EXHIBIT 1.2
$100,000,000
BELLWETHER EXPLORATION COMPANY
____% SENIOR SUBORDINATED NOTES DUE 2007
UNDERWRITING AGREEMENT
__________, 1997
X.X. XXXXXX SECURITIES INC.
CHASE SECURITIES INC.
As underwriters
c/o X. X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Bellwether Exploration Company, a Delaware corporation (the
"Company") proposes to issue and sell $100,000,000 principal amount of its ___%
Senior Subordinated Notes due 2007 (the "Securities") to the several
underwriters named in Schedule I hereto (the "Underwriters"). The Securities are
to be issued pursuant to the provisions of an Indenture to be dated as of
__________ __, 1997 (the "Indenture"), among the Company, as issuer,
________________________________, as guarantors (the "Subsidiary Guarantors")
and ____________, as Trustee (the "Trustee"). As provided in the Indenture, the
Securities are to be guaranteed on an unsecured senior subordinated basis
pursuant to guarantees (the "Subsidiary Guarantees") of the Subsidiary
Guarantors. All references herein to the "Acquired Properties" refer to the oil
and gas properties and associated working capital owned by partnerships and
other entities (the "Program Partnerships") managed by Torch Energy Advisors
Incorporated that are to be acquired (the "Pending Acquisition") by the Company
pursuant to the Acquisition and Consolidation Agreement, dated as of March 31,
1997 (the "Acquisition Agreement"), among the Company and the Program
Partnerships.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company and the
Subsidiary Guarantors have prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively called the
"Act"), a registration statement on Form S-1 including a prospectus relating to
the Securities.1 The registration statement, as amended at the time when it
became effective, including information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Act, is hereinafter referred to as the "Registration Statement"; and the
prospectus in the form first used to confirm sales of Shares is hereinafter
referred as the "Prospectus."
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell, and each Underwriter
agrees, severally and not jointly, to purchase from the Company the principal
amount of Securities set forth opposite the name of such Underwriter in Schedule
I hereto, at ____% of the principal amount thereof (the "Purchase Price") plus
accrued interest thereon, if any, from __________ __, 1997 to the date of
payment and delivery.
3. TERMS OF PUBLIC OFFERING. The Company is advised by you that the
Underwriters propose (i) to make a public offering of their respective portions
of the Securities as soon after the execution and delivery of this Agreement is
advisable and (ii) initially to offer the Securities upon the terms set forth in
the Prospectus.
4. DELIVERY AND PAYMENT. Delivery to the Underwriters of and payment
for the Securities shall be made at 10:00 A.M., New York City time, on
____________, 1997 (the "Closing Date") at such place as you shall designate.
The Closing Date and the location of delivery of and the form of payment for the
Securities may be varied by agreement between you and the Company.
Certificates for the Securities shall be registered in such names
and issued in such denominations as you shall request in writing not later than
two full business days prior to the Closing Date. Such certificates shall be
made available to you for inspection not later than 9:30 A.M., New York City
time, on the business day next preceding the Closing Date. Certificates in
definitive form evidencing the Securities shall be delivered to you on the
Closing Date with any transfer taxes thereon duly paid by the Company, for the
respective accounts of the several Underwriters, against payment to the Company
of the Purchase Price therefor by wire transfer of Federal or other funds
immediately available in New York City.
5. AGREEMENTS OF THE COMPANY. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to
confirm such advice in writing, (i) of any request by the Commission for
amendments to the
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1 The registration statement also includes a form of prospectus to be used
in connection with the concurrent offering of 4,875,000 shares of common stock,
par value $0.01 per share ("Common Stock"), of the Company.
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Registration Statement or amendments or supplements to the Prospectus or
for additional information, (ii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
of the suspension of qualification of the Securities for offering or sale
in any jurisdiction, or the initiation of any proceeding for such
purposes, (iii) when any amendment to the Registration Statement becomes
effective, (iv) if the Company is required to file a Rule 462(b)
Registration Statement after the effectiveness of this Agreement, when the
Rule 462(b) Registration Statement has become effective, and (v) of the
happening of any event during the period referred to in paragraph (d)
below which makes any statement of a material fact made in the
Registration Statement or the Prospectus untrue or which requires the
making of any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading. If at
any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, the Company will use its best
efforts to obtain the withdrawal or lifting of such order at the earliest
possible time.
(b) To furnish to you, without charge, three signed copies of
the Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits, and to furnish to you and each
Underwriter designated by you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it, without
exhibits, as you may reasonably request.
(c) To prepare the Prospectus in a form approved by you and to
file the Prospectus in such form with the Commission within the applicable
time period specified in Rule 424(b) under the Act; not to file any
further amendment to the Registration Statement and not to make any
amendment or supplement to the Prospectus of which you shall not
previously have been advised or to which you shall reasonably object after
being so advised; and to prepare and file with the Commission, promptly
upon your reasonable request, any amendment to the Registration Statement
or supplement to the Prospectus which may be necessary or advisable in
connection with the distribution of the Shares by you, and to use its best
efforts to cause any such amendment to the Registration Statement to
become promptly effective.
(d) Prior to 10:00 A.M. New York City time on the business day
next succeeding the date of this Agreement and from time to time
thereafter for such period as in the opinion of counsel for the
Underwriters a prospectus is required by law to be delivered in connection
with sales by an Underwriter or a dealer, to furnish in New York City to
each Underwriter and dealer as many copies of the Prospectus (and of any
amendment or supplement to the Prospectus) as such Underwriter or dealer
may reasonably request.
(e) If during the period specified in paragraph (d) any event
shall occur as a result of which, in the written opinion of counsel for
the Underwriters, it
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becomes 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 it is
necessary to amend or supplement the Prospectus to comply with applicable
law, forthwith to prepare and file with the Commission an appropriate
amendment or supplement to the Prospectus so that the statements in the
Prospectus, as so amended or supplemented, will not in the light of the
circumstances when it is so delivered, be misleading, or so that the
Prospectus will comply with law, and to furnish to each Underwriter and to
such dealers as you shall specify, such number of copies thereof as such
Underwriter or dealers may reasonably request.
(f) Prior to any public offering of the Securities, to
cooperate with you and counsel for the Underwriters in connection with the
registration or qualification of the Securities and the Subsidiary
Guarantees for offer and sale by the several Underwriters and by dealers
under the state securities or Blue Sky laws of such jurisdictions as you
may request, to continue such qualification in effect so long as required
for distribution of the Securities and the Subsidiary Guarantees and to
file such consents to service of process or other documents as may be
necessary in order to effect such registration or qualification.
(g) To mail and make generally available to its stockholders
as soon as reasonably practicable an earnings statement covering a period
of at least twelve months after the effective date of the Registration
Statement (but in no event commencing later than 90 days after such date)
which shall satisfy the provisions of Section 11(a) of the Act, and to
advise you in writing when such statement has been so made available.
(h) So long as the Securities are outstanding, to furnish to
you as soon as distributed to the security holders of the Company or filed
with the Commission copies of all reports or other communications
furnished to the security holders of the Company or filed with the
Commission and such other publicly available information concerning the
Company and its subsidiaries as you may reasonably request.
(i) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause
to be paid all expenses incident to the performance of its obligations
under this Agreement, including: (i) the fees, disbursements and expenses
of the Company's counsel and the Company's accountants in connection with
the registration and delivery of the Securities under the Act and all
other fees or expenses in connection with the preparation, printing,
filing and distribution of the Registration Statement (including financial
statements and exhibits), any preliminary prospectus, the Prospectus and
all amendments and supplements to any of the foregoing prior to or during
the period specified in paragraph (d) including the mailing and delivering
of copies thereof to the Underwriters and dealers in the quantities
specified herein, (ii) all costs and expenses related to the transfer and
delivery of the Securities to the Underwriters, including any transfer or
other taxes payable thereon, (iii)
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all costs of printing or producing this Agreement and any other documents
in connection with the offering, purchase, sale or delivery of the
Securities, (iv) all expenses in connection with the registration or
qualification of the Securities for offer and sale under the securities or
Blue Sky laws of the several states and the cost of printing or producing
any Preliminary and Supplemental Blue Sky Memoranda in connection
therewith (including the filing fees and fees and disbursements of counsel
for the Underwriters in connection with such registration or qualification
and memoranda relating thereto), (v) the filing fees and disbursements of
counsel for the Underwriters in connection with the review and clearance
of the offering of the Securities by the National Association of
Securities Dealers, Inc., (vi) all costs and expenses incident to the
listing of the Securities on the Nasdaq National Market, (vii) the cost of
printing certificates representing the Securities, (viii) the costs and
charges of any transfer agent, registrar or depositary, (ix) all costs and
expenses payable to rating agencies in connection with the rating of the
Securities, (x) any expenses incurred by the Company in connection with a
"road show" presentation to potential investors, and (xi) and all other
costs and expenses incident to the performance of the obligations of the
Company hereunder for which provision is not otherwise made in this
Section.
(j) During the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer, sell contract
to sell or otherwise dispose of any debt securities of or guaranteed by
the Company or any Subsidiary Guarantor or warrants to purchase debt
securities of the Company substantially similar to the Securities (other
than (i) the Securities, (ii) the Subsidiary Guarantees and (iii)
commercial paper issued in the ordinary course of business), without the
prior written consent of X.X. Xxxxxx Securities Inc.
(k) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by the
Company prior to the Closing Date and to satisfy all conditions precedent
to the delivery of the Securities.
(l) If the Registration Statement at the time of the
effectiveness of this Agreement does not cover all of the Securities, to
file a Rule 462(b) Registration Statement with the Commission registering
the Securities not so covered in compliance with Rule 462(b) by 10:00
P.M., New York City time, on the date of this Agreement and to pay to the
Commission the filing fee for such Rule 462(b) Registration Statement at
the time of the filing thereof or to give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company and
the Subsidiary Guarantors represent and warrant to each Underwriter that:
(a) The Registration Statement has become effective (other
than any Rule 462(b) Registration Statement to be filed by the Company
after the effectiveness of
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this Agreement); any Rule 462(b) Registration Statement filed after the
effectiveness of this Agreement will become effective no later than 10:00
P.M. New York City time, on the date of this Agreement; 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
Company's knowledge, threatened by the Commission.
(b) (i) The Registration Statement (other than any Rule 462(b)
Registration Statement to be filed by the Company after the effectiveness
of this Agreement) when it became effective, did 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 required to
be stated therein or necessary to make the statements therein not
misleading, (ii) the Registration Statement (other than any Rule 462(b)
Registration Statement to be filed by the Company after the effectiveness
of this Agreement) and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Act, (iii) if the Company is required to filed a Rule 462(b) Registration
Statement after the effectiveness of this Agreement, such Rule 462(b)
Registration Statement and any amendments or supplements thereto, when
they became effective (1) 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 and (2)
will comply in all material respects with the Act, 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 paragraph (b) do not
apply 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 expressly for use therein.
(c) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Act, did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this paragraph (c) do not apply to statements or omissions in any
preliminary prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter expressly for use
therein.
(d) Each of the Company and its subsidiaries that are
corporations has been duly incorporated, is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to carry on its
business as described in the Prospectus and to own, lease and operate its
properties, and each is duly qualified and is in good standing as a
foreign corporation authorized to
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do business in each jurisdiction in which the nature of its business or
its ownership or leasing of property requires such qualification, except
where the failure to be so qualified would not have a material adverse
effect on the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole; each of
the Company's subsidiaries that are partnerships has been duly formed, is
validly existing as a partnership in good standing under the laws of its
jurisdiction of formation and has the partnership power and authority to
carry on its business as described in the Prospectus and to own, lease and
operate its properties, and each is duly qualified and is in good standing
as a foreign partnership authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so qualified
would not have a material adverse effect on the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole.
(e) There are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or liens
granted or issued by the Company or any of its subsidiaries related to or
entitling any person to purchase or otherwise to acquire any shares of the
capital stock of the Company or any of its subsidiaries, except as
otherwise disclosed in the Registration Statement.
(f) All the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights.
(g) All of the outstanding shares of capital stock of, or
other ownership interests in, each of the Company's subsidiaries that are
corporations have been duly authorized and validly issued and are fully
paid and non-assessable, and are owned by the Company, free and clear of
any security interest, claim, lien, encumbrance or adverse interest of any
nature. The portion of the partnership interests in each of the Company's
subsidiaries that are partnerships that the Registration Statement
describes as being owned by the Company is so owned by the Company, free
and clear of any security interest, claim, lien, encumbrance or adverse
interest of any nature.
(h) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or other organizational
documents, as the case may be, or in default in the performance of any
obligation, agreement or condition contained in any bond, debenture, note
or any other evidence of indebtedness or in any other agreement, indenture
or instrument material to the conduct of the business of the Company and
its subsidiaries, taken as a whole, to which the Company or any of its
subsidiaries is a party or by which it or any of its subsidiaries or their
respective property is bound.
(i) The execution, delivery and performance of this Agreement,
the Indenture, the Securities and the Acquisition Agreement by the
Company, compliance by
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the Company with all the provisions hereof and thereof and the
consummation of the transactions contemplated hereby and thereby will not
require any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency (except as
such may be required under the securities or Blue Sky laws of the various
states) and will not conflict with or constitute a breach of any of the
terms or provisions of, or a default under, the charter or by-laws or
other organizational documents, as the case may be, of the Company or any
of its subsidiaries or any indenture, loan agreement, mortgage, lease or
instrument that is material to the Company and its subsidiaries, taken as
a whole, to which it or any of its subsidiaries is a party or by which it
or any of its subsidiaries or their respective property is bound, or
violate or conflict with any applicable law or any rule, regulation,
judgment, order or decree of any court or governmental body or agency
having jurisdiction over the Company, any of its subsidiaries or their
respective property.
(j) There are no material legal or governmental proceedings
pending or threatened to which the Company or any of its subsidiaries is a
party or to which any of their respective property is the subject that are
required to be described in the Registration Statement or the Prospectus
and are not so described; nor are there 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 Securities have been duly authorized, and, when issued
and delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and binding
obligations of the Company entitled to the benefits provided by the
Indenture; the Indenture has been duly authorized and upon effectiveness
of the Registration Statement will have been duly qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and,
when executed and delivered by the Company, the Subsidiary Guarantors and
the Trustee, the Indenture will constitute a valid and binding instrument;
and the Securities and the Indenture will conform to the descriptions
thereof in the Prospectus.
(l) The Subsidiary Guarantees have been duly authorized, and,
when issued and delivered pursuant to this Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute valid
and binding obligations of the Subsidiary Guarantors; and the Subsidiary
Guarantees will conform to the descriptions thereof in the Prospectus.
(m) The fair salable value of the assets of each of the
Company and the Subsidiary Guarantors exceed the amount that will be
required to be paid on or in respect of the existing debts and other
liabilities (including contingent liabilities) of the Company and the
Subsidiary Guarantors, respectively, as they mature; the respective assets
of the Company and the Subsidiary Guarantors do not constitute
unreasonably small capital to
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carry out their respective businesses as conducted or as proposed to be
conducted; none of the Company and the Subsidiary Guarantors intends to,
and does not believe that it will, incur debts beyond its ability to pay
such debts as they mature; upon the issuance of the Securities and the
Subsidiary Guarantees, the fair salable value of the assets of the Company
and its subsidiaries taken as a whole, will exceed the amount that will be
required to be paid on or in respect of the existing debts and other
liabilities (including contingent liabilities) of the Company and its
subsidiaries, taken as a whole, as they mature; the assets of the Company
and its subsidiaries do not, and upon the issuance of the Securities and
the Subsidiary Guarantees will not, constitute unreasonably small capital
for the Company and its subsidiaries to carry out their respective
businesses as now conducted or as proposed to be conducted including the
capital needs of the Company and its subsidiaries, and projected capital
requirements of the business conducted by the Company and each of its
subsidiaries, and projected capital requirements and capital availability
thereof; and the Company and the Subsidiary Guarantors do not intend to,
and do not intend to permit any of their subsidiaries to, incur debts
beyond their respective ability to pay such debts as they mature.
(n) Neither the Company nor any of its subsidiaries has
violated any foreign, federal, state or local law or regulation relating
to the protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), or any provisions of the Employee Retirement Income Security Act
or the rules and regulations promulgated thereunder, except for such
violations which, singly or in the aggregate, would not have a material
adverse effect on the business, prospects, financial condition or results
of operation of the Company and its subsidiaries, taken as a whole.
(o) Each of the Company and its subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits"), including, without limitation, under any
applicable Environmental Laws, as are necessary to own, lease and operate
its respective properties and to conduct its business and are in
compliance with all terms and conditions thereof; and no event has
occurred which allows, or after notice or lapse of time or both would
allow, revocation or termination of such permits or results or, after
notice or lapse of time or both, would result in any other impairment of
the rights of the holder of any such permit; and, such permits contain no
restrictions that are materially burdensome to the Company or any of its
subsidiaries; except where such failure to have, or comply with the terms
or conditions of, such permits, the occurrence of any such event or the
presence of any such restriction would not, singly or in the aggregate,
have a material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its subsidiaries,
taken as a whole.
(p) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for
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clean-up, closure of properties or compliance with Environmental Laws or
any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties) which would,
singly or in the aggregate, have a material adverse effect on the
business, prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole.
(q) Each of the Company and its subsidiaries has (i) generally
satisfactory title to all its interests in its oil and gas properties,
title investigations having been carried out by the Company and its
subsidiaries in accordance with the general practice in the oil and gas
industry, (ii) good and marketable title in fee simple to all other real
property owned by it and (iii) good and marketable title to all personal
property owned by it, in each case free and clear of all liens,
encumbrances, claims, security interests, subleases and defects except
such as are described in the Prospectus or such as do not materially
affect the value of such property and do not interfere with the use made
and proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by the
Company or any of its subsidiaries are held by it under valid, subsisting
and enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and
buildings by the Company or its subsidiaries.
(r) Each of the Company and its subsidiaries maintains
reasonably adequate insurance.
(s) This Agreement has been duly authorized, executed and
delivered by the Company and each of the Subsidiary Guarantors.
(t) The Acquisition Agreement has been duly authorized,
executed and delivered by the Company and each of the Program Partnerships
and constitutes a valid and binding obligation of the Company and each of
the Program Partnerships.
(u) Upon consummation of the transactions contemplated by the
Acquisition Agreement, the Company will own have (i) generally
satisfactory title to all of the interests of the Program Partnerships in
their oil and gas properties, title investigations having been carried out
by the Company and its subsidiaries in accordance with the general
practice in the oil and gas industry, (ii) good and marketable title in
fee simple to all other real property owned by the Program Partnerships
and (iii) good and marketable title to all personal property owned by the
Program Partnerships, in each case free and clear of all liens,
encumbrances, claims, security interests, subleases and defects except
such as are described in the Prospectus or such as do not materially
affect the value of such property and do not interfere with the use made
and proposed to be made of such property by the Company and its
subsidiaries.
(v) Each of Deloitte & Touche LLP, which is certifying the
financial
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statements of the Company, and KPMG Peat Marwick LLP, which is certifying
the financial statements of the Acquired Properties, are independent
public accountants as required by the Act.
(w) Each of Xxxxxxxxxx Petroleum Consultants Inc. and Xxxxx
Xxxxx Company, Petroleum Engineers are independent petroleum engineers
with respect to the Company.
(x) The consolidated historical and pro forma financial
statements, together with related schedules and notes, included in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto), comply as to form in all material respects with the requirements
of the Act. Such historical financial statements present fairly the
consolidated financial position, results of operations and changes in
financial position of the Company and its subsidiaries or the revenues and
direct operating expenses and working capital of the Acquired Properties,
as the case may be, on the basis stated in the Registration Statement at
the respective dates or for the respective periods to which they apply;
such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed therein. Such
pro forma financial statements have been prepared on a basis consistent
with such historical statements, except for the pro forma adjustments
specified therein, and give effect to assumptions made on a reasonable
basis and present fairly the proposed transactions contemplated by the
Prospectus and this Agreement. The other financial and statistical
information and data included in the Registration Statement and the
Prospectus (and any amendment or supplement thereto) are accurately
presented and prepared on a basis consistent with such financial
statements and the books and records of the Company and its subsidiaries
or of the Acquired Properties, as the case may be.
(y) The Company is not and, after giving effect to the
offering and sale of the Securities and the Common Stock and the
application of the proceeds thereof as described in the Prospectus, will
not be, an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended.
(z) 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 or to require the Company to
include such securities with the Shares registered pursuant to the
Registration Statement which have not been waived.
(aa) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) there has not
occurred any material adverse change or any development involving a
prospective material adverse change in the condition, financial or
otherwise, or the earnings, business, management or operations of
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the Company and its subsidiaries, taken as a whole, or of the Acquired
Properties, (ii) there has not been any material adverse change or any
development involving a prospective material adverse change in the capital
stock or in the long-term debt of the Company or any of its subsidiaries
and (iii) none of the Company, any of its subsidiaries or the Acquired
Properties has incurred any material liability or obligation, direct or
contingent except as disclosed in the Prospectus.
(bb) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
(cc) There are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or liens
related to or entitling any person to purchase or otherwise to acquire any
shares of the capital stock of, or other ownership interest in, the
Company or any subsidiary thereof except as otherwise disclosed in the
Registration Statement.
(dd) Except as disclosed in the Prospectus, there are no
business relationships or related party transactions required to be
disclosed therein by Item 404 of Regulation S-K of the Commission.
(ee) The Company and each of its subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
asset accountability; (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.
(ff) All material tax returns required to be filed by the
Company and each of its subsidiaries in any jurisdiction have been filed,
other than those filings being contested in good faith, and all material
taxes, including withholding taxes, penalties and interest, assessments,
fees and other charges due pursuant to such returns or pursuant to any
assessment received by the Company or any of its subsidiaries have been
paid, other than those being contested in good faith and for which
adequate reserves have been provided.
7. INDEMNIFICATION.
(a) The Company and each Subsidiary Guarantor, jointly and
severally, agree to indemnify and hold harmless each Underwriter, its
directors, its officers and each person, if any, who controls any
Underwriter within the meaning of
12
Section 15 of the Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), from and against any and all
losses, claims, damages, liabilities and judgments caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) or
any preliminary prospectus, 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, liabilities or judgments are caused by any
such untrue statement or omission or alleged untrue statement or omission
based upon information relating to any Underwriter furnished in writing to
the Company by such Underwriter expressly for use therein; PROVIDED,
HOWEVER, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages and
liabilities and judgments purchased Securities, or any person controlling
such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Securities to
such person, and if the Prospectus (as so amended and supplemented) would
have cured the defect giving rise to such loss, claim, damage, liability
or judgment.
(b) In case any proceeding (including any governmental
investigation) shall be brought against any Underwriter or any director or
officer of, or person controlling such Underwriter, based upon any
preliminary prospectus, the Registration Statement or the Prospectus or
any amendment or supplement thereto and with respect to which indemnity
may be sought against the Company or the Subsidiary Guarantors, such
Underwriter shall promptly notify the Company in writing and the Company
shall assume the defense thereof, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all fees
and expenses, as incurred. Any Underwriter or any director or officer of,
or person controlling such Underwriter shall have the right to employ
separate counsel in any such proceeding and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense
of such Underwriter, director, officer or controlling person unless (i)
the employment of such counsel has been specifically authorized in writing
by the Company, (ii) the Company shall have failed to assume the defense
and employ counsel or (iii) the named parties to any such proceeding
(including any impleaded parties) include both such Underwriter, director,
officer or controlling person and the Company or any Subsidiary Guarantor
and such Underwriter, director, officer or controlling person shall have
been advised by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those available
to the Company or any Subsidiary Guarantor, as the case may be, (in which
case the Company shall not have the right to assume the defense of such
proceeding on behalf of such Underwriter, director, officer or controlling
person). In any
13
such case described in the immediately preceding sentence, the Company and
the Subsidiary Guarantors shall not, in connection with any one proceeding
or separate but substantially similar or related proceedings in the same
jurisdiction arising out of the same general allegations or circumstances,
be liable for the fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) for all such Underwriters,
director, officer and controlling persons. In any case where any
Underwriter or any director or officer of or person controlling such
Underwriter has the right to employ separate counsel at the Company's
expense, such counsel shall be designated in writing by X.X. Xxxxxx
Securities Inc. and that all the reasonable fees and expenses of such
counsel shall be reimbursed as they are incurred. The Company and the
Subsidiary Guarantors agree to indemnify and hold harmless any Underwriter
and any director or officer of, or person controlling, such Underwriter
from and against any loss or liability by reason of any proceeding (x)
settled with the written consent of the Company or (y) settled more than
thirty business days after the Company receives a request for
reimbursement of legal fees and expenses from such Underwriter, director,
officer or controlling person in any case where such fees and expenses are
at the expense of the Company if the Company shall have failed to comply
with such reimbursement request prior to the date of such settlement. The
Company and the Subsidiary Guarantors shall not, without the prior written
consent of each Underwriter and each person controlling such Underwriter,
effect any settlement of any pending or threatened proceeding in respect
of which such Underwriter or controlling person or any director or officer
of such Underwriter is or could have been a party and indemnity could have
been sought hereunder by such Underwriter, director, officer or
controlling person, unless such settlement includes an unconditional
release of such Underwriter and each such director, officer and
controlling person from all liability on claims that are the subject
matter of such proceeding.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who
sign the Registration Statement and any person controlling the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the Company to
each Underwriter but only with reference to information relating to such
Underwriter furnished in writing by such Underwriter expressly for use in
the Registration Statement, the Prospectus or any preliminary prospectus.
In case any proceeding shall be brought against the Company, any of its
directors, any such officer or any person controlling the Company based on
the Registration Statement, the Prospectus or any preliminary prospectus
and in respect of which indemnity may be sought against any Underwriter,
such Underwriter shall have the rights and duties given to the Company
(except that if the Company shall have assumed the defense thereof, such
Underwriter shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such Underwriter), and
the Company, its directors, any such officers and any person controlling
the Company shall have the rights and duties given to such Underwriter by
14
Section 7(b) hereof (except that if the Company, any of its directors, any
such officers or any such controlling person shall have the right to
employ separate counsel at such Underwriter's expense pursuant to the
second sentence of Section 7(b), such counsel shall be designated by the
Company).
(d) To the extent the indemnification provided for in this
Section 7 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages, liabilities or judgments referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities
and judgments (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 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 and the Underwriters in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Underwriters shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
Company, and the total underwriting discounts and commissions received by
the Underwriters, bear to the total price to the public of the Securities,
in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company and the Underwriters shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the 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 statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, liabilities or judgments 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 7, 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
15
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 to contribute pursuant to this Section 7(d) are
several in proportion to the respective number of Securities purchased by
each of the Underwriters hereunder and not joint.
(e) The remedies provided for in this Section 7 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.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations
of the Underwriters to purchase the Securities under this Agreement are subject
to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing Date
(including after giving effect to the Pending Acquisition) with the same
force and effect as if made on and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b)
Registration Statement after the effectiveness of this Agreement, such
Rule 462(b) Registration Statement shall have become effective by 10:00
P.M., New York City time, on the date of this Agreement, and no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been commenced or
shall be pending before or contemplated by the Commission.
(c) On or after the date hereof 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 (including, without limitation, the placing of
any securities on negative or developing watch or negative or developing
outlook) by any "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Act.
(d) You shall have received on the Closing Date a certificate
dated the Closing Date, signed by X. Xxxxx Xxxx and Xxxxxxx X. Xxxxx XXX,
in their capacities as the President and Chief Executive Officer and the
Executive Vice President and Chief Financial Officer of the Company,
confirming the matters set forth in paragraphs (a), (b), and (c) of this
Section 8.
(e) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) there shall
not have occurred any change or any development involving a prospective
change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and its subsidiaries,
16
taken as a whole, or of the Acquired Properties, (ii) there shall not have
been any change or any development involving a prospective change in the
capital stock or in the long-term debt of the Company or any of its
subsidiaries other than as disclosed in the Prospectus and (iii) none of
the Company, any of its subsidiaries or the Acquired Properties shall have
incurred any liability or obligation, direct or contingent, other than as
disclosed in the Prospectus, the effect of which, in any such case
described in clause (i), (ii) or (iii), in your judgment, is material and
adverse and, in your judgment, makes it impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you), dated the Closing Date, of Xxxxxx & Xxxxxx, L.L.P.,
counsel for the Company and the Subsidiary Guarantors, to the effect that:
(i) each of the Company and its subsidiaries that are
corporations has been duly incorporated, is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to carry on
its business as described in the Prospectus and to own, lease and
operate its properties; each subsidiary of the Company that is a
partnership has been duly formed and is validly existing as a
partnership in good standing under the laws of its jurisdiction of
formation, with all necessary power and authority granted by its
respective partnership agreement, as amended, to carry on its
business as described in the Prospectus and to own, lease and
operate its properties;
(ii) each of the Company and its subsidiaries is duly
qualified and is in good standing as a foreign corporation or
partnership, as the case may be, authorized to do business in each
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect
on the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole;
(iii) all the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully
paid, non-assessable and not subject to any preemptive or similar
rights arising by operation of law, under the charter or by-laws of
the Company, or to the best of such counsel's knowledge after due
inquiry, otherwise;
(iv) all of the outstanding shares of capital stock of,
or other ownership interests in, each of the Company's subsidiaries
that are corporations have been duly and validly authorized and
issued and are fully paid and non-assessable, and are owned of
record by the Company, free and clear of any
17
security interest, claim, lien, encumbrance or adverse interest of
any nature; to the best of such counsel's knowledge after due
inquiry, the portion of the partnership interests in each of the
Company's subsidiaries that are partnerships that the Prospectus
describes as being owned by the Company is so owned by the Company,
free and clear of any security interest, claim, lien, encumbrance or
adverse interest of any nature;
(v) this Agreement has been duly authorized, executed
and delivered by the Company and each Subsidiary Guarantor;
(vi) the Securities have been duly authorized, executed
and delivered by the Company and, when duly authenticated in
accordance with the terms of the Indenture and delivered to and paid
for by the Underwriters in accordance with the terms of this
Agreement, will constitute valid and binding obligations of the
Company entitled to the benefits provided by the Indenture;
(vii) the Indenture has been duly authorized, executed
and delivered by the Company and the Subsidiary Guarantors and
constitutes a valid and binding instrument of the Company and the
Subsidiary Guarantors; and the Indenture has been duly qualified
under the Trust Indenture Act;
(viii) the Subsidiary Guarantees have been duly
authorized, executed and delivered by the Subsidiary Guarantors and,
when duly authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will constitute valid
and obligations of the Subsidiary Guarantors; the Subsidiary
Guarantees do not violate any law applicable to the Subsidiary
Guarantees or the offering and issuance of the Securities and the
Subsidiary Guarantees;
(ix) the Registration Statement has become effective
under the Act, no stop order suspending its effectiveness has been
issued and no proceedings for that purpose are, to the best of such
counsel's knowledge after due inquiry, pending before or
contemplated by the Commission;
(x) the statements under the captions "Risk Factors --
Environmental and Other Regulation", "Business and Properties --
Litigation", "Business and Properties -- Federal Regulation",
"Business and Properties -- Environmental Regulation", "Transactions
with Related Persons", "Description of Notes", "Description of
Indebtedness" and "Underwriting" in the Prospectus and Items 14 and
15 of Part II of the Registration Statement insofar as such
statements constitute a summary of legal matters, documents or
proceedings referred to therein, fairly present the information
called for with respect to such legal matters, documents and
proceedings;
18
(xi) to the best of such counsel's knowledge after due
inquiry, neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws and neither the
Company nor any of its subsidiaries is in default in the performance
of any obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other instrument
material to the Company and its subsidiaries, taken as a whole, to
which the Company or any of its subsidiaries is a party or by which
it or any of its subsidiaries or their respective property is bound;
(xii) The Acquisition Agreement has been duly
authorized, executed and delivered by the Company and constitutes a
valid and legally binding obligation of the Company.
(xiii) the execution, delivery and performance of this
Agreement, the Indenture, the Securities and the Acquisition
Agreement by the Company, compliance by the Company with all the
provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not require any
consent, approval, authorization or other order of, or qualification
with, any court or governmental body or agency (except such as may
be required under the securities or Blue Sky laws of the various
states) and will not conflict with or constitute a breach of any of
the terms or provisions of, or a default under, the charter or
by-laws of the Company or any of its subsidiaries or, to the best of
such counsel's knowledge after due inquiry, any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is
material to the Company and its subsidiaries, taken as a whole, to
which it or any of its subsidiaries is a party or by which it or any
of its subsidiaries or their respective property is bound, or
violate or conflict with any applicable law or any rule, regulation,
judgment, order or decree of any court or any governmental body or
agency having jurisdiction over the Company, any of its subsidiaries
or their respective property;
(xiv) after due inquiry, such counsel does not know of
any legal or governmental proceedings pending or threatened to which
the Company or any of its subsidiaries is a party or to which any of
their respective property is subject that are required to be
described in the Registration Statement or the Prospectus and are
not so described, or of any statutes, regulations, contracts or
other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits
to the Registration Statement that are not described or filed as
required;
(xv) the Company is not and, after giving effect to the
offering and sale of the Securities and the Common Stock and the
application of the proceeds thereof as described in the Prospectus,
will not be, an "investment
19
company" as such term is defined in the Investment Company Act of
1940, as amended;
(xvi) to the best of such counsel's knowledge after due
inquiry, 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 or to require the
Company to include such securities with the Securities registered
pursuant to the Registration Statement that have not been waived;
(xvii) the Registration Statement and the Prospectus and
any supplement or amendment thereto (except for the financial
statements and other financial and statistical data included therein
as to which no opinion need be expressed and other than that part of
the Registration Statement which constitutes the Form T-1 of the
Trustee under the Trust Indenture Act) comply as to form in all
material respects with the Act; and
(xviii) such counsel shall also state that such counsel
has no reason to believe that (except for the financial statements
and other financial and statistical data as to which such counsel
need not express any belief and other than that part of the
Registration Statement which constitutes the Form T-1 of the Trustee
under the Trust Indenture Act) at the time the Registration
Statement became effective and on the date of this Agreement, the
Registration Statement and the prospectus included therein contained
any 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, and such counsel has no reason to
believe that the Prospectus, as amended or supplemented, if
applicable (except for the financial statements and other financial
and statistical data, as aforesaid) contains any untrue statement of
a material fact 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.
The opinion of Xxxxxx & Xxxxxx, L.L.P. described in paragraph (f)
above shall be rendered to you at the request of the Company and shall so state
therein.
(g) You shall have received on the Closing Date an opinion,
dated the Closing Date, of Xxxxx & Xxxxx, L.L.P., counsel for the
Underwriters, as to the matters referred to in clauses (v), (vi), (vii),
(x) (but only with respect to the statements under the caption
"Description of Securities" and "Underwriting"), (xvii) and (xviii) of the
foregoing paragraph (f).
In giving such opinion with respect to the matters covered by clause
(xviii), Xxxxxx & Xxxxxx, L.L.P. and Xxxxx & Xxxxx, L.L.P. may state that
their opinion and belief
20
are based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and
review and discussion of the contents thereof, but are without independent
check or verification except as specified.
(h) You shall have received on each of the date hereof and the
Closing Date, a letter dated the date hereof or the Closing Date, as the
case may be, in form and substance satisfactory to you, from Deloitte &
Touche LLP, independent public accountants, containing the information and
statements of the type ordinarily included in accountants' "comfort
letters" to Underwriters with respect to certain financial statements and
certain financial information contained in the Registration Statement and
the Prospectus.
(i) You shall have received on each of the date hereof and the
Closing Date, a letter dated the date hereof or the Closing Date, as the
case may be, in form and substance satisfactory to you, from KPMG Peat
Marwick LLP, independent public accountants, containing the information
and statements of the type ordinarily included in accountants' "comfort
letters" to Underwriters with respect to certain financial statements and
certain financial information contained in the Registration Statement and
the Prospectus.
(j) The sale by the Company of 4,400,000 shares of Common
Stock pursuant to the Underwriting Agreement, dated as of even date
herewith, among the Company and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, X.X. Xxxxxx Securities Inc. and Principal Financial
Securities, Inc., as representatives of the several underwriters, shall
have been consummated prior to or concurrently with the sale by the
Company of the Securities pursuant to this Agreement.
(k) The acquisition of the Acquired Properties pursuant to the
Acquisition Agreement shall have been consummated prior to or concurrently
with the sale by the Company of the Securities pursuant to this Agreement.
(l) The Company shall not have failed at or prior to the
Closing Date to perform or comply with any of the agreements herein
contained and required to be performed or complied with by the Company at
or prior to the Closing Date.
9. EFFECTIVE DATE OF AGREEMENT AND TERMINATION. This Agreement shall
become effective upon the execution and delivery of this Agreement by the
parties hereto.
Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Underwriters, by notice given to
the Company, if after the execution and delivery of this 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 or guaranteed by the Company shall have been
21
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 or Texas authorities, or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Underwriters, is material and adverse and which, in the judgment of the
Underwriters, makes it impracticable to market the Securities on the terms and
in the manner contemplated in the Prospectus.
10. MISCELLANEOUS. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, to Bellwether
Exploration Company, 0000 Xxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, Attention: X.
Xxxxx Xxxx, and (b) if to any Underwriter or to you, to you c/o X. X. Xxxxxx
Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: High Yield
Syndicate Department, or in any case to such other address as the person to be
notified may have requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Company, the Subsidiary
Guarantors and of the several Underwriters set forth in or made pursuant to this
Agreement shall remain operative and in full force and effect, and will survive
delivery of and payment for the Securities, regardless of (i) any investigation,
or statement as to the results thereof, made by or on behalf of any Underwriter,
the officers and directors of any Underwriter, any person controlling any
Underwriter, the Company, the officers or directors of the Company or any person
controlling the Company, (ii) acceptance of the Securities and payment for them
hereunder and (iii) termination of this Agreement.
If for any reason the Securities are not delivered by or on behalf
of the Company as provided herein (other than as a result of any termination of
this Agreement pursuant to Section 9), the Company agrees to reimburse the
several Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) reasonably incurred by them.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Subsidiary
Guarantors, the Underwriters, the Underwriters' officers and directors, any
controlling persons referred to herein, the Company's directors and the
Company's officers who sign the Registration Statement and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Securities from any of the several Underwriters merely because of
such purchase.
This Agreement shall be governed and construed in accordance with
the laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
22
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
BELLWETHER EXPLORATION COMPANY
By:
Name:
Title:
SUBSIDIARY GUARANTORS
By:
Name:
Title:
By:
Name:
Title:
X.X. XXXXXX SECURITIES INC.
CHASE SECURITIES INC.
As Underwriters
By: X.X. XXXXXX SECURITIES INC.
By:
Name:
Title:
23
SCHEDULE I
Number of Securities
UNDERWRITERS TO BE PURCHASED
X. X. Xxxxxx Securities Inc.
Chase Securities Inc.
-----------
Total $100,000,000
===========
