EXHIBIT 1.1
$150,000,000
Swift Energy Company
75/8% Senior Notes due 2011
UNDERWRITING AGREEMENT
June 9, 2004
CREDIT SUISSE FIRST BOSTON LLC,
As Representative of the Several Underwriters,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Swift Energy Company, a Texas corporation ("Company"),
proposes to issue and sell $150,000,000 principal amount of its 7 5/8% senior
notes ("Securities") to be issued under an indenture ("Original Indenture") to
be dated as of June 23, 2004, as amended and supplemented by the First
Supplemental Indenture thereto to be dated as of June 23, 2004 (the Original
Indenture, as so amended and supplemented, the "Indenture"). The Company hereby
agrees with the several Underwriters named in Schedule A hereto ("Underwriters")
as follows:
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. 333-112041), including a prospectus,
relating to the Securities has been filed with the Securities and Exchange
Commission ("Commission") and has become effective. Such registration statement,
as amended at the time of this Agreement, is hereinafter referred to as the
"Registration Statement", and the prospectus included in such Registration
Statement, as supplemented by the prospectus supplement thereto and as further
supplemented to reflect the terms of the Securities and the terms of the
offering thereof, in each case as first filed with the Commission pursuant to
and in accordance with Rule 424(b) ("Rule 424(b)") under the Securities Act of
1933 ("Act"), including all material incorporated by reference therein, is
hereinafter referred to as the "Prospectus".
(b) On the effective date of the Registration Statement relating to the
Securities, such Registration Statement conformed in all material respects to
the requirements of the Act, the Trust Indenture Act of 1939 ("Trust Indenture
Act") and the rules and regulations of the Commission ("Rules and Regulations")
and did not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and on the date of this Agreement, the Registration
Statement and the Prospectus conform in all material respects to the
requirements of the Act, the Trust Indenture Act and the Rules and Regulations,
and neither of such documents includes any untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, except that the foregoing does
not apply to statements in or omissions from any of such documents based upon
written information furnished to the Company by any Underwriter through the
Representative, if any, specifically for use therein.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Texas, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified to do
business as a foreign corporation in good standing in all other jurisdictions
in which its ownership or lease of property or the conduct of its business
requires such qualification.
(d) Each subsidiary of the Company has been duly incorporated and is an
existing corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; and each
subsidiary of the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such qualification;
all of the issued and outstanding capital stock of each subsidiary of the
Company has been duly authorized and validly issued and is fully paid and
nonassessable; and, other than as described in the Prospectus or pursuant to the
Amended and Restated Credit Agreement of the Company effective January 25, 2002,
as amended from time to time (the "Credit Agreement"), the capital stock of each
subsidiary owned by the Company, directly or through subsidiaries, is owned free
from liens, encumbrances and defects.
(e) The Indenture has been duly authorized and has been duly
qualified under the Trust Indenture Act with respect to the Securities
registered thereby; the Securities have been duly authorized; and when the
Securities are delivered and paid for pursuant to this Agreement on the Closing
Date, the Indenture will have been duly executed and delivered, such
Securities will have been duly executed, authenticated, issued and delivered
and will conform to the description thereof contained in the Prospectus
and the Indenture and such Securities will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(f) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection with this
offering.
(g) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company to
file a registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the Act.
(h) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the consummation of
the transactions contemplated by this Agreement in connection with the issuance
and sale of the Securities by the Company, except such as have been obtained
and made under the Act, the Trust Indenture Act and such as may be required
under state securities laws.
(i) The execution, delivery and performance of the Indenture and
this Agreement, and the issuance and sale of the Securities and compliance with
the terms and provisions thereof will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any statute,
any rule, regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company or any subsidiary of
the Company or any of their properties, or any agreement or instrument to which
the Company or any such subsidiary is a party or by which the Company or any
such subsidiary is bound or to which any of the properties of the Company or any
such subsidiary is subject, or the charter or by-laws of the Company or any such
subsidiary, and the Company has full power and authority to authorize, issue and
sell the Securities as contemplated by this Agreement.
(j) This Agreement has been duly authorized, executed and delivered by
the Company.
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(k) The Company 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, in each case free and clear of all
mortgages, pledges, security interests, claims, liens, encumbrances,
restrictions and defects of any kind, except (1) such as 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 materially affect or interfere with the use made and proposed
to be made of such properties taken as a whole; and any property held under
lease or sublease by the Company or any of its subsidiaries is held under valid,
subsisting and enforceable leases or subleases with such exceptions as are not
material and do not interfere with the use made and proposed to be made of such
properties taken as a whole by the Company and its subsidiaries or except such
as are described in the Prospectus; and neither the Company nor any of its
subsidiaries has any notice or knowledge of any material claim of any sort that
has been, or may be, asserted by anyone adverse to the Company's or any of
its subsidiaries rights as lessee or sublessee under any lease or
sublease described above, or affecting or questioning the Company's or any
of its subsidiaries' rights to the continued possession of the leased or
subleased premises under any such lease or sublease in conflict with the terms
thereof.
(l) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by them and
have not received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a material adverse effect on the condition (financial or
other), business, properties or results of operations of the Company and
its subsidiaries taken as a whole ("Material Adverse Effect").
(m) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(n) The Company and its subsidiaries own, possess or can acquire
on reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "intellectual property rights") necessary
to conduct the business now operated by them, or presently employed by them, and
have not received any notice of infringement of or conflict with asserted rights
of others with respect to any intellectual property rights that, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect.
(o) Except as disclosed in the Prospectus, neither the Company nor any
of its subsidiaries is in violation of any statute, any rule, regulation,
decision or order of any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the environment or
human exposure to hazardous or toxic substances (collectively, "environmental
laws"), owns or operates any real property contaminated with any substance that
is subject to any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any claim
relating to any environmental laws, which violation, contamination, liability
or claim would individually or in the aggregate have a Material Adverse Effect;
and the Company is not aware of any pending investigation which might lead to
such a claim.
(p) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect, or would materially and adversely
affect the ability of the Company to perform its obligations under the Indenture
or this Agreement, or which are otherwise material in the context of the sale
of the Securities; and no such actions, suits or proceedings are threatened
or, to the Company's knowledge, contemplated.
(q) The financial statements included in the Registration Statement and
the Prospectus present fairly the financial position of the Company and
its consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and, except as otherwise
disclosed in the Prospectus, such financial statements have been prepared in
conformity with the generally accepted accounting principles in the United
States applied on a consistent basis and the schedules included in the
Registration Statement and the Prospectus present fairly the information
required to be stated therein.
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(r) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole, and, except as disclosed in or contemplated by
the Prospectus, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(s) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as defined in
the Investment Company Act of 1940.
(t) The Company is subject to the reporting requirements of either
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and files reports with the Commission on the
Electronic Data Gathering, Analysis, and Retrieval (XXXXX) system.
(u) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary (A) to permit preparation of
financial statements in conformity with generally accepted accounting
principles or any other criteria applicable to such statements and (B) to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorization;
and (iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to
any differences.
3. Purchase, Sale and Delivery of Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of 97.75% of the principal amount thereof
plus accrued interest from June 23, 2004 to the Closing Date (as hereinafter
defined), the respective principal amounts of Securities set forth opposite the
names of the Underwriters in Schedule A hereto.
The Company will deliver against payment of the purchase price the
Securities in the form of one or more permanent global Securities in definitive
form (the "Global Securities") deposited with the Trustee as custodian for The
Depository Trust Company ("DTC") and registered in the name of Cede & Co., as
nominee for DTC. Interests in any Global Securities will be held only in
book-entry form through DTC, except in the limited circumstances described in
the Prospectus. Payment for the Securities shall be made by the Underwriters in
Federal (same day) funds by official bank check or checks or wire transfer to an
account at a bank acceptable to Credit Suisse First Boston LLC ("CSFBC") drawn
to the order of Swift Energy Company at its office, located at 00000 Xxxxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, at 10:00 A.M., New York time, on June
23, 2004, or at such other time not later than ten full business days thereafter
as the Representative and the Company determine, such time being herein referred
to as the "Closing Date", against delivery to the Trustee as custodian for DTC
of the Global Securities representing all of the Securities. The Global
Securities will be made available for checking at the above office of the
Company at least 24 hours prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Securities for sale to the public as set forth in the
Prospectus.
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5. Certain Agreements of the Company. The Company agrees with the several
Underwriters that:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to
by the Representative, subparagraph (5)) not later than the second business
day following the execution and delivery of this Agreement.
(b) The Company will advise the Representative promptly of any proposal
to amend or supplement the Registration Statement or the Prospectus and will
afford the Representative a reasonable opportunity to comment on any such
proposed amendment or supplement; and the Company will also advise the
Representative promptly of the filing of any such amendment or supplement
and of the institution by the Commission of any stop order proceedings in
respect of the Registration Statement or of any part thereof and will use its
best efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act in connection with sales by
any Underwriter or dealer, any event occurs as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus to comply
with the Act, the Company promptly will notify the Representative of such event
and will promptly prepare and file with the Commission, at its own expense, an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither the Representative's
consent to, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 5
hereof.
(d) As soon as practicable, but not later than 16 months, after the
date of this Agreement, the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12 months
beginning after the later of (i) May 11, 2004, the effective date of the
Registration Statement relating to the Securities, (ii) the effective date
of the most recent post-effective amendment to the Registration Statement to
become effective prior to the date of this Agreement and (iii) the date of the
Company's most recent Annual Report on Form 10-K filed with the Commission
prior to the date of this Agreement, which will satisfy the provisions of
Section 11(a) of the Act.
(e) The Company will furnish to the Representative copies of
the Registration Statement, including all exhibits, any related
preliminary prospectus, any related preliminary prospectus supplement, the
Prospectus and all amendments and supplements to such documents, in each
case as soon as available and in such quantities as the Representative
reasonably requests. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Securities
for sale and the determination of their eligibility for investment under the
laws of such jurisdictions as the Representative designates and will continue
such qualifications in effect so long as required for the distribution.
(g) During the period of three years hereafter, the Company will
furnish or make available to the Representative and, upon request, to each of
the other Underwriters, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year; and the Company
will furnish to the Representative (i) as soon as available, a copy of each
report and any definitive proxy statement of the Company filed with the
Commission under the Exchange Act or mailed to stockholders, and (ii) from
time to time, such other information concerning the Company as the
Representative may reasonably request.
(h) The Company will pay all expenses incident to the performance of
its obligations under this Agreement, for any filing fees or other expenses
(including fees and disbursements of counsel) incurred in connection with
qualification of the Securities for sale under the laws of such states in the
United States and provinces in Canada as the Representative designates and the
printing of memoranda relating thereto, for any fees charged by investment
rating agencies for the rating of the Securities, and for expenses incurred in
distributing preliminary prospectus supplements, and the Prospectus (including
any amendments and supplements thereto) to the Underwriters. The Company on the
one hand and the Underwriters on the other will each pay half of the travel
expenses and any other expenses of the Underwriters and the Company incurred in
connection with attending or hosting meetings with prospective purchasers of the
Securities.
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(i) For a period of 60 days after the date of the initial offering of
the Securities, the Company will not offer, sell, contract to sell, pledge
or otherwise dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to, any additional Securities or
other debt securities, or publicly disclose the intention to make any such
offer, sale, pledge, disposition or filing, without the prior written consent of
the Representative.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Securities on the Closing
Date will be subject to the accuracy of the representations and warranties on
the part of the Company herein, to the accuracy of the statements of Company
officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) The Representative shall have received a letter, dated the date of
this Agreement, of Ernst & Young LLP confirming that they are independent
public accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and any schedules
and any summary of earnings examined by them and included in the
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards
No. 100, Interim Financial Information, on any unaudited financial
statements included in the Registration Statement;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements
of the Company, if any, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
(A) the unaudited financial statements, if any, and any
summary of earnings included in the Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations or any material modifications should be made to such
unaudited financial statements and summary of earnings, if any,
for them to be in conformity with generally accepted accounting
principles;
(B) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than three business days prior to the date of the such letter,
there was any change in the capital stock or any increase in
short-term indebtedness or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any decrease in
consolidated net current assets or net assets, as compared with
amounts shown on the latest balance sheet included in the
Prospectus; or
(C) for the period from the closing date of the latest
income statement included in the Prospectus to the closing date
of the latest available income statement read by such accountants
there were any decreases, as compared with the corresponding
period of the previous year and with the period of corresponding
length ended the date of the latest income statement included in
the Prospectus, in consolidated net sales, net operating income
per share amounts of consolidated income before extraordinary
items or net income or in the ratio of earnings to fixed charges;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter;
and
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(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Prospectus (in each case to the extent that such
dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus for
purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this Agreement.
No stop order suspending the effectiveness of the Registration Statement or
of any part thereof shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge of the Company or any
Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) a change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange controls
as would, in the judgment of a majority in interest of the Underwriters
including the Representative, be likely to prejudice materially the success
of the proposed issue, sale or disposition of the Securities, whether in the
primary market or in respect of dealings in the secondary market; or (ii) (A)
any change, or any development or event involving a prospective change, in the
condition (financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as one enterprise which, in the
judgment of a majority in interest of the Underwriters including the
Representative, is material and adverse and makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and payment
for the Securities; (B) any downgrading in the rating of any debt securities
of the Company by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or review its
rating of any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating) or any announcement that the Company
has been placed on negative outlook; (C) any material suspension or material
limitation of trading in securities generally on the New York Stock Exchange,
or any setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any exchange or in
the over-the-counter market; (D) any banking moratorium declared by U.S. Federal
or New York authorities; (E) any major disruption of settlements of
securities or clearance services in the United States; (F) any attack on,
outbreak or escalation of hostilities or act of terrorism involving the United
States, any declaration of war by Congress or any other national or
international calamity or emergency if, in the judgment of a majority in
interest of the Underwriters including the Representative, the effect of any
such attack, outbreak, escalation, act, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Securities; or (G) in the case of
any of the foregoing factors listed in (i) or (ii)(F) above existing at the time
of the execution of this Agreement, a material acceleration or worsening
thereof.
(d) The Representative shall have received two opinions, both dated
the Closing Date, one of Jenkens & Xxxxxxxxx, counsel for the Company, as to
the matters set forth below relating to the Company and its domestic
subsidiaries where applicable, and one of Xxxxxxx Grierson, counsel for the
Company's New Zealand subsidiaries, as to the matters set forth below in (ii)
relating to the Company's New Zealand subsidiaries, to the effect that:
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(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Texas, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of
its business requires such qualification, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse
Effect;
(ii) (A) as to Jenkens & Xxxxxxxxx'x opinion: each of the Company's
subsidiaries that is a corporation 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
to 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 so to qualify or to be in good standing
would not result in a Material Adverse Effect. All of the issued and
outstanding capital stock or other equity interests of each of the
Company's subsidiaries has been duly authorized and validly issued, is
fully paid and non-assessable and, to such counsel's knowledge and
information, is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity, other than as described in the Prospectus or
pursuant to the Credit Agreement; and (B) as to Xxxxxxx Grierson's opinion:
(1) each of the Company's New Zealand subsidiaries is a limited liability
company incorporated under the Companies Xxx 0000 (New Zealand); (2) each
of the Company's New Zealand subsidiaries has the necessary corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus; (3) all of the issued shares or
other equity interests of the Company's New Zealand subsidiaries have been
duly authorized and validly issued and are fully paid up and non-assessable
for issue taxes or duties, and (4) to the such counsel's knowledge, all of
the issued shares or other equity interests in each of the Company's New
Zealand subsidiaries are owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity, other than pursuant to the Credit
Agreement or as described in the Prospectus;
(iii) The statements in the Prospectus under the headings "Description
of the Notes" and "Certain U.S. Federal Income Tax Considerations", to the
extent that they constitute summaries of matters of law or regulation or
legal conclusions, have been reviewed by such counsel and accurately
summarize the matters described therein in all material respects; to the
knowledge of such counsel, there are no franchises, contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments that should
be described in the Prospectus that are not described or referred to in or
incorporated by reference into the Prospectus;
(iv) The Indenture conforms in all material respects with the
requirements of the Trust Indenture Act and the rules and regulations of
the Commission applicable to an indenture which is qualified thereunder;
(v) The Company has full corporate power and authority to execute and
deliver each of the Indenture and this Agreement and to perform its
obligations thereunder and hereunder, and all corporate or other action
required to be taken for the due and proper authorization, execution and
delivery of each of the Indenture and this Agreement and the consummation
of the transactions contemplated thereby and hereby have been duly and
validly taken on the part of the Company;
(vi) The Indenture has been duly authorized, executed and delivered by
the Company and has been duly qualified under the Trust Indenture Act; the
Securities have been duly authorized; the Securities have been duly
executed, authenticated, issued and delivered; the Indenture and the
Securities constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles; and the Securities conform to the
description thereof contained in the Prospectus;
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(vii) To such counsel's knowledge, there are no pending actions or
suits or judicial, arbitral, rule-making, administrative or other
proceedings to which the Company or any of its subsidiaries is a party or
of which any property or assets of the Company or any of its subsidiaries
is the subject which (A) if determined adversely to the Company or any of
its subsidiaries, could reasonably be expected to have a Material Adverse
Effect or (B) questions the validity or enforceability of the Indenture or
this Agreement or any action taken or to be taken pursuant thereto or
hereto; and to such counsel's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others;
(viii) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as defined
in the Investment Company Act of 1940.
(ix) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement (including
the provisions of this Agreement) in connection with the issuance or sale
of the Securities by the Company, except such as have been obtained and
made under the Act and the Trust Indenture Act and such as may be required
under state securities laws;
(x) The execution, delivery and performance of the Indenture, this
Agreement and the issuance and sale of the Securities and compliance with
the terms and provisions thereof will not result in a breach or violation
of any of the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency or body
or any court having jurisdiction over the Company or any subsidiary of the
Company or any of their properties, or any agreement or instrument to which
the Company or any such subsidiary is a party or by which the Company or
any such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or the charter or by-laws of the
Company or any such subsidiary, and the Company has full power and
authority to authorize, issue and sell the Securities as contemplated by
this Agreement;
(xi) The Registration Statement has become effective under the Act,
the Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b) specified in such opinion on the date specified therein,
and, to the best of the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement or any part thereof has
been issued by the Commission and no proceedings for that purpose have been
instituted or are pending or threatened by the Commission under the Act,
and the Registration Statement relating to the Securities, as of its
effective date, the Registration Statement and the Prospectus, as of the
date of this Agreement, and any amendment or supplement thereto, as of its
date, complied as to form in all material respects with the applicable
requirements of Form S-3 under the Act, the Trust Indenture Act and the
Rules and Regulations; such counsel have no reason to believe that such
registration statement, as of its effective date, the Registration
Statement, as of the date of this Agreement or as of the Closing Date, or
any amendment thereto, as of its date or as of the Closing Date, contained
any untrue statement of a material fact or omitted to state any 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 this
Agreement or as of such Closing Date, or any amendment or supplement
thereto, as of its date or as of the Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; the descriptions
in the Registration Statement and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are accurate and
fairly present the information required to be shown; and such counsel does
not know of any legal or governmental proceedings required to be described
in the Prospectus which are not described as required or of any contracts
or documents of a character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required; it being
understood that such counsel need express no opinion as to the financial
statements or other financial data contained in the Registration Statement
or the Prospectus; and
9
(xii) This Agreement has been duly authorized, executed and delivered
by the Company.
(e) The Representative shall have received from Xxxxxx & Xxxxxx L.L.P.,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the incorporation of the Company, the validity of the Securities
delivered on the Closing Date, the Registration Statement, the Prospectus and
other related matters as the Representative may require, and the Company shall
have furnished to such counsel such documents as they reasonably request for the
purpose of enabling them to pass upon such matters.
(f) The Representative shall have received a certificate, dated the
Closing Date, of the President or any Vice President and the principal
financial or accounting officer of the Company in which such officers, to the
best of their knowledge after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement are true and
correct, that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to
the Closing Date, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no proceedings
for that purpose have been instituted or are contemplated by the Commission and
that, subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change, nor any development
or event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole except as set forth in
or contemplated by the Prospectus or as described in such certificate.
(g) The Representative shall have received a letter, dated the Closing
Date, of Ernst & Young LLP pursuant to which Ernst & Young LLP affirms as of the
Closing Date all statements made in the letter delivered by Ernst & Young LLP on
the date hereof pursuant to subsection (a) of this Section, except that the date
specified in paragraphs 4 and 5 of such letter will be a date not more than
three days prior to the Closing Date for the purposes of this subsection.
The Company will furnish the Representative with such conformed copies of
such opinions, certificates, letters and documents as the Representative
reasonably requests. The Representative may in its sole discretion waive on
behalf of the Underwriters compliance with any conditions to the obligations of
the Underwriters hereunder, whether in respect of the Closing Date or otherwise.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Underwriter,
its partners, directors and officers and each person, if any, who controls
such Underwriter within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representative specifically for use therein, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in subsection (b)
below.
10
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company, its directors and officers and each person, if any,
who controls the Company within the meaning of Section 15 of the Act, against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representative specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the following information in the Prospectus furnished on behalf of each
Underwriter: the information contained in the seventh and eighth paragraphs
under the caption "Underwriting".
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party except to the
extent that it has been materially prejudiced; provided, however, that in no
event shall an indemnifying party be relieved from any liability that it may
have to an indemnified party otherwise than under subsection (a) or (b) above.
In case any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement (i)
includes an unconditional release of such indemnified party from all liability
on any claims that are the subject matter of such action 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 an indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (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 from the offering of the 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 the Underwriters on the other in connection with
the statements or omissions which 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 shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault 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 Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public 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 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
11
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each director of the Company, to each officer of
the Company who has signed the Registration Statement and to each person, if
any, who controls the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Securities hereunder on the Closing Date and the
aggregate principal amount of Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of Securities that the Underwriters are obligated to purchase
on such Closing Date, the Representative may make arrangements satisfactory to
the Company for the purchase of such Securities by other persons, including any
of the Underwriters, but if no such arrangements are made by such Closing Date,
the non-defaulting Underwriters shall be obligated severally, in proportion to
their respective commitments hereunder, to purchase the Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate principal amount of
Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of Securities that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to the
Representative and the Company for the purchase of such Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or the
Company, except as provided in Section 10 (provided that if such default occurs
with respect to Securities after the Closing Date, this Agreement will not
terminate as to the Securities purchased prior to such termination). As used in
this Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Securities. If this Agreement is terminated pursuant to
Section 8 or if for any reason the purchase of the Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Underwriters pursuant to Section 7, and if
any Securities have been purchased hereunder the representations and warranties
in Section 2 and all obligations under Section 5 shall also remain in effect. If
the purchase of the Securities by the Underwriters is not consummated for any
reason other than solely because of the termination of this Agreement pursuant
to Section 8 or the occurrence of any event specified in clause (i), (ii)(C),
(ii)(D), (ii)(E) or (ii)(F) of Section 6(c), the Company will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Securities.
12
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representative, c/o Credit Suisse First Boston LLC, Eleven Madison Avenue,
New York, N.Y. 10010-3629, Attention: Transactions Advisory Group (Fax:
000-000-0000), or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 00000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx,
XX 00000, Attention: Xxxxx X. Xxxxxxx; provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
12. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representative will be binding upon all the
Underwriters.
13. Counterparts. This may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York but without giving effect to
applicable principles of conflicts of law to the extent that the application of
the laws of another jurisdiction would be required thereby.
The Company hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
13
If the foregoing is in accordance with the Representative's understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
SWIFT ENERGY COMPANY
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxxx
Executive Vice President-Corporate
Development and Secretary
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
Acting on behalf of itself and as the Representative of the several
Underwriters.
CREDIT SUISSE FIRST BOSTON LLC
By: /s/ Rome Xxxxxx
----------------------
Rome Xxxxxx
Managing Director
14
SCHEDULE A
Underwriter Principal
----------- Amount of
---------
Credit Suisse First Boston LLC.......................... $75,000,000
Xxxxxxx, Sachs & Co. ................................... 18,750,000
Xxxxxxxxx & Company, Inc................................ 18,750,000
Banc One Capital Markets, Inc.......................... 12,000,000
Deutsche Bank Securities Inc............................ 12,000,000
CIBC World Markets Corp................................. 7,500,000
BNP Paribas Securities Corp............................. 1,500,000
Calyon Securities (USA) Inc............................. 1,500,000
SG Americas Securities, LLC............................. 1,500,000
Xxxxx Fargo Securities.................................. 1,500,000
Total......................... $150,000,000
============
