) in connection with the offering of the Securities, to make its
officers, employees, independent accountants, independent petroleum engineers
and legal counsel reasonably available upon request by the Underwriter;
(j) to apply the net proceeds from the sale of the Securities as set forth
in the Final Prospectus under the heading "Use of Proceeds".
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5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The respective obligations of
the Underwriter hereunder are subject to the accuracy, on and as of the date
hereof and the Closing Date, of the representations and warranties of the
Company contained herein, to the accuracy of the statements of the Company and
its officers made in any certificates delivered pursuant hereto, to the
performance by the Company of its obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Registration Statement (including the post-effective amendment
thereto referred to in Section 4(a) above) shall become effective not later than
one business day prior to the Closing Date; if filing of the Final Prospectus,
or any supplement thereto, is required pursuant to Rule 424(b), the Final
Prospectus, and any such supplement, will be filed in the manner and within the
time period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Final Prospectus (and any amendments or supplements thereto) shall
have been printed and copies distributed to the Underwriter as promptly as
practicable on or following the date of this Agreement or at such other date and
time as to which the Underwriter may agree; and no stop order suspending the
sale of the Securities in any jurisdiction or suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for the
purpose shall have been commenced or shall be pending or threatened.
(c) The Underwriter shall have not discovered and disclosed to the Company
on or prior to the Closing Date that the Final Prospectus or any amendment or
supplement thereto contains an untrue statement of a fact which, in the opinion
of counsel for the Underwriter, is material or omits to state any fact which, in
the opinion of such counsel is material and is required to be stated therein or
is necessary to make the statements therein in the light of the circumstance in
which they were made not misleading.
(d) The Company shall have furnished to the Underwriter such further
certificates, documents and information that the Underwriter or its counsel may
reasonably request.
(e) Xxxxxx & Xxxxxx L.L.P. shall have furnished to the Underwriter their
written opinion, as counsel to the Company, addressed to the Underwriter and
dated the Closing Date, in form and substance reasonably satisfactory to the
Underwriter, substantially to the effect set forth in Annex A-1 hereto.
(f) Xxxxxx X. Xxxxxx, III shall have furnished to the Underwriter his
written opinion, as Senior Vice President - Legal Affairs & Corporate Secretary
of the Company, addressed to the Underwriter and dated the Closing Date, in form
and substance reasonably satisfactory to the Underwriter, substantially to the
effect set forth in Annex A-2 hereto.
(g) The Underwriter shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx,
counsel for the Underwriter, such opinion or opinions, dated the Closing Date,
with respect to such matters as the Underwriter may reasonably require, and the
Company shall have furnished
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to such counsel such documents and information as they request for the purpose
of enabling them to pass upon such matters.
(h) The Company shall have furnished to the Underwriter a letter of KPMG
LLP, addressed to the Underwriter and dated the Closing Date, in form and
substance satisfactory to the Underwriter.
(i) The Company shall have furnished to the Underwriter a certificate,
dated the Closing Date, of its chief executive officer and its chief financial
officer stating that (A) such officers have carefully examined the Registration
Statement, Final Prospectus, any supplements to the Final Prospectus and this
Agreement and (B) as of the Closing Date, the representations and warranties of
the Company in this Agreement are true and correct in all material respects, the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder on or prior to the Closing Date in
all material respects, and subsequent to the date of the most recent financial
statements contained (or incorporated by reference) in the Final Prospectus
(exclusive of any amendment or supplement thereto), there has been no material
adverse change in the financial position or results of operation of the Company
or any of its subsidiaries, or any change, or any development including a
prospective change, in or affecting the condition (financial or otherwise),
results of operations, business or prospects of the Company and its subsidiaries
taken as a whole, except as set forth in the Final Prospectus (exclusive of any
amendment or supplement thereto).
(j) The Indenture and the Indenture Amendment, if necessary, shall have
been duly executed and delivered by the Company and the Trustee, and the
Securities shall have been duly executed and delivered by the Company and duly
authenticated by the Trustee.
(k) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the Final Prospectus
(exclusive of any amendment or supplement thereto), there shall not have been
any change in the capital stock or long-term debt or any change, or any
development involving a prospective change, in or affecting the condition
(financial or otherwise), results of operations, business or prospects of the
Company and its subsidiaries taken as a whole, the effect of which, in any such
case described above, is, in the judgment of the Underwriter, so material and
adverse as to make it impracticable or inadvisable to proceed with the sale or
delivery of the Securities on the terms and in the manner contemplated by this
Agreement and the Final Prospectus (exclusive of any amendment or supplement
thereto).
(l) No action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any governmental agency or
body which would, as of the Closing Date, prevent the issuance or sale of the
Securities; and no injunction, restraining order or order of any other nature by
any federal or state court of competent jurisdiction shall have been issued as
of the Closing Date which would prevent the issuance or sale of the Securities.
(m) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Securities or any of
the Company's
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other debt securities or preferred stock by a "nationally recognized statistical
rating organization", as such term is defined by the Commission for purposes of
Rule 436(g)(2) of the rules and regulations of the Commission under the
Securities Act and (ii) no such organization shall have publicly announced that
it has under surveillance or review (other than an announcement with positive
implications of a possible upgrading), its rating of the Securities or any of
the Company's or other debt securities or preferred stock.
(n) Subsequent to the execution and delivery of this Agreement there shall
not have occurred any of the following: (i) trading in securities generally on
the New York Stock Exchange, the American Stock Exchange or the over-the-counter
market shall have been suspended or limited, or minimum prices shall have been
established on any such exchange or market by the Commission, by any such
exchange or by any other regulatory body or governmental authority having
jurisdiction, or trading in any securities of the Company on any exchange or in
the over-the-counter market shall have been suspended or (ii) any moratorium on
commercial banking activities shall have been declared by federal or New York
state authorities or (iii) an outbreak or escalation of hostilities or a
declaration by the United States of a national emergency or war or (iv) a
material adverse change in general economic, political or financial conditions
(or the effect of international conditions on the financial markets in the
United States shall be such) the effect of which, in the case of this clause
(iv), is, in the judgment of the Underwriter, so material and adverse as to make
it impracticable or inadvisable to proceed with the sale or the delivery of the
Securities on the terms and in the manner contemplated by this Agreement and in
the Final Prospectus (exclusive of any amendment or supplement thereto).
All opinions, letters, evidence and certificates 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 Xxxxxxx Xxxxxxx & Xxxxxxxx.
6. TERMINATION. The obligations of the Underwriter hereunder may be
terminated by the Underwriter, in its absolute discretion, by notice given to
and received by the Company prior to delivery of and payment for the Securities
if, prior to that time, any of the events described in Section 5(k), (l), (m),
(n) or (o) shall have occurred and be continuing.
7. [INTENTIONALLY OMITTED]
8. REIMBURSEMENT OF UNDERWRITER'S EXPENSES. If the sale of Securities
provided for herein is not consummated because of any condition to the
obligations of the Underwriter set forth in Section 5 hereof is not satisfied,
or if this Agreement shall have been terminated pursuant to Section 6, or
because of any refusal, inability or failure on part of the Company to perform
any agreement herein or comply with any provision hereof other than by reason of
a default by the Underwriter, the Company shall reimburse the Underwriter for
such out-of-pocket expenses (including reasonable fees and disbursements of
counsel) as shall have been reasonably incurred by the Underwriter in connection
with this Agreement and the proposed purchase and sale of the Securities.
9. INDEMNIFICATION. (a) The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates, their respective officers, directors and
employees,
12
representatives and agents and each person, if any, who controls the Underwriter
within the meaning of the Securities Act or the Exchange Act (collectively
referred to for purposes of this Section 9(a) and Section 10 as an Underwriter),
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement of the Securities as originally filed, or in the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with any Underwriter Information.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) The Underwriter shall indemnify and hold harmless the Company, its
affiliates, their respective officers, directors, employees, representatives and
agents, and each person, if any, who controls the Company within the meaning of
the Securities Act or the Exchange Act (collectively referred to for purposes of
this Section 9(b) and Section 10 as the Company), to the same extent as the
foregoing indemnity from the Company to the Underwriter, but only with reference
to the Underwriter Information. This indemnity agreement will be in addition to
any liability which the Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 9 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); PROVIDED, HOWEVER, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees,
13
costs and expenses of such separate counsel if (i) the use of counsel chosen by
the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants in,
or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
10. CONTRIBUTION. In the event that the indemnity provided in Section 9 is
unavailable to or insufficient to hold harmless an indemnified party for any
reason, the Company and the Underwriter agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and the Underwriter may be subject
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and by the Underwriter on the other from the
offering of the Securities; PROVIDED, HOWEVER, that in no case shall the
Underwriter be responsible for any amount in excess of the discount or
commission applicable to the Securities purchased by the Underwriter hereunder.
If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the Company and the Underwriter shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and of the Underwriter on the
other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, and benefits received by
the Underwriter shall be deemed to be equal to the total discounts and
commissions received by the Underwriter with respect to the Securities purchased
under this Agreement. Relative fault shall be determined by reference to, among
other things, whether any untrue or any alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information provided by the Company on the one hand or the Underwriter on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company and the Underwriter agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of Section 10, no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For
14
purposes of Section 9, each person who controls the Underwriter within the
meaning of either the Securities Act or the Exchange Act and each director,
officer, employee and agent of the Underwriter shall have the same rights to
contribution as the Underwriter, and each person who controls the Company within
the meaning of either the Securities Act or the Exchange Act, and each director
of the Company shall have the same rights to contribution as the Company subject
in each case to the applicable terms and conditions of this paragraph (d).
11. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure
to the benefit of and be binding upon the Underwriter, the Company and their
respective successors. This Agreement and the terms and provisions hereof are
for the sole benefit of only those persons, except as provided in Sections 9 and
10 with respect to affiliates, officers, directors, employees, representatives,
agents and controlling persons of the Company, and the Underwriter. Nothing in
this Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section 11, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
12. EXPENSES. The Company agrees with the Underwriter to pay (a) the costs
incident to the authorization, issuance, sale, preparation and delivery of the
Securities and any taxes payable in that connection; (b) the costs incident to
the preparation, printing and distribution of the Registration Statement and the
Final Prospectus and any amendments or supplements thereto; (c) the costs of
reproducing and distributing each of this Agreement, the Indenture, Indenture
Amendment, if necessary and any related documents; (d) the costs incident to the
preparation, printing and delivery of the certificates evidencing the
Securities, including stamp duties and transfer taxes, if any, payable upon
issuance of the Securities; (e) the fees and expenses of the Company's counsel
and independent accountants; (f) the fees and expenses of qualifying the
Securities under the securities laws of the several jurisdictions as provided in
Section 4(e) and of preparing, printing and distributing Blue Sky Memoranda
(including related fees and expenses of counsel for the Underwriter); (g) any
fees charged by rating agencies for rating the Securities; (h) the fees and
expenses of the Trustee and any paying agent (including related fees and
expenses of any counsel to such parties); (i) all expenses and application fees
incurred in connection with the approval of the Securities for book-entry
transfer by DTC; (k) the filing fee incident to the security any required review
by the National Association of Securities Dealers, Inc. of the terms of the sale
of the Securities; and (l) all other costs and expenses incident to the
performance of the obligations of the Company under this Agreement which are not
otherwise specifically provided for in this Section 12; provided, however, that
except as provided in this Section 12 and Section 8, the Underwriter shall pay
their own costs and expenses.
13. SURVIVAL. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and the Underwriter
contained in this Agreement or made by or on behalf of the Company or the
Underwriter 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 or cancellation
of this Agreement or any investigation made by or on behalf of any of them or
any of their respective affiliates, officers, directors, employees,
representatives, agents or controlling persons.
15
14. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriter, shall be delivered or sent by mail or
telecopy transmission to JPMorgan, a division of Chase Securities Inc., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxx (telecopier
no.: (000) 000-0000); or
(b) if to the Company, shall be delivered or sent by mail or telecopy
transmission to the address of the Company set forth in the Offering
Memorandum, Attention: Xxxxxx X. Xxxxxx, III (telecopier no.: (303)
812-1501).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the Underwriter
by JPMorgan.
15. DEFINITION OF TERMS. For purposes of this Agreement the terms which
follow, when used in this Agreement shall have the meanings indicated:
"Act" shall mean the Securities Act of 1933, as amended and the rules
and regulations of the Commission promulgated thereunder.
"Affiliate" has the meaning set forth in Rule 405 under the Securities
Act, except where otherwise expressly provided.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
"Business Day" means any day on which the New York Stock Exchange,
Inc. is open for trading,.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
16
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the registration statement referred to in Section 1(a)
hereof.
"Subsidiary" has the meaning set forth in Rule 405 under the
Securities Act.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended and the rules and regulations of the Commission promulgated
thereunder.
17
16. UNDERWRITER' INFORMATION. The parties hereto acknowledge and agree
that, for all purposes of this Agreement, the Underwriter' Information consists
solely of the following information in the Final Prospectus: (i) the last
paragraph on the front cover page concerning the terms of the offering by the
Underwriter; and (ii) certain statements concerning the Underwriting contained
under the heading "Underwriting" including those related to concessions and
reallowances and stabilization, syndicate covering transactions and penalty
bids, which shall be agreed upon in writing by the parties hereto on the Closing
Date.
17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more than one counterpart, the executed agreement, counterparts
shall each be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
19. AMENDMENTS. 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.
20. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us a counterpart hereof, whereupon this instrument
will become a binding agreement between the Company and the Underwriter in
accordance with its terms.
Very truly yours,
FOREST OIL CORPORATION
By /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President
and CFO
Accepted:
X.X. XXXXXX SECURITIES INC.
By /s/ Xxxxx Xxxxxxx
--------------------------------
Authorized Signatory
SCHEDULE 1
Principal
Amount
Underwriter of Securities
----------- -------------
X.X. Xxxxxx Securities Inc. ....... $65,000,000
-----------
Total ............................. $65,000,000
===========
ANNEX B-1
Form of Opinion of Xxxxxx & Xxxxxx, L.L.P.
(i) the Company has (or, with respect to the Indenture, had) full
corporate right, power and authority to execute and deliver the
Underwriting Agreement, the Indenture, the Indenture Amendment, and the
Securities; each of the
Underwriting Agreement, the Indenture and the
Indenture Amendment if necessary, has been duly authorized, executed and
delivered by the Company and each of the Indenture and the Indenture
Amendment constitutes a legal, valid and binding agreement of the Company;
the Indenture has been duly qualified under the Trust Indenture Act; each
of the Securities and the Indenture, as amended, is enforceable against the
Company in accordance with its terms (in each case subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights generally
from time to time in effect, general equitable principles and an implied
covenant of good faith and fair dealing); the Securities are in the form
contemplated by the Indenture, have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Indenture and
when delivered to and paid for by the Underwriter pursuant to the
Underwriting Agreement, will constitute legal, valid and binding
obligations of the Company, entitled to the benefits of the Indenture and
enforceable against the Company in accordance with its terms (in each case
subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing); and the statements set forth
under the heading "Description of Notes" in the Final Prospectus, insofar
as such statements purport to summarize certain provisions of the
Securities and the Indenture, provide a fair summary of such provisions;
(ii) each of the Company and each Subsidiary of the Company
incorporated in the State of Texas, has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with full corporate power and authority to
own its properties and conduct its business as described in the Final
Prospectus;
(iii) all the outstanding shares of capital stock of the Company and
each Subsidiary of the Company incorporated in the State of Texas have been
duly and validly authorized and issued and are fully paid and
non-assessable;
(iv) the Company's authorized equity capitalization is as set forth in
the Final Prospectus;
(v) each of the
Underwriting Agreement, the Securities, the Indenture
and Indenture Amendment, if necessary, has been duly authorized, executed
and delivered by the Company;
(vi) no consent, approval, authorization or order of, or filing or
registration with, any New York or U.S. Federal court or governmental
agency or body is required for the execution, delivery and performance by
the Company of the
Underwriting Agreement, the Indenture, the Indenture
Amendment, if necessary, and issuance of the Securities, or for the
consummation of the transactions contemplated herein or therein, except
such as have been obtained under the Act and such as may be required under
the blue sky or securities laws of any U.S. jurisdiction in connection with
the purchase and sale of the Securities by the Underwriter and such other
approvals (specified in such opinion) as have been obtained;
(vii) neither the issue and sale of the Securities by the Company, the
execution and delivery of the
Underwriting Agreement, the Indenture and the
Indenture Amendment, if necessary, by the Company, the consummation of the
transactions herein or therein contemplated in accordance with the terms
hereof nor the fulfillment of the terms hereof or thereof will conflict
with, result in a breach or violation of or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or its
Subsidiaries pursuant to, or constitute a default under any law of the
United States or the State of New York or the charter or by-laws of the
Company or any U.S. Subsidiary or the terms of any indenture or other
agreement or instrument known to such counsel and to which the Company or
any U.S. Subsidiary is a party or bound or any judgment, order or decree
known to such counsel to be applicable to the Company or any of its
Subsidiaries of any United States or New York court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction
over the Company or any of its Subsidiaries;
(viii) the Company is not and, after giving effect to the offering and
sale of the Securities and the application of the net proceeds therefrom as
described in the Final Prospectus, will not be an "investment company"
within the meaning of the Investment Company Act and the rules and
regulations of the Commission thereunder;
(ix) the descriptions in the Final Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are accurate in
all material respects; the statements in the Final Prospectus under the
heading "Certain United States Federal Tax Considerations", to the extent
that they constitute summaries of matters of law or regulation or legal
conclusions, have been reviewed by such counsel and fairly summarize the
matters described therein in all material respects;
(x) the Indenture conforms in all material respects with the
requirements of the Trust Indenture Act and the rules and regulations of
the Commission applicable to an indenture which is qualified thereunder;
and
(xi) the Registration Statement (including the post-effective
amendment thereto referred to in Section 4(a)) has become effective under
the Act; any required filing of the Basic Prospectus, any Preliminary Final
Prospectus and the Final Prospectus, and any supplements thereto, pursuant
to Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b); to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued,
no
proceedings for that purpose have been instituted or threatened, and the
Registration Statement and the Final Prospectus (other than the financial
statements and other financial information contained therein, as to which
such counsel need express no opinion) comply as to form in all material
respects with the applicable requirements of the Act, the Exchange Act and
the Trust Indenture Act and the respective rules thereunder.
Such counsel shall also state that they are not passing upon and do not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Final Prospectus (except to the extent set forth in
subparagraphs (i) and (ix) above), and have not independently verified the
accuracy, completeness or fairness of such statements (except as aforesaid).
Without limiting the foregoing, such counsel shall assume no responsibility for
and have not independently verified the accuracy, completeness or fairness of,
and shall express no belief as to: the financial statements, the oil and gas
reserve reports and other financial and reserve data included (or incorporated
by reference) in the Final Prospectus and shall state that it has not examined
the financial or reserve records from which such statements and data are
derived. Such counsel shall note that, although certain portions of the Final
Prospectus have been included therein on the authority of "experts" within the
meaning of the Securities Act, such counsel are not experts with respect to any
portion of the Final Prospectus. Such counsel shall state that they have
participated in conferences with officers and other representatives of the
Company, representatives of the independent accountants of the Company, and with
your representatives and counsel, at which the contents of the Final Prospectus
and related matters were discussed. Such counsel shall state that they have also
reviewed certain corporate documents furnished to them by the Company and, based
on such participation and review (relying as to materiality to a certain extent
upon the officers and the other representatives of the Company), and subject to
the limitations described above, no information has come to their attention that
caused them to believe that the Final Prospectus, as of the date thereof and as
of Closing Date, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
New York or the United States, to the extent they deem proper and specified in
such opinion, upon the opinion of other counsel of good standing whom they
believe to be reliable and who are satisfactory to Xxxxxxx Xxxxxxx & Xxxxxxxx
and (B) as to matters of fact, to the extent they deem proper, on certificates
of responsible officers of the Company and public officials.
The opinions set forth in clause (ii) and (iii) solely with respect to the
Canadian subsidiaries of the Company, shall be delivered by Xxxxxx & Xxxxxx,
L.L.P. or, in the alternative, may be delivered directly to the Underwriter by
Canadian counsel of good standing satisfactory to Xxxxxxx Xxxxxxx & Xxxxxxxx.
ANNEX A-2
[Form of Opinion of Xxxxxx X. Xxxxxx, III, Senior Vice President - Legal
Affairs & Corporate Secretary of the Company]
(i) each of the Company and each Subsidiary of the Company is duly
qualified to do business as a foreign corporation and is in good standing under
the laws of each jurisdiction which requires such qualification wherein it owns
or leases material properties or conducts material business;
(ii) except as otherwise set forth in the Final Prospectus, all outstanding
shares of capital stock of the Subsidiaries of the Company are owned by the
Company either directly or through wholly owned subsidiaries free and clear of
any perfected security interest and any other security interests, claims, liens
or encumbrances
(iii) neither the issue and sale of the Securities by the Company, the
execution and delivery of the
Underwriting Agreement, the Indenture, the
Indenture Amendment, if necessary, and the Securities by the Company, the
consummation of any other of the transactions herein or therein contemplated,
nor the fulfillment of the terms hereof or thereof will conflict with, result in
a breach or violation of or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or its Subsidiaries pursuant to, or
constitute a default under the charter or bylaws of the Company or any of its
Subsidiaries or the terms of any indenture or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or bound or any
judgment, order or decree of any court, regulatory body, administrative agency,
governmental body or arbitration having jurisdiction over the Company or any of
its Subsidiaries; and
(vii) there is no pending or, to the knowledge of such counsel, threatened
action or suit or judicial, arbitral or other administrative proceeding before
any court, regulatory body, administrative agency, governmental body or
arbitrator to which the Company or any of its Subsidiaries, or its or their
property, is the subject, of a character which would be required to be disclosed
in the Final Prospectus which is not adequately disclosed in the Final
Prospectus, and there is no franchise, contract or other document of a character
which is required to be described in the Final Prospectus, or to be filed as an
exhibit thereto which is not described or filed as required.
Such counsel shall also state that he has no reason to believe that as of
the date of the Final Prospectus the Final Prospectus contained an untrue
statement of a material fact or omitted 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 or that at the Closing Date the Final
Prospectus includes an untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. Without limiting
the foregoing, such counsel shall assume no responsibility for and have not
independently verified the accuracy, completeness or fairness of, and shall
express no belief as to, the financial statements, the oil and gas reserve
reports and other financial and reserve data included in the Final Prospectus
and shall state that he has not examined the financial or reserve records from
which such statements and data are derived.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
New York or the United States, to the extent such counsel deems proper and
specified in such opinion, upon the opinion of other counsel of good standing
whom they believe to be reliable and who are satisfactory to Xxxxxxx Xxxxxxx &
Xxxxxxxx and (B) as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and public officials.
