EXHIBIT 5.1.1
CHAMBERLAIN, HRDLICKA, XXXXX, XXXXXXXX & XXXXXX
A PARTNERSHIP OF PROFESSIONAL CORPORATIONS
ATTORNEYS AT LAW
0000 XXXXX XXXXXX, XXXXX 0000
XXXXXXX, XXXXX 00000-0000
(000) 000-0000 (000) 000-0000
(000) 000-0000 (FAX) HOUSTON
xxx.xxxxxxxxxxxxxx.xxx ATLANTA
September 19, 2003
Apache Corporation (333-105536)
Apache Finance Australia Pty Ltd (333-105536-02)
Apache Finance Canada II Corporation (333-105536-01)
c/o Apache Corporation
0000 Xxxx Xxx Xxxx.
Suite 100
Houston, Texas 77056-4400
Ladies and Gentlemen:
We are providing this opinion as counsel to Apache Corporation, a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), of an aggregate of
$1,500,000,000 aggregate initial offering price of (i) preferred stock, no par
value, of the Company ("Preferred Stock"), (ii) common stock, par value $1.25
per share, of the Company and related rights ("Common Stock"), (iii) senior
unsecured debt securities of the Company (the "Senior Debt Securities"), (iv)
subordinated unsecured debt securities of the Company (the "Subordinated Debt
Securities"), (v) Depositary Shares of the Company ("Depositary Shares"), (vi)
contracts to purchase (or sell) shares of Common Stock (the "Common Stock
Purchase Contracts"), (vii) purchase units of the Company, each representing
ownership of a Common Stock Purchase Contract and any Senior Debt Securities,
Subordinated Debt Securities, Preferred Stock, debt obligations of any other
person, Trust Preferred Securities (as defined below) or any combination thereof
("Common Stock Purchase Units"), (viii) preferred securities (the "Trust
Preferred Securities") of Apache Trust I and Apache Trust II, each a statutory
trust created under the laws of the State of Delaware (each, a "Trust" and,
collectively, the "Trusts"), (ix) senior unsecured debt securities of Apache
Finance Australia Pty Ltd, a proprietary company with limited liability
organized under the laws of the Australian Capital Territory and an indirect
wholly-owned subsidiary of the Company ("Apache Australia") (the "Apache
Australia Senior Debt Securities"), (x) subordinated unsecured debt securities
of Apache Australia (the "Apache Australia Subordinated Debt Securities"), (xi)
guarantees by the Company of each of the Apache Australia Senior Debt Securities
and the
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Apache Australia Subordinated Debt Securities (the "Apache Australia
Guarantees"), (xii) senior unsecured debt securities of Apache Finance Canada II
Corporation, an unlimited liability company organized under the laws of the
Province of Nova Scotia and an indirect wholly-owned subsidiary of the Company
("Apache Canada") (the "Apache Canada Senior Debt Securities"), (xiii)
subordinated unsecured debt securities of Apache Canada (the "Apache Canada
Subordinated Debt Securities"), (xiv) guarantees by the Company of each of the
Apache Canada Senior Debt Securities and the Apache Canada Subordinated Debt
Securities (the "Apache Canada Guarantees") and (xv) guarantees by the Company
with respect to the Trust Preferred Securities (the "Trust Guarantees," and
together with the Preferred Stock, the Common Stock, the Senior Debt Securities,
the Subordinated Debt Securities, the Depositary Shares, the Common Stock
Purchase Contracts, the Common Stock Purchase Units, the Trust Preferred
Securities, the Apache Australia Senior Debt Securities, the Apache Australia
Subordinated Debt Securities, the Apache Australia Guarantees, the Apache Canada
Senior Debt Securities, the Apache Canada Subordinated Debt Securities and the
Apache Canada Guarantees, the "Securities"), in each case, as described in the
registration statement on Form S-3 (the "Registration Statement") of the
Company, the Trusts, Apache Australia and Apache Canada in which this opinion is
included as Exhibit 5.1.1.
The Securities are to be offered upon the terms and subject to the
conditions set forth in one or more underwriting agreements by and among the
Company, the Trusts, Apache Australia and/or Apache Canada and the persons named
as underwriters therein. The Senior Debt Securities are to be issued in one or
more series pursuant to a Senior Indenture dated February 5, 1996, as
supplemented on November 5, 1996, between the Company and JPMorgan Chase Bank,
as trustee (the "Trustee") (the "Senior Indenture"). The Subordinated Debt
Securities are to be issued in one or more series pursuant to a Subordinated
Indenture to be entered into between the Company and the Trustee (the
"Subordinated Indenture"). If so specified in the applicable prospectus
supplement, the Preferred Stock may be represented by Depositary Shares
entitling the holders proportionally to all rights and preferences of the
Preferred Stock. The Depositary Shares will be issued pursuant to a deposit
agreement (including a form of depositary receipt evidencing Depositary Shares
(a "Depositary Receipt")) (the "Deposit Agreement") with respect to Depositary
Shares to be entered into between the Company and a depositary (the
"Depositary"). The Common Stock Purchase Contracts will be issued pursuant to
one or more purchase contract agreements (each, a "Purchase Contract Agreement")
to be entered into between the Company and JPMorgan Chase Bank, as purchase
contract agent. The Apache Australia Senior Debt Securities and the related
Apache Australia Guarantees are to be issued in one or more series pursuant to
an Indenture to be entered into among the Company, Apache Australia and the
Trustee (the "Australian Senior Indenture"). The Apache Australia Subordinated
Debt Securities and the related Apache Australia Guarantees are to be issued in
one or more series pursuant to an Indenture to be entered into among the
Company, Apache Australia and the Trustee (the "Australian Subordinated
Indenture"). The Apache Canada Senior Debt Securities and the related Apache
Canada Guarantees are to be issued in one or more series pursuant to an
Indenture to be entered into among the Company, Apache Canada and the Trustee
(the "Canadian Senior Indenture"). The Apache Canada Subordinated Debt
Securities and the related Apache Canada Guarantees are to be issued in one or
more series pursuant to an
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September 19, 2003
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Indenture to be entered into among the Company, Apache Canada and the Trustee
(the "Canadian Subordinated Indenture"). The Trust Guarantees will be issued
pursuant to one or more guarantee agreements to be entered into between the
Company and JPMorgan Chase Bank, as Trust Preferred Securities guarantee trustee
(each, a "Trust Guarantee Agreement" and, collectively, the "Trust Guarantee
Agreements").
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to them in the Registration Statement.
In connection herewith, we have examined the Registration Statement and
such other documents and instruments, and made such other examination of law and
fact, as we have deemed necessary or appropriate for the expression of the
opinions contained herein.
In our examination, we have assumed the authenticity and completeness of
all records, certificates and other instruments represented to us to be
originals, the conformity to original documents of all records, certificates,
and other instruments submitted to us as copies, the authenticity and
completeness of the originals of those records, certificates and other
instruments submitted to us as copies and the correctness of all statements of
fact contained in all records, certificates and other instruments that we have
examined.
Based on the foregoing and subject to the limitations set forth herein, we
are of the opinion that:
1. The Preferred Stock and the Common Stock proposed to be issued,
including pursuant to conversion or exchange of other securities or settlement
of Common Stock, when duly authorized, offered, issued and sold against payment
of the consideration therefor contemplated in the Registration Statement, will
be issued, fully paid and non-assessable.
2. When (a) appropriate corporate action has been taken by the Company to
authorize the form, terms, execution and delivery of any supplemental indenture
or officers' certificate related to the Senior Indenture, (b) any such
supplemental indenture or officers' certificate has been executed and delivered
by the Company, (c) appropriate corporate action has been taken by the Company
to authorize the issuance and establish, in accordance with the Senior
Indenture, the form and terms of Senior Debt Securities, (d) such Senior Debt
Securities have been duly executed and authenticated in accordance with the
terms of the Senior Indenture and, if applicable, a supplemental indenture
thereto or related officers' certificate, and (e) such Senior Debt Securities
are offered, issued and sold as contemplated in the Registration Statement, such
Senior Debt Securities will constitute legal, valid and binding obligations of
the Company, enforceable against the Company in accordance with their terms.
3. When (a) appropriate corporate action has been taken by the Company to
authorize the form, terms, execution and delivery of the Subordinated Indenture
and any supplemental indenture or officers' certificate related thereto, (b) the
Subordinated Indenture and any such supplemental indenture or officers'
certificate have been duly executed and delivered
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by the Company, (c) appropriate corporate action has been taken by the Company
to authorize the issuance and establish, in accordance with the Subordinated
Indenture, the form and terms of Subordinated Debt Securities, (d) such
Subordinated Debt Securities have been duly executed and authenticated in
accordance with the terms of the Subordinated Indenture and, if applicable, a
supplemental indenture thereto or related officers' certificate, and (e) such
Subordinated Debt Securities are offered, issued and sold as contemplated in the
Registration Statement, such Subordinated Debt Securities will constitute legal,
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms.
4. When (a) appropriate corporate action has been taken by the Company to
authorize the form, terms, execution and delivery of a Deposit Agreement, (b)
such Deposit Agreement has been duly executed and delivered by the Company, (c)
appropriate corporate action has been taken by the Company to authorize the
issuance of Preferred Stock and the deposit thereof with the Depositary pursuant
to such Deposit Agreement and the issuance of the Depositary Shares representing
interests therein, (d) duly authorized and validly issued, fully paid and
non-assessable shares of such Preferred Stock shall have been deposited with the
Depositary in accordance with such Deposit Agreement and such corporate action
and the Depositary shall have duly executed, issued and delivered Depositary
Receipts with such terms evidencing such Depositary Shares against payment of
the consideration therefor, all in the manner provided for in such Deposit
Agreement and such corporate action, and (e) such Depositary Shares are offered,
issued and sold as contemplated in the Registration Statement, such Depositary
Shares will entitle the holders thereof to the benefits provided therein and in
the applicable Deposit Agreement.
5. When (a) appropriate corporate action has been taken by the Company to
authorize the form, terms, execution and delivery of a Purchase Contract
Agreement, (b) such Purchase Contract Agreement has been duly executed and
delivered by the Company, (c) appropriate corporate action has been taken by the
Company to authorize the issuance and establish, in accordance with such
Purchase Contract Agreement, the form and terms of Common Stock Purchase
Contracts to be issued thereunder, (d) such Common Stock Purchase Contracts have
been duly executed and authenticated in accordance with the terms of such
Purchase Contract Agreement and (e) such Common Stock Purchase Contracts are
offered, issued and sold as contemplated in the Registration Statement, such
Common Stock Purchase Contracts will constitute legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms.
6. When (a) appropriate corporate action has been taken by the Company to
authorize the form, terms, execution and delivery of such Purchase Contract
Agreement, (b) such Purchase Contract Agreement has been duly executed and
delivered by the Company, (c) appropriate corporate action has been taken by the
Company to authorize the issuance and establish, in accordance with a Purchase
Contract Agreement, the form and terms of Common Stock Purchase Contracts and
collateral arrangements relating to Common Stock Purchase Units, (d) the Common
Stock Purchase Contracts and the documents governing the collateral arrangements
relating to such Common Stock Purchase Units have been duly executed and
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authenticated in accordance with the terms thereof and (e) such Common Stock
Purchase Units are offered, issued and sold as contemplated in the Registration
Statement, such Common Stock Purchase Units will constitute legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms.
7. When (a) appropriate corporate action has been taken by Apache
Australia to authorize the form, terms, execution and delivery of the Australian
Senior Indenture and any supplemental indenture or officers' certificate related
thereto, (b) the Australian Senior Indenture and any such supplemental indenture
or officers' certificate have been duly executed and delivered by Apache
Australia, (c) appropriate corporate action has been taken by Apache Australia
to authorize the issuance and establish, in accordance with the Australian
Senior Indenture, the form and terms of Apache Australia Senior Debt Securities,
(d) such Apache Australia Senior Debt Securities have been duly executed and
authenticated in accordance with the terms of the Australian Senior Indenture
and, if applicable, a supplemental indenture thereto or related officers'
certificate, and (e) such Apache Australia Senior Debt Securities are offered,
issued and sold as contemplated in the Registration Statement, such Apache
Australia Senior Debt Securities will constitute valid and binding obligations
of Apache Australia, enforceable against Apache Australia in accordance with
their terms.
8. When (a) appropriate corporate action has been taken by Apache
Australia to authorize the form, terms, execution and delivery of the Australian
Subordinated Indenture and any supplemental indenture or officers' certificate
related thereto, (b) the Australian Subordinated Indenture and any such
supplemental indenture or officers' certificate have been duly executed and
delivered by Apache Australia, (c) appropriate corporate action has been taken
by Apache Australia to authorize the issuance and establish, in accordance with
the Australian Subordinated Indenture, the form and terms of Apache Australia
Subordinated Debt Securities, (d) such Apache Australia Subordinated Securities
have been duly executed and authenticated in accordance with the terms of the
Australian Subordinated Indenture and, if applicable, a supplemental indenture
thereto or related officers' certificate, and (e) such Apache Australia
Subordinated Debt Securities are offered, issued and sold as contemplated in the
Registration Statement, the Apache Australia Subordinated Debt Securities will
constitute legal, valid and binding obligations of Apache Australia, enforceable
against Apache Australia in accordance with their terms.
9. When (a) appropriate corporate action has been taken by Apache Canada
to authorize the form, terms, execution and delivery of the Canadian Senior
Indenture and any supplemental indenture or officers' certificate related
thereto, (b) the Canadian Senior Indenture and any such supplemental indenture
or officers' certificate have been duly executed and delivered by Apache Canada,
(c) appropriate corporate action has been taken by Apache Canada to authorize
the issuance and establish, in accordance with the Canadian Senior Indenture,
the form and terms of Apache Canada Senior Debt Securities, (d) such Apache
Canada Senior Debt Securities have been duly executed and authenticated in
accordance with the terms of the Canadian Senior Indenture and, if applicable, a
supplemental indenture thereto or related officers' certificate, and (e) such
Apache Canada Senior Debt Securities are offered, issued and
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sold as contemplated in the Registration Statement, the Apache Canada Senior
Debt Securities will constitute legal, valid and binding obligations of Apache
Canada, enforceable against Apache Canada in accordance with their terms.
10. When (a) appropriate corporate action has been taken by Apache Canada
to authorize the form, terms, execution and delivery of the Canadian
Subordinated Indenture and any supplemental indenture or officers' certificate
related thereto, (b) the Canadian Subordinated Indenture and any such
supplemental indenture or officers' certificate have been duly executed and
delivered by Apache Canada, (c) appropriate corporate action has been taken by
Apache Canada to authorize the issuance and establish, in accordance with the
Canadian Subordinated Indenture, the form and terms of Apache Canada
Subordinated Debt Securities, (d) such Apache Canada Subordinated Securities
have been duly executed and authenticated in accordance with the terms of the
Canadian Subordinated Indenture and, if applicable, a supplemental indenture
thereto or related officers' certificate, and (e) such Apache Canada
Subordinated Debt Securities are offered, issued and sold as contemplated in the
Registration Statement, the Apache Canada Subordinated Debt Securities will
constitute legal, valid and binding obligations of Apache Canada, enforceable
against Apache Canada in accordance with their terms.
11. When (a) appropriate corporate action has been taken by Apache
Australia to authorize the form, terms, execution and delivery of the Australian
Senior Indenture or Australian Subordinated Indenture, as the case may be, and
any supplemental indenture or officers' certificate related thereto, (b) the
Australian Senior Indenture or Australian Subordinated Indenture, as the case
may be, and any such supplemental indenture or officers' certificate have been
duly executed and delivered by Apache Australia and the Company, (c) appropriate
corporate action has been taken by the Company to authorize the issuance and
establish the form, terms, execution and delivery of Apache Australia
Guarantees, (d) such Apache Australia Guarantees have been duly executed and
delivered by the Company and (e) when the Apache Australia Senior Debt
Securities or the Apache Australia Subordinated Debt Securities, as the case may
be, to which such Apache Australia Guarantees relate have been duly
authenticated and delivered by the Trustee in accordance with the Australian
Senior Indenture or Australian Subordinated Indenture, as the case may be, and
are offered, issued and sold as contemplated in the Registration Statement, the
Apache Australia Guarantees will constitute legal, valid and binding obligations
of the Company, enforceable in accordance with their terms.
12. When (a) appropriate corporate action has been taken by Apache Canada
to authorize the form, terms, execution and delivery of the Canadian Senior
Indenture or Canadian Subordinated Indenture, as the case may be, and any
supplemental indenture or officers' certificate related thereto, (b) the
Canadian Senior Indenture or Canadian Subordinated Indenture, as the case may
be, and any such supplemental indenture or officers' certificate have been duly
executed and delivered by Apache Canada and the Company, (c) appropriate
corporate action has been taken by the Company to authorize the issuance and
establish the form, terms, execution and delivery of the Apache Canada
Guarantees, (d) the Apache Canada Guarantees have been duly executed and
delivered by the Company and (e) and when the Apache Canada Senior Debt
Securities or the Apache Canada Subordinated Debt Securities, as the case may
be,
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to which such Guarantees relate have been duly authenticated and delivered by
the Trustee in accordance with the Canadian Senior Indenture or Canadian
Subordinated Indenture, as the case may be, and are offered, issued and sold as
contemplated in the Registration Statement, the Apache Canada Guarantees will
constitute legal, valid and binding obligations of the Company, enforceable in
accordance with their terms.
13. When (a) appropriate corporate action has been taken by the Company to
authorize the form, terms, execution and delivery of a Trust Guarantee Agreement
with respect to the Trust Preferred Securities to be entered into between the
Company and the Trust Guarantee Trustee, (b) such Trust Guarantee Agreement
shall have been duly executed and delivered by the Company, (c) such Trust
Preferred Securities shall have been duly authorized for issuance by the
applicable Trust's trust agreement, as the same may be amended or restated (the
"Trust Agreement"), and duly executed, issued and delivered by duly authorized
trustees of such Trust against payment of the consideration therefor and
authenticated by the Trust Guarantee Trustee, all in the manner provided for in
the Trust Agreement, and (d) such Trust Preferred Securities and the Trust
Guarantee evidenced by such Trust Guarantee Agreement are offered, issued and
sold as contemplated in the Registration Statement, such Trust Guarantee will
constitute a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms.
The opinions expressed above regarding validity, binding effect and
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting creditors' rights generally
and enforceability may be limited by general equitable principles. We call to
your attention that, with respect to any Senior Debt Securities, Subordinated
Debt Securities, the Apache Australia Senior Debt Securities, the Apache
Australia Subordinated Debt Securities, the Apache Canada Senior Debt
Securities, the Apache Canada Subordinated Debt Securities, the Apache Australia
Guarantees, the Apache Canada Guarantees, Common Stock Purchase Contracts,
Common Stock Purchase Units or the Trust Guarantees denominated other than in
U.S. Dollars (or a foreign currency or composite currency), a judgment for money
in an action based on such Securities in a Federal or state court in the United
States ordinarily would be enforced in the United States only in U.S. Dollars.
The date used to determine the conversion of another currency or currency unit
into U.S. Dollars will depend upon various factors, including which court
renders the judgment. In particular, pursuant to Section 27(b) of the New York
Judiciary Law, a state court in the State of New York or a United States
District Court applying the laws of the State of New York that renders a
judgment on the Securities would be required to render such judgment in the
other currency or currency unit and such judgment would be converted into U.S.
Dollars at the exchange rate prevailing on the date of entry of the judgment. We
also call to your attention that the making of payments may be subject to
governmental authority to limit, delay or prohibit the making of payments
outside the United States. We have further assumed with respect to
enforceability that, when fixed, the terms of the Securities will comply with
all applicable "bucket shop" or similar state laws, or have the availability of
federal preemption therefrom.
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The opinions set forth above are limited in all respects to matters of
Texas law and to the Delaware General Corporation Law. With your consent, we
have relied solely on the opinions of Xxxxxx Xxxxxx Xxxxxxxx and XxXxxxx Xxxxxx,
filed as Exhibits 5.2 and 5.3 to the Registration Statement, as to matters
governed by the laws of Australia and the Australia Capital Territory and Canada
and the Province of Nova Scotia, respectively. In rendering the opinions
expressed above regarding the enforceability of any Senior Debt Securities,
Subordinated Debt Securities, the Apache Australia Senior Debt Securities, the
Apache Australia Subordinated Debt Securities, the Apache Canada Senior Debt
Securities, the Apache Canada Subordinated Debt Securities, the Apache Australia
Guarantees, the Apache Canada Guarantees, Common Stock Purchase Contracts,
Common Stock Purchase Units or the Trust Guarantees, with your consent we have
relied solely on the opinions of Xxxxxx Xxxxxx Xxxxx & Xxxx LLP, dated the date
of this letter and filed as Exhibit 5.1.2 to the Registration Statement, to the
extent such opinions concern the laws of the State of New York. We have not made
an independent examination of the laws of Australia, Canada, the Australia
Capital Territory, the Province of Nova Scotia or the State of New York,
respectively.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the use of our name under the caption "Legal Matters" in the
Prospectus included as part of the Registration Statement. In giving such
consent, we do not admit that we are in the category of persons whose consent is
required under Section 7 of the Act.
Very truly yours,
/s/ XXXXXXXXXXX, XXXXXXXX, XXXXX, XXXXXXXX & XXXXXX
