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EXHIBIT 1.1
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APACHE FINANCE PTY LTD
DEBT SECURITIES
GUARANTEED BY APACHE CORPORATION
[FORM OF]
UNDERWRITING AGREEMENT BASIC TERMS
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APACHE FINANCE PTY LTD
Debt Securities
Guaranteed by Apache Corporation
UNDERWRITING AGREEMENT BASIC TERMS
Apache Finance Pty Ltd (A.C.N. 080 571 900), a proprietary company with
limited liability duly organized under the laws of the Australian Capital
Territory (the "Company"), may issue and sell from time to time its debt
securities (the "Debt Securities"). The Debt Securities are unconditionally
guaranteed as to payment of principal, premium, if any, Additional Amounts (as
defined in the Indenture), if any, and interest by Apache Corporation (the
"Guarantor"). The Debt Securities are issuable under, and the guarantee thereof
by the Guarantor (the "Guarantee") is contained in, an indenture, dated as of
__________ __, 1997 (the "Indenture"), between the Company, the Guarantor and
The Chase Manhattan Bank, as trustee (the "Trustee"). Each issue of Debt
Securities may vary as to series, aggregate principal amount, maturity, interest
rate or rates and timing of payments thereof, redemption provisions, if any, and
any other variable terms as set forth in the Terms Agreement (as defined below)
relating thereto which the Indenture contemplates may be set forth in the Debt
Securities as issued from time to time.
Whenever the Company determines to make an offering of Debt
Securities, the Company and the Guarantor will enter into an agreement (the
"Terms Agreement") providing for the sale of such securities (the "Offered
Securities") to, and the purchase and offering thereof by, one or more
underwriters specified in the Terms Agreement (the "Underwriters", which term
shall include any Underwriters substituted pursuant to Section 10 hereof). The
Terms Agreement relating to the Offered Securities shall specify the names of
the Underwriters participating in such offering, the amount of Offered
Securities which each such Underwriter severally agrees to purchase, the price
at which the Offered Securities are to be purchased by the Underwriters from
the Company, the initial public offering price, the time and place of delivery
and payment, such other information as is indicated in
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Exhibit A hereto and such other terms as are agreed by the Company and the
Underwriters. In addition, each Terms Agreement shall specify whether the
Company has agreed to grant to the Underwriters an option to purchase
additional Offered Securities to cover over-allotments, if any, and the amount
of Offered Securities subject to such option (the "Option Securities"). As
used herein, the term "Offered Securities" shall include the Option Securities,
if any, and "Representatives" shall mean the Underwriter or Underwriters so
specified in the Terms Agreement or, if no Underwriter is so specified, shall
mean each Underwriter. The Terms Agreement may be in the form of an exchange
of any standard form of written telecommunication between the Underwriters and
the Company. The offering of the Offered Securities will be governed by the
Terms Agreement, as supplemented hereby (collectively, this "Agreement"), and
this Agreement shall inure to the benefit of and be binding upon each
Underwriter participating in the offering of the Offered Securities.
The Company and the Guarantor have prepared and filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-3 (Nos. 333-39973 and 333-39973-01) for the registration of Debt
Securities, including the Offered Securities and the Guarantee, under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
from time to time in accordance with Rule 415 of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations"), and have
prepared and filed such amendments thereto as may have been required to the
date hereof. Such registration statement, as amended, has been declared
effective by the Commission, and the Indenture has been qualified under the
Trust Indenture Act of 1939 (the "1939 Act"). As provided in Section 3(a), a
prospectus supplement reflecting the terms of the Offered Securities, the terms
of the offering thereof and the other matters set forth therein has been
prepared and will be filed pursuant to Rule 424 under the 1933 Act. Such
prospectus supplement, in the form first filed after the date of the Terms
Agreement pursuant to Rule 424, is herein referred to as the "Prospectus
Supplement". Such registration statement, as amended at the date of the Terms
Agreement, including the exhibits thereto and the documents incorporated by
reference therein, is herein called the "Registration Statement". Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act
Regulations is herein referred to as the "Rule 462(b) Registration Statement,"
and after such filing the term "Registration Statement" shall include the Rule
462(b) Registration Statement. The basic prospectus included in the
Registration Statement relating to all offerings of Debt Securities and the
Guarantee under the Registration Statement, as supplemented by the Prospectus
Supplement, is herein called the "Prospectus", except that, if such basic
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prospectus is amended or supplemented on or prior to the date on which the
Prospectus Supplement is first filed pursuant to Rule 424, the term
"Prospectus" shall refer to the basic prospectus as so amended or supplemented
and as supplemented by the Prospectus Supplement or, if any revised prospectus
shall be provided to the Underwriters by the Company and the Guarantor for
their use in connection with the offering of the Offered Securities which
differs from such basic prospectus and Prospectus Supplement (whether or not
required to be filed by the Company pursuant to Rule 424), the term
"Prospectus" shall refer to such revised prospectus (including any prospectus
supplement) from and after the time it is first provided to the Underwriters
for such use, in either case including the documents filed by the Company with
the Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), that are incorporated by reference therein.
SECTION 1. Representations and Warranties. The Company represents
and warrants as to matters relating to the Company and the Guarantor represents
and warrants as to matters relating to the Guarantor and its consolidated
subsidiaries, to each Underwriter named in the Terms Agreement as of the date
thereof and as of the Closing Time referred to in Section 2(c) hereof, and as
of each Date of Delivery (if any) referred to in Section 2(b) hereof (in each
case, a "Representation Date"), as follows:
(a) The Company has been duly organized and is validly
existing as a proprietary Company with limited liability under the laws
of the Australian Capital Territory, Australia, with corporate power
and authority 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, the Offered Securities and the
Indenture; and the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which the character or location of its properties or the nature or the
conduct of its business requires such qualification, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or to be in good standing would
not have a material adverse effect on the condition, financial or
otherwise, on the results of operations, business affairs or business
prospects of the Company or on its ability to perform its obligations
hereunder or under the Offered Securities or the Indenture. The
Company is an indirect wholly-owned consolidated subsidiary of the
Guarantor and has no subsidiaries.
(b) The Guarantor has been duly incorporated and is
validly existing as a corporation in good standing under the
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laws of the State of Delaware, with corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under this Agreement; and the Guarantor is duly qualified
as a foreign corporation to transact business and is in good standing
in the State of Texas and in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify and be in good standing would not have a
material adverse effect on the condition, financial or otherwise, or
the results of operations, business affairs or business prospects of
the Guarantor and its subsidiaries considered as one enterprise.
(c) Each "significant subsidiary" of the Guarantor as defined
in Rule 405 of Regulation C of the 1933 Act Regulations (collectively,
the "Significant Subsidiaries") has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and conduct its
business as described in the Prospectus and is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify and be in good
standing would not have a material adverse effect on the condition,
financial or otherwise, or the results of operations, business affairs
or business prospects of the Guarantor and its subsidiaries considered
as one enterprise; and, except as described in the Prospectus, all of
the issued and outstanding capital stock of each Significant
Subsidiary has been duly authorized and validly issued, is fully paid
and non-assessable and, except for directors' qualifying shares (if
applicable), is owned by the Guarantor, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(d) At the time the Registration Statement and the Rule
462(b) Registration Statement, if any, became effective and as of each
Representation Date, the Registration Statement and the Rule 462(b)
Registration Statement, if any, complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the rules and regulations of the
Commission promulgated thereunder; the Registration Statement and the
Rule 462(b) Registration Statement, if any, each at the time it became
effective, did not, and at each
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time thereafter at which any amendment to the Registration Statement
becomes effective or any Annual Report on Form 10-K is filed by the
Guarantor with the Commission and as of each Representation Date, 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; and the Prospectus, as of each
Representation Date, does not and will not include an untrue statement
of a material fact or omit 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; provided, however, that
the representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement and the
Rule 462(b) Registration Statement, if any, or the Prospectus made in
reliance upon and in conformity with information furnished to the
Company or the Guarantor in writing by the Underwriters expressly for
use in the Registration Statement and the Rule 462(b) Registration
Statement, if any, or the Prospectus.
(e) The documents incorporated by reference in the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied or when so filed will comply, as the case may be,
in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission promulgated thereunder (the
"1934 Act Regulations"), and, when read together and with the other
information in the Prospectus, did not and will not include an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were or
are made, not misleading.
(f) The accountants who certified the financial statements
included or incorporated by reference in the Registration Statement
and the Prospectus are independent public accountants with respect to
the Company and the Guarantor as required by the 1933 Act and the 1933
Act Regulations.
(g) The financial statements and any supporting schedules of
the Guarantor and its subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the consolidated financial position of the Guarantor and its
subsidiaries as of the dates indicated and the consolidated results of
their operations for the periods specified; except as stated therein,
said financial statements have been prepared in
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conformity with U.S. generally accepted accounting principles applied
on a consistent basis; the supporting schedules included or
incorporated by reference in the Registration Statement and the
Prospectus present fairly the information required to be stated
therein; and the pro forma financial statements and the related notes
thereto, if any, included or incorporated by reference in the
Registration Statement and the Prospectuses present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
(h) The petroleum engineers who have consented to being named
as having reviewed certain reserve data included or incorporated by
reference in the Prospectus are independent engineers with respect to
the Guarantor and its subsidiaries.
(i) This Agreement and the applicable Delayed Delivery
Contracts (as defined below), if any, have been duly authorized,
executed and delivered by the Company and the Guarantor and, upon
execution and delivery by the Underwriters, will be valid and legally
binding agreements of the Company and the Guarantor; on and after the
Closing Time, the Indenture will have been duly authorized, executed
and delivered by the Company and the Guarantor and, assuming due
execution and delivery by the Trustee, will be a valid and legally
binding agreement of the Company and the Guarantor enforceable in
accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting enforcement of creditors' rights
generally or by general equity principles, and except further as
enforcement thereof may be limited by (1) requirements that a claim
with respect to any Debt Securities denominated other than in U.S.
dollars (or a foreign currency or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or
(2) governmental authority to limit, delay or prohibit the making of
payments outside the United States. The Offered Securities have been
duly and validly authorized for issuance, offer and sale pursuant to
this Agreement and each Delayed Delivery Contract, if any, and when
issued, authenticated and delivered pursuant to the provisions of this
Agreement and the Indenture against
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payment of the consideration therefor, the Offered Securities will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting enforcement of
creditors' rights generally or by general equity principles, and
except further as enforcement thereof may be limited by (1)
requirements that a claim with respect to any Offered Securities
denominated other than in U.S. dollars (or a foreign currency or
composite currency judgment in respect of such claim) be converted
into U.S. dollars at a rate or exchange prevailing on a date
determined pursuant to applicable law or (2) governmental authority to
limit, delay or prohibit the making of payments outside the United
States. The Offered Securities and the Indenture, including the
Guarantee, will be substantially in the form heretofore delivered to
the Underwriters and conform in all material respects to all
statements relating thereto contained in the Prospectus; and each
Holder (as defined in the Indenture) of Offered Securities will be
entitled to the benefits of the Indenture.
(j) The Guarantee has been duly and validly authorized by the
Guarantor, and, when the Offered Securities are issued, authenticated
and delivered pursuant to the provisions of this Agreement and the
Indenture against payment of the consideration therefor, the Guarantee
will be a valid and legally binding obligation of the Guarantor with
respect to the Offered Securities enforceable in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, moratorium or other laws relating to or affecting
enforcement of creditors' rights generally against the Guarantor or by
general equity principles and except further as enforcement thereof
may be limited by (1) requirements that a claim with respect to any
Offered Securities denominated other than in U.S. dollars (or a
foreign currency or composite currency judgment in respect of such
claim) be converted into U.S. dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law or (2) governmental
authority to limit, delay or prohibit the making of payments outside
the United States, and the Holder of the Offered Securities will be
entitled to the benefits of the Guarantee.
(k) Since the respective dates as of which information is
given in the Registration Statement, any Rule 462(b) Registration
Statement and the Prospectus, except as may otherwise be stated
therein or contemplated thereby, (1) there has been no material
adverse change in the
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condition, financial or otherwise, or in the results of operations,
business affairs or business prospects of the Company or the Guarantor
and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business and (2) there have been no
material transactions entered into by the Guarantor or any of its
subsidiaries other than those in the ordinary course of business.
(l) Neither the Guarantor nor any of its subsidiaries is in
violation of its charter or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party or
by which it or any of them or their properties may be bound, where the
consequences of such violation or default would have a material
adverse effect on the condition, financial or otherwise, or the
results of operations, business affairs or business prospects of the
Company or the Guarantor and its subsidiaries considered as one
enterprise; and the execution and delivery of this Agreement, each
Delayed Delivery Contract, if any, and the Indenture and the
consummation of the transactions contemplated herein and therein have
been duly authorized by all necessary corporate action of the Company
and the Guarantor and will not conflict with or constitute a breach
of, or default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Guarantor or any of its subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument
to which the Guarantor or any of its subsidiaries is a party or by
which it or any of them may be bound or to which any of the property
or assets of the Guarantor or any subsidiary thereof is subject, nor
will such action result in any violation of the provisions of the
charter or by-laws of the Company or the Guarantor or any law,
administrative regulation or administrative or court order or decree,
where the consequences of such conflict, breach, creation, imposition,
violation or default would have a material adverse effect on the
condition, financial or otherwise, or the results of operations,
business affairs or business prospects of the Company or the Guarantor
and its subsidiaries considered as one enterprise.
(m) No consent, approval, authorization, order or decree of
any court or governmental agency or body is required for the
consummation by the Company and the Guarantor of the transactions
contemplated by this Agreement or in connection with the sale of
Offered Securities hereunder, except such as have been obtained or
rendered, as the case
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may be, or as may be required under state securities laws ("Blue
Sky").
(n) Except as may be included or incorporated by reference in
the Registration Statement and the Prospectus, there is no action,
suit or proceeding before or by any court or governmental agency or
body, domestic or foreign, now pending or, to the knowledge of the
Company or the Guarantor, threatened against or affecting the
Guarantor or any of its subsidiaries which might, in the opinion of
the Company or the Guarantor, result in any material adverse change in
the condition, financial or otherwise, or in the results of
operations, business affairs or business prospects of the Company or
the Guarantor and its subsidiaries considered as one enterprise, or
could reasonably be expected to materially and adversely affect the
properties or assets thereof or could reasonably be expected to
materially and adversely affect the consummation of this Agreement or
the Indenture or any transaction contemplated hereby or thereby.
(o) There are no contracts or documents of the Guarantor or
any of its subsidiaries which are required to be filed as exhibits to
the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed.
(p) Neither the Guarantor nor any of its subsidiaries is in
violation of any law, ordinance, governmental rule or regulation or
court decree to which it may be subject or has failed to obtain any
license, permit, franchise or other governmental authorization
necessary to the ownership of its property or to the conduct of its
business, which violation or failure would materially adversely affect
the condition, financial or otherwise, or the results of operations,
business affairs or business prospects of the Company or the Guarantor
and its subsidiaries considered as one enterprise; and the Guarantor
and its subsidiaries own or possess or have obtained all governmental
licenses, permits, consents, orders, approvals and other
authorizations and have properly filed with the appropriate
authorities all notices, applications and other documents necessary to
lease or own their respective properties and to carry on their
respective businesses as presently conducted, except where the failure
to possess such licenses or authorizations or make such filings would
not materially adversely affect the condition, financial or otherwise,
or the results of operations, business affairs or business prospects
of the Company or the Guarantor and its subsidiaries considered as one
enterprise.
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(q) The Guarantor and its subsidiaries own or possess, or can
acquire on reasonable terms, adequate trademarks, service marks and
trade names necessary to conduct the business now operated by them,
except as set forth or incorporated by reference in the Registration
Statement or except where the failure to own or possess the same would
not materially adversely affect the condition, financial or otherwise,
or the results of operations, business affairs or business prospects
of the Company or the Guarantor and its subsidiaries considered as one
enterprise, and neither the Guarantor nor any of its subsidiaries has
received any notice of infringement of or conflict with asserted
rights of others with respect to any trademarks, service marks or
trade names which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially adversely
affect the condition, financial or otherwise, or the results of
operations, business affairs or business prospects of the Company or
the Guarantor and its subsidiaries considered as one enterprise.
(r) The Guarantor and its subsidiaries have legal, valid and
defensible title to all of their interests in oil and gas properties
and to all other real and personal property owned by them and any
other real property and buildings held under lease by the Guarantor
and its subsidiaries are held by them under valid, subsisting and
enforceable leases, in each case free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or
encumbrances and defects of any kind, except such as (1) are described
in the Prospectus, (2) liens and encumbrances under operating
agreements, unitization and pooling agreements, production sales
contracts, farm-out agreements and other oil and gas exploration and
production agreements, in each case that secure payment of amounts not
yet due and payable for the performance of other inchoate obligations
and are of a scope and nature customary in connection with similar
drilling and producing operations or (3) those that do not have a
material adverse effect on the condition, financial or otherwise, or
the results of operations, business affairs or business prospects of
the Company or the Guarantor.
(s) The information underlying the estimates of oil and gas
reserves as described in the Prospectus is complete and accurate in
all material respects (or, with regard to any information underlying
the estimates prepared by any petroleum engineers retained by the
seller of such oil and gas reserves, is, to the best knowledge of the
Company and the Guarantor after reasonable investigation, complete and
accurate in all material respects); other than production of
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the reserves in the ordinary course of business and intervening
product price fluctuations described in the Prospectus, the Company
and the Guarantor are not aware of any facts or circumstances that
would result in a material adverse change in the reserves or the
present value of future net cash flows therefrom as described in the
Prospectus. Estimates of such reserves and present values comply in
all material respects with the applicable requirements of Regulation
S-X and Industry Guide 2 under the 1933 Act.
(t) Neither the Company, nor the Guarantor or any of its
other subsidiaries, is required to be registered under the Investment
Company Act of 1940, as amended (the "1940 Act").
(u) The Guarantor has complied and will comply with the
provisions of Florida H.B. 1771, codified as Section 517.075 of the
Florida Statutes, 1987, as amended, and all regulations promulgated
thereunder relating to issuers doing business in Cuba.
(v) Except as described in the Registration Statement, (1)
neither the Guarantor nor any of its subsidiaries is in violation of
any local or foreign laws or regulations relating to pollution or
protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws
and regulations relating to the release or threatened release of
chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively,
"Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
of Hazardous Materials (collectively, "Environmental Laws"), except
such violations as would not, singly or in the aggregate, have a
material adverse effect on the condition, financial or otherwise, or
the results of operations, business affairs or business prospects of
the Company or the Guarantor and its subsidiaries considered as one
enterprise, and (2) to the best of the Company's and the Guarantor's
knowledge, there are no events or circumstances that could reasonably
be expected to be the basis of an order for clean-up or remediation,
or an action, suit or proceeding by any private party or governmental
body or agency, against or affecting the Guarantor or any of its
subsidiaries relating to any Hazardous Materials or the violation of
any Environmental Laws, which, singly or in the aggregate, could
reasonably be expected to have a material adverse effect on the
condition,
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financial or otherwise, or the results of operations, business affairs
or business prospects of the Company or the Guarantor and its
subsidiaries considered as one enterprise.
(w) Except as described in the Prospectus, or as has already
been paid or authorized for payment, no stamp duty or similar tax or
duty is payable under applicable laws or regulations of the
Commonwealth of Australia, any of its States, territories or
possessions, or any political subdivision thereof (collectively,
"Australia") in connection with the creation, issuance or delivery of
the Offered Securities, the transfer of any of the Offered Securities
or with respect to the execution and delivery of this Agreement, the
Offered Securities or the Indenture or any document contemplated
hereby or thereby.
(x) Except as described in the Prospectus, payments made by
the Company under the Offered Securities or the Guarantor under the
Guarantee or either of them hereunder or under the Indenture will not
be subject under the current laws or regulations of Australia to any
withholdings or similar charges for or on account of taxation.
(y) The choice of the laws of the State of New York as the
governing law of the Offered Securities, the Indenture and this
Agreement is a valid choice of law under the laws of Australia and
courts of Australia will honor this choice of law. The Company has
the power to submit and pursuant to this Agreement and the Indenture
has legally, validly, effectively and irrevocably submitted to the
personal jurisdiction of the United States District Court for the
Southern District of New York and the Supreme Court of New York, New
York County (including, in each case, any appellate courts therefrom)
in any suit, action or proceeding against it arising out of or related
to any of the Offered Securities, the Indenture and the Guarantee or
with respect to its obligations, liabilities or any other matter
arising out of or in connection with the sale of the Offered
Securities by the Company to the Underwriters under this Agreement and
has validly and irrevocably waived any objection to the venue of a
proceeding in any such court; and has the power to designate, appoint
and empower and pursuant to this Agreement and the Indenture has
legally, validly, effectively and irrevocably designated, appointed
and empowered an agent for service of process in any suit or
proceeding based on or arising under this Agreement, the Offered
Securities or the Indenture, as the case may be, in any federal or
state court in the State of New York.
(z) Except as described in the Prospectus, any final judgment
for a definite sum of money rendered by any court
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of the State of New York or of the United States located in the State
of New York having jurisdiction under its own domestic laws in respect
of any suit, action or proceeding against the Company based upon any
instruments or agreements entered into for the consummation of the
transactions contemplated herein would be declared enforceable against
the Company by the courts of Australia without reexamination, review
of the merits of the cause of action in respect of which the original
judgment was given or relitigation of the matters adjudicated upon or
payment of any stamp, registration or similar tax or duty, provided
that (A) the judgment is consistent with public policy in Australia
and any relevant political subdivision, (B) the judgment was not given
or obtained by fraud or in a manner contrary to natural justice, (C)
the judgment was not based on a clear mistake of law or fact, (D) the
judgment was not directly or indirectly for the payment of taxes or
other charges of a like nature or of a fine or other penalty, (E) the
judgment is for a definite sum, and (F) there has been no prior
judgment in another court between the same parties concerning the same
issues as are dealt with in the judgment to be enforced in Australia.
The Company is not aware of any reason why the enforcement in
Australia of such a judgment in respect of any of the instruments or
agreements executed for consummation of the transactions contemplated
herein or in the Prospectus would be contrary to public policy in
Australia or any political subdivision of either of them.
(aa) The Company, and its obligations under this Agreement,
the Offered Securities and the Indenture, are subject to civil and
commercial law and to suit and neither it nor any of its properties,
assets or revenues have any right of immunity, on the grounds of
sovereignty, from any legal action, suit or proceeding, from the
giving of any relief in any such legal action, suit or proceeding,
from setoff or counterclaim, from the jurisdiction of any Australian,
New York State or U.S. federal court, as the case may be, from service
of process, attachment upon or prior to judgment, or attachment in aid
of execution of judgment, or from execution or enforcement of a
judgment, or other legal process or proceeding for the giving of any
relief or for the enforcement of a judgment, in any such court, with
respect to its obligations or liabilities or any other matter under or
arising out of or in connection with the Offered Securities, this
Agreement or the Indenture; and, to the extent that the Company or any
of its properties, assets or revenues may have or may hereafter become
entitled to any such right of immunity in any such court in which
proceedings may at any time be commenced, the
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Company has waived or will waive such right to the extent permitted by
law and has consented to such relief and enforcement as provided in
this Agreement and the Indenture.
(bb) It is not necessary under the laws of Australia or any
authority or agency therein in order to enable an owner of any
interest in the Offered Securities or the Guarantee to enforce its
rights under the Offered Securities or the Guarantee or to enable any
of the Underwriters to enforce its rights under this Agreement, as the
case may be, that it should, as a result solely of its holding or
underwriting, as the case may be, of the Offered Securities, be
licensed, qualified or otherwise entitled to carry on business in
Australia or any authority or agency therein; the Offered Securities,
the Indenture and this Agreement are in proper legal form under the
laws of Australia and any political subdivision thereof or authority
or agency therein for the enforcement thereof against the Company
therein; and it is not necessary to ensure the legality, validity,
enforceability or admissibility in evidence of the Offered Securities,
the Indenture or this Agreement in Australia or any authority or
agency therein that any of them be filed or recorded or enrolled with
any court, authority or agency in, or that any stamp, registration or
similar taxes or duties be paid to any court, authority or agency of
Australia.
(cc) Except as described in the Prospectus, no exchange
control authorization or other authorization, approval, consent or
license of any governmental authority or agency of or in Australia is
required for the payment by the Company of any amounts in United
States dollars pursuant to the terms of the Offered Securities or to
the Underwriters pursuant to this Agreement.
Any certificate signed by any director or officer of the Company or
the Guarantor and delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company or
the Guarantor, as the case may be, as to the matters covered thereby.
SECTION 2. Purchase and Sale.
(a) The several commitments of the Underwriters to purchase the
Offered Securities pursuant to this Agreement shall be deemed to have been made
on the basis of the representations and warranties herein contained and shall
be subject to the terms and conditions herein and therein set forth. Offered
Securities which are subject to Delayed Delivery Contracts are herein sometimes
referred to as "Delayed Delivery Offered Securities" and Offered Securities
which are not subject to Delayed Delivery
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Contracts are herein sometimes referred to as "Immediate Delivery Offered
Securities".
(b) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company may grant, if so provided in the Terms Agreement, an option
to the Underwriters named in the Terms Agreement, severally and not jointly, to
purchase up to the principal amount of Option Securities set forth therein at
the same price per security (plus, except as otherwise provided in the Terms
Agreement, interest, if any, accrued and unpaid from the Closing Time until the
applicable Date of Delivery), as is applicable to the Offered Securities. Such
option, if granted, will expire 30 days after the date of the Terms Agreement,
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Offered Securities upon notice by the Representatives
to the Company setting forth the principal amount of Option Securities as to
which the several Underwriters are then exercising the option and the time and
date of payment and delivery for such Option Securities. Any such time and
date of delivery (a "Date of Delivery") shall be determined by the
Representatives, but shall not be later than seven full business days and not
earlier than two full business days after the exercise of said option, nor in
any event prior to the Closing Time, as hereinafter defined, unless otherwise
agreed upon by the Representatives, the Company and the Guarantor. If the
option is exercised as to all or any portion of the Option Securities, each of
the Underwriters, acting severally and not jointly, will purchase the
proportion of the total principal amount of Option Securities then being
purchased that the principal amount of Immediate Delivery Offered Securities
each such Underwriter has agreed to purchase, as set forth in the Terms
Agreement, bears to the total principal amount of Immediate Delivery Offered
Securities, subject to such adjustments as the Representatives in their
discretion shall make to eliminate any sales or purchases in less than
authorized denominations.
(c) Payment of the purchase price for, and delivery of, the
Immediate Delivery Offered Securities to be purchased by the Underwriters shall
be made at the place set forth in the Terms Agreement, or at such other place
as shall be agreed upon by the Representatives, the Company and the Guarantor,
on the third business day (unless postponed in accordance with the provisions
of Section 10) following the date of the Terms Agreement or such other time as
shall be agreed upon by the Underwriters, the Company and the Guarantor (such
time and date being referred to as the "Closing Time"). Except as specified in
the Terms Agreement, payment shall be made to the Company by wire transfer
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in same day funds to the account specified in the Terms Agreement against
delivery to the Underwriters for the respective accounts of the Underwriters of
the Immediate Delivery Offered Securities to be purchased by them (unless the
Offered Securities are issuable only in the form of one or more global
instruments registered in the name of a depository or a nominee of a
depository, in which event the Underwriters' interest in such global instrument
shall be noted in a manner satisfactory to the Underwriters and their counsel).
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates representing, such Option Securities shall be made at such
place as shall be agreed upon by the Representatives and the Company, on each
Date of Delivery as agreed by the Representatives and the Company. The
Immediate Delivery Offered Securities shall be in such denominations and
registered in such names as the Underwriters may request in writing at least
two business days prior to the Closing Time or relevant Date of Delivery, as
the case may be. The Immediate Delivery Offered Securities, which if agreed by
the Representatives may be in temporary form, will be made available for
examination and packaging by the Representatives on or before the first
business day prior to the Closing Time or relevant Date of Delivery, as the
case may be.
(d) If authorized by the Terms Agreement, the Underwriters named
therein may solicit offers to purchase Offered Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit B hereto, with such changes therein as the
Company and the Guarantor may approve. As compensation for arranging Delayed
Delivery Contracts, the Company or the Guarantor, as the case may be, will pay
to the Representatives at the Closing Time, for the account of the
Underwriters, a fee equal to that percentage of the aggregate principal amount
of Delayed Delivery Offered Securities for which Delayed Delivery Contracts are
made at the Closing Time as is specified in the Terms Agreement. Any Delayed
Delivery Contracts are to be with institutional investors of the types set
forth in the Prospectus Supplement. At the Closing Time the Company and the
Guarantor will enter into Delayed Delivery Contracts (for not less than the
minimum principal amount of Delayed Delivery Offered Securities per Delayed
Delivery Contract specified in the Terms Agreement) with all purchasers
proposed by the Underwriters and previously approved by the Company and the
Guarantor as provided below, but not for an aggregate principal amount of
Offered Securities in excess of that specified in the Terms Agreement. The
Underwriters will not have any responsibility for the validity or performance
of Delayed Delivery Contracts.
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(e) The Representatives are to submit to the Company, at least two
business days prior to the Closing Time, the names of any institutional
investors with which it is proposed that the Company will enter into Delayed
Delivery Contracts and the principal amount of Delayed Delivery Offered
Securities to be purchased by each of them, and the names of the institutions
with which the making of Delayed Delivery Contracts is approved by the Company
and the principal amount of Delayed Delivery Offered Securities to be covered
by each such Delayed Delivery Contract.
(f) The principal amount of Offered Securities agreed to be
purchased by the respective Underwriters pursuant to this Agreement shall be
reduced by the principal amount of Delayed Delivery Offered Securities covered
by Delayed Delivery Contracts, as to each Underwriter as set forth in a written
notice delivered by the Underwriters to the Company; provided, however, that
the total principal amount of Immediate Delivery Offered Securities to be
purchased by all Underwriters shall be the total amount of the Offered
Securities covered by this Agreement, less the total principal amount of
Delayed Delivery Offered Securities covered by Delayed Delivery Contracts.
SECTION 3. Covenants of the Company and the Guarantor. The Company
and the Guarantor covenant with each Underwriter as follows:
(a) Immediately following the execution of the Terms
Agreement, the Company will prepare a Prospectus Supplement in form
approved by the Representatives setting forth the principal amount of
Offered Securities and their terms not otherwise specified in the
Indenture, if applicable, the names of the Underwriters and the
principal amount of the Offered Securities which each severally has
agreed to purchase, the names of the Underwriters, the price at which
the Offered Securities are to be purchased by the Underwriters from
the Company, the initial public offering price, the selling concession
and reallowance, if any, any delayed delivery arrangements, and such
other information as the Representatives and the Company deem
appropriate in connection with the offering of the Offered Securities.
The Company will promptly transmit copies of the Prospectus Supplement
to the Commission for filing pursuant to Rule 424 of the 1933 Act
Regulations and will furnish to the Underwriters named therein as many
copies of the Prospectus (including the Prospectus Supplement) as the
Representatives shall reasonably request.
(b) If at any time when the Prospectus is required by the
1933 Act to be delivered in connection with sales of the Offered
Securities any event shall occur or condition exist
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as a result of which it is necessary, in the opinion of counsel for
the Underwriters or counsel for the Guarantor and the Company, to
amend or supplement the Prospectus in order that the Prospectus will
not include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at the time
the Prospectus is delivered to a purchaser, or if it shall be
necessary, in the opinion of either such counsel, to amend or
supplement the Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company and the Guarantor will promptly amend the
Registration Statement and the Prospectus, whether by filing documents
pursuant to the 1934 Act or the 1933 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement and the Prospectus comply with such
requirements.
(c) The Guarantor will make generally available to its
security holders as soon as practicable, but not later than 90 days
after the close of the period covered thereby, an earnings statement
(in form complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering each twelve month period beginning, in each
case, not later than the first day of the Guarantor's fiscal quarter
next following the "effective date" (as defined in such Rule 158) of
the Registration Statement with respect to each sale of Offered
Securities.
(d) While the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Offered Securities, the
Company or the Guarantor will give the Representatives notice of its
intention to file any additional registration statement with respect
to the registration of additional Debt Securities, any amendment to
the Registration Statement (including any filing under Rule 462(b)) or
any amendment or supplement to the Prospectus, whether pursuant to the
1934 Act, the 1933 Act or otherwise; will furnish the Underwriters
with copies of any such amendment or supplement or other documents
proposed to be filed a reasonable time in advance of such proposed
filing or use, as the case may be; and will not file any such
amendment or supplement or other documents in a form to which the
Representatives or counsel to the Underwriters reasonably object.
(e) While the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Offered Securities, the
Company or the Guarantor will notify the
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Representatives immediately, and promptly confirm the notice in
writing, of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the Commission for filing of any
supplement to the Prospectus or any document to be filed pursuant to
the 1934 Act which will be incorporated by reference into the
Registration Statement or the Prospectus, (iii) the receipt of any
comments from the Commission with respect to the Registration
Statement, the Prospectus or the Prospectus Supplement, (iv) any
request by the Commission for any amendment to the Registration
Statement, or any amendment or supplement to the Prospectus or for
additional information, (v) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose and (vi) any change
in the rating assigned by any nationally recognized statistical rating
organization to any debt securities of the Company or the Guarantor or
the public announcement by any nationally recognized statistical
rating organization that it has under surveillance or review, with
possible negative implications, its rating of any debt securities of
the Company or the Guarantor. The Company and the Guarantor will make
every reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(f) The Company will deliver to each Underwriter one
conformed copy of the Registration Statement (as originally filed) and
of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated by
reference in the Prospectus) and will also deliver to the
Representatives as many conformed copies of the Registration Statement
as originally filed and of each amendment thereto (without exhibits)
as the Representatives may reasonably request. While the Prospectus
is required by the 1933 Act to be delivered in connection with sales
of the Offered Securities, the Company will furnish to the
Representatives as many copies of the Prospectus (including the
Prospectus Supplement) as the Representatives reasonably request.
(g) The Company and the Guarantor will endeavor, in
cooperation with the Underwriters, to qualify the Offered Securities
for offering and sale under the applicable securities laws of such
states and other jurisdictions of the United States as the
Underwriters may designate, and will maintain such qualifications in
effect for as long as may be required for the distribution of the
Offered Securities; provided, however, that neither the Company nor
the Guarantor shall be obligated to file any general consent
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to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. The Company and the
Guarantor will file such statements and reports as may be required by
the laws of each jurisdiction in which the Offered Securities have
been qualified as above provided. The Company or the Guarantor will
promptly advise the Representatives of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Offered Securities for sale in any such state or jurisdiction
or the initiating or threatening of any proceeding for such purpose.
(h) The Company and the Guarantor, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934
Act in connection with sales of the Offered Securities, will file all
documents required to be filed with the Commission pursuant to
Sections 13, 14 or 15(d) of the 1934 Act within the time periods
prescribed by the 1934 Act and the 1934 Act Regulations.
(i) If specified in the Terms Agreement, between the date of
the Terms Agreement and the completion of the distribution of the
Offered Securities or the Closing Time, whichever is later, or such
other time as is specified in the Terms Agreement, the Company or the
Guarantor will not, without the prior written consent of the
Representatives, offer or sell, grant any option for the sale of, or
enter into any agreement to sell, any debt securities of the Company
or the Guarantor substantially similar to the Offered Securities
(other than the Offered Securities that are to be sold pursuant to
such agreement or commercial paper in the ordinary course of
business).
SECTION 4. Conditions of Underwriters' Obligations. The obligations
of the Underwriters to purchase Offered Securities pursuant to this Agreement
are subject to the accuracy of the representations and warranties on the part
of the Company and the Guarantor herein contained, to the accuracy of the
statements which the Company's and the Guarantor's officers made in any
certificate furnished pursuant to the provisions hereof, to the performance by
the Company and the Guarantor of all of their respective covenants and other
obligations hereunder and under the Terms Agreement, and to the following
further conditions:
(a) At the Closing Time, no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission.
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(b) At the Closing Time, the Representatives shall have
received:
(1) The favorable opinion, dated as of the
Closing Time, of Woodard, Hall & Primm, P.C., counsel to the Company
and the Guarantor, to the effect that:
(i) The Guarantor has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the State of Delaware.
(ii) This Agreement and the applicable Delayed
Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company and the Guarantor.
(iii) The Indenture has been duly authorized,
executed and delivered by the Company and the Guarantor and
(assuming the Indenture has been duly authorized, executed and
delivered by the Trustee) constitutes a legal, valid and
binding agreement of the Company and the Guarantor,
enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or
affecting enforcement of creditors' rights generally or by
general equity principles, and further as enforcement thereof
may be limited by (1) requirements that a claim with respect
to any Debt Securities denominated other than in U.S. dollars
(or a foreign currency or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to
applicable law or (2) governmental authority to limit, delay
or prohibit the making of payments outside the United States.
(iv) The Guarantee has been duly authorized by
the Guarantor and, when the Offered Securities are executed
and authenticated as specified in the Indenture and delivered
against payment pursuant to the Terms Agreement, as
supplemented by this Agreement, or any Delayed Delivery
Contracts, will, with respect to such Securities, constitute
the valid and binding obligation of the Guarantor, enforceable
in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, moratorium or other
laws relating to or affecting enforcement of creditors' rights
against the Guarantor or by general equity principles, and
further as enforcement thereof may be limited by (1)
requirements that a claim with respect
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to any Debt Securities denominated other than in U.S. dollars
(or a foreign currency or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to
applicable law or (2) governmental authority to limit, delay
or prohibit the making of payments outside the United States.
(v) The Offered Securities, in the form(s)
certified by the Company as of the Closing Time, have been
duly authorized for issuance, offer and sale pursuant to this
Agreement and, when issued, authenticated and delivered
pursuant to the provisions of this Agreement, any Delayed
Delivery Contract and the Indenture against payment of the
consideration therefor, will constitute valid and legally
binding obligations of the Company, enforceable in accordance
with their terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting enforcement of creditors' rights
generally or by general equity principles, and except further
as enforcement thereof may be limited by (1) requirements that
a claim with respect to any Debt Securities denominated other
than in U.S. dollars (or a foreign currency or composite
currency judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (2) governmental
authority to limit, delay or prohibit the making of payments
outside the United States; and each holder of Offered
Securities will be entitled to the benefits of the Indenture.
(vi) The Offered Securities and the Indenture
conform in all material respects to the statements relating
thereto in the Prospectus; and the statements in the
Prospectus under the captions "Description of Notes" and
"Description of Debt Securities", insofar as they purport to
summarize certain provisions of documents specifically
referred to therein, are accurate summaries of such
provisions.
(vii) The Indenture has been duly qualified
under the 1939 Act.
(viii) The Registration Statement, including any
Rule 462(b) Registration Statement, has been declared
effective by the Commission under the 1933 Act and, to the
best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration
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Statement or any Rule 462(b) Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(ix) The Registration Statement, including any Rule
462(b) Registration Statement, and the Prospectus (except for
financial statements and engineering reports and other
financial or engineering data, and except for those parts of
the Registration Statement that constitute the Form T-1, as to
which such counsel need not express any opinion), as of their
respective effective or issue dates, appeared on their face to
be appropriately responsive to the requirements of the 1933
Act and the 1933 Act Regulations.
(x) The information contained in the Prospectus
under the caption "Tax Considerations - Certain United States
Federal Income Tax Considerations", to the extent that such
information constitutes matters of law, summaries of legal
matters or legal conclusions, has been reviewed by such
counsel and is correct.
(xi) The Company has legally, validly, effectively
and irrevocably submitted to the personal jurisdiction of any
federal or state court in the State of New York, County of New
York in any suit or proceeding based on or arising under this
Agreement and has validly and effectively waived any objection
to the venue of a proceeding in any such court as provided in
Section 14 of this Agreement; and the Company has the power to
designate, appoint and empower and pursuant to this Agreement
has validly, effectively and irrevocably designated, appointed
and empowered an agent for service of process in any suit or
proceeding based on or arising under this Agreement in any
federal or state court in the State of New York, County of New
York as provided in Section 14 of this Agreement.
In rendering such opinion, counsel for the Company and the
Guarantor may rely (i) as to matters of fact upon the representations
of officers of the Company and the Guarantor contained in any
certificate delivered to such counsel and certificates of public
officials, which certificates shall be attached to or delivered with
such opinion, (ii) as to matters of the laws of Australia upon the
opinion of Arthur Robinson & Hedderwicks furnished pursuant to this
Agreement and (iii) as to the laws of the State of New York applicable
to the enforceability of the Offered Securities and the Indenture upon
the opinion of Brown & Wood LLP. Such opinion shall be limited to the
General Corporation Law of
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the State of Delaware, the laws of the State of Texas and the laws of
the United States of America.
(2) The favorable opinion of Zurab S.
Kobiashvili, General Counsel of the Guarantor, to the effect that:
(i) The Guarantor has the corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement
and the Delayed Delivery Contracts, if any.
(ii) To the best knowledge and information of
such counsel, the Guarantor is duly qualified as a foreign
corporation to transact business and is in good standing in
the State of Texas and in each other jurisdiction in which
such qualification is required, except where the failure to so
qualify and be in good standing would not have a material
adverse effect on the condition, financial or otherwise, or
the results of operations, business affairs or business
prospects of the Guarantor and its subsidiaries considered as
one enterprise.
(iii) Each Significant Subsidiary has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease
and operate its properties and conduct its business as
described in the Prospectus, and, to the best of such
counsel's knowledge and information, is duly qualified as a
foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, except where the failure to so qualify and be in
good standing would not have a material adverse effect on the
condition, financial or otherwise, or the results of
operations, business affairs or business prospects of the
Guarantor and its subsidiaries considered as one enterprise;
and all of the issued and outstanding capital stock of each
Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable, and is owned by the
Guarantor, directly or indirectly, free and clear of any
mortgage, pledge, lien, encumbrance, claim or equity (except
as described in the Prospectus).
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(iv) Each document filed pursuant to the 1934 Act
and incorporated by reference in the Prospectus (except for
financial statements, supporting schedules and other financial
or statistical information as to which no opinion need be
rendered) appeared on their face to be appropriately
responsive when so filed to the requirements of the 1934 Act
and the 1934 Act Regulations.
(v) Neither the Guarantor nor any of its
subsidiaries is required to be registered under the 1940 Act.
(vi) No consent, approval, authorization, order or
decree of any court or governmental authority or agency is
required that has not been obtained in connection with the
consummation by the Company or the Guarantor of the
transactions contemplated by this Agreement, any Delayed
Delivery Contract or the Indenture, except such as have been
obtained or rendered, as the case may be, or as may be
required under the 1933 Act, the 1933 Act Regulations, the
1934 Act, the 1934 Act Regulations or state securities laws;
and the execution and delivery of this Agreement, the Delayed
Delivery Contract, if applicable, and the Indenture and the
consummation of the transactions contemplated herein and
therein have been duly authorized by all necessary corporate
action of the Company and the Guarantor and, to the best
knowledge and information of such counsel, will not conflict
with or constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Guarantor or any of its
subsidiaries pursuant to, any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the
Guarantor or any of its subsidiaries is a party or by which it
or any of them may be bound or to which any of the property or
assets of the Guarantor or any such subsidiary is subject, nor
will such action result in any violation of the provisions of
the charter or by-laws of the Guarantor or any applicable law,
administrative regulation or, to the best knowledge and
information of such counsel, administrative or court order or
decree.
(vii) Neither the Guarantor nor any of its
Significant Subsidiaries is in violation of its charter or
by-laws.
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(viii) To the best knowledge and information of such
counsel, neither the Guarantor nor any of its subsidiaries is
in violation of any law, ordinance, governmental rule or
regulation or court decree to which it may be subject or has
failed to obtain any license, permit, franchise or other
governmental authorization necessary to the ownership of its
property or to the conduct of its business, which violation or
failure would materially adversely affect the condition,
financial or otherwise, or the results of operations, business
affairs or business prospects of the Guarantor and its
subsidiaries considered as one enterprise; and, to the best
knowledge and information of such counsel, the Guarantor and
its subsidiaries own or possess or have obtained all
governmental licenses, permits, consents, orders, approvals
and other authorizations necessary to lease or own their
respective properties and to carry on their respective
businesses as presently conducted, except where the failure to
obtain such authorizations would not have a material adverse
effect on the condition, financial or otherwise, or the
results of operations, business affairs or business prospects
of the Guarantor and its subsidiaries considered as one
enterprise.
(ix) To the best of such counsel's knowledge and
information, there is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or
foreign, now pending, or threatened against or affecting, the
Guarantor or any of its subsidiaries, which would be
reasonably expected to result in any material adverse change
in the condition, financial or otherwise, or in the results of
operations, business affairs or business prospects of the
Guarantor and its subsidiaries considered as one enterprise,
or would materially and adversely affect the properties or
assets thereof or would materially and adversely affect the
consummation of this Agreement, the Delayed Delivery
Contracts, if applicable, or the Indenture or any transaction
contemplated hereby or thereby.
(x) To the best of such counsel's knowledge and
information, there are no contracts or other documents
required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto, the descriptions thereof or
references thereto are correct in all material respects, and,
to the best of such counsel's knowledge
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and information, no default exists in the due performance or
observance of any material obligation, agreement, covenant or
conditions contained in any contract, or other documents so
described, referred to, filed or incorporated by reference
where the consequences of such default would have a material
adverse effect on the condition, financial or otherwise, or
the results of operations, business affairs or business
prospects of the Guarantor and its subsidiaries considered as
one enterprise.
In rendering such opinion, Zurab S. Kobiashvili may
rely (i) as to matters of fact upon the representations of officers of
the Guarantor contained in any certificate delivered to such counsel
and certificates of public officials, which certificates shall be
attached to or delivered with such opinion; and (ii) as to matters of
the laws of Australia covered thereby, upon the opinion of Arthur
Robinson & Hedderwicks furnished pursuant to this Agreement. Such
opinion shall be limited to the General Corporation Law of the State
of Delaware, the laws of the State of Texas and the laws of the United
States of America.
(3) The favorable opinion, dated as of the
Closing Time, of Arthur Robinson & Hedderwicks, Australian counsel to
the Company, 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 under the laws of the
Australian Capital Territory, Australia, and has no
subsidiaries.
(ii) The Company has corporate power and
authority to own, lease and operate its properties and conduct
its business as described in the Registration Statement.
(iii) To such counsel's knowledge, after having
made inquiries of the Secretary of the Company, the Company is
duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such
qualification is required to transact business whether by
reason of ownership or leasing of property or the conduct of
business, except where the failure so to qualify could not
reasonably be expected to have a material adverse effect on
the business, operations or condition, financial or otherwise,
or the results of operations of the Company
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or its ability to perform its obligations hereunder or under
the Offered Securities or the Indenture.
(iv) This Agreement and the applicable Delayed
Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company.
(v) The Indenture has been duly authorized, executed
and delivered by the Company and (assuming the Indenture has
been duly authorized, executed and delivered by the Trustee)
constitutes a legal, valid and binding agreement of the
Company, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
moratorium or other laws relating to or affecting enforcement
of creditors' rights against the Company or by general equity
principles.
(vi) The Offered Securities have been duly
authorized and, when the Offered Securities are executed and
authenticated as specified in the Indenture and delivered
against payment pursuant to the Terms Agreement, as
supplemented by this Agreement, or any Delayed Delivery
Contracts, will constitute valid and binding obligations of
the Company, enforceable in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy,
insolvency, moratorium or other laws relating to or affecting
enforcement of creditors' rights against the Company or by
general equity principles.
(vii) No consent, approval, authorization, order or
decree of any court or governmental agency or body in
Australia is required for the execution and delivery by the
Company of this Agreement, the Indenture or the Terms
Agreement or any Delayed Delivery Contract or for the
consummation by the Company of the transactions contemplated
hereby or thereby. The execution and delivery of the this
Agreement, any Delayed Delivery Contract and the Indenture and
the consummation by the Company of the transactions
contemplated by this Agreement and the Offered Securities and
the incurrence of the obligations and consummation of the
transactions contemplated herein and therein have been
authorized by all necessary corporate action of the Company
and will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Company pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other
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agreement or instrument to which the Company is a party or by
which it may be bound or to which any of the property or
assets of the Company is subject, nor will any such action
result in any violation of the Memorandum and Articles of
Association of the Company or any applicable law,
administrative regulation or administrative or court order or
decree.
(viii) No stamp duty or similar tax or duty is
payable under applicable laws or regulations of Australia in
connection with the creation, issuance or delivery of the
Offered Securities, the transfer of any of the Offered
Securities or with respect to the execution and delivery of
this Agreement, the Offered Securities or the Indenture or any
document contemplated hereby or thereby.
(ix) It is not necessary under the laws of Australia
or any authority or agency therein in order to enable an owner
of any interest in the Offered Securities or the Guarantee to
enforce its rights under the Offered Securities or the
Guarantee or to enable any of the Underwriters to enforce its
rights under this Agreement, as the case may be, that it
should, as a result solely of its holding or underwriting of
the Offered Securities, be licensed, qualified or otherwise
entitled to carry on business in Australia or any authority or
agency therein; the Offered Securities, the Indenture and this
Agreement are in proper legal form under the laws of Australia
and any political subdivision thereof or authority or agency
therein for the enforcement thereof against the Company
therein; and it is not necessary to ensure the legality,
validity, enforceability or admissibility in evidence of the
Offered Securities, the Indenture or this Agreement in
Australia or any authority or agency therein that any of them
be filed or recorded or enrolled with any court, authority or
agency in, or that any stamp, registration or similar taxes or
duties be paid to any court, authority or agency of Australia.
(x) The choice of the laws of the State of New York
as the governing law of the Offered Securities, the Indenture
and this Agreement is a valid choice of law under the laws of
Australia and courts of Australia should honor this choice of
law.
(xi) Any final judgment for a definite sum of money
rendered by any court of the State of New York or of the
United States located in the State of New York
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having jurisdiction under its own domestic laws in respect of
any suit, action or proceeding against the Company based upon
any instruments or agreements entered into for the
consummation of the transactions contemplated in this
Agreement, the Indenture, or the Offered Securities would be
declared enforceable against the Company by the courts of
Australia without reexamination, review of the merits of the
cause of action in respect of which the original judgment was
given or relitigation of the matters adjudicated upon or
payment of any stamp, registration or similar tax or duty,
provided that (A) the judgment is consistent with public
policy in Australia and any relevant political subdivision,
(B) the judgment was not given or obtained by fraud or in a
manner contrary to natural justice, (C) the judgment was not
based on a clear mistake of law or fact, (D) the judgment was
not directly or indirectly for the payment of taxes or other
charges of a like nature or of a fine or other penalty, (E)
the judgment is for a definite sum, and (F) there has been no
prior judgment in another court between the same parties
concerning the same issues as are dealt with in the judgment
to be enforced in Australia. Such counsel is not aware of any
reason why the enforcement in Australia of such a judgment in
respect of any of the instruments or agreements executed for
consummation of the transactions contemplated herein or in the
Prospectus would be contrary to public policy in Australia or
any political subdivision of either of them.
(xii) The Company, and its obligations under this
Agreement, the Offered Securities and the Indenture, are
subject to civil and commercial law and to suit and neither it
nor any of its properties, assets or revenues have any right
of immunity, on the grounds of sovereignty, from any legal
action, suit or proceeding, from the giving of any relief in
any such legal action, suit or proceeding, from setoff or
counterclaim, from the jurisdiction of any Australian, New
York State or U.S. federal court, as the case may be, from
service of process, attachment upon or prior to judgment, or
attachment in aid of execution of judgment, or from execution
or enforcement of a judgment, or other legal process or
proceeding for the giving of any relief or for the enforcement
of a judgment, in any such court, with respect to its
obligations or liabilities or any other matter under or
arising out of or in connection with the Offered Securities,
this Agreement or the Indenture; and, to
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the extent that the Company or any of its properties, assets
or revenues may have or may hereafter become entitled to any
such right of immunity in any such court in which proceedings
may at any time be commenced, the Company may waive such right
to the extent permitted by law and may consent to such relief
and enforcement as provided in this Agreement and the
Indenture.
(xiii) It is not necessary under the laws of
Australia or any authority or agency therein in order to
enable an owner of any interest in the Offered Securities or
the Guarantee to enforce its rights under the Offered
Securities or the Guarantee or to enable any of the
Underwriters to enforce its rights under this Agreement, as
the case may be, that it should, as a result solely of its
holding or underwriting of the Offered Securities, be
licensed, qualified or otherwise entitled to carry on business
in Australia or any authority or agency therein; the Offered
Securities, the Indenture and this Agreement are in proper
legal form under the laws of Australia and any political
subdivision thereof or authority or agency therein for the
enforcement thereof against the Company therein; and it is not
necessary to ensure the legality, validity, enforceability or
admissibility in evidence of the Offered Securities, the
Indenture or this Agreement in Australia or any authority or
agency therein that any of them be filed or recorded or
enrolled with any court, authority or agency in, or that any
stamp, registration or similar taxes or duties be paid to any
court, authority or agency of Australia.
(xiv) Except as disclosed in the Prospectus, no
exchange control authorization or any other authorization,
approval, consent or license of any governmental authority or
agency of or in Australia is required for the payment by the
Company of any amounts in United States dollars pursuant to
the terms of the Offered Securities or to the Underwriters
pursuant to this Agreement.
(xv) The information contained in the Prospectus on
page 2 regarding the enforceability of judgments and the
Australian exchange controls, and under the caption "Tax
Considerations - Australian Law" to the extent that such
information constitutes matters of law, summaries of legal
matters or legal conclusions, has been reviewed by such
counsel and is correct.
(xvi) Assuming the Offered Securities are offered and
sold in the manner contemplated by this Agreement (including
the Terms Agreement) and the Prospectus, the receipt of
amounts paid under the Offered Securities in respect of
principal, premium or interest by a holder of Offered
Securities who is not a "resident of Australia" within the
meaning of the Income Tax Assessment Act of 1936 of Australia
(the "Tax Act") does not result in the imposition of, or
liability for, any income tax, withholding tax, assessment or
other charges which are imposed under the Tax Act or by any
taxing authority in Australia. This opinion is subject to any
subsequent interpretative guidelines issued by the Australian
Taxation Office or other department of the Commonwealth
Government of Australia which change or alter the manner in
which the requirements of section 128F have been interpreted
for current purposes.
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In giving their opinion, Arthur Robinson & Hedderwicks may
rely as to matters of New York law upon the opinion of Brown & Wood LLP
furnished pursuant to this Agreement, and as to matters of other
United States law upon the opinion of Woodard, Hall & Primm, P.C.
furnished pursuant to this Agreement.
(4) The favorable opinion, dated as of the
Closing Time, of Brown & Wood LLP, counsel for the Underwriters, with
respect to the matters set forth in clauses (i) to (ix),
inclusive, and (xi) of subsection (b)(1) of this Section.
(5) In giving their opinions required by
subsection (b)(1), (b)(2), (b)(3) and (b)(4), respectively, of this
Section 4, Woodard, Hall & Primm, P.C., Zurab S. Kobiashvili, and
Brown & Wood LLP shall each additionally state that in the course of
the preparation of the Registration Statement and the Prospectus such
counsel has considered the information set forth therein in light of
the matters required to be set forth therein, and has participated in
conferences with officers and representatives of the Company and the
Guarantor including their independent public accountants, during the
course of which the contents of the Registration Statement and the
Prospectus and related matters were discussed. Such counsel need not
independently check the accuracy or completeness of, or otherwise
verify, and accordingly need not pass upon, and accordingly need not
assume responsibility for, the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus and such counsel may, in good faith, rely as to materiality
upon the judgment of officers and representatives of the Company and
the Guarantor. Such counsel shall additionally state that, however,
as a result of such consideration and participation, nothing has come
to such counsel's attention which causes such counsel to believe that
the Registration Statement, at the time it became effective (or, if an
amendment to the Registration Statement or an Annual Report on Form
10-K has been filed by the Guarantor with the Commission subsequent to
the effectiveness of the Registration Statement, then at the time such
amendment became effective or at the time of the most recent such
filing, as the case may be), contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein
not misleading or that the Prospectus or any amendment or supplement
thereto, at the time the Prospectus was issued at the time any such
amendment or
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supplement was issued or, at the Closing Time included or includes 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 need express no
opinion with respect to the financial statements and engineering
reports and other financial or engineering data contained in the
Registration Statement (including the Prospectus) or those parts of
the Registration Statement which constitute the Form T-1).
(c) At the Closing Time, there shall not have been, since the
date of the Terms Agreement or since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
any material adverse change in the condition, financial or otherwise,
or in the results of operations, business affairs or business prospects
of the Company or of the Guarantor and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of
business, and the Representatives shall have received a certificate of
(A) the Chief Executive Officer, Vice Chairman, President or Vice
President and Treasurer, the Assistant Treasurer, the Vice President
and Chief Financial Officer or principal accounting officer of the
Company, dated as of the Closing Time, to the effect that (i) there has
been no such material adverse change with respect to the Company and
its subsidiaries, (ii) the representations and warranties of the
Company contained in Section 1 are true and correct as of the Closing
Time and (iii) the Company has performed or complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the date of such certificate, and (B) the
Chief Executive Officer, President or Vice President and Treasurer, the
Assistant Treasurer, the Vice President and Chief Financial Officer or
Vice President and Controller of the Guarantor, dated as of the Closing
Time, to the effect that (i) there has been no such material adverse
change with respect to the Guarantor and its subsidiaries, (ii) the
representations and warranties of the Guarantor consolidated as one
enterprise contained in Section 1 are true and correct as of the
Closing Time, (iii) the Guarantor has performed or complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the date of such certificate and (iv) no stop
order suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement has been issued and no proceedings
for that purpose have been initiated or threatened by the Commission.
As used in this Section 4(c), the term "Prospectus" means the
Prospectus in the form first
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provided to the applicable Underwriter or Underwriters for use in
confirming sales of the Offered Securities.
(d) (1) On the date of the Terms Agreement, the
Underwriters shall have received a letter from Arthur Andersen LLP,
dated as of the date hereof and in form and substance satisfactory to
the Underwriters, to the effect that:
(i) They are independent accountants with respect
to the Guarantor and its subsidiaries within the meaning of
the 1933 Act, the 1933 Act Regulations, the 1934 Act and the
1934 Act Regulations.
(ii) It is their opinion that the consolidated
financial statements and supporting schedule(s) included or
incorporated by reference in the Registration Statement and
the Prospectus and audited by them and covered by their
opinions therein comply in form in all material respects with
the applicable accounting requirements of the 1933 Act, the
1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations.
(iii) They have performed specified procedures, not
constituting an audit, including a reading of the latest
available interim financial statements of the Guarantor and
its indicated subsidiaries, a reading of the minute books of
the Guarantor and such subsidiaries since the end of the most
recent fiscal year with respect to which an audit report has
been issued, inquiries of and discussions with certain
officials of the Guarantor and such subsidiaries responsible
for financial and accounting matters with respect to the
unaudited consolidated financial statements included or
incorporated by reference in the Registration Statement and
the Prospectus and the latest available interim unaudited
financial statements of the Guarantor and its subsidiaries,
and such other inquiries and procedures as may be specified in
such letter, and on the basis of such inquiries and
procedures, nothing came to their attention that caused them
to believe that: (A) any material modifications should be made
to the unaudited consolidated financial statements of the
Guarantor and its subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus for
them to be in conformity with generally accepted accounting
principles in the United States, (B) the unaudited
consolidated financial statements of the Guarantor and its
subsidiaries included or incorporated by reference in the
Registration Statement and the
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Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the 1934 Act
and the 1934 Act Regulations or (C) at a specified date not
more than three days prior to the date of such letter, there
was any change in the consolidated capital stock, any increase
in consolidated long-term debt or any decrease in the
consolidated net current assets or consolidated net assets of
the Guarantor and its subsidiaries, in each case as compared
with the amounts shown on the most recent consolidated balance
sheet of the Guarantor and its subsidiaries included or
incorporated by reference in the Registration Statement and
the Prospectus or, during the period from the date of such
balance sheet to a specified date not more than three days
prior to the date of such letter, there were any decreases, as
compared with the corresponding period in the preceding year,
in consolidated revenues or in the total or per-share amounts
of income before extraordinary items or of net income of the
Guarantor and its subsidiaries, except in all instances for
changes, increases or decreases that the Registration
Statement and the Prospectus disclose have occurred or may
occur or except for such exceptions enumerated in such letter
as shall have been agreed to by the Underwriters and the
Guarantor.
(iv) They have performed specified procedures, not
constituting an audit, set forth in their letter, based upon
which nothing came to their attention that caused them to
believe that the unaudited pro forma consolidated condensed
financial statements, if any, included or incorporated by
reference in the Registration Statement or the Prospectus do
not comply as to form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation
S-X and that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those
statements.
(v) In addition to the audit referred to in their
opinions and the limited procedures referred to in clauses
(iii) and (iv) above, they have carried out certain specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are
included or incorporated by reference in the Registration
Statement and the Prospectus and which are specified by the
Underwriters, and have found such amounts, percentages and
financial information to be in agreement with the
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relevant accounting, financial and other records of the
Guarantor and its subsidiaries identified in such letter.
(2) At the Closing Time, the Underwriters shall
have received from Arthur Andersen LLP, a letter, dated as of
the Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection
(d)(1) of this Section, except that the specified date
referred to shall be a date not more than three days prior to
the Closing Time.
(e) At the Closing Time, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Offered Securities and the Guarantee as
herein contemplated and related proceedings or in order to evidence
the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company and the Guarantor
in connection with the issuance and sale of the Offered Securities as
herein and in the Terms Agreement contemplated shall be satisfactory
in form and substance to the Representatives.
(f) In the event that the Terms Agreement provides for Option
Securities and the Underwriters exercise their option pursuant to
Section 2(b) hereof to purchase all or any portion of the Option
Securities, the representations and warranties of the Company and the
Guarantor contained herein and the statements in any certificates
furnished by the Company and the Guarantor hereunder shall be true and
correct as of each Date of Delivery, and the Underwriters shall have
received:
(1) Unless the Date of Delivery is the Closing Time,
a certificate, dated such Date of Delivery, of the Chief Executive
Officer, President or Vice President and the Treasurer, the Assistant
Treasurer, the principal financial officer or principal accounting
officer of the Guarantor, in their capacities as such, confirming that
the certificate delivered at the Closing Time pursuant to Section 4(c)
hereof remains true and correct as of such Date of Delivery.
(2) The favorable opinion of Woodard, Hall & Primm,
P.C., counsel for the Company and the Guarantor, Zurab S. Kobiashvili,
General Counsel for the Guarantor, and Arthur Robinson & Hedderwicks,
Australian Counsel for the Company, in each case, in form and
substance satisfactory to
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counsel for the Underwriters, dated such Date of Delivery, relating to
the Option Securities and otherwise substantially to the same effect
as the opinions required by subsections (1), (2) and (3) of Section
4(b) hereof.
(3) The favorable opinion of Brown & Wood LLP,
counsel for the Underwriters, dated such Date of Delivery, relating to
the Option Securities and otherwise to the same effect as the opinion
required by subsections (4) and (5) to Section 4(b) hereof.
(4) Unless the Date of Delivery is the Closing
Time, a letter from Arthur Andersen LLP, in form and substance
satisfactory to the Underwriters and dated such Date of Delivery,
substantially the same in scope and substance as the letter furnished
to the Underwriters at the Closing Time pursuant to Section 4(d)
hereof, except that the "specified date" in the letter shall be a date
not more than three days prior to such Date of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Representatives by notice to the Company and the Guarantor at
any time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 5.
SECTION 5. Payment of Expenses. The Company and the Guarantor,
jointly and severally, will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) the preparation and filing of the Registration
Statement, including any Rule 462(b) Registration Statement, and all
amendments thereto and the Prospectus and any amendments or
supplements thereto;
(b) the preparation, filing and reproduction of this
Agreement and the Delayed Delivery Contract(s), if applicable;
(c) the preparation, printing, issuance and delivery of
the Offered Securities, including any fees and expenses relating to
the eligibility and issuance of Offered Securities in book-entry form;
(d) the fees and disbursements of the Company's accountants
and counsel, of the Trustee and its counsel, and of any calculation
agent or exchange rate agent;
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(e) except as otherwise provided in the Terms Agreement, the
reasonable fees and disbursements of counsel to the Underwriters;
(f) the qualification of the Offered Securities under state
securities laws in accordance with the provisions of Section 3(k)
hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of any Blue Sky or Legal
Investment Survey;
(g) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration
Statement and any amendments thereto, and of the Prospectus and any
amendments or supplements thereto, and the delivery by the
Underwriters of the Prospectus and any amendments or supplements
thereto in connection with solicitations or confirmations of sales of
the Offered Securities;
(h) the preparation, reproducing and delivery to the
Underwriters of copies of the Indenture and all amendments,
supplements and modifications thereto;
(i) any fees charged by nationally recognized statistical
rating organizations for the rating of the Offered Securities;
(j) the fees and expenses incurred in connection with any
listing of Offered Securities on a securities exchange;
(k) the fees and expenses incurred with respect to any filing
with the National Association of Securities Dealers, Inc.;
(l) any out-of-pocket expenses of the Underwriters incurred
with the approval of the Company;
(m) the cost of providing any CUSIP or other identification
numbers for the Offered Securities; and
(n) any duties, taxes and other charges payable in connection
with the issuance, sale and delivery of the Offered Securities or the
execution, delivery or performance of this Agreement or the Indenture.
If this Agreement is terminated by the Underwriters in accordance with
the provisions of Section 9, the Company and the Guarantor shall reimburse the
Underwriters for all of their out-
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of-pocket expenses, including the reasonable fees and disbursements of counsel
for the Underwriters.
SECTION 6. Indemnification. (a) The Company and the Guarantor agree,
jointly and severally, to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15
of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including any Rule
462(b) Registration Statement, including information deemed to be part
of the Registration Statement pursuant to Rule 430A(b) of the 1933 Act
Regulations, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, unless such untrue statement or omission or such
alleged untrue statement or omission was made in reliance upon and in
conformity with written information furnished to the Company or the
Guarantor by an Underwriter expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or
the Prospectus (or any amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided that such
settlement is effected with the written consent of the Company or the
Guarantor, which consent shall not be unreasonably withheld; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and expenses of counsel chosen by such Underwriter),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or
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body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Guarantor, their respective
directors, each of their officers who signed the Registration Statement, and
each person, if any, who controls the Company or the Guarantor within the
meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection
(a) of this Section, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), any Rule 462(b) Registration Statement or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Guarantor by such Underwriter expressly for use in the Registration
Statement (or any amendment thereto), any Rule 462(b) Registration Statement or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. If
any such claim or action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
each Underwriter shall have the right to employ counsel to represent jointly
the Underwriters and their respective controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
by the Underwriters against the Company or the Guarantor under this Section if,
in the judgment of any of the Underwriters, it is advisable for such
Underwriter or Underwriters and controlling persons to be jointly represented
by separate counsel, and in that event the fees and expenses of such
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separate counsel shall be paid by the Company and the Guarantor, acting jointly
and severally. In no event shall the indemnifying parties be liable for the
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties (which shall not unreasonably be withheld), settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 8 or Section 9 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) For purposes of this Section 6, all references to the
Registration Statement, any preliminary prospectus or the Prospectus, or any
amendment or supplement to any of the foregoing, shall be deemed to include,
without limitation, any electronically transmitted copies thereof, including,
without limitation, any copies filed with the Commission pursuant to EDGAR.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantor on the one hand and the Underwriters on the other
hand from the offering of the Offered Securities pursuant to this Agreement or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and the Guarantor on the one hand and of the Underwriters on the other
hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations. The relative benefits
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received by the Company and the Guarantor on the one hand and the Underwriters
on the other hand in connection with the offering of the Offered Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Offered
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total commission or underwriting discount received by each
Underwriter, in each case as set forth on the cover of the Prospectus
Supplement, bear to the aggregate initial public offering price of the Offered
Securities sold to or through such Underwriter as set forth on such cover. The
relative fault of the Company and the Guarantor on the one hand and 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 the Guarantor or by the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company, the Guarantor
and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 7 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 Section 7. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 7 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Offered Securities sold to or through such Underwriter 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 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company or the Guarantor, each officer of
the Company or the Guarantor who signed the Registration Statement, and each
person, if any, who controls the
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Company or the Guarantor within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company or the Guarantor, as the case may be. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the principal amount of Offered Securities sold to or through each
Underwriter and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company and the Guarantor
submitted pursuant hereto or thereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person of an Underwriter, or by or on behalf of the
Company or the Guarantor, and shall survive each delivery of and payment for
any Offered Securities.
SECTION 9. Termination.
(a) The Representatives may terminate this Agreement immediately
upon notice to the Company, at any time at or prior to the Closing Time if (i)
there has been, since the date of the Terms Agreement or since the respective
dates as of which information is given in the Registration Statement, any
material adverse change in the condition, financial or otherwise, or in the
results of operations, business affairs or business prospects of the Company or
the Guarantor and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) there shall have occurred
any material adverse change in the financial markets in Australia or the United
States or any outbreak or escalation of hostilities or other national or
international calamity or crisis or any material adverse change or prospective
material adverse change in exchange controls or taxation in Australia or the
United States the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Offered Securities or enforce
contracts for the sale of the Offered Securities, or (iii) trading in any
securities of the Guarantor has been suspended by the Commission or a national
securities exchange, or if trading generally on either the American Stock
Exchange or the New York Stock Exchange shall have been suspended, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium
shall have been declared by Australian, U.S. Federal, New York or Texas
authorities or if a banking moratorium shall have been declared by the relevant
authorities in the country or countries of origin of any foreign currency or
currencies in which the Offered Securities are
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denominated or payable, or (iv) the rating assigned by any nationally
recognized statistical rating organization to any debt securities of the
Company or the Guarantor as of the date of the Terms Agreement shall have been
lowered since that date or if any such rating organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any debt securities of the Company or the
Guarantor, as the case may be, or (v) there shall have come to the attention of
the Representatives any facts that would cause them to reasonably believe that
the Prospectus, at the time it was required to be delivered to a purchaser of
the Offered Securities, included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at the time of such delivery,
not misleading. As used in this Section 9, the term "Prospectus" means the
Prospectus in the form first provided to the applicable Underwriter or
Underwriters for use in confirming sales of the related Offered Securities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 5. Notwithstanding any such termination, (i)
the covenants set forth in Section 3(b), (d), and (e) with respect to any
offering of Offered Securities shall remain in effect so long as any
Underwriter owns any such Offered Securities purchased from the Company
pursuant to this Agreement and during the period when the Prospectus is
required to be delivered in connection with sales of the Offered Securities and
(ii) the covenants set forth in Section 3(c), (g), (h) and, if applicable, (i),
the provisions of Section 5, the indemnity agreement set forth in Section 6,
the contribution provisions set forth in Section 7 and the provisions of
Sections 8, 11, 12 and 13 shall remain in effect.
SECTION 10. Default. If one or more of the Underwriters shall fail
at the Closing Time or a Date of Delivery to purchase the Immediate Delivery
Offered Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), then the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth. If, however, during such 24 hours
the Representatives shall not have completed such arrangements for the purchase
of all of the Defaulted Securities, then:
(a) if the amount of Defaulted Securities does not exceed
10% of the amount of Immediate Delivery Offered Securities to be
purchased on such date, each of the
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non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the amount of Defaulted Securities exceeds 10% of
the number of Immediate Delivery Offered Securities to be purchased on
such date, this Agreement or, with respect to any Date of Delivery
which occurs after the Closing Time, the obligation of the
Underwriters to purchase and of the Company to sell the Option
Securities to be purchased and sold on such Date of Delivery shall
terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement or, in the case of a Date of Delivery which is
after the Closing Time, which does not result in a termination of the
obligation of the Underwriters to purchase and the Company to sell the relevant
Option Securities, as the case may be, any of the Representatives, the Company
or the Guarantor shall have the right to postpone the Closing Time or the
relevant Date of Delivery, as the case may be, for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
the Prospectus or in any other documents or arrangements. As used herein, the
term "Underwriter" includes any person substituted for an Underwriter under
this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing, either delivered by hand, by mail or by telex, telecopier
or telegram, and any such notice shall be effective when received at the
address specified in this Section 11. Notices to the Underwriters shall be
directed as provided in the Terms Agreement. Notices to the Company shall be
directed to Apache Finance Pty Ltd, 256 St. George's Terrace, Level 3, Perth,
Western Australia, 6000, Australia, Attention:_________ with a copy to the
Guarantor. Notices to the Guarantor shall be directed to Apache Corporation,
2000 Post Oak Boulevard, Suite 100, Houston, Texas 77056-4400, Attention: Vice
President and Treasurer, with a copy to: Mr. Ralph K. Miller, Jr., Woodard,
Hall & Primm, P.C., 7100 Texas Commerce Tower, Houston, Texas 77002. Any party
to this Agreement may from time to time designate another address to receive
notice pursuant to this Agreement by notice duly given in accordance with the
terms of this Section 11.
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SECTION 12. Parties. This Agreement shall inure to the benefit of
and be binding upon the Underwriters, the Company and the Guarantor and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the parties hereto and their respective
successors and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm
or corporation. No purchaser of Offered Securities from any Underwriter shall
be deemed to be a successor by reason merely of such purchase.
SECTION 13. Governing Law. This Agreement and all the rights and
obligations of the parties hereto shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in such State.
SECTION 14. Consent to Jurisdiction; Appointment of Agent to Accept
Service of Process.
(a) The Company irrevocably consents and agrees, for the
benefit of the Holders from time to time of the Offered Securities,
the Underwriters and the other persons referred to in Section 12 that
any legal action, suit or proceeding against it with respect to its
obligations, liabilities or any other matter arising out of or in
connection with this Agreement, the Guarantee or any Offered
Securities may be brought in the courts of the State of New York, or
the courts of the United States of America located in The City of New
York and, until all amounts due and to become due in respect of the
Guarantee and all the Offered Securities have been paid, or until any
such legal action, suit or proceeding commenced prior to such payment
has been concluded, hereby irrevocably consents and submits to the
non-exclusive jurisdiction of each such court in personam, generally
and unconditionally with respect to any action, suit or proceeding for
itself and in respect of its properties, assets and revenues.
(b) The Company hereby irrevocably designates, appoints, and
empowers CT Corporation, with offices currently at 1633 Broadway, New
York, New York 10019, as its designee, appointee and agent to receive,
accept and
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acknowledge for and on its behalf service of any and all legal
process, summons, notices and documents that may be served in any
action, suit or proceeding brought against the Company in any such
United States federal or state court with respect to its obligations,
liabilities or any other matter arising out of or in connection with
this Agreement, the Guarantee or any Debt Securities and that may be
made on such designee, appointee and agent in accordance with legal
procedures prescribed for such courts. If for any reason such
designee, appointee and agent hereunder shall cease to be available to
act as such, the Company agrees to designate a new designee, appointee
and agent in The City of New York on the terms and for the purposes of
this Section 14 reasonably satisfactory to each of the
Representatives. The Company further hereby irrevocably consents and
agrees to the service of any and all legal process, summons, notices
and documents in any such action, suit or proceeding against the
Company by serving a copy thereof upon the relevant agent for service
of process referred to in this Section 14 (whether or not the
appointment of such agent shall for any reason prove to be ineffective
or such agent shall accept or acknowledge such service) or by mailing
copies thereof by registered or certified air mail, postage prepaid,
to the Company at its address specified in or designated pursuant to
this Agreement, with a copy (similarly mailed) to CT Corporation, 1633
Broadway, New York, New York 10019. The Company agrees that the
failure of any such designee, appointee and agent to give any notice
of such service to it shall not impair or affect in any way the
validity of such service or any judgment rendered in any action or
proceeding based thereon. Nothing herein shall in any way be deemed
to limit the ability of the holders of the Securities, the
Underwriters and the other persons referred to in Section 12 to serve
any such legal process, summons, notices and documents in any other
manner permitted by applicable law or to obtain jurisdiction over the
Company or bring actions, suits or proceedings against the Company in
such other jurisdictions, and in such manner, as may be permitted by
applicable law. The Company hereby irrevocably and unconditionally
waives, to the fullest extent permitted by law, any objection that it
may now or hereafter have to the laying of venue of any of the
aforesaid actions, suits or proceedings arising out of or in
connection with this Agreement brought in the United States federal
courts located in The City of New York or the courts of the State of
New York located in The City of New York and hereby further
irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
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(c) The provisions of this Section 14 shall survive any
termination of this Agreement, in whole or in part.
SECTION 15. Foreign Taxes. All payments by the Company or the
Guarantor to an Underwriter hereunder, including the Terms Agreement, shall be
made free and clear of, and without deduction or withholding for or on account
of, any and all present and future income, stamp or other taxes, levies,
imposts, duties, charges, fees deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by Australia or any other
jurisdiction in which the Company or the Guarantor has a branch or an office
from which payment is made or deemed to be made, excluding any such tax imposed
in respect of amounts due hereunder (i) by reason of such Underwriter having
some connection with Australia or such other jurisdiction, other than its
participation as dealer hereunder, or (ii) by reason of any income or franchise
tax on the overall net income of an Underwriter imposed by the United States of
America or by the State of New York or any political subdivision of the United
States of America or of the State of New York or by any jurisdiction of which
such Underwriter is a resident, or (iii) if any Underwriter would not be liable
or subject to such impost, levy, collection, withholding or deduction if it
were to make a declaration of nonresidence or other similar claim for exemption
but fails to do so, or (iv) pursuant to any back-up withholding taxes
applicable to any payments to a noncorporate person acting as agent hereunder
who fails to furnish an accurate taxpayer identification number (all such
non-excluded taxes, "Taxes"). If the Company or the Guarantor is prevented by
operation of law or otherwise from paying, causing to be paid or remitting that
portion of amounts payable represented by Taxes withheld or deducted, then
amounts payable under the Terms Agreement or this Agreement shall be increased
to such amount as is necessary to yield and remit to the Underwriter an amount
which, after deduction of all Taxes (including all Taxes payable on such
increased payments), equals the amount that would have been payable if no Taxes
applied.
SECTION 16. Jurisdictional Restrictions on Sale of Offered
Securities.
(a) Each Underwriter severally agrees to use its reasonable
efforts to ensure that (i) no Offered Securities issued by the Company
shall be offered or sold directly or indirectly, in the Commonwealth of
Australia or any state or territory thereof or to a corporation,
partnership, trust or other entity organized under the laws of, or
resident in, the Commonwealth of Australia and (ii) no documents in
relation to an offer of Securities shall be distributed in Australia or
in or from a state or territory thereof.
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(b) Each Underwriter further severally represents and agrees (i)
that it will not sell any Offered Securities in circumstances
where it knows or has reasonable grounds to believe, without
any independent investigation, that the Offered Securities or
an interest in or right in respect of the Offered Securities,
was being, or would later be, acquired either directly or
indirectly by a resident of Australia or by an entity
specified in Annex B to the Terms Agreement and (ii) as to
such additional matters as may be set forth in the Terms
Agreement.
(c) Each Underwriter agrees to provide the Company, within 14 days
of receipt of a written request from the Company, at the
expense of the Company, such information which reasonably
relates to any Offered Securities as is ordinarily required
for the purposes of obtaining an exemption from Australian
interest withholding tax under Section 128F of the Tax Act or
which reasonably relates to a request from the Australian
Taxation Office for specific information, but only to the
extent such information may be provided in accordance with
applicable law (and in the latter case the Company's request
shall be accompanied by satisfactory evidence of such request
from the Australian Taxation Office). Notwithstanding the
foregoing, nothing shall oblige an Underwriter to disclose the
identity of any investor to whom it sells Offered Securities.
SECTION 17. Waiver of Immunities. To the extent that the Company or
the Guarantor or any of their properties, assets or revenues may have or may
hereafter become entitled to, or have attributed to it, any right of immunity,
on the grounds of sovereignty or otherwise, from any legal action, suit or
proceeding, from the giving of any relief in any thereof, from set-off or
counterclaim, from the jurisdiction of any court, from service of process, from
attachment upon or prior to judgment, from attachment in aid of execution of
judgment, or from execution of judgment, or other legal process or proceeding
for the giving of any relief or for the enforcement of any judgment, in any
jurisdiction in which proceedings may at any time be commenced, with respect to
its obligations, liabilities or any other matter under or arising out of or in
connection with this Agreement (including the Terms Agreement), the Indenture
(including the Guarantee) or the Offered Securities, the Company and the
Guarantor hereby irrevocably and unconditionally waive, and agree not to plead
or claim, any such immunity and consent to such relief and enforcement.
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SECTION 18. Judgment Currency. The Company and the Guarantor agree
to indemnify each of the Underwriters against any loss incurred by such
Underwriter as a result of any judgment or order being given or made for any
amount due hereunder and such judgment or order being expressed and paid in a
currency (the "Judgment Currency") other than United States dollars and as a
result of any variation as between (i) the rate of exchange at which the United
States dollar amount is converted into the Judgment Currency for the purpose of
such judgment or order, and (ii) the rate of exchange at which such Underwriter
is able to purchase United States dollars with the amount of the Judgment
Currency actually received by such Underwriter. The foregoing indemnity shall
constitute a separate and independent obligation of each of the Company and the
Guarantor and shall continue in full force and effect notwithstanding any such
judgment or order as aforesaid. The term "rate of exchange" shall include any
premiums and costs of exchange payable in connection with the purchase of, or
conversion into, the relevant currency.
SECTION 19. Counterparts. Any Terms Agreement may be executed in one
or more counterparts and, if executed in more than one counterpart, the
executed counterparts thereof shall constitute a single instrument.
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EXHIBIT A
TERMS AGREEMENT
___________ __, 19__
Apache Finance Pty Ltd
256 St. George's Terrace
Level 3
Perth, Western Australia 6000
Australia
Attention: [Title]
Dear Sirs:
The undersigned underwriters (the "Underwriters") understand that
Apache Finance Pty Ltd (the "Company") proposes to issue and sell $__________
aggregate principal amount of its debt securities unconditionally guaranteed as
to payment of principal, premium, if any, Additional Amounts, if any, and
interest by Apache Corporation, as guarantor (the "Offered Securities").
Subject to the terms and conditions set forth herein or incorporated by
reference herein, the Underwriters offer to purchase, severally and not
jointly, the principal amount of Offered Securities set forth below opposite
their respective names at ___% of the principal amount thereof together with
accrued interest thereon from __________, 19__ to the Closing Time:
Principal
Amount of
Underwriter Debt Securities
----------- ---------------
_______________
Total $
===============
The Offered Securities shall have the following terms:
Principal amount:
Form and denomination:
Date of maturity:
Interest rate, rates or formula
(or method of calculation
of interest accrual):
Date from which interest accrues:
A-1
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Interest payment dates, if any:
Initial price to public:
Closing Time:
Place of delivery and payment:
Company account for wire transfer of payment:
Redemption provisions, if any:
Lock-up pursuant to Section 3(i) of the
Basic Terms (as defined herein): [yes] [no]
Securities Exchanges, if any, on which application will be
made to list the Offered Securities:
Delayed Delivery Contracts: [authorized] [not authorized]
Delivery date:
Expiration date:
Compensation to Underwriters:
Minimum contract:
Maximum aggregate principal amount:
Additional terms pursuant to Section 16 of the Basic Terms:
Other terms, if any:
All the provisions contained in "Apache Corporation-Debt
Securities--Underwriting Agreement Basic Terms" (the "Basic Terms"), filed as
an exhibit to the Registration Statement relating to the Offered Securities and
attached hereto as Annex A, are herein incorporated by reference in their
entirety and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Terms defined
in such document are used herein as therein defined. Attached hereto is the
Annex B referred to in Section 16 of the Basic Terms.
Any notice by the Company or the Guarantor to the Underwriters
pursuant to this Terms Agreement shall be sufficient if given in accordance
with Section 11 of the Basic Terms addressed to: [insert name and address of
the lead manager or managers or, if only one underwriter is a party hereto, of
such firm] which shall, for all purposes of this Agreement, be the
"Representatives".
Very truly yours,
REPRESENTATIVE[S]
By:
------------------------------------
[Acting for themselves and as
Representative[s] of the
Underwriters]
Accepted:
APACHE FINANCE PTY LTD
By:
--------------------------
Title:
A-2
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APACHE CORPORATION
By: ____________________________________
Title:
A-3
55
ANNEX A
[Basic Terms]
A-4
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ANNEX B
[List of "Associates" of the Company for
purposes of the Tax Act and Section 16
of the Basic Terms]
A-5
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EXHIBIT B
APACHE FINANCE PTY LTD
[Title of Offered Securities]
Guaranteed by
APACHE CORPORATION
DELAYED DELIVERY CONTRACT
Apache Finance Pty Ltd
256 St. George's Terrace
Level 3
Perth, Western Australia 6000
Australia
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Apache Finance Pty Ltd
(the "Company"), and the Company agrees to sell to the undersigned on
____________, 19__ (the "Delivery Date"), $_____________ principal amount of
the Company's __% Offered Securities due ___________ __, 19__ (the "Offered
Securities"), offered by the Company's Prospectus dated _________ __, 19__, as
supplemented by its Prospectus Supplement dated __________ __, 19__, receipt of
which is hereby acknowledged, at a purchase price of _____% of the principal
amount thereof, plus accrued interest from __________, ______, to the Delivery
Date, and on the further terms and conditions set forth in this contract.
Payment for the securities which the undersigned has agreed to
purchase on the Delivery Date shall be made to the Company or its order by wire
transfer in immediately available funds on the Delivery Date, upon delivery to
the undersigned of the Offered Securities to be purchased by the undersigned in
definitive or global form and in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than three full business days prior to the
Delivery Date.
B-1
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The obligation of the undersigned to take delivery of and make payment
for Offered Securities on the Delivery Date shall be subject only to the
conditions that (1) the purchase of Offered Securities to be made by the
undersigned shall not on the Delivery Date be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company, on or
before ___________, ____, shall have sold to the Underwriters of the Offered
Securities (the "Underwriters") such principal amount of the Offered Securities
as is to be sold to them pursuant to the Terms Agreement dated ____________,
____ between the Company and the Underwriters. The obligation of the
undersigned to take delivery of and make payment for Offered Securities shall
not be affected by the failure of any purchaser to take delivery of and make
payment for Offered Securities pursuant to other contracts similar to this
contract. The undersigned represents and warrants to the Underwriters that its
investment in the Offered Securities is not, as of the date hereof, prohibited
under the laws of any jurisdiction to which the undersigned is subject and
which govern such investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice
to such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to
the Company that all necessary corporate action for the due execution and
delivery of this contract and the payment for and purchase of the Offered
Securities has been taken by it and no further authorization or approval of any
governmental or other regulatory authority is required for such execution,
delivery, payment or purchase, and that, upon acceptance hereof by the Company
and mailing or delivery of a copy as provided below, this contract will
constitute a valid and binding agreement of the undersigned in accordance with
its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for an aggregate principal amount of Offered Securities in excess of
$__________ and that the acceptance of any Delayed Delivery Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first come first-served basis. If this contract is acceptable to the Company
and the Guarantor, it is requested that the Company sign the form of acceptance
on a copy hereof and mail or deliver a
B-2
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signed copy hereof to the undersigned at its address set forth below. This
will become a binding contract between the Company, the Guarantor and the
undersigned when such copy is so mailed or delivered.
B-3
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This Agreement shall be governed by the laws of the State New York
applicable to agreements made and performed in said State.
Yours very truly,
______________________________
(Name of Purchaser)
By____________________________
(Title)
______________________________
______________________________
(Address)
Accepted as of the date
first above written.
Apache Finance Pty Ltd
By:___________________________
Apache Corporation
By:___________________________
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date shall be discussed is as
follows: (Please print.)
Telephone No.
Name (Including Area Code)
- ---- ---------------------
B-4