Exhibit 4.6
EXECUTION COPY
BURLINGTON RESOURCES FINANCE COMPANY
$500,000,000 5.60% Notes due 2006
$500,000,000 6.50% Notes due 2011
$500,000,000 7.40% Notes due 2031
Purchase Agreement
(Fully and Unconditionally Guaranteed by Burlington Resources Inc.)
New York, New York
November 8, 2001
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
As Representatives of the Initial Purchasers
c/o Xxxxxxx X. Xxxx, Esq.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
4 World Financial Center
New York, New York 10080
Ladies and Gentlemen:
Burlington Resources Finance Company, a Nova Scotia unlimited liability
company (the "Company"), proposes to issue and sell to the several parties named
in Schedule I hereto (the "Initial Purchasers"), for whom you (the
"Representatives") are acting as representatives, $500,000,000 principal amount
of its 5.60% Notes due 2006, $500,000,000 principal amount of its 6.50% Notes
due 2011 and $500,000,000 principal amount of its 7.40% Notes due 2031
(together, the "Securities") to be guaranteed by Burlington Resources Inc. (the
"Guarantor"). The Securities are to be issued under an indenture (the
"Indenture") dated as of February 12, 2001, between the Company and Citibank,
N.A., as trustee (the "Trustee"). The Securities have the benefit of the
Registration Rights Agreement (the "Registration Rights Agreement"), dated as of
November 16, 2001, between the Company and the Initial
Purchasers, pursuant to which the Company has agreed to register the Securities
under the Act subject to the terms and conditions therein specified. To the
extent there are no additional parties listed on Schedule I other than you, the
term Representatives as used herein shall mean you as the Initial Purchasers,
and the terms Representatives and Initial Purchasers shall mean either the
singular or plural as the context requires. The use of the neuter in this
Agreement shall include the feminine and masculine wherever appropriate. Certain
terms used herein are defined in Section 17 hereof.
The sale of the Securities to the Initial Purchasers will be made without
registration of the Securities under the Act in reliance upon exemptions from
the registration requirements of the Act.
In connection with the sale of the Securities, the Company has prepared a
preliminary offering memorandum, dated November 7, 2001 (as amended or
supplemented at the Execution Time, including any and all exhibits thereto and
any information incorporated by reference therein, the "Preliminary
Memorandum"), and a final offering memorandum, dated November 8, 2001 (as
amended or supplemented at the Execution Time, including any and all exhibits
thereto and any information incorporated by reference therein, the "Final
Memorandum"). Each of the Preliminary Memorandum and the Final Memorandum sets
forth certain information concerning the Company and the Securities. The Company
hereby confirms that it has authorized the use of the Preliminary Memorandum and
the Final Memorandum, and any amendment or supplement thereto, in connection
with the offer and sale of the Securities by the Initial Purchasers. Unless
stated to the contrary, any references herein to the terms "amend", "amendment"
or "supplement" with respect to the Final Memorandum shall be deemed to refer to
and include any information filed under the Exchange Act subsequent to the
Execution Time which is incorporated by reference therein.
1. Representations and Warranties. The Company represents and warrants to
each Initial Purchaser as set forth below in this Section 1.
(a) The Preliminary Memorandum, at the date thereof, did not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. At the Execution Time and on
the Closing Date, the Final Memorandum did not, and will not (and any
amendment or supplement thereto, at the date thereof and at the Closing
Date, will not), contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representation or warranty as
to the information
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contained in or omitted from the Preliminary Memorandum or the Final
Memorandum, or any amendment or supplement thereto, in reliance upon and in
conformity with information furnished in writing to the Company by or on
behalf of the Initial Purchasers through the Representatives specifically
for inclusion therein.
(b) Neither the Company, nor any of its Affiliates, nor any person
acting on its or their behalf has, directly or indirectly, made offers or
sales of any security, or solicited offers to buy any security, under
circumstances that would require the registration of the Securities under
the Act.
(c) Neither the Company, nor any of its Affiliates, nor any person
acting on its or their behalf has engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with any offer or sale of the Securities in the United States.
(d) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Act.
(e) Neither the Company, nor any of its Affiliates, nor any person
acting on its or their behalf has engaged in any directed selling efforts
with respect to the Securities, and each of them has complied with the
offering restrictions requirement of Regulation S. Terms used in this
paragraph have the meanings given to them by Regulation S.
(f) The Company has not paid or agreed to pay to any person any
compensation for soliciting another to purchase any securities of the
Company (except as contemplated by this Agreement).
(g) The Company has not taken, directly or indirectly, any action
designed to cause or which has constituted or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in the
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
(h) The information provided by the Company pursuant to Section 5(h)
hereof will not, at the date thereof, contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(i) The Company is an unlimited liability company duly organized,
validly existing and in good standing under the laws of Nova Scotia,
Canada, has the corpo-
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rate power and authority to own its property and to conduct its business as
described in the Final Memorandum and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(j) Each subsidiary of the Company, if any, has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business as described
in the Final Memorandum and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(k) This Agreement has been duly authorized, executed and delivered by
the Company, as principal and not as agent.
(l) The Indenture has been duly qualified under the Trust Indenture
Act and the Indenture and the Registration Rights Agreement have been duly
authorized, executed and delivered by the Company, as principal and not as
agent, and are valid and binding agreements of the Company, enforceable in
accordance with their terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally, (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability and (iii) rights to indemnification and contribution under
the Registration Rights Agreement may be limited under applicable law or
public policy considerations.
(m) The Securities have been duly authorized by the Company, as
principal and not as agent, and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid
for by the Initial Purchasers in accordance with this Agreement, will be
entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company, in each case enforceable in accordance with
their respective terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
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(n) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Indenture, the
Registration Rights Agreement and the Securities will not contravene any
provision of applicable law or the certificate of incorporation or by-laws
(or other equivalent organizational document) of the Company or any
agreement or other instrument binding upon the Company or any of its
subsidiaries or affiliates that is material to the Company and its
subsidiaries, taken as a whole, or any judgment or decree of any
governmental agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of or
qualification with any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture, the Registration Rights Agreement or the Securities, except such
as may be required by the securities or Blue Sky laws of the various states
in connection with the offer and sale of the Securities.
(o) There has not occurred any material adverse change in, or any
adverse development which materially affects, the condition, financial or
otherwise, or the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Final
Memorandum.
(p) All descriptions in the Final Memorandum of statutes, regulations,
legal or governmental proceedings, contracts and other documents are
accurate in all material respects and fairly present in all material
respects the information required to be shown.
(q) The Company is not, nor is it directly or indirectly controlled by
or acting on behalf of any person which is, (i) an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, and
the rules and regulations promulgated by the Commission thereunder or (ii)
a "holding company" within the meaning of, or subject to regulation under,
the Public Utility Holding Company Act of 1935, as amended, and the rules
and regulations promulgated by the Commission thereunder.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Initial Purchasers in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Initial Purchaser.
2. Issuance of Notes. Subject to the terms and conditions set forth or
incorporated by reference herein, the Company hereby agrees to sell and the
Initial Purchasers agree
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to purchase the Securities at a purchase price equal to 99.984% of the principal
amount of the 2006 Notes, 99.719% of the principal amount of the 2011 Notes and
99.862% of the principal amount of the 2031 Notes, plus accrued interest, if
any, from November 16, 2001, to the date of payment and delivery. As
compensation to the Initial Purchasers for their services and commitments
hereunder in relation to the issuance of the Notes, the Company hereby agrees to
pay to the Initial Purchasers a commission of .600% of the principal amount of
the 2006 Notes, a commission of .650% of the principal amount of the 2011 Notes,
and a commission of .875% of the principal amount of the 2031 Notes.
3. Delivery and Payment. Delivery of and payment for the Securities shall
be made at 10:00 A.M., New York City time, on November 16, 2001, or at such time
on such later date (not later than November 19, 2001) as the Representatives
shall designate, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the Representatives
for the respective accounts of the several Initial Purchasers against payment by
the several Initial Purchasers through the Representatives of the purchase price
thereof to or upon the order of the Company by wire transfer payable in same-day
funds to the account specified by the Company. Delivery of the Securities shall
be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
4. Offering by Initial Purchasers. Each Initial Purchaser, severally and
not jointly, represents and warrants to and agrees with the Company that:
(a) It has not offered or sold, and will not offer or sell, any
Securities except (i) to those it reasonably believes to be qualified
institutional buyers (as defined in Rule 144A under the Act) and that, in
connection with each such sale, it has taken or will take reasonable steps
to ensure that the purchaser of such Securities is aware that such sale is
being made in reliance on Rule 144A; or (ii) in accordance with the
restrictions set forth in Exhibit B hereto.
(b) Neither it nor any person acting on its behalf has made or will
make offers or sales of the Securities in the United States by means of any
form of general solicitation or general advertising (within the meaning of
Regulation D) in the United States.
5. Agreements. The Company agrees with each Initial Purchaser that:
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(a) The Company will furnish to each Initial Purchaser and to counsel
for the Initial Purchasers, without charge, during the period referred to
in paragraph (c) below, as many copies of the Final Memorandum and any
amendments and supplements thereto as it may reasonably request.
(b) The Company will not amend or supplement the Final Memorandum,
other than by filing documents under the Exchange Act that are incorporated
by reference therein, without the prior consent of the Representatives;
provided, however, that, prior to the completion of the distribution of the
Securities by the Initial Purchasers (as determined by the Initial
Purchasers), the Company will not file any document under the Exchange Act
that is incorporated by reference in the Final Memorandum unless, prior to
such proposed filing, the Company has furnished the Representatives with a
copy of such document for their review and the Representatives have not
reasonably objected to the filing of such document.
(c) If at any time prior to the completion of the sale of the
Securities by the Initial Purchasers (as determined by the
Representatives), any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Final Memorandum in order
to make the statements therein, in the light of the circumstances when the
Final Memorandum is delivered to a purchaser, not misleading, or if, in the
opinion of counsel for the Representatives, it is necessary to amend or
supplement the Final Memorandum to comply with law, forthwith (subject to
the requirements of paragraph (b) of this Section 5) the Company will
prepare and furnish, at its own expense, to the several Initial Purchasers
and counsel for the Initial Purchasers without charge in such quantities as
you may reasonably request either amendments or supplements to the Final
Memorandum so that the statements in the Final Memorandum as so amended or
supplemented will not, in the light of the circumstances when the Final
Memorandum is delivered to a purchaser, be misleading or so that the Final
Memorandum, as so amended or supplemented, will comply with law.
(d) The Company will endeavor to qualify, if necessary, the Securities
for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchasers shall reasonably request and to pay
all reasonable expenses (including reasonable fees and disbursements of
counsel) in connection with such qualification and in connection with the
determination of the eligibility of the Securities for investment under the
laws of such jurisdictions as the Initial Purchasers may designate;
provided that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to
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service of process in suits, other than those arising out of the offering
or sale of the securities in any jurisdiction where it is now so subject.
(e) The Company will not, and will not permit any of its Affiliates
to, resell any Securities that have been acquired by any of them.
(f) Neither the Company, nor any of its Affiliates, nor any person
acting on its or their behalf will, directly or indirectly, make offers or
sales of any security, or solicit offers to buy any security, under
circumstances that would require the registration of the Securities under
the Act.
(g) Neither the Company, nor any of its Affiliates, nor any person
acting on its or their behalf will engage in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with any offer or sale of the Securities in the United States.
(h) So long as any of the Securities are "restricted securities"
within the meaning of Rule 144(a)(3) under the Act, the Company will,
during any period in which it is not subject to and in compliance with
Section 13 or 15(d) of the Exchange Act or it is not exempt from such
reporting requirements pursuant to and in compliance with Rule 12g3-2(b)
under the Exchange Act, provide to each holder of such restricted
securities and to each prospective purchaser (as designated by such holder)
of such restricted securities, upon the request of such holder or
prospective purchaser, any information required to be provided by Rule
144A(d)(4) under the Act. This covenant is intended to be for the benefit
of the holders, and the prospective purchasers designated by such holders,
from time to time of such restricted securities.
(i) Neither the Company, nor any of its Affiliates, nor any person
acting on its or their behalf will engage in any directed selling efforts
with respect to the Securities, and each of them will comply with the
offering restrictions requirement of Regulation S. Terms used in this
paragraph have the meanings given to them by Regulation S.
(j) The Company will cooperate with the Representatives and use
commercially reasonable efforts to permit the Securities to be eligible for
clearance and settlement through The Depository Trust Company.
(k) During the period beginning on the date of this Agreement and
continuing to and including the Closing Date, the Company will not offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company substantially similar to the
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Securities (other than the Securities) without the prior written consent of
the Representatives.
(l) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(m) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the issuance of the Securities and the fees of the
Trustee; (ii) the preparation, printing or reproduction of the Preliminary
Memorandum and Final Memorandum and each amendment or supplement to either
of them; (iii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of
such copies of the Preliminary Memorandum and Final Memorandum, and all
amendments or supplements to either of them, as may, in each case, be
reasonably requested for use in connection with the offering and sale of
the Securities; (iv) the preparation, printing, authentication, issuance
and delivery of certificates for the Securities, including any stamp or
transfer taxes in connection with the original issuance and sale of the
Securities; (v) the transportation and other expenses incurred by or on
behalf of Company representatives in connection with presentations to
prospective purchasers of the Securities; (vi) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including local
and special counsel) for the Company; and (vii) all other costs and
expenses incident to the performance by the Company of its obligations
hereunder.
6. Conditions to the Obligations of the Initial Purchasers. The obligations
of the Initial Purchasers to purchase the Securities shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein at the Execution Time and the Closing Date, to the accuracy of
the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) The Representatives shall have received on the Closing Date (i)
opinions of Xxxxxx Xxxxxx & Xxxxxxx, special U.S. counsel to the Guarantor,
and Xxxxxxx Xxxxx LLP, special Canadian counsel to the Company, addressing
the matters set forth in paragraphs (i), (ii)(a), (iv), (v), (vi), (vii),
(viii), (ix), (x), (xi)(a), (xii)(b), (xiii), (xiv)(b), (xv), (xvi),
(xvii), (xviii) and (xix) of Exhibit A attached hereto, and (ii) an opinion
of the Vice President and General Counsel of the Guarantor and the Company,
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addressing the matters set forth in paragraphs (ii)(b), (iii), (x), (xi)
(item (b)), (xii)(a) and (xiv)(a) of Exhibit A.
(b) The Representatives shall have received from Cravath, Swaine &
Xxxxx, counsel for the Initial Purchasers, such opinion or opinions, dated
the Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Indenture, the Registration Rights
Agreement, the Final Memorandum (as amended or supplemented at the Closing
Date) and other related matters as the Representatives may reasonably
require, and the Company and Guarantor shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(c) Subsequent to the execution and delivery of the Purchase Agreement
and prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the Guarantor's
securities by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the
Guarantor and its subsidiaries, taken as a whole, from that set forth
in the Final Memorandum that, in the judgment of the Representatives,
is material and adverse and that makes it, in the judgment of the
Representatives, impracticable to market the Securities on the terms
and in the manner contemplated in the Final Memorandum.
(d) The Representatives shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in clause (c)(i) above and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and that the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied on or before the
Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
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(e) The Representatives shall have received on each of the date hereof
and the Closing Date a letter, dated such date, in form and substance
reasonably satisfactory to the Representatives, from PricewaterhouseCoopers
LLP, independent accountants for the Company, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Final
Memorandum.
References to the Final Memorandum in this Section 6(e) include any
amendment or supplement thereto at the date of the applicable letter.
(f) The Representatives shall have received (i) on the date of this
Agreement, a guarantee in the form of Exhibit C (the "Purchase Agreement
Guarantee") executed by the Guarantor and (ii) on the Closing Date, a
certificate, dated the Closing Date and signed by an executive officer of
the Guarantor, to the effect that the representations and warranties of the
Guarantor contained in the Purchase Agreement Guarantee are true and
correct as of the Closing Date and that the Guarantor has complied with,
and satisfied all, the conditions to be performed or satisfied by it on or
before the Closing Date.
(g) The Representatives shall have received on the Closing Date a
guarantee agreement (the "Securities Guarantee"), in form attached as
Exhibit A of the Indenture, under which the Guarantor agrees to irrevocably
and unconditionally guarantee all the Company's obligations under the
Indenture in respect of the Securities.
(h) The Representatives shall have received on the Closing Date a
registration rights agreement (the "Registration Rights Agreement"), in
form and substance satisfactory to the Representatives, executed by the
Company and the Guarantor.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Initial Purchasers,
this Agreement and all obligations of the Initial Purchasers hereunder may be
cancelled at, or at any time prior to, the Closing Date by the Representatives.
Notice of such cancellation shall be given to the Company in writing or by
telephone or facsimile confirmed in writing.
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The documents required to be delivered by this Section 6 will be delivered
at the office of counsel for the Initial Purchasers, at 000 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, on the Closing Date.
7. Reimbursement of Expenses. If the sale of the Securities provided for
herein is not consummated because any condition to the obligations of the
Initial Purchasers set forth in Section 6 hereto is not satisfied, because of
any termination pursuant to Section 10(a)(ii) hereof at a time when Section
10(a)(i) hereof is not simultaneously applicable or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Initial Purchasers, the Company will reimburse the Initial Purchasers
severally through the Representatives on demand for all reasonable out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Securities.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Initial Purchaser, the directors, officers, employees and
agents of each Initial Purchaser and each person, if any, who controls such
Initial Purchaser within the meaning of either Section 15 of the Act or Section
20 of the Exchange Act from and against any and all losses, claims, damages and
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise (including, without limitation, any legal
or other expenses reasonably incurred by any Initial Purchaser or any such
director, officer, employee, agent or controlling person in connection with
defending or investigating any such action or claim) insofar as such losses,
claims, damages or liabilities arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Preliminary Memorandum, the Final Memorandum (or in any supplement or amendment
thereto) or any information provided by the Company to any holder or prospective
purchaser of Securities pursuant to Section 5(h), or in any amendment thereof or
supplement thereto, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Initial Purchaser furnished to the Company in writing by such Initial Purchaser
through the Representatives expressly for use therein.
(b) Each Initial Purchaser agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, officers, employees and agents,
and each person, if any, who controls the Company within the meaning of either
Section 15 of the Act or Section
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20 of the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Initial Purchaser, but only with reference to written
information relating to such Initial Purchaser furnished to the Company by such
Initial Purchaser in writing through the Representatives expressly for use in
the Preliminary Memorandum or the Final Memorandum or any amendments or
supplements thereto. The Company acknowledges that the statements set forth in
the Preliminary Memorandum and the Final Memorandum constitute the only
information furnished in writing by or on behalf of the Initial Purchasers for
inclusion in the Preliminary Memorandum or the Final Memorandum (or in any
amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings 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 such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Representatives, in the case of parties indemnified
pursuant to the second preceding paragraph, and by the Company, in the case of
parties indemnified pursuant to the first preceding paragraph. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the third
sentence of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such set-
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tlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(d) If the indemnification provided for in paragraph (a) or (b) in this
Section 8 is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party 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 Initial Purchasers on
the other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Initial Purchasers on the other hand 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 Initial
Purchasers on the other hand in connection with the offering of the Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of such Securities (before deducting expenses) received by the
Company and the total discounts and commissions received by the Initial
Purchasers bear to the aggregate offering price of the Securities. The relative
fault of the Company on the one hand and of the Initial Purchasers on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Initial Purchasers and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Initial Purchasers' respective obligations to contribute pursuant to this
Section 8(d) are several in proportion to the respective principal amounts of
Securities purchased by each of such Initial Purchasers and not joint. The
Company and the Initial Purchasers agree that it would not be just or equitable
if contribution pursuant to this Section 8(d) were determined by pro rata
allocation (even if the Initial Purchasers 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 this paragraph (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this paragraph (d)
-14-
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8(d), no Initial Purchaser shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities sold by it exceeds the amount of any damages that
such Initial Purchaser has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The remedies provided for in this Section 8
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
(e) The indemnity and contribution provisions contained in this Section 8
and the representations and warranties of the Company contained herein shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any Initial
Purchaser or any person controlling any Initial Purchaser or by or on behalf of
the Company, its directors or officers or any person controlling the Company and
(iii) acceptance of and payment for any of the Securities.
9. Default by an Initial Purchaser. If any one or more Initial Purchasers
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Initial Purchaser hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Initial Purchasers shall be obligated severally to take
up and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Initial Purchasers)
the Securities which the defaulting Initial Purchaser or Initial Purchasers
agreed but failed to purchase; provided, however, that in the event that the
aggregate amount of Securities which the defaulting Initial Purchaser or Initial
Purchasers agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule I hereto, the remaining Initial
Purchasers shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such nondefaulting Initial
Purchasers do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Initial Purchaser or the Company. In the
event of a default by any Initial Purchaser as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding five Business
Days (but not later than November 19, 2001), as the Representatives shall
determine in order that the required changes in the Final Memorandum or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Initial Purchaser of
-15-
its liability, if any, to the Company or any nondefaulting Initial Purchaser for
damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if (a) at any time prior to such
time (i) trading generally shall have been suspended or materially limited on or
by, as the case may be, any of the New York Stock Exchange, the American Stock
Exchange or the National Association of Securities Dealers, Inc., (ii) trading
of any securities of the Guarantor shall have been suspended on any exchange or
in any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Representatives, is material and adverse and (b) in
the case of any of the events specified in clauses (a) (i) through (iv), such
event, singly or together with any other such event, makes it, in the judgment
of the Representatives, impracticable to market the Securities on the terms and
in the manner contemplated in the Final Memorandum.
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Initial Purchasers set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of the Initial Purchasers or the Company or any of the
officers, directors or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
12. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telefaxed to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, 4 World
Financial Center, New York, New York 10080, c/o Xxxxxxx X. Xxxx, Esq., facsimile
number (000) 000-0000 and confirmed to it at (000) 000-0000; or, if sent to the
Company, will be mailed, delivered or telefaxed to Burlington Resources Finance
Company, c/o Burlington Resources Inc., 0000 Xxxxxxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxx 00000-0000, attention of the Legal Department, facsimile number (713)
624-9627.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and, except
as expressly set forth in Section 5(h) hereof, no other person will have any
right or obligation hereunder.
-16-
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York. Solely for purposes of
enforcing this Agreement, the Company hereby consents to personal jurisdiction,
service of process and venue in any court in which any claim or proceeding that
is subject to this Agreement is brought against it. Any right to trial by jury
with respect to any claim or proceeding related to or arising out of this
Agreement or any transaction or conduct in connection therewith, and any legal
immunity which may be available to the Company, is hereby waived by the Company.
The agreements contained in this paragraph shall remain in full force and effect
notwithstanding the termination of this Agreement.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all which together
shall constitute one and the same instrument.
16. Headings. The section headings used herein are for convenience only and
shall not affect the construction hereof.
17. Definitions. 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" shall have the meaning set forth in the Indenture.
"Business Day" shall have the meaning set forth in the Indenture.
"Commission" shall mean the Securities and Exchange Commission.
"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.
"Investment Company Act" shall mean the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"NASD" shall mean the National Association of Securities Dealers, Inc.
-17-
"Regulation D" shall mean Regulation D under the Act.
"Regulation S" shall mean Regulation S under the Act.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
-18-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
Agreement and your acceptance shall represent a binding agreement between the
Company and the several Initial Purchasers.
Very truly yours,
BURLINGTON RESOURCES FINANCE COMPANY
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By /s/ X. Xxxxx Xxxxxx, Xx.
----------------------------------
Name: X. Xxxxx Xxxxxx, Xx.
Title: Vice President
Xxxxxx Xxxxxxx & Co. Incorporated
By /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Director
For themselves and the other several Initial
Purchasers named in Schedule I to
the foregoing Agreement.
-19-
SCHEDULE I
Initial Purchasers Principal Amount Principal Amount Principal Amount
------------------
of 2006 Notes of 2011 Notes of 2031 Notes
to be Purchased to be Purchased to be Purchased
--------------- --------------- ---------------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx $154,750,000 $154,750,000 $154,750,000
Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated. 154,750,000 154,750,000 154,750,000
Banc of America Securities LLC 13,600,000 13,600,000 13,600,000
BNP Paribas Securities Corp. 13,600,000 13,600,000 13,600,000
First Union Securities, Inc. 13,600,000 13,600,000 13,600,000
Fleet Securities, Inc. 13,600,000 13,600,000 13,600,000
Mellon Financial Markets, LLC 13,600,000 13,600,000 13,600,000
Xxxxxxx Xxxxx Xxxxxx, Inc. 13,600,000 13,600,000 13,600,000
Scotia Capital (USA) Inc. 13,600,000 13,600,000 13,600,000
TD Securities (USA) Inc. 13,600,000 13,600,000 13,600,000
The Royal Bank of Scotland plc 13,600,000 13,600,000 13,600,000
Tokyo-Mitsubishi International plc 13,600,000 13,600,000 13,600,000
ABN AMRO Incorporated 6,812,500 6,812,500 6,812,500
Banc One Capital Markets, Inc. 6,812,500 6,812,500 6,812,500
Barclays Capital Inc. 6,812,500 6,812,500 6,812,500
BNY Capital Markets, Inc. 6,812,500 6,812,500 6,812,500
Credit Suisse First Boston Corporation 6,812,500 6,812,500 6,812,500
Mizuho International plc 6,812,500 6,812,500 6,812,500
RBC Dominion Securities Corporation 6,812,500 6,812,500 6,812,500
Xxxxx Fargo Brokerage Services, LLC 6,812,500 6,812,500 6,812,500
------------- ------------ ------------
Total $500,000,000 $500,000,000 $500,000,000
EXHIBIT A
[Form of] Opinion of
Counsel for the Guarantor and the Company
The opinion of counsel for the Company to be delivered pursuant to Section 6(a)
of the Purchase Agreement shall be to the effect that:
(i) the Guarantor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(ii) the Guarantor (a) has the corporate power and authority to own
its property and to conduct its business as described in the Final
Memorandum and (b) is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries, taken
as a whole;
(iii) the Company and each material subsidiary of the Guarantor has
been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its
business as described in the Final Memorandum and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the Guarantor and its subsidiaries, taken as a whole;
(iv) the Purchase Agreement and the Registration Rights Agreement has
been duly authorized, executed and delivered by the Company and the
Purchase Agreement Guarantee has been duly authorized, executed and
delivered by the Guarantor;
(v) the Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company,
and each of the Indenture, Purchase Agreement and the Registration Rights
Agreement is a valid and binding agreement of the Company, enforceable in
accordance with its terms except that (a) the enforceability thereof may be
subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or conveyance or other similar laws now or hereafter in effect
relating to or affecting creditors' rights or remedies generally, (b)
-2-
the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceedings therefor may be brought
(regardless of whether enforcement is sought in a proceeding at law or
equity) and (c) rights to indemnification and contribution under the
Purchase Agreement and Registration Rights Agreement may be limited under
the applicable law or public policy considerations;
(vi) the Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Initial Purchasers in accordance with the
terms of the Purchase Agreement, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company, in each
case enforceable in accordance with their respective terms except that (a)
the enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or conveyance or other
similar laws now or hereafter in effect relating to or affecting creditors'
rights or remedies generally, (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceedings
therefor may be brought (regardless of whether enforcement is sought in a
proceeding at law or equity);
(vii) each of the Securities Guarantee, Purchase Agreement Guarantee
and the Registration Rights Agreement has been duly authorized, executed
and delivered by the Guarantor and is a valid and binding agreement of the
Guarantor, enforceable in accordance with its terms except that (a) the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or conveyance or other
similar laws now or hereafter in effect relating to or affecting creditors'
rights or remedies generally, (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceedings
therefor may be brought (regardless of whether enforcement is sought in a
proceeding at law or equity) and (c) rights to indemnification and
contribution under the Purchase Agreement Guarantee and the Registration
Rights Agreement may be limited under the applicable law or public policy
considerations;
(viii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Purchase
Agreement, the Registration Rights Agreement, the Indenture and the
Securities will not contravene any provisions of the memorandum or articles
of association of the Company;
(ix) the execution and delivery by the Guarantor of, and the
performance by the Guarantor of its obligations under, the Purchase
Agreement Guarantee, the Regis-
-3-
tration Rights Agreement and the Securities Guarantee will not contravene
any provisions of the certificate of incorporation or by-laws of the
Guarantor;
(x) to the knowledge of such counsel, the execution and delivery by
the Company of, and the performance by the Company of its obligations
under, the Purchase Agreement, the Registration Rights Agreement, the
Indenture and the Securities and the execution and delivery by the
Guarantor of, and the performance by the Guarantor of its obligations
under, the Purchase Agreement Guarantee, the Registration Rights Agreement
and the Securities Guarantee will not contravene any provision of
applicable law or any agreement or other instrument binding upon the
Guarantor, the Company or any other subsidiary of the Guarantor that has
been filed pursuant to and in accordance with the Exchange Act, or any
judgment, order or decree of any governmental body, agency or court of the
United States, Canada or any jurisdiction therein or any other jurisdiction
having jurisdiction over the Guarantor or any of its subsidiaries, or any
provision of applicable law (other than state securities law) and no
consent, approval, authorization or order of or qualification with any
governmental body or agency is required for the performance by the Company
of its obligations under the Purchase Agreement, the Registration Rights
Agreement, the Indenture or the Securities or by the Guarantor of its
obligations under the Purchase Agreement Guarantee, the Registration Rights
Agreement or the Securities Guarantee, except in each case as such may be
required by the federal securities laws or Blue Sky laws of the various
states in connection with the offer and sale of the Securities and except
such approvals as may be required by the SEC in relation to any
Registration Statement (as defined in the Registration Rights Agreement);
(xi) the statements (a) in the Final Memorandum under the captions
"Description of Notes and Guarantees" and "Plan of Distribution" and (b)
"Item 3 - Legal Proceedings" of the Guarantor's most recent annual report
on Form 10-K incorporated by reference in the Final Memorandum, in each
case insofar as such documents constitute summaries of the legal matters,
documents or legal proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents and
proceedings, and fairly summarize the matters referred to therein;
(xii) such counsel does not know of (a) any legal or governmental
proceedings pending or threatened to which the Guarantor or any of its
subsidiaries is a party or to which any of the properties of the Guarantor
or any of its subsidiaries is subject that are required to be described in
the Final Memorandum and are not so described or of (b) any statutes,
regulations, contracts or other documents that are required to be described
in the Final Memorandum or to be incorporated by reference therein that are
not described or incorporated as required;
-4-
(xiii) neither the Company nor the Guarantor are, nor are either of
them directly or indirectly controlled by or acting on behalf of any person
which is, (i) an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, and the rules and regulations promulgated
by the Commission thereunder or (ii) a "holding company" within the meaning
of, or subject to regulation under, the Public Utility Holding Company Act
of 1935, as amended, and the rules and regulations promulgated by the
Commission thereunder;
(xiv) (a) such counsel is of the opinion that each document, if any,
filed pursuant to the Exchange Act and incorporated by reference in the
Final Memorandum (except for financial statements and schedules and other
financial or statistical information included therein as to which such
counsel need not express any opinion) was appropriately responsive when so
filed in all material respects to the requirements of the Exchange Act and
the applicable rules and regulations of the Commission thereunder and (b)
no facts have come to the attention of such counsel that lead such counsel
to believe that the Final Memorandum, as of its date or as of the date of
such opinion, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel has not been
requested to and does not make any comment with respect to the financial
statements and schedules and other financial and statistical data included
or incorporated by reference in the Final Memorandum);
(xv) subject to the assumptions, qualifications and limitations
contained therein, the statements set forth in the Final Memorandum under
the heading "Certain Income Tax Considerations -- Canadian Federal Income
Tax Considerations," insofar as such statements constitute a summary of
certain Canadian federal income tax considerations, fairly represent the
information referred to therein;
(xvi) to our knowledge, no litigation or governmental proceedings are
pending or threatened against the Company or any of its subsidiaries which
would adversely affect the ability of the Guarantor, Burlington Resources
Canada Inc. or any of the Guarantor's subsidiaries individually or in the
aggregate, to perform its obligations under the Purchase Agreement, the
Registration Rights Agreement, the Indenture or the Securities which is not
disclosed and correctly summarized in the Final Memorandum;
(xvii) assuming (i) the accuracy of, and compliance with, the
representations, warranties and covenants of the Company and the Guarantor
contained in the Purchase Agreement, (ii) the accuracy of, and compliance
with, the representations, warranties and covenants of the Initial
Purchasers contained in Section 4 of the Purchase Agree-
-5-
ment, (iii) the accuracy of the representations and warranties of each of
the purchasers to whom any of the Initial Purchasers initially resells the
Securities deemed to have been made pursuant to the Final Memorandum, (iv)
the compliance by the Company and the Guarantor and the Initial Purchasers
with the offering and transfer procedures and restrictions described in the
Final Memorandum, the Purchase Agreement and the Indenture and (v) the
receipt by the purchasers to whom the Initial Purchasers initially resell
the Securities of a copy of the Final Memorandum prior to such sale, it is
not necessary in connection with the offer, sale and delivery of the
Securities to the Initial Purchasers or in connection with the initial
resales of the Securities by the Initial Purchasers in the manner
contemplated by the Purchase Agreement and the Offering Memorandum to
register the Securities under the Securities Act of 1933, as amended, and
it is not necessary to qualify the Indenture under the Trust Indenture Act
of 1939, as amended; it being understood that no opinion is expressed as to
any subsequent resale of any Securities;
(xviii) a court of competent jurisdiction in the Province of Alberta
would give effect to the choice of New York law as the proper law governing
the Indenture, the Securities, the Registration Rights Agreement and the
Purchase Agreement provided that such choice of law is bona fide (in the
sense that it was not made with a view to avoiding the consequences of the
laws of any other jurisdiction) and provided that such choice of law is not
contrary to public policy, as that term is understood under the laws of the
Province of Alberta and the federal laws of Canada applicable therein; to
our knowledge, there are no reasons under present law for avoiding the
choice of New York law to govern the Indenture, the Securities, the
Registration Rights Agreement and the Purchase Agreement under the laws of
the Province of Alberta and the federal laws of Canada applicable therein;
(xix) if the Indenture, the Securities, the Registration Rights
Agreement and the Purchase Agreement were sought to be enforced in the
Province of Alberta in accordance with the laws applicable thereto, as
chosen by the parties, namely, New York law, a court of competent
jurisdiction in the Province of Alberta would, subject to paragraph (xviii)
above, and to the extent specifically pleaded and proved as a fact by
expert evidence, recognize the choice of New York law and apply such law to
all issues that, under the conflict of laws rules of the Province of
Alberta, are to be determined in accordance with the proper or general law
of a contract, provided that none of the provisions of the Indenture, the
Securities, the Registration Rights Agreement and the Purchase Agreement,
or of New York law, are contrary to public policy as that term is
understood under the laws of the Province of Alberta and the federal laws
of
-6-
Canada applicable therein; and further provided that, in matters of
procedure (as that term is understood under the laws of the Province of
Alberta and the federal laws of Canada applicable therein), the laws of the
Province of Alberta will be applied including the Limitations Act
(Alberta), and a court of competent jurisdiction in the Province of Alberta
will retain discretion to decline to hear such action and apply such law
(i) if it is contrary to public policy (as that term is understood under
the laws of the Province of Alberta and the federal laws of Canada
applicable therein) for such court to do so, or (ii) if it is not the
proper forum to hear such an action, or (iii) if concurrent proceedings are
being brought elsewhere; to our knowledge, there are no reasons based on
public policy, as that term is understood under the laws of the Province of
Alberta and the laws of Canada applicable therein, for avoiding enforcement
of the Indenture, the Securities, the Registration Rights Agreement or the
Purchase Agreement (with the exception of the indemnity and contribution
provisions contained therein);
(xx) the laws of the Province of Alberta permit an action to be
brought in a court of competent jurisdiction in the Province of Alberta on
any final and conclusive judgment in personam for a fixed sum of money of
any federal or state court located in the Borough of Manhattan in the City
of New York ("New York Court") respecting the enforcement of the Indenture,
the Securities, the Registration Rights Agreement and the Purchase
Agreement that is not impeachable as void or voidable under the internal
laws of the State of New York for a sum certain if: (i) the court rendering
such judgment had jurisdiction over the judgment debtor, as recognized by
the courts of the Province of Alberta (to our knowledge, submission under
the provisions of the Indenture, the Securities, the Registration Rights
Agreement and the Purchase Agreement to the jurisdiction of the New York
Court will be sufficient for this purpose), and the judgment debtor was
properly served in the action leading to such judgment; (ii) such judgment
was not obtained by fraud or in a manner contrary to natural justice and
the enforcement thereof would not be inconsistent with public policy, as
such term is understood under the laws of the Province of Alberta, or
contrary to any order made by the Attorney General of Canada under the
Foreign Extraterritorial Measures Act (Canada) or by the Competition
Tribunal under the Competition Act (Canada); (iii) the enforcement of such
judgment does not constitute, directly or indirectly, the enforcement of
foreign revenue, expropriation or penal laws or other laws of a public law
nature; (iv) no new admissible evidence relevant to the action is
discovered prior to rendering of judgment by the court in the Province of
Alberta; and (v) the action to enforce such judgment is commenced within
the applicable limitation periods; to our knowledge, there are no reasons
under present law of the Province of Alberta for avoiding recognition of
said judgments of New York Courts which might be rendered in respect of the
Indenture, the Securities, the Registration Rights Agreement and the
Purchase Agreement based upon public policy, as that term is understood
under the laws of the Province of Alberta and the federal laws of Canada
applicable therein; and
-7-
(xxi) in an action on a final and conclusive judgment in personam for
a fixed sum of money of a New York Court which is not impeachable as void
or voidable under New York law, a court of competent jurisdiction in the
Province of Alberta would not refuse to recognize the jurisdiction of the
court rendering such judgment on the basis of process having been served on
CT Corporation System as the agent to receive service of process in the
United States of America appointed by the Company under the Indenture, the
Registration Rights Agreement and the Purchase Agreement provided the
Company has not purported to revoke the appointment, or CT Corporation
System has not terminated the agency or otherwise rendered service on it
ineffective.
With respect to paragraph (x) above, each of Xxxxxx Xxxxxx & Xxxxxxx,
special U.S. counsel to the Company and Guarantor, and Xxxxxxx Xxxxx LLP,
special Canadian counsel to the Company and Guarantor, may each (i) limit the
agreements and instruments referred to in paragraph (x) of this section to only
those agreements and instruments that have been filed pursuant to and in
accordance with the Exchange Act and (ii) rely on one or more certificates of
the Vice President and General Counsel of the Guarantor and Company for their
opinion indicating a lack of conflicts as described in paragraph (x).
The 10b-5 letter shall include the following:
We have participated in conferences with officers and other representatives
of the Company, representatives of the independent public accountants of the
Company and representatives of the Initial Purchasers at which the contents of
the Final Memorandum and related matters were discussed. Given the limitations
inherent in the role of outside counsel and the character of determinations
involved in the preparation of the Final Memorandum, we are not passing upon and
do not assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Final Memorandum and have made no independent
check or verification thereof (except to the extent provided in paragraph 5
above). On the basis of the foregoing, no facts have come to our attention which
lead us to believe that the Final Memorandum, as of its date or as of the date
hereof, contained or contains an untrue statement of a material fact or omitted
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 (it
being understood that we express no comment with respect to the financial
statements, including the notes thereto, or any other financial or statistical
data that is found in or derived from the internal accounting and other records
of the Company and its subsidiaries set forth or referred to in the Final
Memorandum).
EXHIBIT B
[Form of]
Selling Restrictions for Offers and
Sales outside the United States
(1) (a) The Securities have not been and will not be registered under the
Act and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with Regulation S under
the Act or pursuant to an exemption from the registration requirements of the
Act. Each Initial Purchaser represents and agrees that, except as otherwise
permitted by Section 4(a)(i) or (ii) of the Agreement to which this is an
exhibit, it has offered and sold the Securities, and will offer and sell the
Securities, (i) as part of their distribution at any time; and (ii) otherwise
until 40 days after the later of the commencement of the offering and the
Closing Date, only in accordance with Rule 903 of Regulation S under the Act.
Accordingly, each Initial Purchaser represents and agrees that neither it, nor
any of its Affiliates nor any person acting on its or their behalf has engaged
or will engage in any directed selling efforts with respect to the Securities,
and that it and they have complied and will comply with the offering
restrictions requirement of Regulation S. Each Initial Purchaser agrees that, at
or prior to the confirmation of sale of Securities (other than a sale of
Securities pursuant to Section 4(a)(i) or (ii) of the Agreement to which this is
an exhibit), it shall have sent to each distributor, dealer or person receiving
a selling concession, fee or other remuneration that purchases Securities from
it during the distribution compliance period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Act") and may not be offered or sold within
the United States or to, or for the account or benefit of, U.S. persons (i)
as part of their distribution at any time or (ii) otherwise until 40 days
after the later of the commencement of the offering and November 16, 2001,
except in either case in accordance with Regulation S or Rule 144A under
the Act. Terms used above have the meanings given to them by Regulation S."
(b) Each Initial Purchaser also represents and agrees that it has not
entered and will not enter into any contractual arrangement with any distributor
with respect to the distribution of the Securities, except with its Affiliates
or with the prior written consent of the Company.
(c) Terms used in this section have the meanings given to them by
Regulation S.
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(2) Each Initial Purchaser represents and agrees that (i) it has not
offered or sold, and will not offer or sell, in the United Kingdom, by means of
any document, any Securities other than to persons whose ordinary business it is
to buy or sell shares or debentures, whether as principal or as agent (except in
circumstances which do not constitute an offer to the public within the meaning
of the Companies Act 1989 of Great Britain); (ii) it has complied and will
comply with all applicable provisions of the Financial Services Act 1986 of the
United Kingdom with respect to anything done by it in relation to the Securities
in, from or otherwise involving the United Kingdom; and (iii) it has only issued
or passed on and will only issue or pass on in the United Kingdom any document
received by it in connection with the issue of the Securities to a person who is
of a kind described in Article 9(3) of the Financial Services Act 1986
(Investment Advertisements) (Exemptions) Order 1996 or is a person to whom the
document may otherwise lawfully be issued or passed on.
EXHIBIT C
[Form of]
Purchase Agreement Guarantee
by Burlington Resources Inc.
Burlington Resources Inc., a Delaware corporation (the "Guarantor"), hereby
guarantees, as a primary obligor and not merely as surety, the due and punctual
payment and performance by Burlington Resources Finance Company, a Nova Scotia
unlimited liability company (the "Company"), of its obligations under the
Purchase Agreement dated as of November 8, 2001 (the "Purchase Agreement"),
between the several Initial Purchasers named therein and the Company (all such
obligations being referred as the "Obligations"). Capitalized terms used but not
defined herein are used with the meanings assigned to them in the Purchase
Agreement.
This Purchase Agreement Guarantee constitutes a guarantee of payment when
due and not of collection.
The Guarantor guarantees that the Obligations will be paid when due
strictly in accordance with their terms, regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting any of such terms
or the rights of the Initial Purchasers with respect thereto and regardless of
any other circumstance which might otherwise constitute a defense available to,
or a discharge of, the Guarantor. This Purchase Agreement Guarantee shall
continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Obligations is rescinded or must otherwise be returned
by the Initial Purchasers upon the insolvency, bankruptcy or reorganization of
the Company or otherwise, all as though such payment had not been made.
The Guarantor waives promptness, diligence, notice of acceptance and any
other notice with respect to any of the Obligations and this Purchase Agreement
Guarantee and any requirement that the Initial Purchasers exercise any right or
take any action against the Company.
Until the irrevocable payment in full in cash of all the Obligations, the
Guarantor irrevocably waives any claim or other rights which it may now or
hereafter acquire against the Initial Purchasers that arise from the existence,
payment, performance or enforcement of the Guarantor's obligations under this
Purchase Agreement Guarantee, including any right of subrogation, reimbursement,
exoneration, or indemnification and any right to participate in any claim or
remedy of the Initial Purchasers against the Company, whether or not such claim,
remedy or right arises in equity, or under contract, statute or common law. If
any
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amount shall be paid to the Guarantor in violation of the preceding sentence and
the Obligations shall not have been paid in cash in full, such amount shall be
deemed to have been paid to the Guarantor for the benefit of, and held in trust
for the Initial Purchasers, and shall promptly be credited and applied against
the Obligations.
The Guarantor represents and warrants to each of the Initial Purchasers
that as of the date hereof and as of the Closing Date that:
(a) The Guarantor is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the
Guarantor and its subsidiaries, taken as a whole.
(b) Burlington Resource Finance Company and each material subsidiary
of the Guarantor has been duly organized, is validly existing in good
standing under the laws of the jurisdiction of its organization, has the
power and authority to own its property and to conduct its business as
described in the Offering Memorandum and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the
Guarantor and its subsidiaries, taken as a whole.
(c) The Purchase Agreement Guarantee, Registration Rights Agreement
and Securities Guarantee have been duly authorized, executed and delivered
by the Guarantor.
(d) The execution and delivery by the Guarantor of, and the
performance by the Guarantor of its obligations under, this Purchase
Agreement Guarantee, the Registration Rights Agreement and the Securities
Guarantee will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Guarantor or any agreement
or other instrument binding upon the Guarantor or any of its subsidiaries
or affiliates that is material to the Guarantor and its subsidiaries, taken
as a whole, or any judgment or decree of any governmental agency or court
having jurisdiction over the Guarantor or any subsidiary, and no consent,
approval, authorization or order of or qualification with any governmental
body or agency is required for the perform-
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ance by the Guarantor of its obligations under this Purchase Agreement
Guarantee or the Securities Guarantee.
(e) There has not occurred any material adverse change in, or any
adverse development which materially affects, the condition, financial or
otherwise, or in the earnings, business or operations of the Guarantor and
its subsidiaries, taken as a whole, from that set forth in the Preliminary
Memorandum and the Final Memorandum.
(f) The Securities Guarantee has been duly authorized, executed and
delivered by the Guarantor and is a valid and binding agreement of the
Guarantor, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
(g) The Guarantor is not, nor is it directly or indirectly controlled
by or acting on behalf of any person which is, (i) an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, and
the rules and regulations promulgated by the Commission thereunder or (ii)
a "holding company" within the meaning of, or subject to regulation under,
the Public Utility Holding Company Act of 1935, as amended, and the rules
and regulations promulgated by the Commission thereunder.
(h) Except as disclosed in the Offering Memorandum, there is no
action, suit, proceeding, inquiry or investigation before or brought by any
court or governmental agency or body, domestic or foreign, now pending, or,
to the knowledge of the Guarantor, threatened, against or affecting the
Guarantor or any of its subsidiaries which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be expected
to materially and adversely affect the properties or assets of the
Guarantor or any of its subsidiaries or the consummation of the
transactions contemplated by this Agreement or the performance by the
Guarantor of its obligations hereunder.
(i) Neither the Guarantor, nor any of its Affiliates, nor any person
acting on its or their behalf has, directly or indirectly, made offers or
sales of any security, or solicited offers to buy any security, under
circumstances that would require the registration of the Securities under
the Act.
(j) Neither the Guarantor, nor any of its Affiliates, nor any person
acting on its or their behalf has engaged in any form of general
solicitation or general advertising
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(within the meaning of Regulation D) in connection with any offer or sale
of the Securities in the United States.
(k) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Act.
(l) Neither the Guarantor, nor any of its Affiliates, nor any person
acting on its or their behalf has engaged in any directed selling efforts
with respect to the Securities, and each of them has complied with the
offering restrictions requirement of Regulation S. Terms used in this
paragraph have the meanings given to them by Regulation S.
In further consideration of the agreements of the Initial Purchasers
contained in the Purchase Agreement, the Guarantor covenants as follows:
(a) To make generally available to the Guarantor's security holders
and to the Representatives as soon as practicable an earnings statement
covering a twelve-month period beginning on the first day of the first full
fiscal quarter after the date of this Agreement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder.
(b) During the period beginning on the date of the Purchase Agreement
and continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the
Guarantor substantially similar to the Offered Securities (other than the
Offered Securities) without the prior written consent of the
Representatives.
This Purchase Agreement Guarantee may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto were upon the same instrument.
This Purchase Agreement Guarantee shall be governed by and construed in
accordance with the internal laws of the State of New York. This Purchase
Agreement Guarantee sets forth the entire agreement between the parties with
respect to the matters addressed herein and supersedes all prior communications,
written or oral, with respect hereto.
The Guarantor waives all right to trial by jury in any action, proceeding
or counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to this Purchase Agreement Guarantee or the transactions contemplated
hereby or the actions of the Guarantor and the Initial Purchasers in the
negotiation, performance or enforcement hereof.
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BURLINGTON RESOURCES INC.
By: ___________________________________
Name:
Title:
