BURLINGTON RESOURCES INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
, 1999
From time to time, Burlington Resources Inc., a Delaware corporation (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein. The
standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as "this Agreement". Terms defined in the Underwriting Agreement are
used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Debt Securities and has filed with, or transmitted for filing to, or will file
with the Commission a prospectus supplement (the "Prospectus Supplement")
specifically relating to the Offered Securities pursuant to and in accordance
with Rule 424 under the Securities Act of 1933, as amended (the "Securities
Act"). The term "Registration Statement" means the registration statement,
including the exhibits thereto, as amended to the date of this Agreement. The
term "Basic Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus together with the
Prospectus Supplement. The term "preliminary prospectus" means a preliminary
prospectus supplement specifically relating to the Offered Securities, together
with the Basic Prospectus. As used herein, the terms "Registration Statement",
"Basic Prospectus", "Prospectus" and "preliminary prospectus" shall include in
each case the documents, if any, incorporated by reference therein. The terms
"supplement" and "amendment" or "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
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1. Representations and Warranties. The Company represents and warrants to
each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or, to the best of the Company's
knowledge, threatened by the Commission.
(b)(i) Each document, if any, filed or to be filed pursuant to the Exchange
Act and incorporated by reference in the Prospectus complied or will comply when
so filed in all material respects with the Exchange Act and the applicable rules
and regulations of the Commission thereunder; (ii) each part of the Registration
Statement, when such part became effective, did not contain, and each such part,
as amended or supplemented, if applicable, will not contain, any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; (iii)
the Registration Statement and the Prospectus comply, and, as amended or
supplemented, if applicable, will comply, in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder; and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this Section 1(b) do
not apply (A) to statements or omissions in the Registration Statement or the
Prospectus based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Managers expressly for use
therein or (B) to that part of the Registration Statement that constitutes the
Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), of the Trustee.
(c) The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, has the corporate power
and authority to own its property and to conduct its business as described in
the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
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(d) Each subsidiary of the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its property and
to conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and delivered by the
Company.
(f) The Indenture has been duly qualified under the Trust Indenture Act and
has been duly authorized, executed and delivered by the Company and is a valid
and binding agreement of the Company, enforceable in accordance with its terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(g) The Offered Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the Underwriters in accordance with the terms of the
Underwriting Agreement, will be entitled to the benefits of the Indenture and
will be valid and binding obligations of the Company, in each case enforceable
in accordance with their respective terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability.
(h) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement, the Indenture and the
Offered Securities will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries or affiliates
that is material to the Company and its subsidiaries, taken as a whole, or any
judgment or decree of any governmental agency or court having jurisdiction over
the Company or any subsidiary, and no consent, approval, authorization or order
of or
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qualification with any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture or the Offered Securities, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the offer
and sale of the Offered Securities.
(i) There has not occurred any material adverse change in, or any adverse
development which materially affects, the condition, financial or otherwise, or
in the earnings, business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus.
(j) All descriptions in the Registration Statement, preliminary prospectus
and Prospectus of statutes, regulations, legal or governmental proceedings,
contracts and other documents are accurate in all material respects and fairly
present in all material respects the information required to be shown; and there
are no legal or governmental proceedings pending or, to the best of the
Company's knowledge, threatened to which the Company or any of its subsidiaries
is a party or to which any of the properties of any of them is subject which are
required to be described in the Registration Statement or the Prospectus or any
amendments or supplements thereto and are not so described or any statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(k) The Company is not, nor is it directly or indirectly controlled by or
acting on behalf of any person which is, (i) an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, and the rules and
regulations promulgated by the Commission thereunder or (ii) a "holding company"
within the meaning of, or subject to regulation under, the Public Utility
Holding Company Act of 1935, as amended, and the rules and regulations
promulgated by the Commission thereunder.
2. Public Offering. The Company is advised by the Managers that the
Underwriters propose to make a public offering of their respective portions of
the Offered Securities as soon after this Agreement has been entered into as in
the Managers' judgment is advisable. The terms of the public offering of the
Offered Securities are set forth in the Prospectus.
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3. Purchase and Delivery. Except as otherwise provided in this Section 3,
payment for the Offered Securities shall be made by certified or official bank
check or checks or wire transfer payable to the order of the Company in
immediately available funds at the time and place set forth in the Underwriting
Agreement, upon delivery to the Managers for the respective accounts of the
several Underwriters of the Offered Securities, registered in such names and in
such denominations as the Managers shall request in writing not less than two
full business days prior to the date of delivery, with any transfer taxes
payable in connection with the transfer of the Offered Securities to the
Underwriters duly paid.
4. Conditions to Closing. The several obligations of the Underwriters
hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus that, in the judgment of the Managers, is material and
adverse and that makes it, in the judgment of the Managers,
impracticable to market the Offered Securities on the terms and in the
manner contemplated in the Prospectus.
(b) The Managers shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in clause (a)(i) above and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and
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correct as of the Closing Date and that the Company has complied with all
of the agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(c) The Managers shall have received on the Closing Date (i) an
opinion of Cahill Gordon & Reindel, special counsel to the Company,
addressing the matters set forth in paragraphs (i), (ii)(a), (iv), (v),
(vi), (vii), (viii), (ix) (items (a), (b) and (c)), (x)(b), (xi) and
(xii)(b), (c) and (d) of Exhibit A attached hereto, and (ii) an opinion of
the Vice President and General Counsel of the Company, addressing the
matters set forth in paragraphs (ii)(b), (iii), (viii), (ix) (item (d)),
(x)(a) and (xii)(a) of Exhibit A.
(d) The Managers shall have received on the Closing Date an opinion of
Cravath, Swaine & Moore, special counsel for the Underwriters, dated the
Closing Date, to the effect set forth in Exhibit B.
(e) The Managers shall have received on each of the date hereof and
the Closing Date a letter, dated such date, in form and substance
reasonably satisfactory to the Managers, from PricewaterhouseCoopers LLP,
independent accountants for the Company, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Prospectus.
5. Covenants of the Company. In further consideration of the agreements of
the Underwriters contained herein, the Company covenants as follows:
(a) To furnish the Managers, without charge, a signed copy of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and, during the period mentioned in paragraph
(c) below, as many copies of the Prospectus, any documents incorporated by
reference therein and any supplements and amendments thereto or to the
Registration Statement as the Managers may reasonably request.
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(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Securities, to furnish to the
Managers a copy of each such proposed amendment or supplement and not to
file any such proposed amendment or supplement to which the Managers
reasonably object.
(c) If, during such period after the first date of the public offering
of the Offered Securities as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare, file
with the Commission and furnish, at its own expense, to the Underwriters,
and to the dealers (whose names and addresses the Managers will furnish to
the Company) to which Offered Securities may have been sold by the Managers
on behalf of the Underwriters and to any other dealer upon request, either
amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as so amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Managers
shall reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with (i) the determination of the eligibility of the Offered
Securities for investment under the laws of such jurisdictions as the
Managers may designate and (ii) any review of the offering of the Offered
Securities by the National Association of Securities Dealers, Inc.
(e) To make generally available to the Company's security holders and
to the Managers as soon as practicable an earnings statement covering a
twelve month period beginning on the first day of the first full fiscal
quarter after the date of this Agreement, which earnings statement shall
satisfy the provisions of
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Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company substantially similar to the Offered Securities (other than the
Offered Securities) without the prior written consent of the Managers.
6. Indemnification and Contribution. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any Underwriter or any such controlling person
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Managers expressly for use therein.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Underwriter,
but only with reference to information relating to such Underwriter furnished to
the Company by such Underwriter in writing through the Managers expressly for
use in the Registration Statement, any preliminary prospectus, the Prospectus or
any amendments or supplements thereto.
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either
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of the two preceding paragraphs, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Managers, in the case of parties indemnified
pursuant to the second preceding paragraph, and by the Company, in the case of
parties indemnified pursuant to the first preceding paragraph. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the third
sentence of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been
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a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
If the indemnification provided for in the first or second paragraph in
this Section 6 is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other hand
in connection with the offering of the Offered Securities shall be deemed to be
in the same respective proportions as the net proceeds from the offering of such
Offered Securities (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus Supplement,
bear to the aggregate public offering price of the Offered Securities. The
relative fault of the Company on the one hand and of the Underwriters on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
6 are several in proportion to the respective principal amounts of Offered
Securities purchased by each of such Underwriters and not joint.
The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to
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this Section 6 were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred
to in the immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 6, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Offered Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 6 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 6 and
the representations and warranties of the Company contained herein shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter or by or on behalf of the Company, its
directors or officers or any person controlling the Company and (iii) acceptance
of and payment for any of the Offered Securities.
7. Termination. This Agreement shall be subject to termination, by notice
given by the Managers to the Company, if (a) after the execution and delivery of
the Underwriting Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange or the National
Association of Securities Dealers, Inc., (ii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities, or
(iv) there shall have occurred any outbreak
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or escalation of hostilities or any change in financial markets or any calamity
or crisis that, in the judgment of the Managers, is material and adverse and (b)
in the case of any of the events specified in clauses (a) (i) through (iv), such
event, singly or together with any other such event, makes it, in the judgment
of the Managers, impracticable to market the Offered Securities on the terms and
in the manner contemplated in the Prospectus.
8. Defaulting Underwriters. [Applicable only if there is more than one
Underwriter of the Offered Securities.] If, on the Closing Date, any one or more
of the Underwriters shall fail or refuse to purchase Offered Securities of any
series that it has or they have agreed to purchase hereunder on such date, and
the aggregate amount of Offered Securities of such series which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate amount of the Offered Securities of such series
to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the amount of Offered Securities of such
series set forth opposite their respective names above bears to the aggregate
amount of Offered Securities of such series set forth opposite the names of all
such nondefaulting Underwriters, or in such other proportions as the Managers
may specify, to purchase the Offered Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the amount of Offered Securities of any
series that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 8 by an amount in excess of one-ninth of such
amount of Offered Securities without the written consent of such Underwriter.
If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Offered Securities of any series and the aggregate amount of Offered
Securities with respect to which such default occurs is more than one-tenth of
the aggregate amount of Offered Securities of such series to be purchased on
such date, and arrangements satisfactory to the Managers and the Company for the
purchase of such Offered Securities are not made within 36 hours after such
default, this Agreement shall terminate with respect to such series of Offered
Securities without liability on the part of any non-defaulting Underwriter or
the Company. In any such case either the Manager or the Company shall have the
right to postpone the Closing Date but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting
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Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of the Offered Securities.
9. Miscellaneous. The Underwriting Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
10. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
11. Notices. All references herein and in the Underwriting Agreement to the
Managers when made in connection with any notice to or communication by or with
such Managers shall, if there is more than one manager, be deemed to be to the
Lead Manager, as designated in the Underwriting Agreement, and all notices shall
be given to such Lead Manager at the address set forth therein.
Exhibit A
Opinion of
Counsel for the Company
The opinion of counsel for the Company to be delivered pursuant to Section
4(c) of the Underwriting Agreement shall be to the effect that:
(i) the Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware;
(ii) the Company (a) has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus and (b)
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole;
(iii) each domestic material subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries, taken
as a whole;
(iv) the Underwriting Agreement has been duly authorized, executed and
delivered by the Company;
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(v) the Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company, enforceable in accordance
with its terms except that (a) the enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
conveyance or other similar laws now or hereafter in effect relating to or
affecting creditors' rights or remedies generally and (b) the remedy of
specific performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court before
which any proceedings therefor may be brought (regardless of whether
enforcement is sought in a proceeding at law or equity);
(vi) the Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance
with the terms of the Underwriting Agreement, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of the
Company, in each case enforceable in accordance with their respective terms
except that (a) the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or conveyance
or other similar laws now or hereafter in effect relating to or affecting
creditors' rights or remedies generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceedings therefor may be brought (regardless of whether
enforcement is sought in a proceeding at law or equity);
(vii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement, the Indenture and the Offered Securities will not contravene any
provisions of the certificate of incorporation or by-laws of the Company;
(viii) to the knowledge of such counsel, the execution and delivery by
the Company of, and the performance by the Company of its obligations
under, the Underwriting Agreement, the Indenture and the Offered Securities
will not contravene any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court of the United States or any jurisdiction
therein or any other jurisdiction having jurisdiction over the Company or
any subsidiary, or any provision of applicable law
3
(other than state securities law) and no consent, approval, authorization
or order of or qualification with any governmental body or agency is
required for the performance by the Company of its obligations under the
Underwriting Agreement, the Indenture or the Offered Securities except such
as may be required by the securities or Blue Sky laws of the various states
in connection with the offer and sale of the Offered Securities;
(ix) the statements (a) in the Prospectus Supplement under the
captions "Certain Terms of the Debt Securities" and "Underwriting", (b) in
the Basic Prospectus under the captions "Description of Debt Securities"
and "Plan of Distribution", (c) in the Registration Statement under Item 15
and (d) in "Item 3 - Legal Proceedings" of the Company's most recent annual
report on Form 10-K incorporated by reference in the Prospectus, in each
case insofar as such documents constitute summaries of the legal matters,
documents or legal proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents and
proceedings, and fairly summarize the matters referred to therein;
(x) such counsel does not know of (a) any legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or of (b)
any statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described or
filed as required;
(xi) the Company is not, nor is it directly or indirectly controlled
by or acting on behalf of any person which is, (i) an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, and
the rules and regulations promulgated by the Commission thereunder or (ii)
a "holding company" within the meaning of, or subject to regulation under,
the Public Utility Holding Company Act of 1935, as amended, and the rules
and regulations promulgated by the Commission thereunder; and
(xii) (a) such counsel is of the opinion that each document, if any,
filed pursuant to the Exchange Act
4
and incorporated by reference in the Prospectus (except for financial
statements and schedules and other financial or statistical information
included therein as to which such counsel need not express any opinion) was
appropriately responsive when so filed in all material respects to the
requirements of the Exchange Act and the applicable rules and regulations
of the Commission thereunder, (b) no facts have come to the attention of
such counsel that lead such counsel to believe that the Registration
Statement, at the time it became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading
(it being understood that such counsel has not been requested to and does
not make any comment with respect to the financial statements and schedules
and other financial and statistical data included or incorporated by
reference in the Registration Statement or the Statement of Eligibility
(Form T-1)), (c) such counsel is of the opinion that the Registration
Statement and Prospectus (except for financial statements and schedules and
other financial or statistical information included therein as to which
such counsel need not express any opinion) are appropriately responsive in
all material respects to the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder and (d) no
facts have come to the attention of such counsel that lead such counsel to
believe that the Prospectus, as of its date or as of the date of such
opinion, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel has not been
requested to and does not make any comment with respect to the financial
statements and schedules and other financial and statistical data included
or incorporated by reference in the Prospectus or the Statement of
Eligibility (Form T-1)).
With respect to paragraph (xii) above, such counsel may state that its
opinion and belief are based upon its participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements thereto
and documents incorporated therein by reference and review and discussion of the
contents thereof, but are without independent check or verification, except as
specified.
The 10b-5 letter shall include the following:
5
We have participated in conferences with officers and other
representatives of the Company, representatives of the independent public
accountants for the Company and your representatives and your counsel, at which
the contents of the Registration Statement and the Prospectus and related
matters were discussed, and although we are not passing upon and do not assume
any responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, we advise you that on
the basis of the foregoing (relying as to materiality to a large extent upon the
opinions of officers and other representatives of the Company), nothing has come
to our attention which leads us to believe that the Registration Statement at
the time it became effective contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus as of the
date of such Prospectus, and at all times up to and including the date hereof,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading (it
being understood that we have not been asked to, and do not, comment on the
financial statements and schedules and other financial and statistical data
included or incorporated by reference in the Registration Statement or the
Prospectus or on any of the information contained in the Statement of
Eligibility on Form T-1 of the Trustee).
Exhibit B
Opinion of Cravath, Swaine & Moore,
Counsel for the Underwriters
The opinion of Cravath, Swaine & Moore, counsel for the Underwriters, to be
delivered pursuant to Section 4(d) of the Underwriting Agreement shall be to the
effect that:
(i) the Underwriting Agreement has been duly authorized, executed and
delivered by the Company;
(ii) the Indenture has been duly authorized, executed and delivered,
has been duly qualified under the Trust Indenture Act of 1939, as amended,
and constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws affecting creditors' rights generally from time
to time in effect and, as to the enforceability of obligations, to general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law;
(iii) the Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance
with the terms of the Underwriting Agreement, will constitute legal, valid
and binding obligations of the Company, entitled to the benefits of the
Indenture, and conform to the description thereof contained in the
Prospectus;
(iv) the Registration Statement became effective under the Securities
Act, and to the best knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or are pending or
contemplated under the Securities Act; and
(v) such counsel (1) believes that (except for financial statements
and related schedules and other
2
financial data as to which such counsel need not express any belief and
except for that part of the Registration Statement that constitutes the
Form T-1 heretofore referred to) each part of the Registration Statement,
when such part became effective, did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (2) is
of the opinion that the Registration Statement and Prospectus (except for
financial statements and related schedules and other financial data
included therein as to which such counsel need not express any opinion)
comply as to form in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (3)
believes that (except for financial statements and related schedules and
other financial data as to which such counsel need not express any belief)
the Prospectus as of the date such opinion is delivered does not contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
With respect to clause (v) above, such counsel may state that their opinion
and belief are based upon their participation in the preparation of the
Registration Statement and the Prospectus and any amendments or supplements
thereto (other than the documents incorporated by reference) and upon review and
discussion of the contents thereof (including documents incorporated by
reference) but are without independent check or verification, except as
specified.
Such counsel may rely, to the extent its opinions are based upon matters
governed by the laws of other jurisdictions, upon the opinion of other counsel
admitted to the bar in such jurisdictions.