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EXHIBIT 1
UNDERWRITING AGREEMENT
March 2, 1999
Burlington Resources Inc.
0000 Xxxxxxxxxx
Xxxxxxx, Xxxxx 00000-0000
Dear Ladies and Gentlemen:
We (the "Representative") understand that Burlington Resources
Inc., a Delaware corporation (the "Company"), proposes to issue and sell
$450,000,000 aggregate principal amount of 7 3/8% Debentures due 2029 (the
"Securities") to the underwriters named in Schedule I hereto (the
"Underwriters"). The Securities are also referred to herein as the "Offered
Securities". The Securities will be issued pursuant to the provisions of an
Indenture dated as of April 1, 1992 (the "Indenture"), between the Company and
Citibank, N.A., as Trustee (the "Trustee").
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell and we agree to purchase
the respective principal amounts of Securities set forth in the Prospectus
Supplement dated the date hereof related to the Securities (the "Prospectus
Supplement") at a purchase price equal to 98.863% of the principal amount of the
Securities, plus accrued interest, if any, from March 5, 1999, to the date of
payment and delivery.
We will pay for the Offered Securities upon delivery thereof
by wire transfer of same day funds at the offices of Cravath, Swaine & Xxxxx,
Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m. (New
York City time) on March 5, 1999, or at such other time, not later than 5:00
p.m. (New York City time) on March 12, 1999, as shall be designated by us. The
time and date of such payment and delivery are hereinafter referred to as the
Closing Date.
The Offered Securities shall have the terms set forth in the
Prospectus dated May 19, 1998, and the Prospectus Supplement dated March 2,
1999, including the following:
Maturity Date: March 1, 2029
Interest Rate: 7 3/8%
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Redemption Provisions: As per the Prospectus Supplement
Interest Payment Dates: March 1 and September 1
Form and Denomination: Registered form only in denominations of $1,000
and integral multiples thereof suitable for
acceptance by the Depository Trust Company
Other Terms: None
All provisions contained in the document entitled Burlington
Resources Inc. Underwriting Agreement Standard Provisions (Debt Securities)
dated May 2, 1994 (the "Standard Provisions"), a copy of which is an exhibit to
the Company's Registration Statement on Form S-3 (No. 33-47154), are
incorporated by reference in their entirety herein, as amended by the provisions
of this Agreement, 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, except that
if any term defined in such document is otherwise defined herein, the definition
set forth herein shall control. For all purposes of the Standard Provisions,
Xxxxxx Xxxxxxx & Co. Incorporated is serving as the lead Manager (the "Lead
Manager"), and all notices shall be given to it at 0000 Xxxxxxxx, Xxx Xxxx, XX
00000-0000.
PricewaterhouseCoopers shall deliver the letters specified in
Section 4(e) of the Standard Provisions. The term "Registration Statement" shall
include in each case the documents, if any, incorporated by reference therein.
For purposes of this offering of the Securities, Exhibit A of the Standard
Provisions shall be replaced by Exhibit A hereto. Section 4(c) of the Standard
Provisions, for purposes of this offering of the Securities, shall be replaced
by the following:
The Managers shall have received on the Closing Date (i) an opinion of
Xxxxxx Xxxxxx & Xxxxxxx, special counsel to the Company, addressing the
matters set forth in paragraphs (i), (ii)(a), (iv), (v), (vi), (vii),
(viii), (ix) (items (a), (b) and (c)), (x)(b), (xi) and (xii)[(b)], (c)
and (d) of Exhibit A attached hereto, and (ii) an opinion of the Vice
President & General Counsel of the Company, addressing the matters set
forth in paragraphs (ii)(b), (iii), (viii), (ix) (item (d)), (x)(a) and
(xii)[(a)] of Exhibit A.
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Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
XXXXXX XXXXXXX & CO. INCORPORATED,
By: _______________________________
Name:
Title:
For itself and as
Representative of the
Underwriters named on
Schedule I hereto.
Accepted:
BURLINGTON RESOURCES INC.
By: ____________________________
Name:
Title:
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Schedule I
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Chase Securities Inc.
NationsBanc Xxxxxxxxxx Securities LLC
Xxxxxxx Xxxxx Barney Inc.
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Exhibit A
Opinion of
Counsel for the Company
The opinion of counsel for the Company to be delivered
pursuant to Section 4(c) of the Underwriting Agreement shall be to the effect
that:
(i) the Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;
(ii) the Company (a) has the corporate power and authority to
own its property and to conduct its business as described in the
Prospectus and (b) is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(iii) each [domestic material] subsidiary of the Company has
been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own its property and to conduct
its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole;
(iv) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
(v) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except that
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(a) the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or
conveyance or other similar laws now or hereafter in effect relating to
or affecting creditors' rights or remedies generally and (b) the remedy
of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of
the court before which any proceedings therefor may be brought
(regardless of whether enforcement is sought in a proceeding at law or
equity);
(vi) the Offered Securities have been duly authorized and,
when executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, will be
entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company, in each case enforceable in accordance with
their respective terms except that (a) the enforceability thereof may
be subject to bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or conveyance or other similar laws now or
hereafter in effect relating to or affecting creditors' rights or
remedies generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceedings therefor may be brought (regardless of whether enforcement
is sought in a proceeding at law or equity);
(vii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement, the Indenture and the Offered Securities will not contravene
any provisions of the certificate of incorporation or by-laws of the
Company;
(viii) to the knowledge of such counsel, the execution and
delivery by the Company of, and the performance by the Company of its
obligations under, the Underwriting Agreement, the Indenture and the
Offered Securities will not contravene any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court of
the United States or any jurisdiction therein or any other jurisdiction
having jurisdiction over the Company
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or any subsidiary, or any provision of applicable law (other than state
securities law) and no consent, approval, authorization or order of or
qualification with any governmental body or agency is required for the
performance by the Company of its obligations under the Underwriting
Agreement, the Indenture or the Offered Securities except such as may
be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Offered Securities;
(ix) the statements (a) in the Prospectus Supplement under the
captions "Certain Terms of the Debt Securities" and "Underwriting", (b)
in the Basic Prospectus under the captions "Description of Debt
Securities" and "Plan of Distribution", (c) in the Registration
Statement under Item 15 and (d) in "Item 3 - Legal Proceedings" of the
Company's most recent annual report on Form 10-K incorporated by
reference in the Prospectus, in each case insofar as such documents
constitute summaries of the legal matters, documents or legal
proceedings referred to therein, fairly present the information called
for with respect to such legal matters, documents and proceedings, and
fairly summarize the matters referred to therein;
(x) such counsel does not know of (a) any legal or
governmental proceedings pending or threatened to which the Company or
any of its subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are required to
be described in the Registration Statement or the Prospectus and are
not so described or of (b) any statutes, regulations, contracts or
other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required;
(xi) the Company is not, nor is it directly or indirectly
controlled by or acting on behalf of any person which is, (i) an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended, and the rules and regulations promulgated by the
Commission thereunder or (ii) a "holding company" within the meaning
of, or subject to regulation under, the Public Utility Holding Company
Act of 1935, as amended, and the rules and regulations promulgated by
the Commission thereunder; and
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(xii) (a) such counsel is of the opinion that each document,
if any, filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus (except for financial statements and
schedules and other financial or statistical information included
therein as to which such counsel need not express any opinion) was
appropriately responsive when so filed in all material respects to the
requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (b) no facts have come to the
attention of such counsel that lead such counsel to believe that the
Registration Statement, at the time it became effective, 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 (it being understood that such counsel has not
been requested to and does not make any comment with respect to the
financial statements and schedules and other financial and statistical
data included or incorporated by reference in the Registration
Statement or the Statement of Eligibility (Form T-1)), (c) such counsel
is of the opinion that the Registration Statement and Prospectus
(except for financial statements and schedules and other financial or
statistical information included therein as to which such counsel need
not express any opinion) are appropriately responsive in all material
respects to the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder and (d) no facts
have come to the attention of such counsel that lead such counsel to
believe that the Prospectus, as of its date or as of the date of such
opinion, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading (it being understood that such counsel
has not been requested to and does not make any comment with respect to
the financial statements and schedules and other financial and
statistical data included or incorporated by reference in the
Prospectus or the Statement of Eligibility (Form T-1)).
With respect to paragraph (xii) above, such counsel may state
that its opinion and belief are based upon its participation in the preparation
of the Registration Statement and Prospectus and any amendments or supplements
thereto and documents incorporated therein by reference and review and
discussion of the contents thereof, but are without independent check or
verification, except as specified.
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The 10b-5 letter shall include the following:
We have participated in conferences with officers and other
representatives of the Company, representatives of the independent public
accountants for the Company and your representatives and your counsel, at which
the contents of the Registration Statement and the Prospectus and related
matters were discussed, and although we are not passing upon and do not assume
any responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, we advise you that on
the basis of the foregoing (relying as to materiality to a large extent upon the
opinions of officers and other representatives of the Company), nothing has come
to our attention which leads us to believe that the Registration Statement at
the time it became effective 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 the Prospectus as of the
date of such Prospectus, and at all times up to and including the date hereof,
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,
in the light of the circumstances under which they were made, not misleading (it
being understood that we have not been asked to, and do not, comment on the
financial statements and schedules and other financial and statistical data
included or incorporated by reference in the Registration Statement or the
Prospectus or on any of the information contained in the Statement of
Eligibility on Form T-1 of the Trustee).
