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UNDERWRITING AGREEMENT
April , 1994
Burlington Resources Inc.
5051 Westheimer (Suite 1400)
Houston, Texas 77056
Dear Sirs:
We (the "Manager" or the "Underwriter") understand that Burlington
Resources Inc., a Delaware corporation (the "Company"), proposes to issue and
sell $300,000,000 aggregate principal amount of % Notes Due 1999 (the "Debt
Securities"). The Debt Securities are also referred to herein as the "Offered
Securities". The Debt 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 Debt Securities set forth above at a
purchase price equal to % of the principal amount of the Debt Securities,
plus, in each case, accrued interest, if any, from May 1, 1994, to the date of
payment and delivery.
We will pay for the Offered Securities upon delivery thereof at the
offices of Cravath, Swaine & Moore, Worldwide Plaza, 825 Eighth Avenue, New
York, New York 10019 at 10:00 a.m. (New York time) on May , 1994, or at such
other time, not later than 5:00 p.m. (New York time) on May , 1994, 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 April , 1994, and the
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Prospectus Supplement dated April , 1994, including the following:
Maturity Date: May 1, 1999
Interest Rate: %
Redemption Provisions: None
Interest Payment Dates: Each May 1 and November 1, commencing November 1,
1994
Form and Denomination: Registered form only in denominations of $1,000 and
integral multiples thereof
Other Terms: None
All provisions contained in the document entitled Burlington Resources
Inc. Underwriting Agreement Standard Provisions (Debt Securities) dated
April , 1994, a copy of which is attached hereto, are herein incorporated by
reference in their 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,
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, Morgan Stanley & Co. Incorporated is serving as sole
Manager and Underwriter, and all notices shall be given to it at 1251 Avenue of
the Americas, New York, New York 10020.
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
By:
_________________________________
Name:
Title:
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Accepted:
BURLINGTON RESOURCES INC.
By:
____________________________
Name:
Title:
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BURLINGTON RESOURCES INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
April , 1994
From time to time, Burlington Resources Inc., a Delaware corporation
(the "Company"), may enter into one or more underwriting agreements that
provide for the sale of designated securities to the several underwriters named
therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement").
The Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as "this Agreement". Terms defined in the
Underwriting Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Debt Securities and has filed with, or transmitted for filing to, or will file
with the Commission a prospectus supplement (the "Prospectus Supplement")
specifically relating to the Offered Securities pursuant to and in accordance
with Rule 424 under the Securities Act of 1933, as amended (the "Securities
Act"). The term "Registration Statement" means the registration statement,
including the exhibits thereto, as amended to the date of this Agreement. The
term "Basic Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus together with the
Prospectus Supplement. The term "preliminary prospectus" means a preliminary
prospectus supplement specifically relating to the Offered Securities, together
with the Basic Prospectus. As used herein, the terms "Basic Prospectus",
"Prospectus" and "preliminary prospectus" shall include in each case the
documents, if any, incorporated by reference therein. The terms "supplement"
and "amendment" or "amend" as used herein shall include all documents deemed to
be incorporated by
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reference in the Prospectus that are filed subsequent to the date of the Basic
Prospectus by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
1. Representations and Warranties. The Company represents and
warrants to each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or, to the best of the
Company's knowledge, threatened by the Commission.
(b)(i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder; (ii) each part
of the Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if applicable, will
not contain, any 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; (iii) the Registration Statement and the Prospectus
comply, and, as amended or supplemented, if applicable, will comply, in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder; and (iv) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this Section 1(b) do not apply (A) to statements or omissions in
the Registration Statement or the Prospectus based upon information relating to
any Underwriter furnished to the Company in writing by such Underwriter through
the Managers expressly for use therein or (B) to that part of the Registration
Statement that constitutes the Statement of Eligibility and Qualification (Form
T-1) under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), of the Trustee.
(c) The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, has the corporate power
and authority to
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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.
(d) Each 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.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) 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 as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally
and (ii) rights of acceleration and the availability of equitable remedies may
be limited by equitable principles of general applicability.
(g) 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 as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
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(h) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Indenture and the
Offered Securities will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or any agreement or
other instrument binding upon the Company or any of its subsidiaries or
affiliates that is material to the Company and its subsidiaries, taken as a
whole, or any judgment or decree of any governmental agency or court having
jurisdiction over the Company or any subsidiary, 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 this
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.
(i) There has not occurred any material adverse change in, or any
adverse development which materially affects, the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus.
(j) All descriptions in the Registration Statement, preliminary
prospectus and Prospectus of statutes, regulations, legal or governmental
proceedings, contracts and other documents are accurate in all material
respects and fairly present in all material respects the information required
to be shown; and there are no legal or governmental proceedings pending or, to
the best of the Company's knowledge, threatened to which the Company or any of
its subsidiaries is a party or to which any of the properties of any of them is
subject which are required to be described in the Registration Statement or the
Prospectus or any amendments or supplements thereto and are not so described or
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.
(k) 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 there-
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under 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.
2. Public Offering. The Company is advised by the Managers that the
Underwriters propose to make a public offering of their respective portions of
the Offered Securities as soon after this Agreement has been entered into as in
the Managers' judgment is advisable. The terms of the public offering of the
Offered Securities are set forth in the Prospectus.
3. Purchase and Delivery. Except as otherwise provided in this
Section 3, payment for the Offered Securities shall be made by certified or
official bank check or checks payable to the order of the Company in New York
Clearing House funds at the time and place set forth in the Underwriting
Agreement, upon delivery to the Managers for the respective accounts of the
several Underwriters of the Offered Securities, registered in such names and in
such denominations as the Managers shall request in writing not less than two
full business days prior to the date of delivery, with any transfer taxes
payable in connection with the transfer of the Offered Securities to the
Underwriters duly paid.
4. Conditions to Closing. The several obligations of the Underwriters
hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization", as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(ii) there shall not have occurred any change, or any
development involving a prospective
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change, in the condition, financial or otherwise, or in the
earnings, business or operations, of the Company and its
subsidiaries, taken as a whole, from that set forth in the
Prospectus that, in the judgment of the Managers, is material
and adverse and that makes it, in the judgment of the Managers,
impracticable to market the Offered Securities on the terms and
in the manner contemplated in the Prospectus.
(b) The Managers shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (a)(i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(c) The Managers shall have received on the Closing Date (i)
an opinion of Andrews & Kurth L.L.P., special counsel to the Company,
addressing the matters set forth in paragraphs (i), (ii), (iv), (v),
(vi), (vii), (viii), (ix) (items (a), (b) and (c)), (x), (xi) and (xii)
of Exhibit A attached hereto, and (ii) an opinion of the Senior Vice
President, Law or Vice President, Law of the Company, addressing the
matters set forth in paragraphs (iii), (viii), (ix) (items (d) and
(e)), (x), (xi) and (xii) of Exhibit A.
(d) The Managers shall have received on the Closing Date an
opinion of Cravath, Swaine & Moore, special counsel for the
Underwriters, dated the Closing Date, to the effect set forth in
Exhibit B.
(e) The Managers shall have received on each of the date
hereof and the Closing Date a letter, dated such date, in form and
substance reasonably satisfactory to the Managers, from Coopers &
Lybrand, independent accountants for the Company, containing statements
and information of the type ordinarily included in accountants'
"comfort letters" with respect
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to the financial statements and certain financial information contained
in or incorporated by reference into the Prospectus.
5. Covenants of the Company. In further consideration of the
agreements of the Underwriters contained herein, the Company covenants as
follows:
(a) To furnish the Managers, without charge, a signed copy of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and, during the period mentioned
in paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto or to the Registration Statement as the Managers may reasonably
request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities, to
furnish to the Managers a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which the Managers reasonably object.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters, and to the dealers
(whose names and addresses the Managers will furnish to the Company) to
which Offered Securities may have been sold by the Managers on behalf
of the Underwriters and to any other dealer upon request, either
amendments or supplements to the Prospectus so that the statements in
the Prospectus as so amended or supplemented will not, in the light of
the circumstances when the Prospectus is delivered to a
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purchaser, be misleading or so that the Prospectus, as so amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as
the Managers shall reasonably request and to pay all expenses
(including fees and disbursements of counsel) in connection with such
qualification and in connection with (i) the determination of the
eligibility of the Offered Securities for investment under the laws of
such jurisdictions as the Managers may designate and (ii) any review of
the offering of the Offered Securities by the National Association of
Securities Dealers, Inc.
(e) To make generally available to the Company's security
holders and to the Managers as soon as practicable an earnings
statement covering a twelve month period beginning on the first day of
the first full fiscal quarter after the date of this Agreement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission
thereunder.
(f) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company substantially similar to the Offered
Securities (other than the Offered Securities) without the prior
written consent of the Managers.
6. Indemnification and Contribution. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any Underwriter or any such controlling person
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to
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state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Managers expressly for use therein.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company by such Underwriter in writing through the
Managers expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more
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than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Managers,
in the case of parties indemnified pursuant to the second preceding paragraph,
and by the Company, in the case of parties indemnified pursuant to the first
preceding paragraph. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the third sentence of this
paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
If the indemnification provided for in the first or second paragraph in
this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not
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only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of the
Offered Securities shall be deemed to be in the same respective proportions as
the net proceeds from the offering of such Offered Securities (before deducting
expenses) received by the Company and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover of the Prospectus Supplement, bear to the aggregate public
offering price of the Offered Securities. The relative fault of the Company on
the one hand and of the Underwriters on the other hand 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 or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Underwriters' respective obligations to contribute pursuant to this Section 6
are several in proportion to the respective principal amounts of Offered
Securities purchased by each of such Underwriters and not joint.
The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 6 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 that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that such
Underwriter has other-
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wise 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 Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 6 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 6
and the representations and warranties of the Company contained herein shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on behalf of the
Company, its directors or officers or any person controlling the Company and
(iii) acceptance of and payment for any of the Offered Securities.
7. Termination. This Agreement shall be subject to termination, by
notice given by the Managers to the Company, if (a) after the execution and
delivery of the Underwriting Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock
Exchange or the National Association of Securities Dealers, Inc., (ii) trading
of any securities of the Company shall have been suspended on any exchange or
in any over-the-counter market, (iii) a general moratorium on commercial
banking activities in New York shall have been declared by either Federal or
New York State authorities, or (iv) there shall have occurred any outbreak or
escalation of hostilities or any change in financial markets or any calamity or
crisis that, in the judgment of the Managers, is material and adverse and (b)
in the case of any of the events specified in clauses (a) (i) through (iv),
such event, singly or together with any other such event, makes it, in the
judgment of the Managers, impracticable to market the Offered Securities on the
terms and in the manner contemplated in the Prospectus.
8. Defaulting Underwriters. [Applicable only if there is more than
one Underwriter of the Offered Securities.] If, on the Closing Date, any one
or more of the Underwriters shall fail or refuse to purchase Offered Securities
of any series that it has or they have agreed to
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purchase hereunder on such date, and the aggregate amount of Offered Securities
of such series which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate
amount of the Offered Securities of such series to be purchased on such date,
the other Underwriters shall be obligated severally in the proportions that the
amount of Offered Securities of such series set forth opposite their respective
names above bears to the aggregate amount of Offered Securities of such series
set forth opposite the names of all such nondefaulting Underwriters, or in such
other proportions as the Managers may specify, to purchase the Offered
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided that in no event shall the amount
of Offered Securities of any series that any Underwriter has agreed to purchase
pursuant to this Agreement be increased pursuant to this Section 8 by an amount
in excess of one-ninth of such amount of Offered Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Offered Securities of any series
and the aggregate amount of Offered Securities with respect to which such
default occurs is more than one-tenth of the aggregate amount of Offered
Securities of such series to be purchased on such date, and arrangements
satisfactory to the Managers and the Company for the purchase of such Offered
Securities are not made within 36 hours after such default, this Agreement
shall terminate with respect to such series of Offered Securities without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case either the Manager or the Company shall have the right to postpone
the Closing Date but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus
or in any other documents or arrangements may be effected. Any action taken
under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for
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all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering of the Offered Securities.
9. Miscellaneous. The Underwriting Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
10. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
11. Notices. All references herein and in the Underwriting Agreement
to the Managers when made in connection with any notice to or communication by
or with such Managers shall, if there is more than one manager, be deemed to be
to the Lead Manager, as designated in the Underwriting Agreement, and all
notices shall be given to such Lead Manager at the address set forth therein.
18
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 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;
(iii) each 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,
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executed and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its
terms except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (b) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability;
(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 as (a) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (b) rights of acceleration, if any, and the
availability of equitable remedies may be limited by equitable
principles of general applicability;
(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 applicable law or the certificate of incorporation or
by-laws of the Company.
(viii) 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 or affiliates 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, to the best of such counsel's knowledge, any
other jurisdiction having jurisdiction over the Company or any
subsidiary, 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
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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, (d) in "Item 3 - Legal Proceedings" of the
Company's most recent annual report on Form 10-K incorporated by
reference in the Prospectus and (e) in "Item 1 - Legal Proceedings" of
Part II of the Company's quarterly reports on Form 10-Q, if any, filed
since such annual report, in each case insofar as such statements
constitute summaries of the legal matters, documents or 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) after due inquiry, such counsel does not know of 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 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.
(xii) such counsel (a) is of the opinion that each document, if
any, filed pursuant to the Exchange Act
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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) complied when so filed as to form in all material respects
with the Exchange Act and the applicable rules and regulations of the
Commission thereunder, (b) believes that (except for financial
statements and schedules and other financial or statistical information
as to which such counsel need not express any belief and except for
that part of the Registration Statement that constitutes the Form T-1
heretofore referred to) each part of the Registration Statement, when
such part became effective, did not, and as of the date such opinion is
delivered, does not contain any 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, (c) 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) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder and (d) believes that (except for financial
statements and schedules and other financial or statistical information
as to which such counsel need not express any belief) the Prospectus as
of the date such opinion is delivered does not contain any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
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.
22
Exhibit B
Opinion of Cravath, Swaine & Moore,
Counsel for the Underwriters
The opinion of Cravath, Swaine & Moore, counsel for the Underwriters,
to be delivered pursuant to Section 4(d) of the Underwriting Agreement shall be
to the effect that:
(i) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
(ii) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act of
1939, as amended, and constitutes a legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws affecting
creditors' rights generally from time to time in effect and, as to the
enforceability of obligations, to general principles of equity,
regardless of whether such enforceability is considered in a proceeding
in equity or at law;
(iii) 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
constitute legal, valid and binding obligations of the Company,
entitled to the benefits of the Indenture, and conform to the
description thereof contained in the Prospectus;
(iv) the Registration Statement became effective under the
Securities Act, and to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been initiated or
are pending or contemplated under the Securities Act; and
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(v) such counsel (1) believes that (except for financial
statements and related schedules and other financial data as to which
such counsel need not express any belief and except for that part of
the Registration Statement that constitutes the Form T-1 heretofore
referred to) each part of the Registration Statement, when such part
became effective, did not contain any 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, (2) is of the
opinion that the Registration Statement and Prospectus (except for
financial statements and related schedules and other financial data
included therein as to which such counsel need not express any opinion)
comply as to form in all material respects with the Securities Act and
the applicable rules and regulations of the Commission thereunder and
(3) believes that (except for financial statements and related
schedules and other financial data as to which such counsel need not
express any belief) the Prospectus as of the date such opinion is
delivered does not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
With respect to clause (v) above, such counsel may state that their
opinion and belief are based upon their participation in the preparation of the
Registration Statement and the Prospectus and any amendments or supplements
thereto (other than the documents incorporated by reference) and upon review
and discussion of the contents thereof (including documents incorporated by
reference) but are without independent check or verification, except as
specified.
Such counsel may rely, to the extent its opinions are based upon
matters governed by the laws of other jurisdictions, upon the opinion of other
counsel admitted to the bar in such jurisdictions.