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Exhibit 1.1
TERMS AGREEMENT
March 2, 1999
Apache Finance Pty Ltd
256 St. George's Terrace
Level 3
Perth, Western Australia 6000
Australia
Attention: Vice President and Treasurer
Apache Corporation
One Post Oak Central
2000 Post Oak Boulevard
Suite 100
Houston, Texas 77056-4400
Attention: Vice President and Treasurer
Dear Sirs:
The undersigned underwriters (the "Underwriters") understand that
Apache Finance Pty Ltd (the "Company") proposes to issue and sell $100,000,000
aggregate principal amount of its debt securities (the "Offered Securities")
irrevocably and unconditionally guaranteed as to payment of principal, premium,
if any, Additional Amounts, if any, and interest by Apache Corporation, as
guarantor (the "Guarantor"). 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 98.687% of the principal amount thereof
together with accrued interest thereon from March 5, 1999 to the Closing Time:
Principal
Amount of
Underwriter Debt Securities
- ----------- ---------------
Salomon Smith Barney Inc. $ 50,000,000
Chase Securities Inc. $ 25,000,000
Goldman, Sachs & Co. $ 25,000,000
-------------
Total $ 100,000,000
=============
The Offered Securities shall have the following terms:
Principal amount: $ 100,000,000
Form: registered book-entry form
Denomination: $1,000
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Date of maturity: March 15, 2009
Interest rate, rates or formula
(or method of calculation
of interest accrual): 7% per annum
Date from which interest accrues: March 5, 1999
Interest payment dates, if any: March 15 and September 15
(commencing September 15, 1999)
Initial price to public: $99,337,000
Closing Time: March 5, 1999
Place of delivery and payment: New York, New York
Company account for wire transfer
of payment: Citibank, N.A.
ABA No. 021000089
Apache Energy Limited Administrative
Account No. 36215097
Swift CITIUS33
111 Wall Street, 6th Floor
New York, New York 10043
Redemption provisions, if any: As described in the Prospectus
Supplement, dated the date hereof
relating to the Offered Securities.
Lock-up pursuant to Section 3(i) of the
Basic Terms (as defined herein): yes
Securities Exchanges, if any, on which
application will be made to list the
Offered Securities: none
Delayed Delivery Contracts: 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: none
Other terms, if any: As described in the Prospectus
Supplement, dated the date hereof
relating to the Offered Securities.
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All the provisions contained in "Apache Finance Pty Ltd--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:
Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Attention: M. Scott Van Bergh
Telecopy No.: (212) 816-1000
which shall, for all purposes of this Agreement, be the "Representative".
Very truly yours,
SALOMON SMITH BARNEY INC.
CHASE SECURITIES INC.
GOLDMAN, SACHS & CO.
By: SALOMON SMITH BARNEY INC.
Acting for itself and as Representative
of the Underwriters
By:
-------------------------------------
Name: Angela M. Reiton
Title: Vice President
Accepted:
APACHE FINANCE PTY LTD
By:
-------------------------------------
Name:
Title:
APACHE CORPORATION
By:
-------------------------------------
Name:
Title:
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APACHE FINANCE PTY LTD
DEBT SECURITIES
GUARANTEED BY APACHE CORPORATION
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 Commonwealth of Australia
(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 December 9, 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 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
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(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 333-30073-01) 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 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 incorporated and is validly
existing as a corporation under the laws of the Australian
Capital Territory of 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
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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 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,
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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 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 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
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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 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.
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(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 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
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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 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 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.
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(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, 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 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.
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(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 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
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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 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
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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
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 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
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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.
(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
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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 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
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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 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 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
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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.
(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.
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(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 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.
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(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 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
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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 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).
(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.
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(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.
(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
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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 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 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 of 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
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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 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 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
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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 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
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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 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
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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.
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) and (xi), 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
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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 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, President or
Vice President and the Treasurer, the Assistant Treasurer, the
principal 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 the Treasurer, the Assistant Treasurer, the
principal financial officer or principal accounting officer 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 provided
to the applicable Underwriter or Underwriters for use in
confirming sales of the Offered Securities.
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(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 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
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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 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:
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(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 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;
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(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;
(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-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:
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(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 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
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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 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 6 or Section 7 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
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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 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
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.
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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 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.
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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 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: Secretary 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
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receive notice pursuant to this Agreement by notice duly given in accordance
with the terms of this Section 11.
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 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
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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.
(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
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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.
(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
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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.
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:
Interest payment dates, if any:
Initial price to public:
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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:
APACHE CORPORATION
By:
-----------------------------------------
Title:
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ANNEX A
[Basic Terms]
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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]
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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.
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
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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 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.
49
50
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)
- ---- ---------------------
50
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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
APACHE CORPORATION
One Post Oak Central
2000 Post Oak Boulevard
Suite 100
Houston, Texas 77056-4400
(713) 296-6000
OFFICERS: Raymond Plank Chairman of the Board and Chief Executive Officer
G. Steven Farris President and Chief Operating Officer
Michael S. Bahorich Vice President
H. Craig Clark Vice President
Matthew W. Dundrea Vice President and Treasurer
Robert J. Dye Vice President
Lisa A. Floyd Vice President
Zurab S. Kobiashvili Vice President and General Counsel
Anthony R. Lentini, Jr. Vice President
Thomas L. Mitchell Vice President and Controller
Roger B. Plank Vice President and Chief Financial Officer
Floyd R. Price Vice President
Daniel J. Schaeffer Vice President
Cheri L. Peper Corporate Secretary
Roxanne Armstrong Assistant General Counsel and Assistant Secretary
Eric L. Harry Assistant General Counsel and Assistant Secretary
Richard D. Black Assistant Secretary
Richard B. Dreyfus Assistant Secretary
Jeffrey B. King Assistant Secretary
Carolyn E. Lucas Assistant Secretary
Dominic J. Ricotta Assistant Secretary
Thomas M. Schlenker Assistant Secretary
James E. Sloan Assistant Secretary
Mark A. Hackfeld Assistant Controller
Tad R. Herz Assistant Controller
Roger D. Stenzel Assistant Controller
Genie S. Panaccione Assistant Treasurer
5
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REGIONAL Jon A. Jeppesen - Gulf
VICE Dwayne E. Schultz - Canada
PRESIDENTS: James K. Bass - Midcontinent
Rodney J. Eichler - Egypt
Kevin J. Ikel - Egypt
H. Craig Clark - Western
John A. Crum - Australia
DIRECTORS: Frederick M. Bohen John A. Kocur
G. Steven Farris George D. Lawrence Jr.
Randolph M. Ferlic Mary Ralph Lowe
Eugene C. Fiedorek F. H. Merelli
A. D. Frazier, Jr. Joseph A. Rice
Stanley K. Hathaway
EMERITUS
DIRECTORS: Virgil B. Day W. Brooks Fields
6
53
APACHE FINANCE PTY LTD
256 St. George's Terrace
Level 3
Perth, Western Australia 6000
Australia
61-89-422-7222
OFFICERS: Raymond Plank Chief Executive Officer
G. Steven Farris Vice Chairman
Floyd R. Price President
John A. Crum Vice President and Managing Director
Matthew W. Dundrea Vice President and Treasurer
Robert J. Dye Vice President
Lisa A. Floyd Vice President
Zurab S. Kobiashvili Vice President
Anthony R. Lentini, Jr. Vice President
Thomas L. Mitchell Vice President
Roger B. Plank Vice President and Chief Financial Officer
Daniel J. Schaeffer Vice President
Glen Kenneth Ward Secretary (Australia)
Cheri L. Peper Secretary (United States)
Neil J. McHarrie Public Officer
DIRECTORS: G. Steven Farris Floyd R. Price
Roger B. Plank John A. Crum
Z. S. Kobiashvili Neil J. McHarrie
7
54
APACHE CORPORATION
CORPORATE INTERESTS
AS OF FEBRUARY 1, 1999
JURISDICTION OF
NAME INCORPORATION OWNERSHIP PERCENTAGE
-------------------------------------------------------------------------------------------------------------------
APACHE CORPORATION Delaware
Apache Corporation (New Jersey)* New Jersey 100%
Apache Foundation Minnesota 100%
Apache Gathering Company Delaware 100%
Apache Holdings, Inc. Delaware 100%
Apache International, Inc. Delaware 100%
Apache Cote d'Ivoire, Inc.* Delaware (a)
Apache Qarun Corporation LDC Cayman Islands (a)
Apache Oil Corporation* Texas 100%
Apache Overseas, Inc. Delaware 100%
Apache Abu Gharadig Corporation LDC Cayman Islands (b)
Apache Asyout Corporation LDC Cayman Islands (b)
Apache Bohai Corporation LDC Cayman Islands (b)
Apache China Corporation LDC Cayman Islands (b)
Apache Cote d'Ivoire Petroleum LDC Cayman Islands (b)
Apache Darag Corporation LDC Cayman Islands (b)
Apache East Bahariya Corporation LDC Cayman Islands (b)
Apache Faiyum Corporation LDC Cayman Islands (b)
Apache Matruh Corporation LDC Cayman Islands (b)
Apache Mediterranean Corporation LDC Cayman Islands (b)
Apache Poland Holding Company Delaware (b)
Apache Eastern Europe B.V. Netherlands (c)
Apache Poland Sp. z o.o. Poland (d)
Burns Manufacturing Company* Minnesota 100%
8
55
APACHE CORPORATION
CORPORATE INTERESTS (Cont'd)
AS OF FEBRUARY 1, 1999
JURISDICTION OF
NAME INCORPORATION OWNERSHIP PERCENTAGE
-------------------------------------------------------------------------------------------------------------------
DEK Energy Company Delaware 100%
DEK Energy Texas, Inc. Delaware (e)
DEK Exploration, Inc. Delaware (e)
DEK Petroleum Corporation Illinois (e)
Apache Canada Ltd. Alberta, Canada (f)
DEPCO, Inc.* Texas (e)
Heinold Holdings, Inc.* Delaware (e)
Apache Energy Limited Western Australia (g)
Apache Northwest Pty. Ltd. Western Australia (h)
Apache Carnarvon Pty. Ltd.* Western Australia (h)
Apache Dampier Pty. Ltd. Western Australia (h)
Apache East Spar Pty Limited Western Australia (h)
Apache Finance Pty Ltd Australian Capital (h)
Territory
Apache Harriet Pty Limited Victoria, Australia (h)
Apache Oil Australia Pty Limited New South Wales, Australia (h)
Apache Airlie Pty Limited New South Wales, Australia (i)
Apache Varanus Pty Limited Queensland, Australia (h)
Apache Pipeline Pty Ltd Western Australia (h)
Apache West Australia Holdings Limited Island of Guernsey 100%
Apache UK Limited England and Wales (j)
Apache Lowendal Pty Limited Victoria, Australia (k)
9
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JURISDICTION OF
NAME INCORPORATION OWNERSHIP PERCENTAGE
-------------------------------------------------------------------------------------------------------------------
Nagasco, Inc. Delaware 100%
Apache Marketing, Inc. Delaware (l)
Apache Transmission Corporation-Texas Texas (l)
Apache Crude Oil Marketing, Inc. Delaware (l)
Nagasco Marketing, Inc. Delaware (l)
Phoenix Exploration Resources, Ltd. Delaware 100%
TEI Arctic Petroleum (1984) Ltd. Alberta, Canada (m)
Texas International Company* Delaware (m)
Apache Khalda Corporation LDC Cayman Islands 100%
Apache Khalda, Inc. Delaware (n)
Apache Qarun Exploration Company LDC Cayman Islands 100%
Phoenix Resources Company of Qarun Delaware (o)
Apache North America, Inc. Delaware 100%
* Inactive
(a) Wholly owned subsidiary of Apache International, Inc.
(b) Wholly owned subsidiary of Apache Overseas, Inc.
(c) Wholly owned subsidiary of Apache European Holdings C.V., a Dutch
limited partnership. See Partnership Interests listing.
(d) Wholly owned subsidiary of Apache Eastern Europe B.V.
(e) Wholly owned subsidiary of DEK Energy Company
(f) Owned 97 percent by DEK Petroleum Corporation and three percent by DEK
Exploration Inc.
(g) Owned 77 percent by Apache Corporation and 23 percent by Apache
International, Inc.
(h) Wholly owned subsidiary of Apache Energy Limited
(i) Wholly owned subsidiary of Apache Oil Australia Pty Limited
(j) Wholly owned subsidiary of Apache West Australia Holdings Limited
(k) Wholly owned subsidiary of Apache UK Limited
(l) Wholly owned subsidiary of Nagasco, Inc.
(m) Wholly owned subsidiary of Phoenix Exploration Resources, Ltd.
(n) Wholly owned subsidiary of Apache Khalda Corporation LDC
(o) Wholly owned subsidiary of Apache Qarun Exploration Company LDC
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APACHE CORPORATION
PARTNERSHIP INTERESTS
AS OF FEBRUARY 1, 1999
Limited
General Partnership
Jurisdiction of Partnership Revenue
Name Formation Revenue Share Share
- -----------------------------------------------------------------------------------------------------------------
Apache Offshore Investment Delaware 100% 4.65%
Partnership(1)
APC Operating Partnership LP(2) Delaware 100% 100%
Apache 681/682 Joint Venture Texas 80.2%(3) 0%
Main Pass 151 Pipeline Company Texas 37.5% 0%
Apache Series 1996-A Trust Delaware 1% 0%
Apache European Holdings C.V. Netherlands 90%(4) 10%(5)
Apache Poland Sp. z o.o. i FX Energy Poland 50%(6) 0%
Poland Sp. z o.o. (East), spolka jawna
(Polish commercial partnership)
Apache Poland Sp. z o.o. i Wspolnicy Poland 50%(6) 0%
(Karpaty), spolka jawna (Polish
commercial partnership)
Apache Poland Sp. z o.o. i Wspolnicy Poland 50%(6) 0%
(Pomerania), spolka jawna (Polish
commercial partnership)
(1) Apache Corporation is the sole managing partner of Apache Offshore
Investment partnership, which is the sole Limited Partner of Apache
Offshore Petroleum Limited Partnership.
(2) In dissolution and winding-up its affairs. Apache is the sole remaining
partner. Certificate of cancellation filed October 31, 1996.
(3) The remaining general partnership interest is owned by Apache Offshore
Petroleum Limited Partnership.
(4) Held by Apache Poland Holding Company, an indirect wholly owned
subsidiary of Apache.
(5) Held by Apache Overseas, Inc., a wholly owned subsidiary of Apache.
(6) Held by Apache Poland Sp. z o.o., an indirect wholly owned subsidiary of
Apache.
11