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EXHIBIT 1.1
Newfield Financial Trust I
Newfield Financial Trust II
Quarterly Income Convertible Preferred Securities
(Convertible QUIPS(SM)*)
guaranteed to the extent set forth in the Guarantee by,
and convertible into Common Stock of,
NEWFIELD EXPLORATION COMPANY
UNDERWRITING AGREEMENT
August 1, 1999
To the Representatives of the several
Underwriters named in the respective
Pricing Agreements hereinafter described
Ladies and Gentlemen:
From time to time Newfield Financial Trust I or Newfield
Financial Trust II, each a statutory business trust formed under the laws of
the State of Delaware (each a "Trust" and collectively the "Trusts"), and
Newfield Exploration Company, a Delaware corporation (the "Company"), as
depositor of each trust and as guarantor, propose to enter into one or more
Pricing Agreements (each a "Pricing Agreement") in the form of Annex I hereto,
with such additions and deletions as the parties thereto may determine, and,
subject to the terms and conditions stated herein and therein, that the Trust
identified in the applicable Pricing Agreement (such Trust being the
"Designated Trust" with respect to such Pricing Agreement) issue and sell to
the firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its preferred securities (the
"Securities") representing undivided beneficial interests in the assets of the
Designated Trust. The Securities specified in such Pricing Agreement are
referred to as the "Firm Designated Securities" with respect to such Pricing
Agreement. If specified in such Pricing Agreement, the Designated Trust may
grant the Underwriters the right to purchase at their election an additional
number of Securities specified as provided in such Pricing Agreement as
provided in Section 3 hereof (the "Optional Designated Securities"). The Firm
Designated Securities and the Optional Designated Securities, if any, which the
Underwriters elect to purchase pursuant to Section 3 hereof are herein
collectively referred to as the "Designated Securities". The proceeds of the
sale of the Designated Securities to the public and of common securities of the
Designated Trust (the "Common Securities") to the Company concurrently with the
sale of the Designated Securities are to be invested in junior subordinated
deferrable interest debentures of the Company (the "Subordinated Debentures")
identified in the Pricing Agreement with respect to such Designated Securities
(with respect to such Pricing Agreement, the "Designated Subordinated
Debentures"), to be issued pursuant to a junior subordinated indenture
identified in the Pricing
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* QUIPS is a service mark of Xxxxxxx, Xxxxx & Co.
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Agreement with respect to such Designated Securities (the "Indenture") between
the Company and First Union National Bank, as trustee (the "Indenture
Trustee"). The Designated Securities will be exchangeable into Designated
Subordinated Debentures, as specified in Schedule II to such Pricing Agreement.
The Designated Securities will be guaranteed by the Company to the extent set
forth in the Pricing Agreement with respect to such Designated Securities (the
"Designated Guarantee") (all such Designated Guarantees together, the
"Guarantees"). The Securities will be convertible into shares of the common
stock, par value $.01 per share, of the Company (the "Stock"), as specified in
Schedule II to such Pricing Agreement.
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the amended and restated trust agreement identified in such
Pricing Agreement (with respect to such Pricing Agreement, the "Trust
Agreement").
1. Particular sales of Designated Securities may be made from
time to time to the Underwriters of such Designated Securities, for whom the
firms designated as representatives of the Underwriters of such Designated
Securities in the Pricing Agreement relating thereto will act as
representatives (the "Representatives"). The term "Representatives" also
refers to a single firm acting as sole representative of the Underwriters and
to an Underwriter or Underwriters who act without any firm being designated as
its or their representatives. This Underwriting Agreement shall not be
construed as an obligation of either Trust to sell any of the Securities or as
an obligation of any of the Underwriters to purchase any of the Securities.
The obligation of the Trusts to issue and sell any of the Securities and the
obligation of any of the Underwriters to purchase any of the Securities shall
be evidenced by the Pricing Agreement with respect to the Securities specified
therein. Each Pricing Agreement shall specify the aggregate number of the Firm
Designated Securities, the maximum number of Optional Designated Securities, if
any, the initial public offering price of such Firm and Optional Designated
Securities or the manner of determining such price, the terms of the Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters, the number of such
Designated Securities to be purchased by each Underwriter and the commission,
if any, payable to the Underwriters with respect thereto and shall set forth
the date, time and manner of delivery of such Firm Designated Securities and
Optional Designated Securities, if any, and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the registration
statement and prospectus with respect thereto) the terms of such Designated
Securities. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Designated Trust and the Company, 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.
333-59391) (as amended prior to being declared effective, the "Initial
Registration Statement") in respect of the Securities, the
Subordinated Debentures, the Guarantees and the Stock (including the
Designated Securities, the Designated Subordinated Debentures and the
Designated Guarantee) has been filed with the Securities and Exchange
Commission (the "Commission"); the Initial Registration Statement and
any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Representatives
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(excluding exhibits to the Initial Registration Statement, but
including all documents incorporated by reference in the prospectus
contained therein), have been declared effective by the Commission in
such form; other than a registration statement, if any, increasing the
size of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Act"), which became effective upon filing, no other document
with respect to the Initial Registration Statement or document
incorporated by reference therein has heretofore been filed, or
transmitted for filing, with the Commission (other than prospectuses
filed pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Act each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of
the Initial Registration Statement, any post-effective amendment
thereto or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission; any preliminary prospectus included in
the Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) under the Act and relating to the Securities,
is hereinafter called a "Preliminary Prospectus"; the various parts of
the Initial Registration Statement, any post-effective amendment
thereto and the Rule 462(b) Registration Statement, if any, including
all exhibits thereto and the documents incorporated by reference in
the prospectus contained in the Initial Registration Statement at the
time such part of the Initial Registration Statement became effective
but excluding Form T-1, each as amended at the time such part of the
Initial Registration Statement became effective or such part of the
Rule 462(b) Registration Statement, if any, became or hereafter
becomes effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the Securities,
the Subordinated Debentures, the Guarantees and the Stock, in the form
in which it has most recently been filed, or transmitted for filing,
with the Commission on or prior to the date of this Agreement, 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 the applicable form 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; any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of either Trust, if
any, and the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Initial Registration
Statement that is incorporated by reference in the Registration
Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Securities in
the form in which it is filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof, including
any documents incorporated by reference therein as of the date of such
filing);
(b) 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
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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 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 of
Designated Securities through the Representatives expressly for use in
the Prospectus as amended or supplemented relating to such Designated
Securities;
(c) The Registration Statement and the Prospectus
conform, 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 of 1939, as
amended (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
post-effective 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 of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Designated Securities;
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with the business of the Company and its
subsidiaries, taken as a whole, 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 any material change
in the capital stock or long-term debt of the Company or any of its
subsidiaries 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, taken as
a whole, otherwise than as set forth or contemplated in the
Prospectus;
(e) The Company and its subsidiaries have (i) generally
satisfactory title to all their interests in their oil and gas
properties, title investigations having been carried out by the
Company in accordance with the general practice in the oil and gas
industry, (ii) good and indefeasible title to all other real property
owned by them that is material to the Company and its subsidiaries,
taken as a whole, and (iii) good and valid title to all personal
property owned by them that is material to the Company and its
subsidiaries, taken as a whole, in each case free and clear of all
liens, encumbrances, claims, security interests, subleases and defects
except such as are described in the Prospectus or such as do not
materially 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 any real property (other than oil and gas
properties) and buildings material to the Company and its
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subsidiaries, taken as a whole, held under lease by the Company and
its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property
and buildings by the Company and its subsidiaries;
(f) The Designated Trust has been duly created and is
validly existing as a business trust in good standing under the laws
of the State of Delaware, with power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus; the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own,
lease and operate its properties and conduct its business as described
in the Prospectus and to enter into and perform its obligations under
this Agreement, and 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; and each
subsidiary of the Company has been duly incorporated or otherwise
organized and is validly existing as a corporation or other entity in
good standing under the laws of its jurisdiction of incorporation or
organization;
(g) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued and
are fully paid and non-assessable; all the outstanding beneficial
interests in the Designated Trust have been duly and validly
authorized and issued, are fully paid and non-assessable and conform
to the descriptions thereof contained in the Prospectus; and all of
the issued shares of capital stock or other ownership interests of
each subsidiary of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable and (except (i) for
Newfield China, LDC, which the Company owns 100% of the outstanding
voting securities and none of the outstanding preferred stock, (ii)
for African Petroleum\Huffco International Ltd, which the Company owns
indirectly 34% of the outstanding voting securities, (iii) for Xxxxxx
XX Pty Ltd, which the Company owns indirectly 50% of the outstanding
voting securities and no monetary interest, (iv) for directors'
qualifying shares and (v) 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;
(h) The Designated Securities have been duly and validly
authorized, and, when the Firm Designated Securities are issued and
delivered pursuant to this Agreement and the Pricing Agreement with
respect to such Designated Securities and, in the case of any Optional
Designated Securities, pursuant to Over-allotment Options (as defined
in Section 3 hereof) with respect to such Designated Securities, such
Designated Securities will be duly and validly issued and fully paid
and non-assessable beneficial interests in the Designated Trust
entitled to the benefits provided by the applicable Trust Agreement,
which will be substantially in the form filed as an exhibit to the
Registration Statement; the Designated Securities conform to the
description thereof contained in the Registration Statement; and the
Designated Securities will conform to the description thereof
contained in the Prospectus as amended or supplemented with respect to
such Designated Securities;
(i) The holders of the Designated Securities (the
"Securityholders") will be entitled to the same limitation of personal
liability extended to stockholders of private
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corporations for profit organized under the General Corporation Law of
the State of Delaware;
(j) The Common Securities of the Designated Trust have
been duly authorized on behalf of the Designated Trust by the Company,
as depositor of the Designated Trust, and upon delivery by the
Designated Trust to the Company against payment therefor as set forth
in the Trust Agreement, will be duly and validly issued and
non-assessable beneficial interests in the Designated Trust and will
conform to the description thereof contained in the Prospectus; the
issuance of the Common Securities of the Designated Trust is not
subject to preemptive or other similar rights; the Common Securities
conform to the description thereof contained in the Registration
Statement; and at each Time of Delivery (as defined in Section 4
hereof), all of the issued and outstanding Common Securities of the
Designated Trust will be directly owned by the Company free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity;
(k) The Designated Guarantee, any Agreement as to
Expenses and Liabilities between the Company and the Designated Trust
set forth in the Pricing Agreement (the "Designated Expense
Agreement") (all such Designated Expense Agreements together, the
"Expense Agreements"), the Trust Agreement for the Designated Trust,
the Designated Subordinated Debentures and the Indenture (the
Designated Guarantee, any Designated Expense Agreement, such Trust
Agreement, the Designated Subordinated Debentures and the Indenture
being collectively referred to as the "Company Agreements") have each
been duly authorized and when validly executed and delivered by the
Company and, in the case of the Designated Guarantee, by the Guarantee
Trustee (as defined in the Designated Guarantee), in the case of the
Designated Expense Agreement, by the Designated Trust, in the case of
the Trust Agreement, by the Trustees (as defined in the Trust
Agreement) and, in the case of the Indenture, by the Indenture
Trustee, and, in the case of the Designated Subordinated Debentures,
when validly issued by the Company and duly authenticated and
delivered by the Indenture Trustee, will constitute valid and legally
binding obligations of the Company, enforceable in accordance with
their respective terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; the Trust Agreement, the Indenture and the Designated
Guarantee have each been duly qualified under the Trust Indenture Act;
the Designated Subordinated Debentures are entitled to the benefits of
the Indenture; and the Company Agreements, which will be in
substantially the form filed as exhibits to the Registration
Statement, will conform to the descriptions thereof in the Prospectus
as amended or supplemented with respect to the Designated Securities
to which they relate;
(l) The issue and sale of the Designated Securities by
the Designated Trust, the compliance by the Designated Trust with all
of the provisions of this Agreement, any Pricing Agreement and each
Over-allotment Option, if any, the Designated Expense Agreement and
the Trust Agreement, the purchase of the Designated Subordinated
Debentures by the Designated Trust, the execution, delivery and
performance by the Designated Trust of the Trust Agreement and the
consummation of the transactions contemplated herein and therein 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 such Trust is a party or by which such Trust is
bound or to which any of the property or assets of such Trust is
subject, nor will such action result in any violation of the
provisions of the Trust Agreement
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or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over such Trust or any
of its 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
Designated Securities and the Common Securities by such Trust, the
purchase of the Subordinated Debentures by such Trust or the
consummation by such Trust of the transactions contemplated by this
Agreement, the Pricing Agreement or any Over-allotment Option, the
Designated Expense Agreement or the Trust Agreement, except such as
have been, or will have been, prior to each Time of Delivery, 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 Designated Securities by the
Underwriters;
(m) The issuance by the Company of the Designated
Guarantee and the Designated Subordinated Debentures, the compliance
by the Company with all of the provisions of this Agreement, any
Pricing Agreement and each Over-allotment Option, if any, the
Designated Guarantee, the Designated Expense Agreement, the Designated
Subordinated Debentures, the Trust Agreement and the Indenture, the
execution, delivery and performance by the Company of the Company
Agreements and this Agreement, and the consummation of the
transactions contemplated herein and therein will not (i) violate or
conflict with any provision of the Certificate of Incorporation or
By-Laws of the Company or any of its subsidiaries; (ii) 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; or (iii)
result in any violation of 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 properties, except for any
such conflicts, breaches or violations that would not, individually or
in the aggregate, adversely affect the issue or sale of the Designated
Securities, the issue of the Designated Guarantee, the issue or sale
of the Designated Subordinated Debentures or the execution, delivery
or performance of this Agreement or the Company Agreements by the
Company or the Designated Trust or have a material adverse effect on
the financial position, stockholders' equity, results of operations,
business or prospects of the Company and its subsidiaries, taken as a
whole (a "Material Adverse Effect"), 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 Designated Securities, the issue of the Designated
Guarantee, the issue or sale of the Designated Subordinated
Debentures, the performance by the Company of this Agreement or the
consummation by the Company of the transactions contemplated by this
Agreement or any Pricing Agreement or any Over-allotment Option or the
Company Agreements, except such as have been, or will have been prior
to each Time of Delivery (as defined in Section 4 hereof), 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 Designated Securities by the
Underwriters;
(n) None of the Designated Trust, the Company nor any of
its subsidiaries, as applicable, is in violation of the Trust
Agreement for the Designated Trust, the Certificate of Trust for the
Designated Trust, the Restated Certificate of Incorporation or By-Laws
of
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the Company, or the charter or by-laws of any of its subsidiaries 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, other than any such violation or
default that would not have a Material Adverse Effect;
(o) The statements set forth in the Prospectus under the
caption "Description of the Preferred Securities", "Description of the
Debentures", "Description of the Guarantee", "Relationship among the
Preferred Securities, the Debentures and the Guarantee" and
"Description of Capital Stock", and in the Prospectus as amended or
supplemented, insofar as they purport to constitute a summary of the
terms of the Designated Securities, the Stock, the Designated
Subordinated Debentures, the Designated Guarantee, the Securities, the
Indentures, the Subordinated Debentures, and the Guarantees,
respectively, and under the caption "Underwriting" and "Plan of
Distribution", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate in all
material respects;
(p) The shares of Stock issuable upon conversion of the
Designated Subordinated Debentures have been duly authorized and
reserved for issuance and, when issued and delivered upon conversion
of the Designated Subordinated Debentures will be duly and validly
issued, fully paid and non-assessable and will conform to the
descriptions thereof in the Prospectus;
(q) The consolidated financial statements, including the
notes thereto, included in the Prospectus present fairly, in all
material respects, the consolidated financial position of the Company
and its subsidiaries as at the dates indicated and the results of
their operations and cash flows for the periods specified; except as
otherwise stated in the Prospectus, said financial statements have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis, except in the case of
unaudited financial statements for the absence of notes thereto and
subject to normal year-end audit adjustments; and the selected
historical financial data and summary financial data for the Company
included in the Prospectus as amended and supplemented have been
compiled on a basis consistent with that of the audited or unaudited,
as applicable, consolidated financial statements of the Company;
(r) The Company owns or possesses adequate rights to use
the patents, patent rights, licenses, inventions, copyrights, know-how
(including seismic data, trade secrets and other unpatented or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names (collectively,
"patent and proprietary rights") currently employed by it in and
material to the business now operated by it (other than the use of the
names "Huffco" and "Gulf" and derivatives thereof, which are not
material to the Company's business), and the Company has not received
any notice of infringement of or conflict with asserted rights of
others with respect to any patent or proprietary rights, or of any
facts which would render any patent or proprietary rights invalid or
inadequate to protect the interest of the Company therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect;
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(s) The Company possesses such licenses, permits,
consents, orders, certificates or authorizations issued by the
appropriate federal, state, foreign or local regulatory agencies or
bodies necessary to conduct the business now operated by it, except
for licenses, permits, consents, orders, certificates or
authorizations, the absence of which, individually or in the
aggregate, would not have a Material Adverse Effect, and the Company
has not received any notice of proceedings relating to the revocation
or modification of any such licenses, permits, consents, orders,
certificates or authorizations which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would have
a Material Adverse Effect;
(t) Other than as set forth in the Prospectus, there are
no legal or governmental proceedings pending to which the Designated
Trust, the Company or any of its subsidiaries is a party or of which
any property of the Designated Trust, the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Designated Trust, the Company or any of its subsidiaries, would have a
Material Adverse Effect; and, to the best of knowledge of the Company
or the Designated Trust, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(u) The Company carries, or is covered by, insurance in
such amounts and covering such risks as is customary for companies
engaged in similar businesses in similar industries;
(v) Except as described in the Prospectus, there has been
no storage, disposal, generation, manufacture, spill, discharge,
refinement, transportation, handling or treatment of toxic wastes,
hazardous wastes or hazardous substances by the Company (or to the
knowledge of the Company, any of its predecessors in interest) at,
upon or from any of the property now or previously owned or leased or
under contract for purchase by the Company 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 result in,
or which would not be reasonably likely to result in, singularly or in
the aggregate with all such violations and remedial actions, any
Material Adverse Effect; and the terms "hazardous wastes," "toxic
wastes" and "hazardous substances" shall have the meanings specified
in any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection;
(w) Neither the Designated Trust nor the Company is or,
after giving effect to the offering and sale of the Securities and the
Subordinated Debentures, will be, an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in
the Investment Company Act of 1940, as amended (the "Investment
Company Act");
(x) PricewaterhouseCoopers LLP, who have audited certain
financial statements of the Company and its subsidiaries, are
independent public accountants as required by the Act and the rules
and regulations of the Commission thereunder; and
(y) Xxxxx Xxxxx Company Petroleum Engineers, whose
reserve report is incorporated by reference in the Registration
Statement, are independent petroleum engineers with respect to the
Company.
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(z) The Company has no reason to believe, and does not
believe, that the Year 2000 Problem will have a Material Adverse
Effect or result in any material loss or interference with the
Company's business or operations. The "Year 2000 Problem" as used
herein means any significant risk that computer hardware or software
used in the receipt, transmission, processing, manipulation, storage,
retrieval, retransmission or other utilization of data or in the
operation of mechanical or electrical systems of any kind will not, in
the case of dates or time periods occurring after December 31, 1999,
function at least as effectively as in the case of dates or time
periods occurring prior to January 1, 2000.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release
of the Firm Designated Securities, the several Underwriters propose to offer
the Firm Designated Securities for sale upon the terms and conditions set forth
in the Prospectus as amended or supplemented.
The Designated Trust may specify in the Pricing Agreement applicable
to any Designated Securities that the Designated Trust thereby grants to the
Underwriters the right (an "Over-allotment Option") to purchase at their
election up to the number of Optional Designated Securities set forth in such
Pricing Agreement, on the terms set forth in the paragraph above, for the sole
purpose of covering sales of Designated Securities in excess of the Firm
Designated Securities. Any such election to purchase Optional Designated
Securities may be exercised by written notice from the Representatives to the
Designated Trust and the Company, given within a period specified in the
Pricing Agreement, setting forth the aggregate number of Optional Designated
Securities to be purchased and the date on which such Optional Designated
Securities are to be delivered, as determined by the Representatives but in no
event earlier than the First Time of Delivery (as defined in Section 4 hereof)
or, unless the Representatives, the Designated Trust and the Company otherwise
agree in writing, earlier than or later than the respective number of business
days after the date of such notice set forth in such Pricing Agreement.
The number of Optional Designated Securities to be added to the number
of Firm Designated Securities to be purchased by each Underwriter as set forth
in Schedule I to the Pricing Agreement applicable to such Designated Securities
shall be, in each case, the number of Optional Designated Securities which the
Designated Trust and the Company have been advised by the Representatives have
been attributed to such Underwriter; provided that, if the Designated Trust and
the Company have not been so advised, the number of Optional Designated
Securities to be so added shall be, in each case, that proportion of Optional
Designated Securities which the number of Firm Designated Securities to be
purchased by such Underwriter under such Pricing Agreement bears to the
aggregate number of Firm Designated Securities (rounded as the Representatives
may determine to the nearest 100 Securities). The total number of Designated
Securities to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the aggregate number of Firm Designated Securities set forth
in Schedule I to such Pricing Agreement plus the aggregate number of Optional
Designated Securities which the Underwriters elect to purchase. As
compensation to the Underwriters of the Designated Securities for their
commitments under the Pricing Agreement, and in view of the fact that the
proceeds of the sale of the Designated Securities will be used by the
Designated Trust to purchase the Designated Subordinated Debentures of the
Company, the Company agrees to pay at each Time of Delivery to the
Representatives, for the accounts of the several Underwriters, the amount set
forth in the Pricing Agreement per Designated Security to be delivered at each
Time of Delivery.
4. Certificates for the Firm Designated Securities and the
Optional Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto,
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in the form specified in such Pricing Agreement, and in such authorized
denominations and registered in such names as the Representatives may request
upon at least forty-eight hours' prior notice to the Designated Trust and the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Designated Trust to
the Representatives at least forty-eight hours in advance as specified in such
Pricing Agreement, (i) with respect to the Firm Designated Securities, all in
the manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives, the
Designated Trust and the Company may agree upon in writing, such time and date
being herein called the "First Time of Delivery" and (ii) with respect to the
Optional Designated Securities, if any, in the manner and at the time and date
specified by the Representatives in the written notice given by the
Representatives of the Underwriters' election to purchase such Optional
Designated Securities, or at such other time and date as the Representatives,
the Designated Trust and the Company may agree upon in writing, such time and
date, if not the First Time of Delivery, being herein called the "Second Time
of Delivery". Each such time and date for delivery is herein called a "Time of
Delivery".
5. The Designated Trust and the Company, jointly and severally,
agree with each of the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended and supplemented
in relation to the applicable Designated Securities in a form approved
by the Representatives 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 the
Pricing Agreement relating to the applicable Designated Securities or,
if applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Designated Securities and prior
to any Time of Delivery for such Designated Securities which shall be
disapproved by the Representatives for such Designated Securities
promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after any
Time of Delivery for such Designated Securities and furnish the
Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by
the Designated Trust or the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is required in connection with the
offering or sale of such Designated Securities, and during such same
period to advise the Representatives, 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, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any prospectus relating
to the Designated Securities, of the suspension of the qualification
of such Designated Securities, the Designated Subordinated Debentures,
the Designated Guarantee or the Stock issuable upon conversion 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 prospectus relating to the
Designated Securities or suspending
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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 the
Representatives may reasonably request to qualify such Designated
Securities, the Designated Subordinated Debentures, the Designated
Guarantee or the Stock issuable upon conversion, for offering and sale
under the securities laws of such jurisdictions as the Representatives
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 such
Designated Securities, provided that in connection therewith neither
the Designated Trust nor the Company shall be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction;
(c) By 12:00 noon, New York City Time, on the New York
business day next succeeding the date of the Pricing Agreement for
such Designated Securities and from time to time thereafter, to
furnish the Underwriters with copies of the Prospectus as amended or
supplemented in New York City in such quantities as the
Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or
sale of the Designated Securities, the Designated Subordinated
Debentures, the Designated Guarantee or the Stock issuable upon
conversion 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
the 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 the
Representatives 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 the Representatives 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;
(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) During the period beginning from the date of the
Pricing Agreement for such Designated Securities and continuing to and
including the later of (i) the termination of trading restrictions for
such Designated Securities, as notified to the Designated Trust and
the Company by the Representatives, (ii) the last Time of Delivery for
such Designated Securities and (iii) any period specified in the
Pricing Agreement, not to offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder, (x) any Securities, capital
securities, trust securities or any other securities of any trust or
of the Company that are substantially similar to the Designated
Securities, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, Stock, or (y) any shares of the Stock or any substantially
similar securities (other than pursuant
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to employee benefit plans existing on, or upon the conversion of
convertible or exchangeable securities outstanding as of, the date of
the Pricing Agreement for such Designated Securities) without the
prior written consent of the Representatives;
(f) If the Designated Trust and the Company elect to rely
upon Rule 462(b), the Designated Trust and the Company shall file a
Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement, and the Designated Trust and the Company shall at the
time of filing either pay to the Commission the filing fee for the
Rule 462(b) Registration Statement or give irrevocable instructions
for the payment of such fee pursuant to Rule 111(b) under the Act;
(g) In the case of the Company, to issue the Guarantee
and to purchase the Common Securities concurrently with the issue and
sale of the Designated Securities, as contemplated herein or in the
Pricing Agreement;
(h) To use its best efforts to list, subject to notice of
issuance, the Stock issuable upon conversion of the Designated
Subordinated Debentures on the New York Stock Exchange (the
"Exchange"), and the Designated Securities on any exchange or market
listed in the Pricing Agreement; and
(i) To reserve and keep available at all times, free of
preemptive rights, shares of Stock for the purpose of enabling the
Company to satisfy its obligation to issue shares of its Stock upon
conversion of the Designated Subordinated Debentures.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel, accountants and reserve
engineers in connection with the registration of the Designated Securities, the
Securities, the Designated Subordinated Debentures, the Designated Guarantee
and the Stock issuable upon conversion 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, any Pricing Agreement, any Company
Agreement, the Indenture, the Securities, the Subordinated Debentures, any Blue
Sky Memorandum, closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of
the Designated Securities; (iii) all expenses in connection with the
qualification of the Designated Securities, the Securities, the Designated
Subordinated Debentures, and the Stock issuable upon conversion 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(s); (iv) any fees charged by securities rating services for rating the
Designated Securities, the Designated Subordinated Debentures and the
Designated Guarantee; (v) any filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, any required
reviews by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Designated Securities and the issuance of the Designated
Guarantee and the Designated Subordinated Debentures; (vi) any fees and
expenses in connection with listing the Designated Securities, the Designated
Subordinated Debentures and the Stock; (vii) the cost of printing or engraving
the Designated Securities and the Subordinated Debentures; (vii) the fees and
expenses of any Trustee, Indenture Trustee and Guarantee Trustee,
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and any agent of any trustee and the fees and disbursements of counsel for any
trustee in connection with any Trust Agreement, Indenture, Guarantee and the
Securities; (viii) the cost of qualifying the Securities with The Depository
Trust Company; and (ix) all other costs and expenses incident to the
performance of its obligations hereunder and under the Pricing Agreement
(including with respect to any Optional Designated Securities) 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 Designated Securities
by them, and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated Securities
shall be subject, in the discretion of the Representatives, to the condition
that all representations and warranties and other statements of the Designated
Trust and the Company in or incorporated by reference in the Pricing Agreement
relating to such Designated Securities are, at and as of each Time of Delivery
for such Designated Securities, true and correct, the condition that the
Designated Trust and the Company shall have performed all of their respective
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus as amended or supplemented in relation
to such Designated Securities 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; if the Designated Trust
and the Company have elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; 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 the Representatives' reasonable
satisfaction;
(b) Counsel for the Underwriters shall have furnished to
the Representatives such written opinion or opinions, dated each Time
of Delivery for such Designated Securities, with respect to the
incorporation of the Company, the validity of the Designated
Subordinated Debentures, the Indenture and the Designated Guarantee,
the Registration Statement, the Prospectus as amended and
supplemented, this Agreement and the Pricing Agreement, as well as
such other related matters as the Representatives may reasonably
request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon
such matters;
(c) Counsel for the Company satisfactory to the
Representatives shall have furnished to the Representatives their
written opinion, dated each Time of Delivery for such Designated
Securities, respectively, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus as amended or supplemented;
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(ii) The Company has authorized capital stock as
set forth in the Prospectus as amended or supplemented, and
all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid
and non-assessable; and the shares of Stock initially issuable
upon conversion of the Designated Subordinated Debentures have
been duly and validly authorized and reserved for issuance
and, when issued and delivered in accordance with the
provisions of the Designated Securities, the Designated
Subordinated Debentures and the Indenture, will be duly and
validly issued and fully paid and non-assessable, and will
conform to the description the Stock contained in the
Prospectus;
(iii) To the best of 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,
if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the financial position,
stockholders' equity, results of operations or business of the
Company and its subsidiaries, taken as a whole; and to the
best of such counsel's knowledge, no such proceedings are
threatened by governmental authorities or threatened by
others;
(iv) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly
authorized, executed and delivered by the Company;
(v) The issue and sale by the Company of the
Designated Subordinated Debentures being delivered at such
Time of Delivery, the issue by the Company of the Designated
Guarantee and the compliance by the Company with all of the
provisions of this Agreement and the Pricing Agreement and the
Company Agreements, the execution, delivery and performance by
the Company of the Company Agreements 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
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel 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 action result in any
violation of the provisions of the Certificate of
Incorporation or By-laws of the Company 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, except for any such
conflicts, breaches or violations that would not, individually
or in the aggregate, adversely affect the issue or sale of the
Designated Securities by the Company, the issue or sale of the
Designated Subordinated Debentures, the issue of the
Designated Guarantee, or the execution, delivery or
performance of this Agreement, the Pricing Agreement or any
Company Agreement by the Company or have a material adverse
effect on the financial position, stockholders' equity,
results of operations or business of the Company and its
subsidiaries, taken as a whole (except that such counsel need
express no opinion with respect to federal or state securities
or Blue Sky laws with respect to this subparagraph);
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(vi) 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 Designated Securities or Designated Subordinated
Debentures being delivered at such Time of Delivery or the
consummation by the Designated Trust or the Company of the
transactions contemplated by this Agreement or such Pricing
Agreement or the Company Agreements, 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;
(vii) The statements set forth in the Prospectus as
amended and supplemented under the captions "Description of
the Preferred Securities", "Description of the Debentures",
"Description of the Guarantee", "Relationship among the
Preferred Securities, the Debentures and the Guarantee" and
"Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Designated
Securities, the Designated Subordinated Debentures, the
Indenture, the Designated Guarantee, the Company Agreements or
the Stock and under the caption "Underwriting", insofar as
they purport to describe the provisions of the laws and
documents referred to therein, are accurate in all material
respects;
(viii) The Designated Subordinated Debentures are in
the form prescribed in or pursuant to the Indenture, have been
duly and validly authorized by the Company by all necessary
corporate action and, when executed and authenticated as
specified in or pursuant to the Indenture and issued and
delivered, will constitute valid and legally binding
obligations of the Company entitled to the benefits provided
by the Indenture; and the Designated Subordinated Debentures
and the Indenture conform to the descriptions thereof in the
Prospectus and in the Prospectus as amended and supplemented;
the Indenture has been duly authorized, executed and delivered
by the parties thereto and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equity principles;
(ix) The Company Agreements have each been duly
authorized, executed and delivered by the Company and
constitute valid and legally binding instruments, enforceable
in accordance with their respective terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the
Indenture, the Designated Guarantee and the Trust Agreement
have been duly qualified under the Trust Indenture Act;
(x) Neither the Company nor the Designated Trust
is an "investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the
Investment Company Act;
(xi) The documents incorporated by reference in
the Prospectus as amended or supplemented (other than the
financial statements and related schedules or other
information of a financial or reserve engineering nature
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
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material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder; and such counsel has no reason to
believe that any of such documents, when they became effective
or were so filed, as the case may be, contained, in the case
of a registration statement which became effective under the
Act, 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, or,
in the case of other documents which were filed under the Act
or 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 the
light of the circumstances under which they were made when
such documents were so filed, not misleading; and
(xii) The Registration Statement and the Prospectus
as amended or supplemented, and any further amendments and
supplements thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related
schedules or other information of a financial or reserve
engineering nature therein, as to which such counsel need
express no opinion), comply as to form in all material
respects with the requirements of the Act and the rules and
regulations thereunder; although they do not assume any
responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus, except for those referred to in the opinions in
subsections (ii), (vii) and (viii) of this Section 7(c), they
have no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made
by the Company prior to such Time of Delivery (other than the
financial statements and related schedules or other
information of a financial or reserve engineering nature
therein, as to which such counsel need express no opinion)
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 or
that, as of its date, the Prospectus as amended or
supplemented or any further amendment or supplement thereto
made by the Company prior to such Time of Delivery (other
than the financial statements and related schedules or other
information of a financial or reserve engineering nature
therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading or that, as of such Time of
Delivery, either the Registration Statement or the Prospectus
as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related
schedules or other information of a financial or reserve
engineering nature therein, as to which such counsel need
express no opinion) contains an untrue statement of a material
fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and they do not know of
any amendment to the Registration Statement required to be
filed or any contracts or other documents of a character
required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as
amended or supplemented which are not filed or incorporated by
reference or described as required;
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(d) Special Delaware counsel to the Designated Trust and
the Company satisfactory to the Representatives shall have furnished
to the Representatives, the Company and the Designated Trust their
written opinion, dated each Time of Delivery for such Designated
Securities, respectively, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Designated Trust has been duly created
and is validly existing in good standing as a business trust
under the Delaware Business Trust Act, and all filings
required under the laws of the State of Delaware with respect
to the creation and valid existence of the Designated Trust as
a business trust have been made;
(ii) Under the Delaware Business Trust Act and the
Trust Agreement, the Designated Trust has the power and
authority to own property and conduct its business, all as
described in the Prospectus;
(iii) The Trust Agreement constitutes a valid and
binding obligation of the Company and the Trustees,
enforceable against the Company and the Trustees in accordance
with its terms, subject, as to enforcement, to bankruptcy,
insolvency, receivership, liquidation, fraudulent conveyance,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights to general equity principles, including
applicable law relating to fiduciary duties (regardless of
whether considered and applied in a proceeding in equity or at
law), and to the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution;
(iv) Under the Delaware Business Trust Act and the
Trust Agreement, the Designated Trust has the requisite trust
power and authority to (a) execute, deliver and perform its
obligations under this Agreement and the Pricing Agreement and
(b) issue and perform its obligations under the Designated
Securities and the Common Securities of the Designated Trust;
(v) Under the Delaware Business Trust Act and the
Trust Agreement, the execution and delivery by the Designated
Trust of this Agreement and the Pricing Agreement, and the
performance by the Designated Trust of its obligations
hereunder and thereunder, have been duly authorized by the
requisite trust action on the part of the Designated Trust;
(vi) The Designated Securities have been duly
authorized by the Trust Agreement and are duly and validly
issued and, subject to the qualifications set forth herein,
fully paid and non- assessable beneficial interests in the
Designated Trust and are entitled to the benefits provided by
the Trust Agreement; the Securityholders, as beneficial owners
of the Designated Trust, will be entitled to the same
limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware; provided that such
counsel may note that the Securityholders may be obligated,
pursuant to the Trust Agreement, to (a) provide indemnity
and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of
Securities Certificates and the issuance of replacement
Securities Certificates and (b) provide security and indemnity
in connection with requests of
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or directions to the Property Trustee (as defined in the Trust
Agreement) to exercise its rights and remedies under the Trust
Agreement;
(vii) The Common Securities of the Designated Trust
have been duly authorized by the Trust Agreement and are
validly issued and represent beneficial interests in the
Designated Trust;
(viii) Under the Delaware Business Trust Act and the
Trust Agreement, the issuance of the Designated Securities and
the Common Securities of the Designated Trust is not subject
to preemptive rights;
(ix) The issuance and sale by the Designated Trust
of Designated Securities and the Common Securities of the
Designated Trust, the execution, delivery and performance by
the Designated Trust of this Agreement and the Pricing
Agreement, the consummation by the Designated Trust of the
transactions contemplated thereby and compliance by the
Designated Trust with its obligations thereunder will not
violate (a) any of the provisions of the Certificate of Trust
of the Designated Trust or the Trust Agreement, or (b) any
applicable Delaware law or administrative regulation;
(x) Assuming that the Designated Trust derives no
income from or connected with sources within the State of
Delaware and has no assets, activities (other than maintaining
the Delaware Designated Trustee and the filing of documents
with the Secretary of State of the State of Delaware) or
employees in the State of Delaware, no authorization,
approval, consent or order of any Delaware court or
governmental authority or agency is required to be obtained by
the Designated Trust solely in connection with the issuance
and sale of the Designated Securities and the Common
Securities of the Designated Trust (in rendering the opinion
expressed in this paragraph (x), such counsel need express no
opinion concerning the securities laws of the State of
Delaware);
(xi) Assuming that the Designated Trust derives no
income from or connected with sources within the State of
Delaware and has no assets, activities (other than maintaining
the Delaware Designated Trustee and the filing of documents
with the Secretary of State of the State of Delaware) or
employees in the State of Delaware, the Securityholders (other
than those holders of the Securities who reside or are
domiciled in the State of Delaware) will have no liability for
income taxes imposed by the State of Delaware solely as a
result of their participation in the Designated Trust, and the
Designated Trust will not be liable for any income tax imposed
by the State of Delaware; and
(xii) Assuming that the Designated Trust derives no
income from or connected with sources within the State of
Delaware and has no assets, activities (other than maintaining
the Delaware Designated Trustee and the filing of documents
with the Secretary of State of the State of Delaware) or
employees in the State of Delaware, there are no taxes, fees
or other governmental charges payable by the Designated Trust
(or the Trustees of the Designated Trust on behalf of the
Designated Trust) under the laws of the State of Delaware or
any political subdivision thereof in connection with the
execution, delivery and performance by either Designated
Trustee of the Designated Trust of the Trust Agreement;
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(e) Tax counsel for the Designated Trust and the Company
satisfactory to the Representatives shall have furnished to the
Representatives their written opinion, dated each Time of Delivery for
such Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that such firm confirms its opinion set
forth in the Prospectus as amended and supplemented under the caption
"Certain Federal Income Tax Consequences";
(f) On the date of the Pricing Agreement for such
Designated Securities at a time prior to the execution of the Pricing
Agreement with respect to the Designated Securities and at each Time
of Delivery for such Designated Securities, the independent
accountants of the Company who have audited the financial statements
of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement shall have furnished to the
Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with the
Commission containing financial statements and incorporated by
reference in the Registration Statement, if the date of such report is
later than such effective date, and a letter dated such Time of
Delivery, respectively, to the effect set forth in Annex II hereto,
and with respect to such letter dated such Time of Delivery, as to
such other matters as the Representatives may reasonably request and
in form and substance satisfactory to the Representatives;
(g) On the date of the Pricing Agreement with respect to
the Designated Securities and also at the Time of Delivery, the
independent petroleum reserve engineers of the Company who have
delivered a report that is included or incorporated by reference in
the Registration Statement or referred to or in a document
incorporated by reference in the Registration Statement shall have
furnished to you a letter, dated the date of delivery thereof, in form
and substance satisfactory to you, stating, as of the date of such
letter (or, with respect to matters involving changes or developments
since the respective dates as of which specified information with
respect to the oil and gas reserves and future net revenue of the
Company is given or incorporated in the Registration Statement as of a
date not more than five days prior to the date of such letter), the
conclusions and findings of such firm with respect to the oil and gas
reserve information and other matters as you may reasonably request;
(h) (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 as
amended prior to the date of the Pricing Agreement relating to the
Designated Securities any loss or interference with the business of
the Company and its subsidiaries, taken as a whole, 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 as amended prior to the date of the Pricing Agreement
relating to the Designated Securities, and (ii) since the respective
dates as of which information is given in the Prospectus as amended
prior to the date of the Pricing Agreement relating to the Designated
Securities there shall not have been any 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 contemplated in the
Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Securities, the effect of which, in any
such case described in
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Clause (i) or (ii), is in the judgment of the Representatives so
material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Designated
Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented relating to the Designated
Securities;
(i) On or after the date of the Pricing Agreement
relating to the Designated Securities (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or
preferred stock or other preferred 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 or preferred stock;
(j) On or after the date of the Pricing Agreement
relating to the Designated Securities 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 or Texas State authorities; or (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 the judgment of the
Representatives makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Firm Designated Securities
or Optional Designated Securities or both on the terms and in the
manner contemplated in the Prospectus as first amended or supplemented
relating to the Designated Securities;
(k) The Designated Securities at each Time of Delivery
shall have been approved for listing, subject to notice of issuance,
on any exchange or market listed in the Pricing Agreement;
(l) The Company 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 the Pricing
Agreement for such Designated Securities; and
(m) The Designated Trust and the Company shall have furnished
or caused to be furnished to the Representatives at each Time of
Delivery for the Designated Securities certificates of officers of the
Designated Trust and the Company satisfactory to the Representatives
as to the accuracy of the representations and warranties of the
Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set
forth in subsections (a) and (h) of this Section and as to such other
matters as the Representatives may reasonably request.
8. (a) The Designated Trust and the Company, 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, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Designated Securities, or
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any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
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 Designated Trust nor the Company 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, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Designated Securities, or
any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by any Underwriter of Designated
Securities through the Representatives expressly for use in the Prospectus as
amended or supplemented relating to such Designated Securities.
(b) Each Underwriter will indemnify and hold harmless the
Designated Trust and the Company against any losses, claims, damages or
liabilities to which the Designated Trust or the Company 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, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Designated Securities, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, 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, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Designated Securities, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Designated Trust
and the Company by such Underwriter through the Representatives expressly for
use therein; and will reimburse the Designated Trust and the Company for any
legal or other expenses reasonably incurred by the Designated Trust or the
Company 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
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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 any 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 Designated Trust and the Company on the
one hand and the Underwriters of the Designated Securities on the other from
the offering of the Designated Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. 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 Designated Trust and the Company on the one hand and the
Underwriters of the Designated Securities 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 Designated
Trust and the Company on the one hand and such Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Designated Trust and the
Company bear to the total underwriting discounts and commissions received by
such Underwriters. 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 on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The Designated Trust, the Company and the Underwriters agree that it
would not be just and equitable if contribution 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 applicable Designated Securities 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 obligations of the Underwriters of
Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Designated Securities and not joint.
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(e) The obligations of the Designated Trust and the Company under
this Section 8 shall be in addition to any liability which the Designated Trust
and the Company 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 Designated Trust or the Company and to each person,
if any, who controls the Designated Trust or the Company within the meaning of
the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Firm Designated Securities or Optional Designated Securities which
it has agreed to purchase under the Pricing Agreement relating to such
Designated Securities, the Representatives may in their discretion arrange for
themselves or another party or other parties to purchase such Designated
Securities on the terms contained herein. If within thirty-six hours after
such default by any Underwriter the Representatives do not arrange for the
purchase of such Firm Designated Securities or Optional Designated Securities,
as the case may be, then the Designated Trust shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Designated
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Designated Trust that they have so
arranged for the purchase of such Designated Securities, or the Designated
Trust notifies the Representatives that it has so arranged for the purchase of
such Designated Securities, the Representatives or the Designated Trust shall
have the right to postpone a Time of Delivery for such Designated Securities
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
as amended or supplemented, or in any other documents or arrangements, and the
Designated Trust agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives 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 the Pricing
Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Firm Designated Securities or Optional Designated Securities, as the
case may be, of a defaulting Underwriter or Underwriters by the Representatives
and the Designated Trust as provided in subsection (a) above, the aggregate
number of such Designated Securities which remains unpurchased does not exceed
one-eleventh of the aggregate number of the Firm Designated Securities or
Optional Designated Securities, as the case may be, to be purchased at the
respective Time of Delivery, then the Designated Trust shall have the right to
require each non-defaulting Underwriter to purchase the number of Firm
Designated Securities or Optional Designated Securities, as the case may be,
which such Underwriter agreed to purchase under the Pricing Agreement relating
to such Designated Securities and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the number of Firm
Designated Securities or Optional Designated Securities, as the case may be,
which such Underwriter agreed to purchase under such Pricing Agreement) of the
Firm Designated Securities or Optional Designated Securities, as the case may
be, 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 Firm Designated Securities or Optional Designated Securities, as the
case may be, of a defaulting Underwriter or Underwriters by the Representatives
and the Designated Trust as provided in subsection (a) above,
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25
the aggregate number of Firm Designated Securities or Optional Designated
Securities, as the case may be, which remains unpurchased exceeds one-eleventh
of the aggregate number of the Firm Designated Securities or Optional
Designated Securities, as the case may be, to be purchased at the respective
Time of Delivery, as referred to in subsection (b) above, or if the Designated
Trust shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Firm Designated Securities or Optional
Designated Securities, as the case may be, of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Firm Designated
Securities or such Optional Designated Securities, as the case may be, shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter, the Designated Trust or the Company, except for the expenses to be
borne by the Designated Trust and 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 Designated Trust, the Company 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 Designated Trust or the Company, or any officer or
director or controlling person of the Designated Trust or the Company, and
shall survive delivery of and payment for the Designated Securities.
11. If any Pricing Agreement or Over-allotment Option shall be
terminated pursuant to Section 9 hereof, neither the Designated Trust nor the
Company shall then be under any liability to any Underwriter with respect to
the Firm Designated Securities or Optional Designated Securities with respect
to which such Pricing Agreement shall have been terminated except as provided
in Sections 6 and 8 hereof; but, if for any other reason, Designated Securities
are not delivered by or on behalf of the Designated Trust or the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Designated Trust or the Company
shall then be under no further liability to any Underwriter with respect to
such Designated Securities except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if
any, as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Representatives as set forth in
the Pricing Agreement; and if to the Designated Trust or the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of
the Designated Trust or the Company, respectively, set forth in the
Registration Statement, Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire, or telex constituting
such Questionnaire, which address
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will be supplied to the Designated Trust and the Company by the Representatives
upon request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Designated
Trust, the Company and, to the extent provided in Sections 8 and 10 hereof, the
officers and directors of the Designated Trust, the Company and each person who
controls the Designated Trust, the Company 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 or any such Pricing Agreement. No purchaser of any of the Designated
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As
used herein, unless otherwise indicated, the term "business day" shall mean any
day when the Commission's office in Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto and thereto 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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Very truly yours,
Newfield Exploration Company
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Xxxxx X. Xxxxxxx
Vice President - Planning and
Administration
Newfield Financial Trust I
By: Newfield Exploration Company,
as Depositor
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Xxxxx X. Xxxxxxx
Vice President - Planning and
Administration
Newfield Financial Trust II
By: Newfield Exploration Company,
as Depositor
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Xxxxx X. Xxxxxxx
Vice President - Planning and
Administration
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ANNEX I
PRICING AGREEMENT
[Name(s) of Co-Representative(s),]
As Representatives of the several
Underwriters named in Schedule I hereto,
[c/o ________________________]
[Address]
[Date]
Ladies and Gentlemen:
Newfield Financial Trust [I][II], a statutory business trust formed
under the laws of the State of Delaware (the "Designated Trust"), and Newfield
Exploration Company, a Delaware corporation (the "Company"), propose, subject
to the terms and conditions stated herein and in the Underwriting Agreement,
dated August 1, 1999 (the "Underwriting Agreement"), to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Designated
Securities specified in Schedule II hereto (the "Designated Securities"
[consisting of Firm Designated Securities and any Optional Designated
Securities the Underwriters may elect to purchase]). The principal asset of the
Designated Trust consists of debt securities of the Company (the "Subordinated
Debentures"), as specified in Schedule II to this Agreement. The Designated
Securities will be guaranteed by the Company to the extent set forth in this
Agreement with respect to such Designated Securities (the "Guarantee"). The
Subordinated Debentures will be convertible into shares of Common Stock, par
value $.01 per share, of the Company (the "Stock"). Each of the provisions of
the Underwriting Agreement is incorporated herein by reference in its entirety,
and shall be deemed to be a part of this Agreement to the same extent as if
such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as
therein defined), and also a representation and warranty as of the date of this
Pricing Agreement in relation to the Prospectus as amended or supplemented
relating to the Designated Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions
of the Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of the Representatives and on behalf of each of the
Underwriters of the Designated Securities pursuant to Section 12 of the
Underwriting Agreement and the address of the Representatives referred to in
such Section 12 are set forth in Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, [(a)] the Designated
Trust agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Designated
Trust, at the time and place and at the purchase price to the Underwriters set
forth in Schedule II hereto, the number of Firm Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto [, (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional Designated Securities, as provided below, the
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29
Designated Trust agrees to issue and sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from the
Designated Trust at the purchase price to the Underwriters set forth in
Schedule II hereto that portion of the number of Optional Designated Securities
as to which such election shall have been exercised and (c)] [(b)] the Company
agrees to issue the Subordinated Debentures and the Guarantee and to purchase
the Common Securities.
[The Designated Trust hereby grants to each of the Underwriters the
right to purchase at their election up to the number of Optional Designated
Securities set forth opposite the name of such Underwriter in Schedule I hereto
on the terms referred to in the paragraph above for the sole purpose of
covering sales of Designated Securities in excess of the number of the Firm
Designated Securities. Any such election to purchase Optional Designated
Securities may be exercised by written notice from the Representatives to the
Designated Trust and the Company given within a period of 30 calendar days
after the date of this Pricing Agreement, setting forth the aggregate number of
Optional Designated Securities to be purchased and the date on which such
Optional Designated Securities are to be delivered, as determined by the
Representatives, but in no event earlier than the First Time of Delivery or,
unless the Representatives and the Designated Trust otherwise agree in writing,
no earlier than two or later than ten business days after the date of such
notice.]
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30
If the foregoing is in accordance with your understanding, please sign
and return to us [one the Designated Trust, one for the Company and one for
each of the Representatives plus one for each counsel] counterparts hereof, and
upon acceptance hereof by you, on behalf of each of the Underwriters, this
letter and such acceptance hereof, including the provisions of the Underwriting
Agreement incorporated herein by reference, shall constitute a binding
agreement between each of the Underwriters and the Designated Trust and the
Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is or will be pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be submitted to
the Designated Trust and the Company for examination, upon request, but without
warranty on the part of the Representatives as to the authority of the signers
thereof.
Very truly yours,
Newfield Exploration Company
By:_____________________________________
Name:
Title:
Newfield Financial Trust [I][II]
By: Newfield Exploration Company,
as Depositor
By:_____________________________________
Name:
Title:
Accepted as of the date hereof:
[Name(s) of Co-Representative(s)]
By:_________________________________________
On behalf of each of the Underwriters
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SCHEDULE I
NUMBER OF [MAXIMUM NUMBER
[FIRM] OF OPTIONAL
DESIGNATED DESIGNATED SECURITIES
SECURITIES WHICH
TO BE MAY BE
UNDERWRITER PURCHASED PURCHASED
----------- --------- ---------
[NAME(S) OF CO-REPRESENTATIVE(S)]
[NAMES OF OTHER UNDERWRITERS]
--------- ----------
Total ]
========= ==========
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SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[___%] [Floating Rate] Convertible Quarterly Income Preferred Securities
LIQUIDATION AMOUNT:
$__________ per Designated Security
CONVERSION:
Each Security is convertible into ................. shares of Stock
NUMBER OF DESIGNATED SECURITIES:
Number of Firm Designated Securities:
Maximum Number of Optional Designated Securities:
INITIAL OFFERING PRICE TO PUBLIC:
[$........ per Security] [Formula]
PURCHASE PRICE BY UNDERWRITERS:
[$........ per Security] [Formula]
[COMMISSION PAYABLE TO UNDERWRITERS:
$........ per Security in Federal (same-day) funds] [As compensation to the
Underwriters for their commitments hereunder, and in view of the fact that the
proceeds of the sale of the Designated Securities will be used by the
Designated Trust to purchase the Subordinated Debentures of the Company, the
Company hereby agrees to pay at each Time of Delivery to [the Designated
Representative], for the accounts of the several Underwriters, an amount equal
to $____ per Security for the Designated Securities to be delivered at each
Time of Delivery ($____ in the aggregate).]
FORM OF DESIGNATED SECURITIES:
[Definitive form, to be made available for checking [and packaging] at least
twenty-four hours prior to the Time of Delivery at the office of [The
Depository Trust Company or its designated custodian] [the Representatives]]
[Book-entry only form represented by one or more global securities deposited
with The Depository Trust Company ("DTC") or its designated custodian, to be
made available for checking by the Representatives at least twenty-four hours
prior to the Time of Delivery at the office of DTC.]
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SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same-day) funds
TRUST AGREEMENT:
Amended and Restated Trust Agreement dated as of ____ __, ____, between the
Company, as Depositor, ______________________, as Property Trustee,
____________________, as Delaware Trustee, and the several Holders of Trust
Securities
INDENTURE:
Indenture dated as of ____ __, ____, between the Company and
_____________________, as Indenture Trustee (the "Indenture")
GUARANTEE:
Guarantee Agreement dated as of ____ __, ____, between the Company and
___________________, as Guarantee Trustee
EXPENSE AGREEMENT:
Agreement as to Expenses and Liabilities, dated as of ____ __, ____ between the
Company and the Designated Trust
SUBORDINATED DEBENTURES:
[___%] [Floating Rate] Junior Subordinated Debentures, Series ___
MATURITY:
________ __, ____ [(subject to shortening such maturity to a date not earlier
than ____ __, ____)]
INTEREST RATE:
INTEREST PAYMENT DATES:
[_____________, _______________, _______________ and _____________] of each
year, commencing on _________, ____
EXTENSION PERIOD:
[20 quarters]
REDEMPTION PROVISIONS:
[The redemption provisions set forth in Section ___ of the Trust Agreement
shall apply to the Designated Securities]
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SINKING FUND PROVISIONS:
[No sinking fund provisions]
EXCHANGE FOR DESIGNATED SECURITIES:
[The Subordinated Debentures may be delivered in exchange for the Designated
Securities as provided in the Prospectus Supplement]
LISTING OF DESIGNATED SECURITIES:
[New York Stock Exchange][None].
[BLACKOUT PROVISIONS:
[Describe any blackout provisions with respect to the Designated Securities]]
TIME OF DELIVERY:
........ a.m. (New York City time), .................
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS:]
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ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants
with respect to the Company and its subsidiaries within the meaning of
the Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined
by them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have
been [separately] furnished to the representative or representatives
of the Underwriters (the "Representatives", such term to include an
Underwriter or Underwriters who act without any firm being designated
as its or their representatives) [and are attached thereto];
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's quarterly
reports on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which [have been
separately furnished to the Representatives] [are attached thereto];
and on the basis of specified procedures including inquiries of
officials of the Company who have responsibility for financial and
accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i)
below comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with
respect to the consolidated results of operations and financial
position of the Company for the five most recent fiscal years included
in the Prospectus and included or incorporated by reference in Item 6
of the Company's Annual Report on Form 10-K for the most recent fiscal
year agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for such
five fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus
under selected captions with the disclosure requirements of Regulation
S-K and on the basis of limited
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procedures specified in such letter nothing came to their attention as
a result of the foregoing procedures that caused them to believe that
this information does not conform in all material respects with the
disclosure requirements of items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting
an examination in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of the
latest available interim financial statements of the Company and its
subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, inquiries of
officials of the Company and its subsidiaries responsible for
financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Exchange Act and the related published rules and
regulations, or (ii) any material modifications should be made
to the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus or included in the
Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus, for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in
the Company's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were
not included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in Clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with
the basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated
condensed financial statements included or incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Act and the published rules and regulations thereunder
or the pro forma adjustments have not been properly applied to
the historical amounts in the compilation of those statements;
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(E) as of a specified date not more than five
days prior to the date of such letter, there have been any
changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and
upon conversions of convertible securities, in each case which
were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or
any increase in the consolidated long-term debt of the Company
and its subsidiaries, or any decreases in consolidated net
current assets or stockholders' equity or other items
specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in Clause (E)
there were any decreases in consolidated net revenues or
income from operations or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus and
the limited procedures, inspection of minute books, inquiries and
other procedures referred to in paragraphs (iii) and (vi) above, they
have carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards,
with respect to certain amounts, percentages and financial information
specified by the Representatives which are derived from the general
accounting records of the Company and its subsidiaries, which appear
in the Prospectus (excluding documents incorporated by reference), or
in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of
the Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for
such Designated Securities.
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