PERMIAN BASIN ROYALTY
TRUST
Units of Beneficial
Interest
Lehman Brothers
Inc.
745 Seventh Avenue
New York, New York 10019
Wachovia Capital
Markets, LLC
7 Saint Paul Street, 1st Floor
Baltimore, MD 21202
As
Representatives of the several Underwriters named in
Schedule 1 attached hereto
Burlington
Resources Inc., a Delaware corporation (“Burlington”),
together with its indirect, wholly owned subsidiary Burlington
Resources Oil & Gas Company LP, a Delaware limited partnership
(“BROG”, and together with Burlington, the “
Selling Unitholder Parties ”), propose to sell an
aggregate of 8,600,000 units (the “ Firm Units
”) of beneficial interest (the “ Units ”)
of PERMIAN BASIN ROYALTY TRUST, a trust formed under the laws of
the State of Texas (the “ Trust ”). In addition,
the Selling Unitholder Parties propose to grant to the underwriters
(the “ Underwriters ”) named in
Schedule 1 attached to this agreement (this “
Agreement ”) an option to purchase up to an additional
1,290,000 Units on the terms set forth in Section 3 (the
“ Option Units ”). The Firm Units and the Option
Units, if purchased, are hereinafter collectively called the
“ Offered Units .” This is to confirm the
agreement concerning the purchase of the Offered Units from the
Selling Unitholder Parties by the Underwriters.
1.
Representations, Warranties and Agreements of the Trust and the
Selling Unitholder Parties . Each of the Trust and the Selling
Unitholder Parties represent, warrant and agree that:
(a) A registration
statement on Form S-3 with respect to the Offered Units has
(i) been prepared by the Trust and the Selling Unitholder
Parties in conformity with the requirements of the Securities Act
of 1933, as amended (the “ Securities Act ”),
and the rules and regulations (the “ Rules and
Regulations ”) of the Securities and Exchange Commission
(the “ Commission ”) thereunder; (ii) been
filed with the Commission under the Securities Act; and
(iii) become effective under the Securities Act. Copies of
such registration statement and any amendment thereto have been
delivered or made available to you by the Trust or Burlington as
the Representatives (the “ Representatives ”) of
the Underwriters. As used in this Agreement, “ Applicable
Time ” means 6:30 p.m. (New
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York City time)
on the date of this Agreement; “ Effective Time
” means the date and the time as of which such registration
statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission; “ Issuer
Free Writing Prospectus ” means each “free writing
prospectus” (as defined in Rule 405 of the Rules and
Regulations) prepared by or on behalf, and with the approval, of
the Trust or the Selling Unitholder Parties or used or referred to
by the Trust or the Selling Unitholder Parties in connection with
the offering of the Units; “ Preliminary Prospectus
” means each prospectus included in such registration
statement, or amendments thereto, before such registration
statement became effective under the Securities Act and any
prospectus filed with the Commission by the Trust and the Selling
Unitholder Parties with the consent of the Representatives pursuant
to Rule 424(b) of the Rules and Regulations; “ Pricing
Disclosure Package ” means, as of the Applicable Time,
the most recent Preliminary Prospectus, together with each Issuer
Free Writing Prospectus filed or used by the Trust and the Selling
Unitholder Parties on or before the Applicable Time, other than a
road show that is an Issuer Free Writing Prospectus under
Rule 433 of the Rules and Regulations; “ Registration
Statement ” means such registration statement, as amended
at the Effective Time, including any Preliminary Prospectus or the
Prospectus and all exhibits to such registration statement; and
“ Prospectus ” means the final prospectus
relating to the Units including any prospectus supplement thereto
relating to the Units, as filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations. Any reference to any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include any documents incorporated by reference therein
pursuant to Form S-3 under the Securities Act, as of the date of
such Preliminary Prospectus or the Prospectus, as the case may be,
any reference to the “ most recent Preliminary
Prospectus ” shall be deemed to refer to the latest
Preliminary Prospectus included in the Registration Statement or
filed pursuant to Rule 424(b) prior to or on the date hereof
(including, for purposes hereof, any documents incorporated by
reference therein prior to or on the date hereof). Any reference to
any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any document
filed under the Securities Exchange Act of 1934, as amended (the
“ Exchange Act ”), after the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and
incorporated by reference in such Preliminary Prospectus or the
Prospectus, as the case may be; and any reference to any amendment
to the Registration Statement shall be deemed to include any annual
report of the Trust or the Selling Unitholder Parties filed with
the Commission pursuant to Section 13(a) or 15(d) of the Exchange
Act after the Effective Time that is incorporated by reference in
the Registration Statement. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus or
Prospectus or suspending the effectiveness of the Registration
Statement, and no proceeding for such purpose has been instituted,
or to the knowledge of the Trust and the Selling Unitholder
Parties, threatened by the Commission.
(b) Neither the
Trust nor any Selling Unitholder Party was at the time of initial
filing of the Registration Statement and at the earliest time
thereafter that any offering participant made a bona fide offer
(within the meaning of Rule 164(h)(2) of the Rules and
Regulations) of the Units, is on the date hereof nor will be on the
applicable Delivery Date (as defined in Section 5) an
“ineligible issuer” (as defined in
Rule 405).
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The Trust and
Burlington have been since the time of initial filing of the
Registration Statement and continue to be eligible to use Form S-3
for the offering of the Units.
(c) The
Registration Statement conformed and will conform in all material
respects at the Effective Time and on the applicable Delivery Date,
and any post-effective amendment to the Registration Statement
filed after the date hereof will conform in all material respects
when filed, to the requirements of the Securities Act and the Rules
and Regulations. The most recent Preliminary Prospectus conformed,
and the Prospectus will conform in all material respects when filed
with the Commission pursuant to Rule 424(b) and on the applicable
Delivery Date to the requirements of the Securities Act and the
Rules and Regulations. The Registration Statement, at the Effective
Time, and the Prospectus, as of its date and on the applicable
Delivery Date, do not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the
case of the Prospectus, in the light of the circumstances under
which they were made) not misleading; provided , that no
representation or warranty is made as to information contained in
or omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished
to the Trust or the Selling Unitholder Parties through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in
Section 10(f).
(d) The Pricing
Disclosure Package did not, as of the Applicable Time, 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 price of the Units
and disclosures directly relating thereto will be included on the
cover page of the Prospectus; provided that no
representation or warranty is made as to information contained in
or omitted from the Pricing Disclosure Package in reliance upon and
in conformity with written information furnished to the Trust and
the Selling Unitholder Parties through the Representatives by or on
behalf of any Underwriter specifically for inclusion therein, which
information is specified in Section 10(f).
(e) Each Issuer
Free Writing Prospectus (including, without limitation, any road
show that is a free writing prospectus under Rule 433), when
considered together with the Pricing Disclosure Package as of the
Applicable Time, 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 price of the Units and disclosures directly relating
thereto will be included on the cover page of the
Prospectus.
(f) Each Issuer
Free Writing Prospectus conformed or will conform in all material
respects to the requirements of the Securities Act and the Rules
and Regulations on the date of first use, and the Trust and the
Selling Unitholder Parties have complied with any filing
requirements applicable to such Issuer Free Writing Prospectus
pursuant to the Rules and Regulations. Neither the Trust nor the
Selling Unitholder Parties have made any offer relating to the
Units that would constitute an Issuer Free Writing Prospectus
without the prior written consent of the Representatives (excluding
any road
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show that is a
free writing prospectus under Rule 433) . The Trust and the
Selling Unitholder Parties have retained all Issuer Free Writing
Prospectuses that were not required to be filed pursuant to the
Rules and Regulations.
2.1
Representations, Warranties and Agreements of the Trust .
The Trust represents, warrants and agrees that:
(a) The documents
incorporated by reference in the Registration Statement, any
Preliminary Prospectus and the Prospectus from the Trust’s
filings with the Commission, when filed with the Commission,
conformed in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission
thereunder, and none of such documents contained, or on the
applicable Delivery Date will contain, an untrue statement of a
material fact or omitted, or on the applicable Delivery Date, will
omit, to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any
further documents so filed by the Trust and incorporated by
reference in the Registration Statement and the Prospectus, when
filed with Commission, will conform in all material respects to the
requirements of the Securities Act and the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not
misleading.
(b) The Trust has
been duly organized and is validly existing under the laws of its
jurisdiction of organization. The Trust has all power and authority
necessary to own or hold its assets and to conduct the businesses
in which it is engaged. The Trust does not own or control, directly
or indirectly, any corporation, association or other
entity.
(c) The Trust has
an authorized capitalization as set forth in each of the most
recent Preliminary Prospectus and the Prospectus, and all of the
issued Units of the Trust have been duly authorized and validly
issued, are fully paid and non-assessable, conform to the
description thereof contained in each of the most recent
Preliminary Prospectus and the Prospectus and were issued in
compliance with federal and state securities laws and not in
violation of any preemptive right, resale right, right of first
refusal or similar right. Except for the rights of the Underwriters
pursuant to this Agreement, no options, warrants or other rights to
purchase or exchange any securities for Units are
outstanding.
(d) The Units to
be sold by the Selling Unitholder Parties under this Agreement have
been duly authorized and validly issued, are fully paid and
non-assessable and conform in all material respects to the
description thereof contained in each of the most recent
Preliminary Prospectus and the Prospectus.
(e) The Trust has
all requisite power and authority to execute, deliver and perform
its obligations under this Agreement. This Agreement has been duly
and validly authorized, executed and delivered by the
Trust.
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(f) The execution,
delivery and performance of this Agreement by the Trust and the
consummation of the transactions contemplated hereby will not
(i) conflict with or result in a breach or violation of any of
the terms or provisions of, impose any lien, charge or encumbrance
upon any property or assets of the Trust, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement,
license or other agreement or instrument to which the Trust is a
party or by which the Trust is bound or to which any of the
property or assets of the Trust is subject; (ii) result in any
violation of the provisions of the organizational documents of the
Trust; or (iii) result in any violation of any statute or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Trust or any of its properties or
assets.
(g) Except for the
registration of the Offered Units under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state securities laws in connection with the purchase
and sale of the Offered Units by the Underwriters, no consent,
approval, authorization or order of, or filing or registration
with, any court or governmental agency or body having jurisdiction
over the Trust or any of its properties or assets is required for
the execution, delivery and performance of this Agreement by the
Trust and the consummation of the transactions contemplated
hereby.
(h) There are no
contracts, agreements or understandings between the Trust and any
person (other than the Selling Unitholder Parties) granting such
person the right to require the Trust to file a registration
statement under the Securities Act with respect to any securities
of the Trust owned or to be owned by such person or to require the
Trust 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 Trust under the Securities Act.
(i) The Trust has
not sold or issued any securities that would be integrated with the
offering of the Offered Units contemplated by this Agreement
pursuant to the Securities Act, the Rules and Regulations or the
interpretations thereof by the Commission.
(j) The Trust has
not sustained, since the date of the latest audited financial
statements included or incorporated by reference in the most recent
Preliminary Prospectus, any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, and since such date, there
has not been any change in the capitalization of the Trust or any
adverse change, or any development involving a prospective adverse
change, in or affecting the financial condition, distributable
income, trust corpus, assets, business or prospects of the Trust,
in each case except as could not reasonably be expected to have a
material adverse effect on the condition (financial or otherwise),
distributable income, trust corpus, assets, business or prospects
of the Trust (a “Trust Material Adverse
Effect”).
(k) Since the date
as of which information is given in the most recent Preliminary
Prospectus and except as may otherwise be described in the most
recent
6
Preliminary
Prospectus, the Trust has not (i) incurred any liability or
obligation, direct or contingent, other than liabilities and
obligations that were incurred in the ordinary course of business
or (ii) entered into any material transaction not in the
ordinary course of business.
(l) The historical
financial statements (including the related notes and supporting
schedules) of the Trust included or incorporated by reference in
the most recent Preliminary Prospectus from the Trust’s
filings with the Commission comply as to form in all material
respects with the requirements of Regulation S-X under the
Securities Act and Staff Accounting Bulletin Topic 12:E of the
Commission promulgated thereunder and present fairly the financial
condition, distributable income and changes in trust corpus of the
Trust purported to be shown thereby at the dates and for the
periods indicated and have been prepared in conformity with
accounting principles permitted for royalty trusts by the
Commission pursuant to Staff Accounting Bulletin Topic 12:E applied
on a consistent basis throughout the periods involved, except as
otherwise stated therein.
(m) Deloitte &
Touche LLP, who have certified certain financial statements of the
Trust, whose report appears in the most recent Preliminary
Prospectus or is incorporated by reference therein and who have
delivered the initial letter referred to in Section 9(f)(1)
hereof, is an independent registered public accounting firm as
required by the Securities Act and the Rules and
Regulations.
(n) Cawley,
Gillespie & Associates, Inc., whose report with respect to
certain properties of the Trust appears in the most recent
Preliminary Prospectus (or is incorporated by reference therein),
was, as of the date of such report, and is, as of the date hereof,
an independent petroleum engineer with respect to the
Trust.
(o) The Trust has
good and defensible title to all real property and good and
marketable title to all personal property owned by it, in each case
free and clear of all liens, encumbrances and defects, except such
as are described in the most recent Preliminary Prospectus or such
as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of
such property by the Trust; and all assets held under lease by the
Trust are held by it under valid, subsisting and enforceable
leases, with such exceptions as do not materially interfere with
the use made and proposed to be made of such assets by the
Trust.
(p) There are no
legal or governmental proceedings pending to which the Trust is a
party or of which any property or assets of the Trust is the
subject that could reasonably be expected to have a Trust Material
Adverse Effect or could reasonably be expected to have a material
adverse effect on the performance of this Agreement or the
consummation of the transactions contemplated hereby; and to the
knowledge of the Trust, no such proceedings are threatened or
contemplated by governmental authorities or others.
(q) There are no
contracts or other documents to which the Trust is a party of a
character required to be described in the Registration Statement,
most recent
7
Preliminary
Prospectus or Prospectus or to be filed as exhibits to the
Registration Statement or incorporated by reference therein that
are not described and filed or incorporated by reference therein as
required. To the Trust’s knowledge, no other party to any
such contract, agreement or arrangement has any intention not to
render full performance as contemplated by the terms
thereof.
(r) No
relationship, direct or indirect, exists between or among the
Trust, on the one hand, and the trustee, unitholders, customers or
suppliers of the Trust, on the other hand, that is required to be
described in the most recent Preliminary Prospectus or the
Prospectus which is not so described.
(s) The Trust has
filed all federal, state, local and foreign income and franchise
tax returns required to be filed through the date hereof, subject
to permitted extensions, and has paid all taxes due thereon, and no
tax deficiency has been determined adversely to the Trust, nor does
the Trust have any knowledge of any tax deficiency that could
reasonably be expected to have a Trust Material Adverse
Effect.
(t) The Trust is
not (i) in violation of its organizational documents,
(ii) in default, and no event has occurred that, with notice
or lapse of time or both, would constitute such a default, in the
due performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan
agreement, license or other agreement or instrument to which it is
a party or by which it is bound or to which any of its properties
or assets is subject or (iii) in violation of any statute or
any order, rule or regulation of any court or governmental agency
or body having jurisdiction over it or its property or assets or
has failed to obtain any license, permit, certificate, franchise or
other governmental authorization or permit necessary to the
ownership of its property or to the conduct of its business, except
in the case of clauses (ii) and (iii), to the extent any such
conflict, breach, violation or default could not, individually or
in the aggregate, reasonably be expected to have a Trust Material
Adverse Effect.
(u) The Trust is
not, and as of the applicable Delivery Date and after giving effect
to the offer and sale of the Offered Units will not be, an
“investment company” within the meaning of such term
under the Investment Company Act of 1940, as amended, and the rules
and regulations of the Commission thereunder.
(v) Since the date
of the most recent balance sheet of the Trust reviewed or audited
by Deloitte & Touche LLP (i) the Trust is not aware of
(A) any significant deficiencies in the design or operation of
internal controls that could adversely affect the ability of the
Trust to record, process, summarize and report financial data, or
any material weaknesses in internal controls or (B) any fraud,
whether or not material, that involves management or other
employees who have a significant role in the internal controls of
the Trust, and (ii) since that date, there have been no significant
changes in internal controls or in other factors that could
significantly affect internal controls, including any corrective
actions with regard to significant deficiencies and material
weaknesses.
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(w) The Trust has
not distributed and, prior to the later to occur of any Delivery
Date and completion of the distribution of the Offered Units, will
not distribute any offering material in connection with the
offering and sale of the Offered Units other than the Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus to
which the Representatives have consented in accordance with Section
1(f) or 6(a)(viii) and any communication not deemed a
“prospectus” by virtue of Rule 134 of the Rules
and Regulations.
(x) The Trust has
not taken and will not take, directly or indirectly, any action
designed to or that has constituted or that could reasonably be
expected to cause or result in the stabilization or manipulation of
the price of any security of the Trust to facilitate the sale or
resale of the Offered Units.
(y) The Offered
Units have been listed on the New York Stock Exchange.
(z) The Trust is,
and at all times prior was, (i) in compliance with any and all
applicable federal, state, local and foreign laws, regulations,
ordinances, rules, orders, judgments, decrees, permits or other
legal requirements relating to the protection of human health and
safety, the environment, natural resources or hazardous or toxic
substances or wastes, pollutants or contaminants (“
Environmental Laws ”), which compliance includes
obtaining, maintaining and complying with all permits and
authorizations and approvals required by Environmental Laws to
conduct its businesses and (ii) has not received notice of any
actual or potential liability for the investigation or remediation
of any disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants, except in the case of clause
(i) or (ii) where such non-compliance with or liability
under Environmental Laws could not, individually or in the
aggregate, reasonably be expected to have a Trust Material Adverse
Effect; and the Trust has not been named as a “potentially
responsible party” under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, or
any other similar Environmental Law, except with respect to any
matters that, individually or in the aggregate, could not
reasonably be expected to have a Trust Material Adverse Effect.
Except as described in the most recent Preliminary Prospectus and
Prospectus, the Trust is not a party to any proceeding under
Environmental Laws in which a governmental authority is also a
party, other than such proceedings regarding which it is believed
no monetary penalties of $100,000 or more will be imposed
.
(aa) The Trust
(i) makes and keeps accurate books and records and
(ii) maintains and has maintained effective internal control
over financial reporting as defined in Rule 13a-15 under the
Exchange Act and a system of internal accounting controls
sufficient to provide reasonable assurance that
(A) transactions are executed in accordance with the
trustee’s general or specific authorizations,
(B) transactions are recorded as necessary to permit
preparation of the Trust’s financial statements in conformity
with applicable accounting principles permitted for royalty trusts
by the Commission pursuant to Staff Accounting Bulletin 12:E and to
maintain accountability for its assets, (C) access to the
Trust’s assets is permitted only in accordance with the
trustee’s general or specific authorization and (D) the
recorded accountability for the
9
Trust’s
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(bb) (i) The
Trust has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15 under the
Exchange Act), (ii) such disclosure controls and procedures
are designed to ensure that the information required to be
disclosed by the Trust in the reports it files or submits under the
Exchange Act is accumulated and communicated to the trustee of the
Trust, as appropriate, to allow timely decisions regarding required
disclosure to be made and (iii) such disclosure controls and
procedures are effective in all material respects to perform the
functions for which they were established.
Any
certificate signed by the trustee of the Trust and delivered to the
Representatives or counsel for the Underwriters in connection with
the offering of the Offered Units shall be deemed a representation
and warranty by the Trust, as to matters covered thereby, to each
Underwriter.
2.2
Representations, Warranties and Agreements of the Selling
Unitholder Parties . The Selling Unitholder Parties represent,
warrant and agree that:
(a) BROG has, and
immediately prior to the applicable Delivery Date will have, good
and valid title to, or a valid “security entitlement”
within the meaning of Section 8-501 of the New York Uniform
Commercial Code (the “ UCC ”) in respect of, the
Units to be sold by the Selling Unitholder Parties hereunder, free
and clear of all liens, encumbrances, equities or
claims;
(b) Upon payment
for the Units to be sold by such Selling Unitholder Parties,
delivery of such Units, as directed by the Underwriters, to Cede
& Co. (“ Cede ”) or such other nominee as
may be designated by The Depository Trust Company (“
DTC ”), registration of such Units in the name of Cede
or such other nominee and the crediting of such Units on the books
of DTC to securities accounts of the Underwriters (assuming that
neither DTC nor any such Underwriter has notice of any adverse
claim (within the meaning of Section 8-105 of the UCC to such
Units), (i) DTC shall be a “protected purchaser”
of such Units within the meaning of Section 8-303 of the UCC,
(ii) under Section 8-501 of the UCC, the Underwriters
will acquire a valid security entitlement in respect of such Units
and (iii) no action based on any “adverse claim”,
within the meaning of Section 8-102 of the UCC, to such Units
may be asserted against the Underwriters with respect to such
security entitlement. For purposes of this representation, such
Selling Unitholder Parties may assume that when such payment,
delivery and crediting occur, (A) such Units will have been
registered in the name of Cede or another nominee designated by
DTC, in each case on the Trust’s share registry in accordance
with its organizational documents and applicable law, (B) DTC
will be registered as a “clearing corporation” within
the meaning of Section 8-102 of the UCC and (C) appropriate
entries to the accounts of the several Underwriters on the records
of DTC will have been made pursuant to the UCC.
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(c) Each of the
Selling Unitholder Parties has been duly organized, is validly
existing and in good standing under the laws of its jurisdiction of
organization and is duly qualified to do business and in good
standing as a foreign corporation or other business entity in each
jurisdiction in which its ownership or lease of property or the
conduct of its business requires such qualification, except where
the failure to be so qualified or in good standing, individually or
in the aggregate, could not reasonably be expected to have a
material adverse effect on the condition (financial or otherwise),
distributable income, assets, management, business or prospects of
the Selling Unitholder Parties (a “BR Material Adverse
Effect”). Each of the Selling Unitholder Parties has all
power and authority necessary to own or hold its assets and to
conduct the business in which it is engaged.
(d) The Selling
Unitholder Parties have full right, power and authority, corporate
or otherwise, to enter into this Agreement. The execution, delivery
and performance of this Agreement by the Selling Unitholder Parties
and the consummation by the Selling Unitholder Parties of the
transactions contemplated hereby do not and will not
(i) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement, license or
other agreement or instrument to which the Selling Unitholder
Parties are a party or by which the Selling Unitholder Parties are
bound or to which any of the property or assets of the Selling
Unitholder Parties is subject, (ii) result in any violation of
the provisions of the charter, by-laws or partnership agreement (or
similar organizational documents) of the Selling Unitholder Parties
or (iii) result in any violation of any statute or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over the Selling Unitholder Parties or the
property or assets of the Selling Unitholder Parties which breaches
or violations, in the case of clauses (i) or (iii), would,
individually or in the aggregate, cause a BR Material Adverse
Effect or impede or delay the sale of any Units contemplated by
this Agreement.
(e) Except for the
registration of the Offered Units under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state securities laws in connection with the purchase
and sale of the Offered Units by the Underwriters, no consent,
approval, authorization or order of, or filing or registration
with, any court or governmental agency or body having jurisdiction
over the Selling Unitholder Parties or the property or assets of
the Selling Unitholder Parties is required for the execution,
delivery and performance of this Agreement by the Selling
Unitholder Parties and the consummation by the Selling Unitholder
Parties of the transactions contemplated hereby.
(f) This Agreement
has been duly and validly authorized, executed and delivered by or
on behalf of the Selling Unitholder Parties.
(g) The Selling
Unitholder Parties have not taken and will not take, directly or
indirectly, any action that is designed to or which has constituted
or which could reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the
Trust to facilitate the sale or resale of the Offered
Units.
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(h) The documents
incorporated by reference in the Registration Statement, any
Preliminary Prospectus and the Prospectus from Burlington’s
filings with the Commission, when filed with the Commission,
conformed in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission
thereunder, and none of such documents contained, or on the
applicable Delivery Date will contain, an untrue statement of a
material fact or omitted, or on the applicable Delivery Date will
omit, to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any
further documents so filed by the Selling Unitholder Parties and
incorporated by reference in the Registration Statement, any
Preliminary Prospectus and the Prospectus, when filed with
Commission, will conform in all material respects to the
requirements of the Securities Act and the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not
misleading.
(i) The historical
financial statements (including the related notes and supporting
schedules) of Burlington included or incorporated by reference in
the most recent Preliminary Prospectus from the Selling Unitholders
Parties’ filings with the Commission comply as to form in all
material respects with the requirements of Regulation S-X
under the Securities Act and present fairly the financial
condition, results of operations and cash flows of the entities
purported to be shown thereby at the dates and for the periods
indicated and have been prepared in conformity with accounting
principles generally accepted in the United States applied on a
consistent basis throughout the periods involved, except as
otherwise stated therein.
(j)
PricewaterhouseCoopers LLP, whose report with respect to the
financial statements of Burlington appears in the most recent
Preliminary Prospectus or is incorporated by reference therein and
who have delivered the initial letter referred to in
Section 9(f)(2) hereof, is an independent registered public
accounting firm as required by the Securities Act and the Rules and
Regulations.
(k) Sproule
Associate Limited and Miller and Lents, Ltd., whose reports with
respect to certain properties of the Selling Unitholder Parties
appear in the most recent Preliminary Prospectus (or are
incorporated by reference therein), were, as of the dates of such
reports, and are, as of the date hereof, independent petroleum
engineers with respect to the Selling Unitholder
Parties.
(l) The Selling
Unitholder Parties have not sold or issued any securities that
would be integrated with the offering of the Offered Units
contemplated by this Agreement pursuant to the Securities Act, the
Rules and Regulations or the interpretations thereof by the
Commission.
(m) The Selling
Unitholder Parties have not distributed and, prior to the later to
occur of any Delivery Date and completion of the distribution of
the Offered Units, will not distribute any offering material in
connection with the offering and sale of the Offered Units other
than the Preliminary Prospectus, the Prospectus, any Issuer Free
Writing Prospectus to which the Representatives have consented in
accordance with
12
Section 1(f) or 6(a)(viii) and any
communication not deemed a “prospectus” by virtue of
Rule 134 of the Rules and Regulations.
Any
certificate signed by any officer of the Selling Unitholder Parties
and delivered to the Representatives or counsel for the
Underwriters in connection with the offering of the Offered Units
shall be deemed a representation and warranty by such Selling
Unitholder Parties, as to matters covered thereby, to each
Underwriter.
3.
Purchase of the Offered Units by the Underwriters. On the
basis of the representations and warranties contained in, and
subject to the terms and conditions of, this Agreement, the Selling
Unitholder Parties hereby agree to sell the Firm Units to the
several Underwriters, and each of the Underwriters, severally and
not jointly, agrees to purchase the number of Firm Units set forth
opposite that Underwriter’s name in Schedule 1
hereto.
In
addition, the Selling Unitholder Parties grant to the Underwriters
an option to purchase up to 1,290,000 Option Units, severally and
not jointly. Such option will be exercisable in the event that the
Underwriters sell more than the number of Firm Units in the
offering and is exercisable as provided in Section 5 hereof.
Each Underwriter agrees, severally and not jointly, to purchase the
number of Option Units (subject to such adjustments to eliminate
fractional units as the Representatives may determine) that bears
the same proportion to the total number of Option Units to be sold
on such Delivery Date as the number of Firm Units set forth in
Schedule 1 hereto opposite the name of such Underwriter
bears to the total number of Firm Units.
The
price of both the Firm Units and any Option Units purchased by the
Underwriters shall be $15.04125 per unit.
The
Selling Unitholder Parties shall not be obligated to deliver any of
the Firm Units or Option Units deliverable on the applicable
Delivery Date, except upon payment for all such Offered Units to be
purchased on such Delivery Date as provided herein.
4.
Offering of Offered Units by the Underwriters . Upon
authorization by the Representatives of the release of the Firm
Units, the several Underwriters propose to offer the Firm Units for
sale upon the terms and conditions set forth in the
Prospectus.
5.
Delivery of and Payment for the Units . Delivery of and
payment for the Firm Units shall be made at 10:00 A.M., New
York City time, on December 21, 2005, or at such other date or
place as shall be determined by agreement between the
Representatives and the Selling Unitholder Parties. This date and
time are sometimes referred to as the “Initial Delivery
Date.” Delivery of the Firm Units shall be made to the
Representatives for the account of each Underwriter against payment
by the several Underwriters through the Representatives of the
respective aggregate purchase prices of the Firm Units being sold
by the Selling Unitholder Parties to or upon the order of the
Selling Unitholder Parties by wire transfer in immediately
available funds to the accounts specified by the Selling Unitholder
Parties. Time shall be of the essence, and delivery at the time
specified pursuant to this Agreement is a further condition of the
obligation of each Underwriter hereunder. Delivery of the Firm
Units shall be made through
13
the facilities
of The Depository Trust Company unless the Representatives shall
otherwise instruct.
The
option granted in Section 3 will expire 30 days after the
date of this Agreement and may be exercised in whole or from time
to time in part by written notice being given to the Selling
Unitholder Parties by the Representatives; provided that if
such date falls on a day that is not a business day, the option
granted in Section 3 will expire on the next succeeding
business day. Such notice shall set forth the aggregate number of
Option Units as to which the option is being exercised, the names
in which the Option Units are to be registered, the denominations
in which the shares of Option Units are to be issued and the date
and time, as determined by the Representatives, when the Option
Units are to be delivered; provided, howe
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