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EXHIBIT 1.1
XXXX-XXXXX CORPORATION
$ 325,000,000 5 7/8% NOTES DUE SEPTEMBER 15, 2006
$ 675,000,000 6 7/8% NOTES DUE SEPTEMBER 15, 2011
$ 500,000,000 7 7/8% NOTES DUE SEPTEMBER 15, 2031
UNDERWRITING AGREEMENT
September 26, 2001
Xxxxxx Brothers Inc.
As Representatives of the Several Underwriters
Named in Schedule I hereto
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
Xxxx-XxXxx Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the underwriters named in Schedule I hereto (the "Underwriters") (i) an
aggregate of $325,000,000 principal amount of its 5 7/8% Notes due September 15,
2006 (the "2006 Notes"), (ii) an aggregate of $675,000,000 principal amount of
its 6 7/8% Notes due September 15, 2011 (the "2011 Notes") and (iii) an
aggregate of $500,000,000 principal amount of its 7 7/8% Notes due September 15,
2031 (the "2031 Notes"), (the 2006 Notes, the 2011 Notes and the 2031 Notes are
herein collectively called the "Notes"). The Notes will be guaranteed (the
"Subsidiary Guarantees") by Xxxx-XxXxx Operating Corporation ("KM Operating")
and Xxxx-XxXxx Rocky Mountain Corporation (together with KM Operating, the
"Guarantors")
1. The Company and the Guarantors, jointly and severally, represent and
warrant to, and agree with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-68136)
in respect of various debt and equity securities of the Company,
including the Notes, has been filed with the Securities and Exchange
Commission (the "Commission"), pursuant to Rule 415 under the
Securities Act of 1933, as amended (the "Act"); such registration
statement and any post-effective amendment thereto, each in the form
heretofore delivered to you, and, excluding exhibits thereto, but
including all documents incorporated by reference in the base
prospectus included therein, has been declared effective by the
Commission in such form; no other document with respect to such
registration statement or document incorporated by reference therein
has heretofore been filed with the Commission; and no stop order
suspending the effectiveness of such registration statement or any
post-effective amendment thereto has been issued and no proceeding for
that purpose has been initiated or, to the knowledge of the Company and
the Guarantors, threatened by the Commission (the base prospectus
included in the registration statement or filed with the Commission
pursuant to Rule 424(b) under the Act, as supplemented to reflect the
preliminary terms of the offering of the Notes, is hereinafter called a
"Preliminary
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Prospectus"; the various parts of each such registration statement,
including all exhibits thereto but excluding Form T-1 and including (i)
the information contained in the form of base prospectus included in
the registration statement, as supplemented to reflect the final terms
of the offering of the Notes, filed with the Commission pursuant to
Rule 424(b) under the Act in accordance with Section 5(a) hereof and
(ii) the documents incorporated by reference in such base prospectus at
the time such part of the registration statement became effective, are
hereinafter collectively called the "Registration Statement"; such base
prospectus, as supplemented to reflect the final terms of the offering
of the Notes, in the form first filed pursuant to Rule 424(b) under the
Act, is hereinafter called the "Prospectus"; any reference herein to
any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the
case may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; and any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the
Registration Statement);
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
rules and regulations of the Commission thereunder, and did not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter expressly for use therein;
(c) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation
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and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter expressly for use therein;
(d) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement
or the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and do not and will not, as of
the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by an Underwriter expressly for use therein;
(e) The Company and its subsidiaries taken as a whole have not
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been a material decrease in
the stockholders' equity or a material increase in the consolidated
long-term debt of the Company or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries considered as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(f) The Company and the Guarantors have each been duly
incorporated and are validly existing as corporations in good standing
under the laws of the State of Delaware, with full corporate power and
authority to own their respective properties and conduct their
respective businesses as described in the Prospectus, and have each
been duly qualified as foreign corporations for the transaction of
business and are in good standing under the laws of each other
jurisdiction in which they own or lease properties or conduct any
business so as to require such qualification, or are subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; and each significant subsidiary (as
such term is defined in Rule 405 under the Act), each such significant
subsidiary being identified on Annex A hereto and being called herein a
"Significant Subsidiary," has been duly incorporated or organized, as
the case may be, and is validly existing in good standing under the
laws of its jurisdiction of organization;
(g) All of the issued shares of capital stock, membership
interests or partnership interests, as the case may be, of each
Significant Subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable and (except for directors'
qualifying shares and except as otherwise set forth in the Prospectus)
are owned
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directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(h) The Notes have been duly authorized and, when issued and
delivered pursuant to this Agreement and duly executed and
authenticated pursuant to the Indenture (defined below), will
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture dated as of August
1, 2001, between the Company and Citibank, N.A., as Trustee (the
"Trustee") (the "Base Indenture" and together with the Board
Resolutions and the Officer's Certificate (as defined in the Base
Indenture) establishing the form and terms of the Notes pursuant to
Section 3.01 of the Base Indenture, the "Indenture"), under which they
are to be issued, which Base Indenture has been filed as an exhibit to
the Registration Statement; the Indenture has been duly authorized and
duly qualified under the Trust Indenture Act and constitutes a valid
and legally binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject, as to enforcement, to
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing; and the Indenture conforms,
and the Notes will conform, to the descriptions thereof in the
Prospectus;
(i) The Subsidiary Guarantees have been duly and validly
authorized by the Guarantors, and, when executed and endorsed upon the
Notes and delivered in accordance with the terms of the Indenture, such
Subsidiary Guarantees will be valid and binding obligations of the
Guarantors, enforceable against the Guarantors in accordance with their
terms; the issuances of the Subsidiary Guarantees are not subject to
preemptive or other similar rights to subscribe to or purchase the same
arising by operation of law or under the charter, bylaws or other
organizational documents of any of the Guarantors or otherwise; the
form of notation to be set forth on the Notes to evidence the
Subsidiary Guarantees will be in the form contemplated by the
Indenture; and the Subsidiary Guarantees conform in all material
respects to the description thereof contained in the Registration
Statement and the Prospectus. The execution, delivery and performance
of this Agreement and the Indenture and the issuance and performance of
the Subsidiary Guarantees and the consummation of the other
transactions contemplated herein and therein, and compliance by the
Guarantors with their respective obligations hereunder and thereunder,
have been duly and validly authorized by all necessary corporate action
on the part of each of the Guarantors.
(j) The issue and sale of the Notes and the compliance by the
Company and the Guarantors with all of the provisions of the Notes, the
Indenture, the Subsidiary Guarantees and this Agreement and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its Significant
Subsidiaries is a party or by which the Company or any of its
Significant Subsidiaries is bound or to which any of the property or
assets of the Company or any of its Significant Subsidiaries is
subject, nor will such action result in
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any violation of the provisions of the Certificate of Incorporation or
By-laws of the Company or the Guarantors or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its Significant Subsidiaries or
any of their properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Notes and the Subsidiary Guarantees or the consummation by the Company
or the Guarantors of the transactions contemplated by this Agreement,
the Indenture or the Subsidiary Guarantees except the registration
under the Act of the Notes and the Subsidiary Guarantees, the
qualification of the Indenture under the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Notes and the Subsidiary
Guarantees by the Underwriters;
(k) Neither the Company nor any of its Significant
Subsidiaries is in violation of its Certificate of Incorporation or
By-laws (or similar constituent document) or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound,
except if such default could not reasonably be expected to have a
material adverse effect on the general affairs, management, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, considered as a whole;
(l) The statements set forth in the Prospectus under the
captions "Description of Debt Securities" and "Description of Notes,"
insofar as they purport to constitute a summary of the terms of the
Notes, are accurate, complete and fair;
(m) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject, which could reasonably be
expected, either individually or in the aggregate, to have a material
adverse effect on the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, considered as a whole; and, to the Company's and the
Guarantors knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(n) The Company and the Guarantors are not and, after giving
effect to the offering and sale of the Notes, will not be an
"investment company," as such term is defined in the Investment Company
Act of 1940, as amended (the "Investment Company Act");
(o) Xxxxxx Xxxxxxxx LLP, who has certified certain financial
statements of the Company and its subsidiaries and HS Resources, Inc.
(now known as Xxxx-XxXxx Rocky Mountain Corporation) and its
subsidiaries, and PricewaterhouseCoopers LLP, who has certified certain
financial statements of Oryx Energy Company, are each independent
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public accountants as required by the Act and the rules and regulations
of the Commission thereunder;
(p) This Agreement has been duly authorized, executed and
delivered by the Company and the Guarantors;
(q) Neither the Company nor any subsidiary is a "holding
company" or a "public utility," as such terms are defined in the Public
Utility Holding Company Act of 1935, as amended (the "1935 Act");
(r) The Company and its subsidiaries possess all material
licenses, certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities necessary
to conduct their respective businesses, and neither the Company nor any
such subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect on the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, considered as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement
thereto);
(s) The Company and its subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received and are in
compliance with all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective
businesses and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes,
pollutants or contaminants, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals, or liability would not, individually or in the
aggregate, would reasonably be expected to have a material adverse
effect on the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, considered as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement
thereto);
(t) Except as set forth in the Prospectus and except as set
forth in Annex B attached hereto, neither the Company nor any of its
subsidiaries has been named as a "potentially responsible party" under
the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended;
(u) In the ordinary course of its business, the Company
periodically reviews the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiaries, in the
course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures
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required for clean-up, closure of properties or compliance with
Environmental Laws, or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties), and on the basis of such review, the Company has
reasonably concluded that such associated costs and liabilities would
not, singly or in the aggregate, have a material adverse effect on the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries,
considered as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Prospectus (exclusive of any supplement thereto); and
(v) The subsidiaries listed on Annex A attached hereto are the
only significant subsidiaries of the Company as defined by Rule 405
under the Act.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company,
(i) at a purchase price of 99.344% of the principal amount thereof, plus accrued
interest, if any, from October 3, 2001 to the Time of Delivery (as defined in
Section 4(a) hereof), the principal amount of 2006 Notes set forth opposite the
name of such Underwriter in Schedule I hereto, (ii) at a purchase price of
99.199% of the principal amount thereof, plus accrued interest, if any, from
October 3, 2001 to the Time of Delivery, the principal amount of 2011 Notes set
forth opposite the name of such Underwriter in Schedule I hereto, and (iii) at a
purchase price of 98.755% of the principal amount thereof, plus accrued
interest, if any, from October 3, 2001 to the Time of Delivery, the principal
amount of 2031 Notes set forth opposite the name of such Underwriter in Schedule
I hereto.
3. Upon the authorization by you of the release of the Notes, the
several Underwriters propose to offer the Notes for sale upon the terms and
conditions set forth in the Prospectus.
4. (a) The Notes to be purchased by each Underwriter hereunder
will be represented by one or more definitive global Notes in
book-entry form which will be deposited by or on behalf of the Company
with the Trustee, as custodian for The Depository Trust Company
("DTC"). The Company will deliver the Notes to Xxxxxx Brothers Inc.,
for the account of each Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to
Xxxxxx Brothers Inc. at least forty-eight hours in advance, by causing
DTC to credit the Notes to the account of Xxxxxx Brothers Inc. at DTC.
The time and date of such delivery and payment shall be, 9:30 a.m., New
York City time, on October 3, 2001, or at such other time and date as
you and the Company may agree upon in writing. Such time and date for
delivery of the Notes is herein called the "Time of Delivery".
(b) The definitive global Notes referred to in Section 4(a)
and the documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including
the cross-receipt for the Notes and any additional documents requested
by the Underwriters pursuant to Section 7(j) hereof, will be delivered
at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx
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10017-3954 (the "Closing Location"). A meeting will be held at the
Closing Location at 3:00 p.m., New York City time, on the New York
Business Day next preceding such Time of Delivery, at which meeting the
final drafts of the documents to be delivered pursuant to the preceding
sentence will be available for review by the parties hereto. For the
purposes of this Section 4(b), "New York Business Day" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in New York City are generally authorized or
obligated by law or executive order to close.
5. The Company and each of the Guarantors, jointly and severally, agree
with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus prior to the Time of Delivery
which reasonably shall be disapproved of by you promptly after
reasonable notice thereof; to advise you, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the Commission
and to furnish you with copies thereof; to file promptly all reports
and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of the Prospectus
and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Notes; to advise you,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or prospectus, of the suspension
of the qualification of the Notes for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the use of any
Preliminary Prospectus or prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Notes and the Subsidiary Guarantees
for offering and sale under the securities laws of such jurisdictions
as you may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of the Notes,
provided that in connection therewith the Company shall not be required
to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with copies of the Prospectus as
amended and supplemented in New York
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City in such quantities as you may reasonably request, and, if the
delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Notes and if at such time
any event shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made when such Prospectus is delivered, not misleading, or,
if for any other reason it shall be necessary during such same period
to amend or supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in order to
comply with the Act, the Exchange Act or the Trust Indenture Act, to
notify you and upon your request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such
compliance; and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Notes at any time
nine months or more after the time of issue of the Prospectus, upon
your request but at the expense of such Underwriter, to prepare and
deliver to such Underwriter as many copies as you may request of an
amended or supplemented Prospectus complying with Section 10(a)(3) of
the Act;
(d) To make generally available to its security holders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Company and
its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158);
(e) To use the net proceeds received by it from the sale of
the Notes pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
6. The Company and the Guarantors covenant and agree with the several
Underwriters that the Company and the Guarantors will pay or cause to be paid
the following: (i) the fees, disbursements and expenses of the Company's and the
Guarantor's counsel and accountants in connection with the registration of the
Notes under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this Agreement, the
Indenture, the Subsidiary Guarantees, the Blue Sky survey, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Notes; (iii) all expenses in
connection with the qualification of the Notes and the Subsidiary Guarantees for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky survey;
(iv) any fees charged by securities rating services for rating the Notes; (v)
the cost of preparing the Notes; (vi) the fees and expenses of the Trustee and
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any agent of the Trustee and the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Notes; and (vii) all other
costs and expenses incident to the performance of their obligations hereunder
which are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, and Sections 8
and 11 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Notes by them, and any advertising expenses connected with any offers they may
make.
7. The obligations of the Underwriters hereunder, as to the Notes to be
delivered at the Time of Delivery, shall be subject, in their discretion, to the
condition that all representations and warranties and other statements of the
Company and the Guarantors herein are, at and as of such Time of Delivery, true
and correct, the condition that the Company and the Guarantors shall have
performed all of their obligations hereunder theretofore to be performed, and
the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall
have furnished to you such written opinion, dated the Time of Delivery,
with respect to the incorporation of the Company and the Guarantors,
the validity of the Indenture, the Notes, the Subsidiary Guarantees,
the Registration Statement, the Prospectus and other related matters as
you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to
render such opinion;
(c) Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Company and
the Guarantors, shall have furnished to you their written opinion,
dated the Time of Delivery, in form and substance satisfactory to you,
to the effect that:
(i) The Company, the Guarantors and Xxxx-XxXxx Oil &
Gas Corporation have each been duly incorporated and are each
validly existing and in good standing as corporations under
the laws of the State of Delaware and have full corporate
power and authority to conduct their respective business as
described in the Prospectus as amended or supplemented;
(ii) This Agreement has been duly authorized,
executed and delivered by the Company and the Guarantors;
(iii) The Notes being issued at the Time of Delivery
have been duly authorized, executed and delivered and,
assuming due authentication thereof by the Trustee, and upon
payment and delivery and in accordance with this Agreement,
will constitute valid and legally binding obligations of the
Company
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enforceable against the Company in accordance with their
terms, subject, as to enforcement, to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and
an implied covenant of good faith and fair dealing, and will
be entitled to the benefits of the Indenture;
(iv) The Indenture has been duly authorized, executed
and delivered by the Company and duly qualified under the
Trust Indenture Act and, assuming due authorization, execution
and delivery thereof by the Trustee, constitutes a valid and
legally binding obligation of the Company, enforceable against
the Company in accordance with its terms, subject, as to
enforcement, to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing;
(v) The Subsidiary Guarantees have been duly
authorized; executed and delivered by the Guarantors, and,
assuming due authentication of the Notes by the Trustee and
upon payment for and delivery of the Notes in accordance with
this Agreement, will constitute valid and binding obligations
of the Guarantors, enforceable against the Guarantors in
accordance with their terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws or judicial decisions relating to or
affecting creditors' rights generally and by general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(vi) The statements made in the Prospectus under the
captions "Description of Debt Securities" and "Description of
Notes," insofar as they purport to constitute summaries of
certain terms of the documents referred to therein, constitute
accurate summaries of the terms of such documents in all
material respects; and
(vii) Neither the Company nor the Guarantors is an
"investment company" within the meaning of and subject to
regulation under the Investment Company Act.
In addition, such counsel shall state that they have not independently
verified the accuracy, completeness or fairness of the statements made or
included in the Registration Statement, the Prospectus or the Exchange Act
documents incorporated therein and that they take no responsibility therefor,
except as and to the extent set forth in paragraph (vi) above. Such counsel
shall state that, in the course of the preparation by the Company and the
Guarantors of the Registration Statement and the Prospectus (excluding the
Exchange Act documents incorporated therein), such counsel participated in
conferences with certain officers and employees of the Company and the
Guarantors, with representatives of Xxxxxx Xxxxxxxx LLP and with counsel to the
Company and the Guarantors. Such counsel may state that they did not participate
in the preparation of the Exchange Act documents incorporated therein or review
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such documents prior to their filing with the Commission. Such counsel shall
state that, based upon such counsel's examination of the Registration Statement,
Prospectus and Exchange Act documents incorporated therein and such counsel's
investigations made in connection with the preparation of the Registration
Statement, and the Prospectus (excluding the Exchange Act documents incorporated
therein) and such counsel's participation in the conferences referred to above,
(i) such counsel is of the opinion that the Registration Statement as of its
effective date, and the Prospectus, as of its date, complied as to form in all
material respects with the requirements of the Act, the Trust Indenture Act and
the applicable rules and regulations of the Commission thereunder and that the
Exchange Act documents incorporated therein complied as to form when filed in
all material respects with the requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case such counsel need express no opinion with respect to the financial
statements or other financial data contained or incorporated by reference in the
Registration Statement, the Prospectus or the Exchange Act documents
incorporated therein and (ii) such counsel had no reason to believe that the
Registration Statement, as of its effective date (including the Exchange Act
documents incorporated therein on file with the Commission on such effective
date), contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading or that the Prospectus (including the Exchange
Act documents incorporated therein) as of its date contained, or, as of the Time
of Delivery, contains, any untrue statement of a material fact or omitted or
omits to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that in each case such counsel need express no belief with
respect to the financial statements or other financial data contained or
incorporated by reference in the Registration Statement, the Prospectus or the
Exchange Act documents incorporated therein.
In rendering the foregoing opinion, Xxxxxxx Xxxxxxx & Xxxxxxxx may
state that such opinion is limited to the federal laws of the United States, the
laws of the State of New York and the General Corporation Law of the State of
Delaware, and that they are expressing no opinion as to the effect of the laws
of any other jurisdiction. In addition, such counsel may state that they have
relied as to certain matters on information obtained from public officials,
officers of the Company and the Guarantors and other sources believed by them to
be responsible;
(d) Xxxxxxx X. Xxxxxxx, Senior Vice President, General Counsel
and Secretary of the Company, shall have furnished to you his written
opinion, dated the Time of Delivery, in form and substance satisfactory
to you, to the effect that:
(i) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to
require such qualification or is subject to no material
liability or disability by reason of the failure to be so
qualified in any such jurisdiction;
(ii) Each Significant Subsidiary of the Company
(other than Xxxx-XxXxx Operating Corporation, Xxxx-XxXxx Rocky
Mountain Corporation and Xxxx-XxXxx Oil & Gas Corporation) has
been duly incorporated or organized, as the case may be, and
is validly existing in good standing under the laws of its
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jurisdiction of organization; and all of the issued shares of
capital stock, membership interests or partnership interests,
as the case may be, of each Significant Subsidiary have been
duly and validly authorized and issued, are fully paid and
non-assessable, and (except for directors' qualifying shares
and except as otherwise set forth in the Prospectus) are owned
directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(iii) To such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which could
reasonably be expected, either individually or in the
aggregate, to have a material adverse effect on the general
affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries,
considered as a whole; and, to such counsel's knowledge, no
such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(iv) The issue and sale of the Notes being issued and
delivered at the Time of Delivery and the compliance by the
Company and the Guarantors with all of the provisions of the
Notes, the Indenture, the Subsidiary Guarantees and this
Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any material indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument
known to such counsel to which the Company or any of its
Significant Subsidiaries is a party or by which the Company or
any of its Significant Subsidiaries is bound or to which any
of the property or assets of the Company or any of its
Significant Subsidiaries is subject, nor will such actions
result in any violation of the provisions of the Certificate
of Incorporation or By-laws of the Company or the Guarantors
or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the
Company or any of its Significant Subsidiaries or any of their
properties; and
(v) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Notes being issued and delivered at the Time of
Delivery or the consummation by the Company and the Guarantors
of the transactions contemplated by this Agreement, the
Indenture or the Subsidiary Guarantees, except such as have
been obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution
of the Notes by the Underwriters.
(e) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
such Time of Delivery, Xxxxxx Xxxxxxxx LLP and PricewaterhouseCoopers
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LLP shall have furnished to you letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, to the
effect set forth in Annex C and Annex D hereto, respectively;
(f) (i) Neither the Company nor any of its subsidiaries
shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus, and
(ii) since the respective dates as of which
information is given in the Prospectus there shall not have
been any change in the long-term debt of the Company and its
subsidiaries considered as a whole, or any change, or any
development involving a prospective change, in or affecting
the general affairs, management, financial position,
stockholders' equity or results of operations of the Company
and its subsidiaries considered as a whole, otherwise than as
set forth or contemplated in the Prospectus, the effect of
which, in any such case described in clause (i) or (ii), is in
your judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Notes on the terms and in the
manner contemplated in the Prospectus;
(g) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization," as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities;
(h) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's
securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared by either Federal or New York
State authorities; (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of
a national emergency or war, if the effect of any such event specified
in this clause (iv) in your judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Notes on the terms and in the manner contemplated in the Prospectus; or
(v) there shall have been such a material adverse change in general
economic, political or financial conditions, or the effect of
international conditions on the financial markets in the United States
shall be such, as to, in your judgment make it impracticable or
inadvisable to proceed with the public offering and the delivery of the
Notes on the terms and in the manner contemplated in the Prospectus;
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(i) The Company and the Guarantors shall have complied with
the provisions of Section 5(c) hereof with respect to the furnishing of
prospectuses on the New York Business Day next succeeding the date of
this Agreement;
(j) The Company and the Guarantors shall have furnished or
caused to be furnished to you at the Time of Delivery certificates of
officers of the Company and the Guarantors satisfactory to you as to
the accuracy of the representations and warranties of the Company and
the Guarantors herein at and as of the Time of Delivery, as to the
performance by the Company and the Guarantors of all of their
obligations hereunder to be performed at or prior to the Time of
Delivery, as to the matters set forth in subsections (a) and (f) of
this Section and as to such other matters as you may reasonably
request.
8. (a) The Company and the Guarantors, jointly and severally,
will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the Prospectus, any amendment
or supplement thereto, or any other prospectus relating to the Notes or
arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred;
provided, however, that neither the Company nor the Guarantors shall be
liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement, the Prospectus, any
such amendment or supplement, or any other prospectus relating to the
Notes in reliance upon and in conformity with written information
furnished to the Company by any Underwriter expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the
Company and the Guarantors against any losses, claims, damages or
liabilities to which the Company or the Guarantors may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement,
the Prospectus, any amendment or supplement thereto, or any other
prospectus relating to the Notes, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, the
Registration Statement, the Prospectus, any such amendment or
supplement, or any other prospectus relating to the Notes in reliance
upon and in conformity with written information furnished to the
Company by such Underwriter expressly for use therein; and will
reimburse the Company and the Guarantors for any legal or other
expenses
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reasonably incurred by the Company and the Guarantors in connection
with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company and the Guarantors on the one hand and the Underwriters
on the other from the offering of the Notes. If, however, the
allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give
the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company
and the Guarantors on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Guarantors on the one hand and
the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before
deducting
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expenses) received by the Company bear to the total underwriting
discount received by the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault 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 and the Guarantors on the one hand or the Underwriters on
the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Guarantors and the Underwriters agree
that it would not be just and equitable if contributions pursuant to
this subsection (d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include 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 subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Notes underwritten by it and
distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d)
to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company and the Guarantors under
this Section 8 shall be in addition to any liability which the Company
and the Guarantors may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the
Company and the Guarantors (including any person who, with his or her
consent, is named in the Registration Statement as about to become a
director of the Company) and to each person, if any, who controls the
Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Notes which it has agreed to purchase hereunder at the
Time of Delivery, you may in your discretion arrange for you or another
party or other parties to purchase such Notes on the terms contained
herein at the Time of Delivery. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such
Notes, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Notes on such terms. In the event
that, within the respective prescribed periods, you notify the Company
that you have so arranged for the purchase of such Notes, or the
Company notifies you that it has so arranged for the purchase of such
Notes, you or the Company shall have the right to
-17-
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postpone the Time of Delivery for a period of not more than seven days,
in order to effect whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus, or in any other documents
or arrangements, and the Company agrees to file promptly any amendments
or supplements to the Registration Statement or the Prospectus which in
your opinion may thereby be made necessary. The term "Underwriter" as
used in this Agreement shall include any person substituted under this
Section with like effect as if such person had originally been a party
to this Agreement with respect to the Notes.
(b) If, after giving effect to any arrangements for the
purchase of the Notes of a defaulting Underwriter or Underwriters by
you and the Company as provided in subsection (a) above, the aggregate
principal amount of such Notes which remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of all the Notes,
then the Company shall have the right to require each non-defaulting
Underwriter to purchase the principal amount of Notes which such
Underwriter agreed to purchase hereunder and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based
on the principal amount of Notes which such Underwriter agreed to
purchase hereunder at the Time of Delivery) of the Notes of such
defaulting Underwriter or Underwriters for which such arrangements have
not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Notes of a defaulting Underwriter or Underwriters by
you and the Company as provided in subsection (a) above, the aggregate
principal amount of Notes which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of all the Notes to be
purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Notes of a defaulting
Underwriter or Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the
Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Guarantors and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or any officer or director or controlling person of
the Company, or the Guarantors, or any officer or director or controlling person
of the Guarantors, and shall survive delivery of and payment for the Notes.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company and the Guarantors shall not then be under any liability to any
Underwriter except as provided in Sections 6 and 8 hereof; but, if for any other
reason, any Notes or the Subsidiary Guarantee are not delivered by or on behalf
of the Company or the Guarantors, as applicable, as provided
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herein, the Company and the Guarantors will reimburse the Underwriters for all
out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Notes, but the Company
and the Guarantors shall then be under no further liability to any Underwriter
except as provided in Sections 6 and 8 hereof.
12. All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Underwriters shall be delivered or sent by mail or
facsimile transmission to you c/x Xxxxxx Brothers, Inc., 000 Xxxxxx Xxxxxx,
Xxxxxx Xxxx, Xxx Xxxxxx 00000, Attention: Fixed Income Syndicate (with a copy to
the General Counsel); and if to the Company or the Guarantors shall be delivered
or sent by mail or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: General Counsel; provided,
however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall
be delivered or sent by mail or facsimile transmission to such Underwriter at
its address set forth in its Underwriters' Questionnaire, or telex constituting
such Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, the Guarantors and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and the Guarantors and each person who controls the Company or the Guarantors or
any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Notes from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
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If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company, one for each of you, and one for each
counsel counterparts hereof, and upon the acceptance hereof by each of you, this
letter and such acceptance hereof shall constitute a binding agreement between
each of the Underwriters and the Company.
Very truly yours,
XXXX-XxXXX CORPORATION
By: /s/ XXXXXX X. XXXXXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
Chief Financial Officer
XXXX-XxXXX OPERATING CORPORATION
By: /s/ XXXX X. XXXX
----------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President & Treasurer
XXXX-XxXXX ROCKY MOUNTAIN
CORPORATION
By: /s/ XXXX X. XXXX
----------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President & Treasurer
Accepted as of the date hereof:
XXXXXX BROTHERS INC.
As Representatives of the Underwriters
By: /s/ XXXXXXX XXXX
---------------------------------
Name: Xxxxxxx Xxxx
Title: Managing Director
Signature Page to Underwriting Agreement
21
SCHEDULE I
UNDERWRITERS
AGGREGATE AGGREGATE AGGREGATE
PRINCIPAL PRINCIPAL PRINCIPAL
AMOUNT OF AMOUNT OF AMOUNT OF
2006 NOTES TO 2011 NOTES TO 2031 NOTES TO
UNDERWRITER BE PURCHASED BE PURCHASED BE PURCHASED
-------------------------------------------------- ---------------- ---------------- ----------------
Xxxxxx Brothers Inc. ............................. $ 195,000,000 $ 405,000,000 $ 300,000,000
X.X. Xxxxxx Securities Inc. ...................... $ 97,500,000 $ 202,500,000 $ 150,000,000
ABN AMRO Incorporated ............................ $ 10,400,000 $ 21,600,000 $ 16,000,000
Banc One Capital Markets,
Inc. ........................................... $ 5,850,000 $ 12,150,000 $ 9,000,000
RBC Dominion Securities
Corporation .................................... $ 10,400,000 $ 21,600,000 $ 16,000,000
Xxxxxxx Xxxxx Xxxxxx Inc. ........................ $ 5,850,000 $ 12,150,000 $ 9,000,000
---------------- ---------------- ----------------
Total ................ $ 325,000,000 $ 675,000,000 $ 500,000,000
================ ================ ================
SCHEDULE I - PAGE 1
22
ANNEX A
SIGNIFICANT SUBSIDIARIES
Xxxx-XxXxx Rocky Mountain Corporation
Xxxx-XxXxx Oil & Gas Corporation
Xxxx-XxXxx Operating Corporation
Xxxx-XxXxx (G.B.) Plc
Xxxx-XxXxx Chemical LLC
Xxxx-XxXxx Oil & Gas Onshore XX
Xxxx-XxXxx L.P. Corporation
Xxxx-XxXxx Oil (U.K.) PLC
Xxxx-XxXxx North Sea (U.K.) Ltd.
Xxxx-XxXxx Resources (U.K.) Ltd.
Xxxx-XxXxx Gryphon Ltd.
ANNEX A - PAGE 1
23
ANNEX B
ENVIRONMENTAL DISCLOSURES
The Company and/or its subsidiaries has been named a "potentially responsible
party" in connection with sites located in the following jurisdictions:
Xxxxxxxxx, Xxxxxxxxx
Xxxx Xxxxxxx, Xxxxxxxx (Residential Areas)
West Chicago, Illinois (Xxxx-Xxxxxxx Park)
West Chicago, Illinois (Sewage Treatment Plant)
West Chicago, Illinois (Xxxxx Creek)
Soda Springs, Idaho California (Operating Industries, Inc.)
Double Eagle, Oklahoma
NWU - Operating Industries, Inc. (California)
Lakeview, Oregon
Picketville, Florida
Brunswick, Georgia
Manville, New Jersey
ANNEX B - PAGE 1
24
ANNEX C
MATTERS TO BE ADDRESSED IN COMFORT LETTERS OF XXXXXX XXXXXXXX LLP
Xxxxxx Xxxxxxxx LLP shall furnish letters to the Underwriters, dated
the respective date of delivery thereof, in form and substance satisfactory to
the Underwriters, confirming that they are independent certified public
accountants with respect to the Company and its subsidiaries within the meaning
of the Act and the Exchange Act and the respective applicable rules and
regulations adopted by the Commission thereunder and that they have performed a
review of the unaudited interim financial information of the Company for the
three-month and six-month periods ended June 30, 2001, and as at June 30, 2001,
in accordance with the Statement on Auditing Standards No. 71, and stating in
effect that:
(i) in their opinion the audited financial statements
and financial statement schedules included or incorporated in
the Registration Statement and the Prospectus and reported on
by them comply in form in all material respects with the
applicable accounting requirements of the Act and the Exchange
Act and the related rules and regulations adopted by the
Commission;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries; their limited review, in accordance with
standards established under Statement on Auditing Standards
No. 71, of the unaudited interim financial information for the
three-month and six-month periods ended June 30, 2001, and as
at June 30, 2001; carrying out certain specified procedures
(but not an examination in accordance with generally accepted
auditing standards) which would not necessarily reveal matters
of significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the
directors and audit committee of the Company and its
subsidiaries; and inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions
and events subsequent to December 31, 2000, nothing came to
their attention which caused them to believe that:
(1) any unaudited financial statements
included or incorporated by reference in the Registration
Statement and the Prospectus do not comply as to form in all
material respects with applicable accounting requirements of
the Exchange Act as it applies to Form 10-Q and the related
rules and regulations adopted by the Commission; and said
unaudited financial statements are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements of the Company included or incorporated by
reference in the Registration Statement and the Prospectus;
(2) with respect to the period subsequent to
June 30, 2001, there were any changes, at a specified date not
more than five days prior to the
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date of the letter, in the long-term debt of the Company and
its subsidiaries, or decreases in the stockholders' equity or
net current assets of the Company, as compared with the
amounts shown on the June 30, 2001 unaudited consolidated
condensed balance sheet included or incorporated in the
Registration Statement and the Xxxx-XxXxx Prospectus, or for
the period from July 1, 2001 to such specified date there were
any decreases, as compared with the corresponding period in
the preceding year in consolidated sales, net income or net
income per share of the Company and its subsidiaries, except
in all instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the
Underwriters;
(3) the information included or incorporated
by reference in the Registration Statement and the Prospectus
in response to Regulation S-K, Item 301 (Selected Financial
Data), Item 302 (Supplementary Financial Information) and Item
503(d) (Ratio of Earnings to Fixed Charges) is in conformity
with the applicable disclosure requirements of Regulation S-K.
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Prospectus and in Exhibit 12 to the
Registration Statement, including the information set forth
under the captions "Selected Financial and Operating Data of
Xxxx-XxXxx" in the Prospectus and "Ratio of Earnings to Fixed
Charges and Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividend Requirements" in the Prospectus, the
information included or incorporated by reference in Items 1,
2, 6 and 7 of the Company's Annual Report on Form 10-K and the
Company's Quarterly Reports on Form 10-Q, incorporated by
reference in the Registration Statement and the Prospectus,
agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation.
References to the Prospectus in this Annex C include any amendment or
supplement thereto at the date of the letter.
ANNEX C - PAGE 2
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ANNEX D
MATTERS TO BE ADDRESSED IN COMFORT LETTERS OF
PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP shall furnish letters to the Underwriters,
dated the respective date of delivery thereof, in form and substance
satisfactory to the Underwriters, confirming that they are independent certified
public accountants with respect to Oryx Energy Company within the meaning of the
Act and the Exchange Act and the respective applicable rules and regulations
adopted by the Commission thereunder and stating in effect that, in their
opinion, the audited financial statements of Oryx Energy Company referred to in
their report dated February 26, 1999, which is referred to in the opinion of
Xxxxxx Xxxxxxxx LLP incorporated by reference in the Registration Statement and
the Prospectus, comply in form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related rules
and regulations adopted by the Commission.
ANNEX D - PAGE 1
