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HS RESOURCES, INC.
$85,000,000
SERIES B 9 1/4% SENIOR SUBORDINATED NOTES DUE 2006
UNDERWRITING AGREEMENT
December 4, 1998
CHASE SECURITIES INC.
XXXXXX BROTHERS INC.
XXXXXX XXXXXXX & CO. INCORPORATED
As Representatives of the several
Underwriters named in Schedule 1,
c/o Chase Securities Inc.
000 Xxxx Xxxxxx, 0xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
HS Resources, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell $85,000,000 aggregate principal amount of its Series B 9 1/4%
Senior Subordinated Notes due 2006 (the "Notes"). The Notes will be issued
pursuant to an Indenture to be dated as of December 11, 1998 (the "Indenture")
between the Company and Xxxxxx Trust and Savings Bank, as trustee (the
"Trustee"), the form of which has been filed as an exhibit to the Company's
Current Report on Form 8-K dated December 11, 1998. The Company hereby confirms
its agreement with Chase Securities Inc. ("CSI") and Xxxxxx Brothers Inc.
(together with CSI, the "Joint Lead Book-Runners") and Xxxxxx Xxxxxxx & Co.
Incorporated (together with CSI, the "Underwriters") concerning the purchase of
the Notes from the Company by the several Underwriters.
1. Representations, Warranties and Agreements of the Company. The Company
represents, warrants and agrees on and as of the date hereof and the Closing
Date (as defined in Section 3) that:
(a) A registration statement on Form S-3 (No. 333-21221) with
respect to the Notes has (i) been prepared by the Company in conformity
with the requirements of the United States Securities Act of 1933 (the
"Securities Act") and the rules and regulations (the "Rules and
Regulations") of the United States Securities and Exchange Commission
(the "Commission") thereunder, (ii) been filed with the Commission
under the Securities Act and (iii) become effective under the
Securities Act. Copies of such registration statement and any
amendments thereto have been delivered by the Company to you. As used
in this Agreement, "Registration Statement" means such registration
statement, as amended, to the date of this Agreement, including the
exhibits and schedules thereto, if any, and all documents incorporated
by reference or deemed to be incorporated by reference
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therein and the exhibits and schedules thereto and all information
contained in the final Prospectus (as defined herein) filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations and
deemed to be a part of the registration statement as of the Effective
Time pursuant to paragraph (b) of Rule 430A of the Rules and
Regulations; "Effective Time" means the date and the time as of which
the Registration Statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission; "Effective
Date" means the date of the Effective Time; "Basic Prospectus" means
the prospectus included in the Registration Statement; "Preliminary
Prospectus" means any preliminary form of Prospectus specifically
relating to the Notes, in the form first filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 of the Rules and
Regulations; "Prospectus Supplement" means any prospectus supplement
specifically relating to the Notes, in the form first filed with, or
transmitted for filing to, the Commission pursuant to Rule 424 of the
Rules and Regulations; and "Prospectus" means the Basic Prospectus,
together with the Prospectus Supplement, except that if such Basic
Prospectus is amended or supplemented on or prior to the date on which
the Prospectus Supplement was first filed with the Commission pursuant
to Rule 424 of the Rules and Regulations, the term "Prospectus" shall
refer to the Basic Prospectus as so amended or supplemented and as
supplemented by the Prospectus Supplement. Reference made herein to any
Preliminary Prospectus or to the Prospectus shall be deemed to refer to
and include any documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act, as of the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and any
reference to any amendment or supplement to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any document
filed under the United States Securities Exchange Act of 1934 (the
"Exchange Act") after the date of such Preliminary Prospectus or the
Prospectus, as the case may be, and incorporated by reference in such
Preliminary Prospectus or the Prospectus, as the case may be, and any
reference to any amendment to the Registration Statement shall be
deemed to include any annual report of the Company filed with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act after
the Effective Time that is incorporated by reference in the
Registration Statement. The Commission has not issued any order
preventing or suspending the use of the Prospectus or the effectiveness
of the Registration Statement.
(b) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement
or the Prospectus will, when they become effective or are filed with
the Commission, as the case may be, conform in all respects to the
requirements of the Securities Act, the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the Rules and Regulations 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 (in the case of the
Prospectus, in light of the circumstances in which they were made) not
misleading; at the Effective Time and on the Closing Date, the
Indenture did or will conform in all material respects with the
applicable requirements of the Trust Indenture Act and the rules and
regulations of the Commission thereunder; and, at the Effective Time,
the Prospectus, if
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not filed pursuant to Rule 424(b), did not or will not, and on the date
of any filing pursuant to Rule 424(b) and on the Closing Date, the
Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The preceding
sentence does not apply to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification
(Form T-1) of the Trustee under the Trust Indenture Act or (ii)
information contained in or omitted from the Registration Statement or
the Prospectus in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
specifically for use therein (the "Underwriters' Information").
(c) The documents incorporated or deemed to be 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 Securities 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, 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 Securities 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.
(d) The Company and each of its subsidiaries (as defined in
Section 14) have been duly incorporated or formed and are validly
existing as corporations or partnerships in good standing under the
laws of their respective jurisdictions of incorporation or formation,
are duly qualified to do business and are in good standing as foreign
corporations or partnerships in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification (except where the
failure to so qualify would not result in a material adverse effect on
the condition, financial or otherwise, results of operations or
business prospects of the Company and its subsidiaries, taken as a
whole (a "Material Adverse Effect"), and have all power (corporate and
other) and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged as
described in the Prospectus; and none of the subsidiaries of the
Company is a "significant subsidiary" as such term is defined in
Section 1.01 of the Indenture.
(e) The Company has an authorized capitalization as set forth
or incorporated by reference in the Prospectus, and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and conform to
the description thereof contained or incorporated by reference in the
Prospectus; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable and (except for
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directors' qualifying shares) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims.
(f) The Company has full right, power and authority to execute
and deliver this Agreement, the Indenture and the Notes (collectively,
the "Transaction Documents") and to perform its obligations hereunder
and thereunder; and all corporate action required to be taken for the
due and proper authorization, execution and delivery of each of the
Transaction Documents and the consummation of the transactions
contemplated thereby have been duly and validly taken.
(g) Each of the Transaction Documents has been duly
authorized, executed and delivered by the Company.
(h) The execution, delivery and performance of the Transaction
Documents by the Company and the consummation of the transactions
contemplated thereby 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 indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the Company or any of its
subsidiaries is subject, except in each case for such conflicts,
breaches or violations that would not, individually or in the
aggregate, result in a Material Adverse Effect, nor will such actions
result in any violation of the provisions of the charter or by-laws of
the Company or any of its subsidiaries 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 subsidiaries or any of
their properties or assets; and except for the registration of the
Notes under the Securities Act, the qualification of the Indenture
under the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Notes by the
Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or
body is required for the execution, delivery and performance of this
Agreement by the Company and the consummation of the transactions
contemplated hereby.
(i) There are no contracts, agreements or understandings
between the Company and any person granting such person the right
(other than rights which have been waived, satisfied or not exercised)
to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company owned or
to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities Act.
(j) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
incorporated by reference in the Prospectus, any loss or interference
with its business from fire, explosion, flood or other calamity,
whether
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or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
incorporated by reference in the Prospectus, except for such losses,
interferences, disputes, actions, orders or decrees that do not have
individually or in the aggregate a Material Adverse Effect.
(k) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
incorporated by reference in the Prospectus present fairly in all
material respects the financial condition and results of operations of
the entities purported to be shown thereby, at the dates and for the
periods indicated, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the periods involved, except as otherwise stated therein.
(l) Xxxxxx Xxxxxxxx LLP, who have certified certain financial
statements of the Company, whose report is incorporated by reference in
the Prospectus and who have delivered the initial letter referred to in
Section 6(g) hereof, are independent public accountants as required by
the Securities Act and the Rules and Regulations.
(m) Xxxxxxxxxx Petroleum Consultants, Inc. and Netherland
Xxxxxx & Associates, Inc., whose reports are incorporated by reference
in the Prospectus, as of the date of such report, and are, as of the
date hereof, independent petroleum engineers with respect to the
Company.
(n) The Company and each of its subsidiaries have good and
indefeasible title to all items of real property and good title to all
personal property owned by them, in each case free and clear of all
security interests, liens, encumbrances, equities, claims and other
defects except such as are described in the Prospectus or such as do
not materially and adversely affect the value of such property and do
not interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; and the Company and its
subsidiaries have valid, subsisting and enforceable leases for the
properties described in the Prospectus as leased by them, with such
exceptions as are not material and do not interfere with the business
of the Company and its subsidiaries, taken as a whole, in each case
except as described in or contemplated in the Prospectus.
(o) The Company and its subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is adequate for
the conduct of their respective businesses and the value of their
respective properties and as is customary for companies of similar size
and engaged in similar businesses in similar industries.
(p) The Company and each of its subsidiaries own or possess
adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations,
service xxxx registrations, copyrights and intellectual property
licenses necessary for the conduct of their respective businesses and
have no reason to believe that the conduct of their respective
businesses will conflict with, and have not received any notice of any
claim of conflict with, any such rights of others.
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(q) Except as set forth in the Registration Statement, the
Prospectus or in the documents incorporated therein by reference, 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 or
assets of the Company or any of its subsidiaries is the subject which,
if determined adversely to the Company or any of its subsidiaries,
would have a Material Adverse Effect; and to the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(r) The conditions for use of Form S-3, as set forth in the
General Instructions thereto, have been satisfied by the Company.
(s) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus or filed as
exhibits to the Registration Statement or incorporated therein by
reference as permitted by the Rules and Regulations.
(t) No relationship, direct or indirect, exists between or
among the Company on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company on the other hand,
which is required to be described in the Prospectus which is not so
described in the Prospectus or incorporated therein by reference as
permitted by the Rules and Regulations.
(u) No labor dispute by the employees of the Company exists
or, to the knowledge of the Company, is imminent which reasonably could
be expected to have a Material Adverse Effect.
(v) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event"
(as defined in ERISA) has occurred with respect to any "pension plan"
(as defined in ERISA) for which the Company would have any liability;
the Company has not incurred and does not expect to incur liability
under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "Code"); and each
"pension plan" for which the Company would have any liability that is
intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such
qualification, except in any such case for such liability that would
not have a Material Adverse Effect.
(w) The Company has filed all federal, state and local income
and franchise tax returns required to be filed through the date hereof
or has timely requested extensions thereof and has paid all taxes due
thereon, except for such matters as are being contested in good faith,
and no tax deficiency has been determined adversely to the Company or
any of
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its subsidiaries which has had (nor does the Company have any
knowledge of any tax deficiency which, if determined adversely to the
Company or any of its subsidiaries, might have) a Material Adverse
Effect.
(x) Since the date as of which information is given in the
Prospectus, except as otherwise stated therein, (i) there has been no
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs, management or business prospects of the
Company, whether or not arising in the ordinary course of business,
(ii) the Company has not incurred any material liability or obligation,
direct or contingent, other than in the ordinary course of business,
(iii) the Company has not entered into any material transaction other
than in the ordinary course of business and (iv) there has not been any
material change in the capital stock or long-term debt of the Company,
or any dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(y) The Company (i) makes and keeps accurate books and records
and (ii) maintains internal accounting controls which provide
reasonable assurance that (A) transactions are executed in accordance
with management's general or specific authorization, (B) transactions
are recorded as necessary to permit preparation of its financial
statements and to maintain accountability for its assets, (C) access to
its assets is permitted only in accordance with management's general or
specific authorization and (D) the reported accountability for its
assets is compared with existing assets at reasonable intervals.
(z) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any material
respect, and no event has occurred which, with notice or lapse of time
or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which it is a party or by which it is bound or to
which any of its properties or assets is subject or (iii) is in
violation in any material respect of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or assets
may be subject or has failed to obtain any material license, permit,
certificate, franchise or other governmental authorization or permit
necessary to the ownership of its property or to the conduct of its
business, except, in the case of (ii) or (iii) above, for such defaults
and violations that would not have a Material Adverse Effect.
(aa) Neither the Company nor any of its subsidiaries, nor any
director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries, has used
any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expense relating to political activity; made any
direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; violated or is in
violation of any provision of the Foreign Corrupt Practices Act of
1977; or made any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment.
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(bb) Except as disclosed or incorporated by reference in the
Prospectus, there has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of toxic
wastes, medical wastes, hazardous wastes or hazardous substances by the
Company or any of its subsidiaries (or, to the knowledge of the
Company, any of their predecessors in interest) at, upon or from any of
the property now or previously owned or leased by the Company or its
subsidiaries in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would require
remedial action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or remedial
action which would not have, or would not be reasonably likely to have,
singularly or in the aggregate with all such violations and remedial
actions, a Material Adverse Effect; there has been no material spill,
discharge, leak, emission, injection, escape, dumping or release of any
kind onto such property or into the environment surrounding such
property of any toxic wastes, medical wastes, solid wastes, hazardous
wastes or hazardous substances due to or caused by the Company or any
of its subsidiaries or with respect to which the Company or any of its
subsidiaries have knowledge, except for any such spill, discharge,
leak, emission, injection, escape, dumping or release which would not
have or would not be reasonably likely to have, singularly or in the
aggregate with all such spills, discharges, leaks, emissions,
injections, escapes, dumpings and releases, a Material Adverse Effect;
and the terms "hazardous wastes", "toxic wastes", "hazardous
substances" and "medical wastes" shall have the meanings specified in
any applicable local, state, federal and foreign laws or regulations
with respect to environmental protection.
(cc) Neither the Company, nor any subsidiary is an "investment
company" within the meaning of such term under the Investment Company
Act of 1940, as amended, and the rules and regulations of the
Commission thereunder.
(dd) Any certificate signed by any officer of the Company and
delivered to the Underwriters or to counsel for the Underwriters shall
be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
(ee) Neither the Company nor any of its subsidiaries owns any
"margin securities" as that term is defined in Regulation U of the
Board of Governors of the Federal Reserve System (the "Federal Reserve
Board"), and none of the proceeds of the sale of the Notes will be
used, directly or indirectly, for the purpose of purchasing or carrying
any margin security, for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry any
margin security or for any other purpose which might cause any of the
Notes to be considered a "purpose credit" within the meanings of
Regulation T, U or X of the Federal Reserve Board.
(ff) Except as described in the Prospectus, neither the
Company nor any of its subsidiaries is a party to any contract,
agreement or understanding with any person that would give rise to a
valid claim against the Company or the Underwriters for a brokerage
commission, finder's fee or like payment in connection with the
offering and sale of the Notes.
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(gg) The Company has not taken and will not take, directly or
indirectly, any action designed to or that could reasonably be expected
to cause or result in the stabilization or manipulation of the price of
the Notes.
(hh) None of the Company or any of its subsidiaries does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Florida Statutes Section 517.075.
(ii) No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act)
contained in the Registration Statement has been made or reaffirmed
without a reasonable basis or has been disclosed other than in good
faith.
2. Purchase of the Notes by the Underwriters. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company hereby agrees to issue and sell to
each of the Underwriters, and each of the Underwriters severally and not
jointly, agrees to purchase from the Company the principal amount of Notes set
forth opposite that Underwriter's name in Schedule 1 hereto at a purchase price
equal to 95% of the principal amount thereof.
The Company shall not be obligated to deliver any of the Notes, except
upon payment for all the Notes to be purchased as provided herein. The Company
acknowledges and agrees that the Underwriters may sell Notes to any affiliate of
an Underwriter and that any such affiliate may sell Notes purchased by it to an
Underwriter.
3. Delivery of and Payment for the Notes. (a) Delivery of and payment
for the Notes shall be made at the office of Xxxxx, Xxxxxx & Xxxxxx LLP, 000
Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000, at 9:00 A.M., Denver time, on
the fifth full business day following the date of this Agreement or at such
other date or place as shall be determined by agreement between the Underwriters
and the Company. This date and time are sometimes referred to as the "Closing
Date." (b) On the Closing Date, payment of the purchase price for the Notes
shall be made to the Company by certified or official bank check or checks drawn
in New York Clearing House funds or similar next-day funds, or by such other
means as the parties hereto shall agree prior to the Closing Date, against
delivery to the Underwriters of the certificates evidencing the Notes. Time
shall be of the essence, and delivery at the time and place specified pursuant
to this Agreement is a further condition of the obligations of the Underwriters
hereunder. Upon delivery, the Notes shall be in global form, registered in such
names and in such denominations as CSI on behalf of the Underwriters shall have
requested in writing not less than two full business days prior to the Closing
Date. The Company agrees to make one or more global certificates evidencing the
Notes available for inspection by CSI on behalf of the Underwriters in New York,
New York at least 24 hours prior to the Closing Date.
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4. Further Agreements of the Company. The Company agrees with each of
the several Underwriters:
(a) To prepare the Prospectus in a form approved by the
Underwriters and to file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than 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 Securities Act; except for such
post-effective amendment made under Rule 462(d) under the Securities
Act, which amendment shall be approved by the Underwriters, to make no
further amendment or any supplement to the Registration Statement or to
the Prospectus prior to the Closing Date except as permitted herein; to
advise the Underwriters, 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 and to furnish the Underwriters 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 the Underwriters, 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 the 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 the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, to
use promptly its best efforts to obtain its withdrawal at the earliest
possible time.
(b) To furnish promptly to each Underwriter and to counsel for
the Underwriters a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed
with the Commission, including all consents and exhibits filed
therewith.
(c) To deliver promptly to each Underwriter such number of the
following documents as such Underwriter shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with
the Commission and each amendment thereto (in each case excluding
exhibits other than this Agreement and the computation of per share
earnings), (ii) each Preliminary Prospectus, the Prospectus and any
amended or supplemented Prospectus and (iii) any document incorporated
by reference in the Prospectus (excluding exhibits thereto); and, if
the delivery of a prospectus is required at any time after the
Effective Time in connection with the offering or sale of the Notes and
if at such time any events 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 the light of the
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circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary 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 Securities Act or the Exchange Act, to
notify the Underwriters and, upon their 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 each Underwriter may from
time to time reasonably request of an amended or supplemented
Prospectus which will correct such statement or omission or effect such
compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the
Underwriters, be required by the Securities Act or requested by the
Commission.
(e) During the period when a prospectus is required to be
delivered in connection with the offering or sale of the Notes, prior
to filing with the Commission any amendment to the Registration
Statement or supplement to the Prospectus, any document incorporated by
reference in the Prospectus or any Prospectus pursuant to Rule 424 of
the Rules and Regulations, to furnish a copy thereof to each
Underwriter and counsel for the Underwriters and obtain the consent of
the Underwriters to the filing.
(f) As soon as practicable after the Effective Date, to make
generally available to the Company's security holders and to deliver to
the Underwriters an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Securities Act and the Rules and Regulations (including, at the
option of the Company, Rule 158).
(g) For so long as the Notes are outstanding, to furnish to
the Underwriters copies of any annual reports, quarterly reports and
current reports filed by the Company with the Commission on Forms 10-K,
10-Q and 8-K, or such other similar forms as may be designated by the
Commission, and such other documents, reports and information as shall
be furnished by the Company to the Trustee or to the holders of the
Notes pursuant to the Indenture or the Exchange Act or any rule or
regulation of the Commission thereunder.
(h) Promptly from time to time to take such action as the
Underwriters may reasonably request to qualify the Notes for offering
and sale under the securities laws of such jurisdictions as the
Underwriters 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 required for the resale of the Notes.
(i) For a period of 60 days from the date of the Prospectus,
not to offer for sale, sell, contract to sell or otherwise dispose of,
directly or indirectly, or file a registration statement for, or
announce any offer, sale, contract for sale of or other disposition of
any debt securities issued or guaranteed by the Company or any of its
subsidiaries (other than the Notes) without the prior written consent
of the Joint Lead Book-Runners; provided
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however, that the Company may (i) amend its Registration Statement on
Form S-3 (No. 333-21221), or otherwise file a related registration
statement, to increase the aggregate amount of securities registered
pursuant thereto, (ii) offer for sale and sell debt securities in a
private placement to five or fewer institutional investors in a
transaction not involving immediate registration or subsequent
registration pursuant to an exchange offer or otherwise and (iii) offer
for sale and sell securities convertible into or exchangeable for
equity securities of the Company.
(j) To take such steps as shall be necessary to ensure that
neither the Company, nor any subsidiary shall become an "investment
company" within the meaning of such term under the Investment Company
Act of 1940, as amended, and the rules and regulations of the
Commission thereunder.
(k) In connection with the offering of the Notes, until the
Joint Lead Book-Runners on behalf of the Underwriters shall have
notified the Company of the completion of the distribution of the
Notes, not to, and to cause its affiliated purchasers (as defined in
Regulation M under the Exchange Act) not to, either alone or with one
or more other persons, bid for or purchase, for any account in which it
or any of its affiliated purchasers has a beneficial interest, any
Notes, or attempt to induce any person to purchase any Notes; and not
to, and to cause its affiliated purchasers not to, make bids or
purchase for the purpose of creating actual, or apparent, active
trading in or of raising the price of the Notes.
(l) In connection with the offering of the Notes, to make its
officers, employees, independent accountants and legal counsel
reasonably available upon request by the Underwriters.
(m) To furnish to each of the Underwriters on the date hereof
a copy of the independent accountants' report included in the
Registration Statement signed by the accountants rendering such report.
(n) To do and perform all things required to be done and
performed by it under this Agreement that are within its control prior
to or after the Closing Date, and to use its best efforts to satisfy
all conditions precedent on its part to the delivery of the Notes.
(o) To not take any action prior to the execution and delivery
of the Indenture which, if taken after such execution and delivery,
would have violated any of the covenants contained in the Indenture.
(p) To not take any action prior to the Closing Date which
would require the Prospectus to be amended or supplemented pursuant to
Section 4(c).
(q) Prior to the Closing Date, not to issue any press release
or other communication directly or indirectly or hold any press
conference with respect to the Company, its condition, financial or
otherwise, or earnings, business affairs or business prospects (except
for routine oral marketing communications in the ordinary course of
business and consistent with the past practices of the Company and of
which the
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Underwriters are notified), without the prior written consent of the
Underwriters, unless in the judgment of the Company and its counsel,
and after notification to the Underwriters, such press release or
communication is required by law.
(r) To apply the net proceeds from the sale of the Notes as
set forth in the Prospectus Supplement under the heading "Use of
Proceeds".
5. Expenses. The Company agrees to pay: (a) the costs incident to the
authorization, issuance, sale and delivery of the Notes and any taxes payable in
that connection; (b) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement and any amendments and
exhibits thereto; (c) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any Preliminary Prospectus, the
Prospectus and any amendment or supplement to the Prospectus or any document
incorporated by reference therein, all as provided in this Agreement; (d) the
costs of producing and distributing the Indenture, this Agreement and any other
related documents in connection with the offering, purchase, sale and delivery
of the Notes; (e) the filing fees incident to securing any required review by
the National Association of Securities Dealers, Inc. of the terms of sale of the
Notes; (f) the fees and expenses of preparing, printing and distributing Blue
Sky Memoranda (including related fees and expenses of counsel to the
Underwriters); (g) the fees and expenses of the Company's counsel and
independent accountants; (h) any fees charged by rating agencies for rating the
Notes; (i) all fees and expenses of the Trustee and any paying agent (including
related fees and expenses of any counsel to such parties); and (j) all other
costs and expenses incident to the performance of the obligations of the Company
under this Agreement; provided that, except as provided in this Section 5 and in
Section 10, the Underwriters shall pay their own costs and expenses, including
the costs and expenses of their counsel, any transfer taxes on the Notes which
they may sell, the expenses of advertising any offering of the Notes made by the
Underwriters and the expenses of the roadshow (excluding the Company's air and
rail transportation and lodging expenses).
6. Conditions of Underwriters' Obligations. The respective obligations
of the several Underwriters hereunder are subject to the accuracy, when made and
on the Closing Date, of the representations and warranties of the Company
contained herein, to the performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 6(a); 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 any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied with.
(b) The Prospectus (and any amendments or supplements thereto)
shall have been printed and copies distributed to the Underwriters as
promptly as practicable on or following the date of this Agreement or
at such other date and time as to which the Underwriters may agree.
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(c) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Closing Date that the Registration Statement
or the Prospectus or any amendment or supplement thereto contains an
untrue statement of a fact which, in the opinion of Akin, Gump,
Strauss, Xxxxx & Xxxx, L.L.P., counsel for the Underwriters, is
material or omits to state a fact which, in the opinion of such
counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(d) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Notes,
the Registration Statement, the Prospectus and any other Transaction
Document, and all other legal matters relating to this Agreement and
the transactions contemplated hereby shall be reasonably satisfactory
in all material respects to counsel for the Underwriters, and the
Company shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass
upon such matters.
(e) Xxxxx, Xxxxxx & Xxxxxx LLP shall have furnished to the
Underwriters their written opinion, as counsel to the Company,
addressed to the Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriters, substantially to
the effect set forth below:
(i) The Company and each of its subsidiaries have been duly
incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and are in
good standing as foreign corporations in each jurisdiction in
which their respective ownership or lease of property or the
conduct of their respective businesses requires such
qualification (except where the failure to so qualify or be in
good standing would not reasonably be expected to have a
Material Adverse Effect) and have all corporate power and
authority necessary to own or hold their respective properties
and conduct the businesses in which they are engaged;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the outstanding shares of
capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly
authorized and issued and are fully paid, non-assessable and
(except as disclosed or incorporated by reference in the
Prospectus and for directors' qualifying shares) are owned
directly or indirectly by the Company, free and clear of all
perfected security interests and, to the knowledge of such
counsel, any other liens, encumbrances or claims;
(iii) To such counsel's knowledge, 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 or
assets of the Company or any of its
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subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, would likely have a
Material Adverse Effect; and, to such counsel's knowledge, no
such proceedings are threatened by governmental authorities or
threatened by others;
(iv) The Registration Statement was declared effective under
the Securities Act as of the date and time specified in such
opinion, the Prospectus was filed with the Commission pursuant
to the subparagraph of Rule 424(b) of the Rules and
Regulations specified in such opinion on the date specified
therein and no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the knowledge
of such counsel, no proceeding for that purpose is pending or
threatened by the Commission;
(v) The Registration Statement and the Prospectus and any
further amendments or supplements thereto made by the Company
prior to the Closing Date (other than the financial statements
and related schedules therein, as to which such counsel need
express no opinion) comply as to form in all material respects
with the requirements of the Securities Act and the Rules and
Regulations; and the documents incorporated by reference in
the Prospectus and any further amendment or supplement to any
such incorporated document made by the Company prior to the
Closing Date (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all
material respects with the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder;
(vi) The Indenture complies as to form in all material
respects with the requirements of the Trust Indenture Act and
the rules and regulations of the Commission thereunder;
(vii) To such counsel's knowledge, there are no contracts or
other documents which are required to be described in the
Prospectus or filed as exhibits to the Registration Statement
by the Securities Act or by the Rules and Regulations which
have not been described or filed as exhibits to the
Registration Statement or incorporated therein by reference as
permitted by the Rules and Regulations;
(viii) This Agreement has been duly authorized, executed and
delivered by the Company;
(ix) The Indenture has been duly authorized, executed and
delivered by the Company, and assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a
valid and legally binding agreement of
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the Company, enforceable against the Company in accordance
with its terms, except to the extent that such enforceability
may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by
general equitable principles (whether considered in a
proceeding in equity or at law);
(x) The Notes have been duly authorized and issued by the
Company and, assuming due authentication thereof by the
Trustee and upon payment and delivery in accordance with the
Underwriting Agreement, will constitute valid and legally
binding obligations of the Company and be enforceable against
the Company in accordance with their terms, except to the
extent that such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights
generally and by general equitable principles (whether
considered in a proceeding in equity or at law);
(xi) The Company is not an "investment company" within the
meaning of such term under the Investment Company Act of 1940,
as amended, and the rules and regulations of the Commission
thereunder;
(xii) Each Transaction Document conforms in all material
respects to the description thereof contained in the
Prospectus;
(xiii) The execution, delivery and performance by the Company
of each of the Transaction Documents, the issuance,
authentication, sale and delivery of the Notes and compliance
by the Company with the terms thereof and the consummation of
the transactions contemplated by the Transaction Documents
will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, any material
indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which the Company or any
of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation of the
provisions of the charter or by-laws of the Company or any of
its subsidiaries or any statute or any judgment, order,
decree, rule or regulation of any court or arbitrator or
governmental agency or body having jurisdiction over it or any
of its subsidiaries or any of their properties or assets; and
no consent, approval, authorization or order of, or filing or
registration with, any such court or arbitrator or
governmental agency or body under any such statute, judgment,
order, decree, rule or regulation is required for the
execution,
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delivery and performance by the Company of each of the
Transaction Documents, the issuance, authentication, sale and
delivery of the Notes and compliance by the Company with the
terms thereof and the consummation of the transactions
contemplated by the Transaction Documents, except for the
registration of the Notes under the Securities Act, the
qualification of the Indenture under the Trust Indenture Act
and such consents, approvals, authorizations, filings,
registrations or qualifications (i) which shall have been
obtained or made prior to the Closing Date and (ii) as may be
required to be obtained or made under the Exchange Act and
applicable state securities laws in connection with the
purchase and distribution of the Notes by the Underwriters;
(xiv) To such counsel's knowledge, there are no contracts,
agreements or understandings between the Company and any
person granting such person the right (other than rights which
have been waived, satisfied or not exercised) to require the
Company to file a registration statement under the Securities
Act with respect to any securities of the Company owned or to
be owned by such person or to require the Company to include
such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the
Company under the Securities Act; and
(xv) The information set forth in the Prospectus Supplement
under the headings "Certain Federal Income Tax Consequences"
and "Risk Factors -- Governmental and Environmental
Regulation" and in Item 1--Business--Regulation and Item
3--Legal Proceedings and Environmental Issues of the Company's
Annual Report on Form 10-K for the year ended December 31,
1997, to the extent that it constitutes matters of law,
summaries of legal matters, the Company's charter and bylaws
or legal proceedings, or legal conclusions, is correct in all
material respects.
In rendering such opinion, such counsel may (i) state that their
opinion is limited to matters governed by the Federal laws of the United States
of America, the laws of the State of New York and the General Corporation Law of
the State of Delaware and that such counsel is not admitted in the State of
Delaware and (ii) rely as to matters of fact (but not legal conclusions), to the
extent they deem proper, on certificates of responsible officers of the Company
and public officials. Such counsel shall also have furnished to the Underwriters
a written statement, addressed to the Underwriters and dated the Closing Date,
in form and substance satisfactory to the Underwriters, to the effect that (i)
such counsel has acted as counsel to the Company on a regular basis (although
the Company is also represented by its General Counsel and, with respect to
certain other matters, by other outside counsel), has acted as counsel to the
Company in connection with previous financing transactions and has acted as
counsel to the Company in connection with the preparation of the Registration
Statement, and (ii) based on the foregoing, no facts have come to the attention
of such counsel which lead them to believe that (A) the Registration Statement,
as of the Effective Date, contained any untrue statement of a material fact or
omitted to state a material fact required to be
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stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus contains any untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading or (B) any document incorporated by
reference in the Prospectus or any further amendment or supplement to any such
incorporated document made by the Company prior to the Closing Date, when they
became effective or were filed with the Commission as the case may be, contained
in the case of a registration statement which became effective under the
Securities Act, any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or, in the case of other documents which were
filed under the Exchange Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Notwithstanding the foregoing, such counsel need express no
belief with respect to the financial statements, financial schedules, other
financial or statistical data (including any reserve, production and cost data)
and any geologic information included in or incorporated by reference in the
Prospectus and any amendment or supplement thereto.
(f) The Underwriters shall have received from Akin, Gump,
Strauss, Xxxxx & Xxxx, L.L.P., counsel for the Underwriters, such
opinion or opinions, dated the Closing Date, with respect to the
issuance and sale of the Notes, the Registration Statement, the
Prospectus and other related matters as the Underwriters may reasonably
require, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them
to pass upon such matters.
(g) At the time of execution of this Agreement, the
Underwriters shall have received from Xxxxxx Xxxxxxxx LLP a letter, in
form and substance satisfactory to the Underwriters, addressed to the
Underwriters and dated the date hereof (i) confirming that they are
independent public accountants within the meaning of the Securities Act
and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date hereof (or, with respect to
matters involving changes or developments since the respective dates as
of which specified financial information is given in the Prospectus, as
of a date not more than three days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants'
"comfort letters" to underwriters in connection with registered public
offerings.
(h) With respect to the letter of Xxxxxx Xxxxxxxx LLP referred
to in the preceding paragraph and delivered to the Underwriters
concurrently with the execution of this Agreement (the "initial
letter"), the Company shall have furnished to the Underwriters a letter
(the "bring-down letter") of such accountants, addressed to the
Underwriters and dated the Closing Date (i) confirming that they are
independent public accountants within the meaning of the Securities Act
and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the bring-down letter (or,
with respect to matters involving changes or developments since the
respective dates as of which specified
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financial information is given in the Prospectus, as of a date not more
than three days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the financial
information and other matters covered by the initial letter and (iii)
confirming in all material respects the conclusions and findings set
forth in the initial letter.
(i) The Company shall have furnished to the Underwriters a
certificate, dated the Closing Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating
that:
(i) The representations, warranties and agreements of
the Company in Section 1 are true and correct as of the
Closing Date; the Company has complied with all its agreements
contained herein; and the conditions set forth in Sections
6(a) and 6(i) have been fulfilled; and
(ii) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion (A) as of
the Effective Date, the Registration Statement and Prospectus
did not include any untrue statement of a material fact and
did not omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and (B) since the Effective Date no event has
occurred which is required under the Securities Act to be set
forth in a supplement or amendment to the Registration
Statement or the Prospectus.
(j) (x) Neither the Company nor any of its subsidiaries shall
have sustained since the date hereof or the respective dates as of
which information is given 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
incorporated by reference in the Prospectus, except such losses,
interferences, disputes, actions, orders or decrees that do not
individually or in the aggregate have a Material Adverse Effect, or (y)
since such dates there shall not have been any material change in the
capital stock or long-term debt of the Company or any of its
subsidiaries 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, otherwise than as set forth or incorporated by
reference in the Prospectus, the effect of which, in any such case
described in clause (x) or (y), is, in the judgment of the
Underwriters, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Notes being delivered on the Closing Date on the terms and in the
manner contemplated in the Prospectus.
(k) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or minimum prices shall have been
established on any
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such exchange or such market by the Commission, by such exchange or by
any other regulatory body or governmental authority having
jurisdiction, (ii) a banking moratorium shall have been declared by
Federal or state authorities, (iii) the United States shall have become
engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (iv)
there shall have occurred 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 make it, in the judgment of a majority in interest
of the several Underwriters, impracticable or inadvisable to proceed
with the public offering or delivery of the Notes being delivered on
the Closing Date on the terms and in the manner contemplated in the
Prospectus.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each
Underwriter, its officers and employees and each person, if any, who
controls any Underwriter within the meaning of the Securities Act, from
and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to purchases and sales of
Notes), to which that Underwriter, officer, employee or controlling
person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of,
or is based upon, (i) any untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or
supplement thereto, or (ii) the omission or alleged omission to state
in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any amendment or supplement thereto, any material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the Company shall not
be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any such amendment or supplement, in reliance upon
and in conformity with any Underwriters' Information. The foregoing
indemnity agreement is in addition to any liability which the Company
may otherwise have to any Underwriter or to any officer, employee or
controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, each of its officers and
employees, each of its directors, and each person, if any, who controls
the Company within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action
in respect thereof, to which the Company or any such director, officer,
employee or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim,
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damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or
the Prospectus or in any amendment or supplement thereto, or (ii) the
omission or alleged omission to state in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, any material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each
case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and
in conformity with written information concerning such Underwriter
furnished to the Company through the Underwriters by or on behalf of
that Underwriter specifically for inclusion therein, and shall
reimburse the Company and any such director, officer, employee or
controlling person for any legal or other expenses reasonably incurred
by the Company or any such director, officer, employee or controlling
person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as
such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Underwriter may otherwise have to
the Company or any such director, officer, employee or controlling
person.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 7 except to the extent it has been materially prejudiced
by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 7. If
any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that
it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not
be liable to the indemnified party under this Section 7 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the indemnified party shall have
the right to employ counsel to represent such indemnified party if the
indemnified party shall have been advised by counsel that there may be
legal defenses available to it which are different from or in addition
to those available to such indemnifying party, and in that event the
fees and expenses of such separate counsel shall be paid by the
indemnifying party. No indemnifying party shall (i) without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent
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to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out of
such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent
(which consent shall not be unreasonably withheld), but if settled with
the consent of the indemnifying party or if there be a final judgment
of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 7
shall for any reason be unavailable to or insufficient to hold harmless
an indemnified party under Section 7(a), 7(b) or 7(c) in respect of any
loss, claim, damage or liability, or any action in respect thereof,
referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the
other from the offering of the Notes or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
Company on the one hand and the Underwriters on the other with respect
to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other with
respect to such offering shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Notes purchased
under this Agreement (before deducting expenses) received by the
Company on the one hand, and the total underwriting discounts and
commissions received by the Underwriters with respect to the Notes
purchased under this Agreement on the other hand, bear to the total
gross proceeds from the offering of the Notes under this Agreement, in
each case as set forth in the Prospectus Supplement. The relative fault
shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or
the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this
Section 7(d) were to be 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 into account the
equitable considerations referred to herein. The amount paid or payable
by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this
Section shall be deemed to include, for purposes of this Section 7(d),
any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 7(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 was offered to the public exceeds the
amount of any damages which such Underwriter has otherwise paid or
become liable to pay by reason of any untrue or alleged
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untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section
7(d) are several in proportion to their respective underwriting
obligations and not joint.
(e) The Underwriters severally confirm and the Company
acknowledges that the statements with respect to the public offering of
the Notes by the Underwriters set forth on the cover page of, and the
information under the caption "Underwriting" in, the Prospectus
Supplement, and the legend concerning stabilization on the inside front
cover page of the Prospectus, are correct and constitute the only
information concerning such Underwriters furnished in writing to the
Company by or on behalf of the Underwriters specifically for inclusion
in the Registration Statement and the Prospectus.
8. Defaulting Underwriters. If, on the Closing Date, any Underwriter
defaults in the performance of its obligations under this Agreement, the
remaining non-defaulting Underwriters shall be obligated to purchase the Notes
which the defaulting Underwriter agreed but failed to purchase on the Closing
Date in the respective proportions which the principal amount of Notes set
opposite the name of each remaining non-defaulting Underwriter in Schedule 1
hereto bears to the total principal amount of Notes set opposite the names of
all the remaining non-defaulting Underwriters in Schedule 1 hereto; provided,
however, that the remaining non-defaulting Underwriters shall not be obligated
to purchase any of the Notes on the Closing Date if the total principal amount
of Notes which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such date exceeds 10% of the total principal amount of Notes to be
purchased on the Closing Date, and any remaining non-defaulting Underwriter
shall not be obligated to purchase more than 110% of the principal amount of
Notes which it agreed to purchase on the Closing Date pursuant to the terms of
Section 2. If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to such non-defaulting
Underwriters who so agree, shall have the right, but shall not be obligated, to
purchase, in such proportion as may be agreed upon among them, all the Notes to
be purchased on the Closing Date. If the remaining Underwriters or other
underwriters satisfactory to the non-defaulting Underwriters do not elect to
purchase the Notes which the defaulting Underwriter or Underwriters agreed but
failed to purchase on the Closing Date, this Agreement shall terminate without
liability on the part of the non-defaulting Underwriters or the Company, except
that the Company will continue to be liable for the payment of expenses to the
extent set forth in Sections 5 and 10 and except that the provisions of Sections
6 and 7 shall not terminate and shall remain in effect. As used in this
Agreement, the term "Underwriters" includes, for all purposes of this Agreement
unless the context otherwise requires, any party not listed in Schedule 1 hereto
that, pursuant to this Section 8, purchases Notes which a defaulting Underwriter
agreed but failed to purchase.
Nothing contained herein shall release a defaulting Underwriter of any
liability it may have to the Company for damages caused by its default.
9. Termination. The obligations of the Underwriters hereunder may be
terminated by the Underwriters by notice given to and received by the Company
prior to delivery of and payment
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for the Notes if, prior to that time, any of the events described in Sections
6(i) or 6(j), shall have occurred or if the Underwriters shall decline to
purchase the Notes for any reason permitted under this Agreement.
10. Reimbursement of Underwriters' Expenses. If (a) the Company shall
fail to tender the Notes for delivery to the Underwriters for any reason
permitted under this Agreement or (b) the Underwriters shall decline to purchase
the Notes for any reason permitted under this Agreement, the Company shall
reimburse the Underwriters for such out-of-pocket expenses (including fees and
disbursements of counsel) as shall have been reasonably incurred by the
Underwriters in connection with this Agreement and the proposed public offering
and sale of the Notes, and upon demand the Company shall pay the full amount
thereof to the Underwriters. If this Agreement is terminated pursuant to Section
8 by reason of the default of one or more of the Underwriters, the Company shall
not be obligated to reimburse any defaulting Underwriter on account of such
expenses.
11. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(f) if to the Underwriters, shall be delivered or sent by mail
or telecopy transmission to Chase Securities Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxx (telecopier no.: (212)
270-0994); or
(g) if to the Company, shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth
in the Registration Statement, Attention: Xxxxx X. Xxxxxxx, Esq. (Fax:
(000) 000-0000); and
provided, however, that any notice to an Underwriter pursuant to Section 7(d)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Underwriters, which address will be supplied to any other party hereto by the
Underwriters upon request. Any such statements, requests, notices or agreements
shall take effect at the time of receipt thereof. The Company shall be entitled
to act and rely upon any request, consent, notice or agreement given or made on
behalf of the Underwriters by CSI.
12. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company and
their respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Securities Act (b) the indemnity agreement of the Underwriters contained in
Section 7(b) of this Agreement shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company within the meaning
of Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 12, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
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13. Survival. The respective indemnities, representations, warranties
and agreements of the Company and the Underwriters contained in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement, shall
survive the delivery of and payment for the Notes and shall remain in full force
and effect, regardless of any investigation made by or on behalf of any of them
or any person controlling any of them.
14. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[The remainder of this page is intentionally left blank.]
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S-2
If the foregoing correctly sets forth the agreement among the Company
and the Underwriters, please indicate your acceptance in the space provided for
that purpose below.
Very truly yours,
HS RESOURCES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxxx X. Xxxxxx
Chief Executive Officer
Accepted:
CHASE SECURITIES INC.
By: illegible
---------------------------------
Authorized Representative
For itself and as Representative
of the several Underwriters named
in Schedule 1 hereto
X-0
00
XXXXXXXX 0
Xxxxxxxxx Xxxxxx
of Notes
--------
Underwriters
------------
Chase Securities Inc............................................................. $31,875,000
Xxxxxx Brothers Inc.............................................................. $31,875,000
Xxxxxx Xxxxxxx & Co. Incorporated................................................ $21,250,000
Total $85,000,000
