Banc of America Securities
LLC
BMO Capital Markets Corp.
J.P. Morgan Securities Inc.
Scotia Capital (USA) Inc.
Mitsubishi UFJ Securities (USA), Inc.
Natixis Bleichroeder Inc.
U.S. Bancorp Investments, Inc.
Capital One Southcoast, Inc.
KeyBanc Capital Markets Inc.
Morgan Keegan & Company, Inc.
SunTrust Robinson Humphrey, Inc.
BBVA Securities Inc.
Comerica Securities, Inc.
BANC OF AMERICA
SECURITIES LLC
As Representatives of the several
Underwriters
c/o BANC OF AMERICA SECURITIES LLC
9 West 57 th
Street
New York, NY 10019
Introductory. Comstock Resources, Inc., a Nevada corporation
(the “Company”), proposes to issue and sell to the
several underwriters named in Schedule A hereto (the
“Underwriters”), for whom you (the
“Representatives”) are acting as representatives,
$300,000,000 principal amount of its 8.375% Senior Notes due 2017
(the “Notes”). The Notes will be guaranteed
(collectively, the “Guarantees”) by each of the
subsidiary guarantors named in Schedule B hereto (the
“Notes Guarantors”). The Notes and the Guarantees are
collectively referred to herein as the “Securities.”
The Securities are to be issued under an indenture (the “Base
Indenture”), to be dated as of the Closing Date (as defined
in Section 3 hereof), among the Company, the Notes Guarantors
and The Bank of New York Mellon Trust Company, N.A., as trustee
(the “Trustee”), as amended and supplemented by the
First Supplemental Indenture (the “First Supplemental
Indenture”) to be dated as of the Closing Date, among the
Company, the Notes Guarantors and the Trustee (the Base Indenture,
as supplemented and amended by the First Supplemental Indenture,
being referred to as the “Indenture”). To the extent
there are no additional underwriters listed on Schedule A
other than you, the term Representatives as used herein shall mean
you as the Underwriters, and the terms Representatives and
Underwriters shall mean either the singular or plural as the
context requires. The use of the neuter in this Underwriting
Agreement (the “Agreement”) shall include the feminine
and masculine wherever appropriate.
The Company
hereby confirms its engagement of SunTrust Robinson Humphrey, Inc.
(“SunTrust”) as, and SunTrust hereby confirms its
agreement with the Company to render services as, a
“qualified independent underwriter”, within the meaning
of Section (f)(12) of NASD Rule 2720, as administered by the
Financial Industry Regulatory Authority (“FINRA”), with
respect to the offering and sale of the Notes. SunTrust, solely in
its capacity as the qualified independent underwriter and not
otherwise, is referred to herein as the “QIU”. The QIU
agrees that it will not be paid any additional compensation by the
Company in its capacity as such.
1.
Representations and Warranties . The Company and each Notes
Guarantor, jointly and severally, represent and warrant to, and
agree with, each of the Underwriters as of the date hereof
that:
(a) The Company
has prepared and filed with the Securities and Exchange Commission
(the “Commission”) a registration statement on Form S-3
(File No. 333-162328), which contains a base prospectus (the
“Base Prospectus”), to be used in connection with the
public offering and sale of the Securities. Such registration
statement, as amended, including the financial statements, exhibits
and schedules thereto, at each time of effectiveness under the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (collectively, the “Securities
Act”), including any required information deemed to be a part
thereof at the time of effectiveness pursuant to Rule 430B
under the Securities Act or the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder
(collectively, the “Exchange Act”), is called the
“Registration Statement.” Any preliminary prospectus
supplement to the Base Prospectus that describes the Notes and the
offering thereof and is used prior to filing of the final
prospectus is called, together with the Base Prospectus, a
“preliminary prospectus.” The term
“Prospectus” shall mean the final prospectus relating
to the Notes that is first filed pursuant to Rule 424(b) after the
date and time that this Agreement is executed and delivered by the
parties hereto (the “Execution Time”), including the
Base Prospectus. Any reference herein to the Registration
Statement, any preliminary prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Securities Act; any reference to any amendment or supplement to any
preliminary prospectus or the Prospectus shall be deemed to refer
to and include any documents filed after the date of such
preliminary prospectus or Prospectus, as the case may be, under the
Exchange Act, and incorporated by reference in such preliminary
prospectus or Prospectus, as the case may be; and any reference to
any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated
by reference in the Registration Statement.
(b) Compliance
with Registration Requirements. The Registration Statement has
become effective upon filing with the Commission under the
Securities Act. No stop order suspending the effectiveness of the
Registration Statement is in effect, the Commission has not issued
any order or notice preventing or suspending the use of the
Registration Statement, any preliminary prospectus or the
Prospectus and no proceedings for such purpose or pursuant to
Section 8A of the Securities Act have been instituted or are
pending or, to the best knowledge of the Company, are contemplated
or threatened by the Commission.
Any preliminary
prospectus and the Prospectus when filed complied in all material
respects with the Securities Act and the rules thereunder. Each of
the Registration Statement and any post-effective amendment
thereto, at each time of effectiveness and at the date hereof,
complied and will comply in all material respects with the
Securities Act and did not and will not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading. The Prospectus, as amended or
supplemented, as of its date, at the date hereof, at the time of
any filing pursuant to Rule 424(b) and, at the Closing Date (as
defined herein), did not and will not contain any untrue statement
of a material fact or omit to state a material fact necessary in
order to
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make the
statements therein, in the light of the circumstances under which
they were made, not misleading. The representations and warranties
set forth in the two immediately preceding sentences do not apply
to statements in or omissions from the Registration Statement or
any post-effective amendment thereto, or the Prospectus, or any
amendments or supplements thereto, made in reliance upon and in
conformity with information relating to any Underwriter furnished
to the Company in writing by the Representatives expressly for use
therein, it being understood and agreed that the only such
information furnished by the Representatives consists of the
information described as such in Section 8 hereof. There is no
contract or other document required to be described in the
Prospectus or to be filed as an exhibit to the Registration
Statement that has not been described or filed as
required.
The documents
incorporated by reference in the Prospectus, when they became
effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable. Any further
documents so filed and incorporated by reference in the Prospectus
or any further amendment or supplement thereto, when such documents
become effective or are filed with the Commission, as the case may
be, will conform in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable.
(c) Well-Known
Seasoned Issuer. (i) At the time of filing the
Registration Statement, (ii) at the time of the most recent
amendment thereto for the purposes of complying with
Section 10(a)(3) of the Securities Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of
prospectus), (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) of the Securities Act) made any offer relating to the
Securities in reliance on the exemption of Rule 163 of the
Securities Act, and (iv) at the Execution Time (with such date
being used as the determination date for purposes of this clause
(iv)), the Company was and is a “well-known seasoned
issuer” as defined in Rule 405 of the Securities Act.
The Registration Statement is an “automatic shelf
registration statement”, as defined in Rule 405 of the
Securities Act that has been filed with the Commission not earlier
than three years prior to the date hereof, and the Company has not
received from the Commission any notice pursuant to
Rule 401(g)(2) of the Securities Act objecting to use of the
automatic shelf registration statement form.
(d) Disclosure
Package. The term “Disclosure Package” shall mean
(i) the Base Prospectus, including any preliminary prospectus
supplement, (ii) the issuer free writing prospectuses as
defined in Rule 433 of the Securities Act (each, an
“Issuer Free Writing Prospectus”), if any, identified
in Schedule C hereto, (iii) any other free writing
prospectus that the parties hereto shall hereafter expressly agree
in writing to treat as part of the Disclosure Package and
(iv) the Final Term Sheet (as defined herein), which also
shall be identified in Schedule D hereto. As of 3:30 p.m.
(Eastern time) on the date of this Agreement (the “Applicable
Time”), the Disclosure Package did not contain any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were
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made, not
misleading. The preceding sentence does not apply to statements in
or omissions from the Disclosure Package based upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8(b)
hereof.
(e) Company Not
Ineligible Issuer. (i) At the earliest time after the
filing of the Registration Statement relating to the Securities
that the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2)) of the Securities
Act and (ii) as of the date of the execution and delivery of
this Agreement (with such date being used as the determination date
for purposes of this clause (ii)), the Company was not and is not
an Ineligible Issuer (as defined in Rule 405 of the Securities
Act), without taking account of any determination by the Commission
pursuant to Rule 405 of the Securities Act that it is not
necessary that the Company be considered an Ineligible
Issuer.
(f) Issuer Free
Writing Prospectuses. Each Issuer Free Writing Prospectus, as
of its issue date and at all subsequent times through the
completion of the offering of Securities under this Agreement or
until any earlier date that the Company notified or notifies the
Representatives as described in the next sentence, did not, does
not and will not include any information that conflicted, conflicts
or will conflict with the information contained in the Registration
Statement or the Disclosure Package. If at any time following
issuance of an Issuer Free Writing Prospectus there occurred or
occurs an event or development as a result of which such Issuer
Free Writing Prospectus conflicted or would conflict with the
information contained in the Registration Statement, the Company
has promptly notified or will promptly notify the Representatives
and has promptly amended or supplemented or will promptly amend or
supplement, at its own expense, such Issuer Free Writing Prospectus
to eliminate or correct such conflict. Any issuer Free Writing
Prospectus not identified on Schedule C, when taken together
with the Disclosure Package, did not, and at the Closing Date will
not, contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. The foregoing three sentences do not apply to
statements in or omissions from any Issuer Free Writing Prospectus
based upon and in conformity with written information furnished to
the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that
the only such information furnished by any Underwriter consists of
the information described as such in Section 8(b)
hereof.
(g)
Distribution of Offering Material by the Company. Neither
the Company nor the Notes Guarantors have distributed or will
distribute, prior to the later of the Closing Date (as defined
below) and the completion of the Underwriters’ distribution
of the Securities, any offering material in connection with the
offering and sale of the Securities other than the Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus
reviewed and consented to by the Representatives or included in
Schedule C hereto or the Registration Statement.
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(h) No
Applicable Registration or Other Similar Rights. There are no
persons with registration or other similar rights to have any
equity or debt securities registered for sale under the
Registration Statement or included in the offering contemplated by
this Agreement, except for such rights as have been duly waived or
are not applicable to the offering of the Notes.
(i)
Incorporation and Good Standing of the Company. The Company
has been duly incorporated, is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Disclosure
Package and the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a
whole.
(j)
Incorporation and Good Standing of the subsidiaries of the
Company. Each subsidiary of the Company has been duly
organized, is validly existing as a corporation, limited
partnership or limited liability company in good standing under the
laws of the jurisdiction of its organization, has the corporate or
partnership power and authority to own its property and to conduct
its business as described in the Disclosure Package and the
Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole; all
of the issued shares of capital stock or other ownership interest
of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are
owned directly, or indirectly through one of the other
subsidiaries, by the Company, free and clear of all liens,
encumbrances, equities or claims, except for pledges of such shares
or ownership interest pursuant to the Company’s current bank
credit facility described in the Disclosure Package and the
Prospectus.
(k) This
Agreement. This Agreement has been duly authorized, executed
and delivered by the Company and each of the Notes
Guarantors.
(l)
Capitalization. All of the shares of common stock, par value
$.50 per share (“Common Stock”), of the Company that
are outstanding have been duly authorized and are validly issued,
fully paid and non-assessable.
(m) The
Securities. The Notes have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be valid and
binding obligations of the Company, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency or
similar laws affecting creditors’ rights generally and
general principles of equity, and will be entitled to the benefits
of the Indenture. Each Guarantee has been duly authorized by such
Notes Guarantor and, when
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executed and
authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters in accordance
with the terms of this Agreement, will be valid and binding
obligations of the Notes Guarantors, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency or
similar laws affecting creditors’ rights generally and
general principles of equity, and will be entitled to the benefits
of the Indenture.
(n) The
Indenture. The Indenture has been duly authorized and, at the
Closing Date, will have been duly qualified under the 1939 Act and
duly executed and delivered by, and will constitute a valid and
binding agreement of, the Company and each of the Notes Guarantors,
enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors’
rights generally and general principles of equity.
(o) Description
of Documents. The Notes, the Guarantees and the Indenture will
conform in all material respects to the respective statements
relating thereto contained in the Disclosure Package and the
Prospectus and will be in substantially the respective forms
previously delivered to the Underwriters.
(p) No
Conflict. The execution and delivery by the Company and the
Notes Guarantors, as the case may be, of, and the performance by
the Company and the Notes Guarantors, as the case may be, of their
obligations under, this Agreement, the Indenture, and the Notes and
the Guarantees will not contravene any provision of applicable law
or the certificate or articles of incorporation or by-laws or other
organizational documents of the Company or any of the Notes
Guarantors or any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the Company
and its subsidiaries, taken as a whole, or any judgment, order or
decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Company or any of the Notes Guarantors of its obligations under
this Agreement, the Indenture, the Notes or the Guarantees, except
such as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the
Securities.
(q) No Material
Adverse Change. There has not occurred any material adverse
change, or any development that can reasonably be expected to
involve a material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth
in the Disclosure Package and the Prospectus (any such change is
called a “Material Adverse Change”). Subsequent to the
respective dates as of which information is given in the Disclosure
Package and the Prospectus, (1) the Company and its
subsidiaries have not incurred any material liability or
obligation, direct or contingent, nor entered into any material
transaction not in the ordinary course of business; (2) the
Company has not purchased any of its outstanding capital stock, nor
declared, paid or otherwise made any dividend or distribution of
any kind on its capital stock other than ordinary and customary
dividends; and (3) there has not been any material change in
the capital stock, short-term
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debt or
long-term debt of the Company and its subsidiaries, except in each
case as described in the Disclosure Package and the
Prospectus.
(r) No Material
Actions or Proceedings. There are no legal or governmental
proceedings pending or, to the Company’s knowledge,
threatened to which the Company or any of its subsidiaries is a
party or to which any of the properties of the Company or any of
its subsidiaries is subject other than proceedings accurately
described in all material respects in the Disclosure Package and
the Prospectus and proceedings that would not have a material
adverse effect on the Company and its subsidiaries, taken as a
whole, or on the power or ability of the Company and the Notes
Guarantors to perform their obligations under this Agreement, the
Indenture, the Notes or the Guarantees or to consummate the
transactions contemplated by the Disclosure Package, the Prospectus
and this Agreement.
(s) No
Violation. Neither the Company nor any of its subsidiaries is
in violation of its certificate or articles of incorporation or
by-laws, or other organizational documents, or of any law,
ordinance, administrative or governmental rule or regulation
applicable to the Company or any of its subsidiaries or of any
judgement, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any of its
subsidiaries, or in default in any material respect in the
performance of any obligation, agreement or condition contained in
any bond, debenture, note or any other evidence of indebtedness or
in any material agreement, indenture, lease or other instrument to
which the Company or any of its subsidiaries is a party or by which
any of them or any of their respective properties may be
bound.
(t) Independent
Accountants. The accountants, Ernst & Young L.L.P, who have
certified or shall certify the financial statements included in the
Disclosure Package and the Prospectus, are independent public
accountants as required by the Securities Act.
(u) Independent
Petroleum Consultants. Lee Keeling and Associates, Inc. are
independent petroleum consultants with respect to the Company and
its subsidiaries.
(v) Preparation
of Financial Statements. The consolidated historical financial
statements, together with related schedules and notes, included in
the Disclosure Package and the Prospectus comply as to form in all
material respects with the requirements applicable requirements of
the Securities Act and the Exchange Act, as applicable. Such
historical financial statements present fairly the consolidated
financial position, results of operations and changes in financial
position of the Company and its subsidiaries on the basis stated in
the Disclosure Package and the Prospectus 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, and
the supporting schedules included or incorporated by reference in
the Registration Statement present fairly the information required
to be stated therein. The other financial and statistical
information and data included in the Disclosure Package and the
Prospectus are accurately presented and prepared on a basis
consistent with such financial statements and the books and records
of the Company and its subsidiaries. The pro forma
financial
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statements, if
any, included or incorporated by reference in the Disclosure
Package and the Prospectus have been prepared on a basis consistent
with the historical financial statements of the Company and its
subsidiaries and give effect to assumptions used in the preparation
thereof on a reasonable basis and in good faith and present fairly
the transactions described therein; and such pro forma
financial statements comply as to form in all material respects
with the Commission’s rules and guidance with respect to
pro forma financial statements. The other pro forma
financial and statistical information and data , if any, included
or incorporated by reference in the Disclosure Package and the
Prospectus are, in all material respects, accurately presented and
prepared on a basis consistent with the pro forma financial
statements.
(w) Title to
Properties. The Company and each of its subsidiaries has
(1) generally satisfactory title to all its interests in its
oil and gas properties, title investigations having been carried
out by the Company and each of its subsidiaries in accordance with
the general practice in the oil and gas industry, (2) good and
marketable title in fee simple to all other real property owned by
it and (3) 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 Disclosure Package and 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 and its
subsidiaries are held by them 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 of the Company and its
subsidiaries.
(x)
Environmental Laws. None of the Company or its subsidiaries
has violated any environmental safety or similar law or regulation
applicable to its business relating to the protection of human
health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants (“Environmental
Laws”), lacks any permits, licenses or other approvals
required of them under applicable Environmental Laws to own, lease
and operate their respective properties and to conduct their
business in the manner described in the Disclosure Package and the
Prospectus, is violating any terms and conditions of any such
permit, license or approval or has permitted to occur any event
that allows, or after notice or lapse of time would allow,
revocation or termination of any such permit, license or approval
or result in any other impairment of their rights thereunder, which
in each case would have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(y) Internal
Controls. The Company and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide
reasonable assurance that (1) transactions are executed in
accordance with management’s general or specific
authorizations; (2) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset
accountability; (3) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (4) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action
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is taken with
respect to any differences. Except as disclosed in the Disclosure
Package and the Prospectus, there are no material weaknesses in the
Company’s internal controls.
(z) Disclosure
Controls and Procedures. The Company and its subsidiaries
maintain an effective system of “disclosure controls and
procedures” (as defined in Rule 13a-15(e) of the
Exchange Act) that is designed to ensure that information required
to be disclosed by the Company in reports that it files or submits
under the Exchange Act is recorded, processed, summarized and
reported within the time periods specified in the
Commission’s rules and forms, including controls and
procedures designed to ensure that such information is accumulated
and communicated to the Company’s management as appropriate
to allow timely decisions regarding required disclosure; and the
Company and its subsidiaries have carried out evaluations of the
effectiveness of their disclosure controls and procedures as
required by Rule 13a-15e of the Exchange Act.
(aa) Tax Law
Compliance. The Company and each of its subsidiaries have filed
all material tax returns required to be filed, which returns are
complete and correct in all material respects, and neither the
Company nor any of its subsidiaries is in default in the payment of
any taxes which were payable pursuant to said returns or any
assessments with respect thereto.
(bb)
Intellectual Property Rights. The Company and its
subsidiaries own or possess all patents, trademarks, trademark
registration, service marks, service mark registrations, trade
names, copyrights, licenses, inventions, trade secrets and rights
described in the Disclosure Package and the Prospectus as being
owned by them or any of them or necessary for the conduct of their
respective businesses, and the Company is not aware of any claim to
the contrary or any challenge by any other person to the rights of
the Company and its subsidiaries with respect to the
foregoing.
(cc)
Insurance. The Company and its subsidiaries are insured by
the insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary
in the businesses in which they are engaged; neither the Company
nor any of its subsidiaries has been refused any insurance coverage
sought or applied for; and neither the Company nor any of its
subsidiaries has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that would not have
a material adverse effect on the Company and its subsidiaries,
taken as a whole, except as described in the Disclosure Package and
the Prospectus.
(dd) Company
Not an “Investment Company”. The Company is not,
and after giving effect to the offering and sale of the Securities
and the application of the proceeds thereof as described in the
Disclosure Package and the Prospectus, will not be an
“investment company” as such term is defined in the
Investment Company Act of 1940, as amended (the “Investment
Company Act”).
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Any certificate
signed by an officer of the Company and delivered to the
Representatives or to counsel for the Underwriters shall be deemed
to be a representation and warranty by the Company to each
Underwriter as to the matters set forth therein.
2.
Purchase and Sale . The Company agrees to issue and sell to
the several Underwriters the Notes upon the terms herein set forth.
On the basis of the representations, warranties and agreements
herein contained, and upon the terms but subject to the conditions
herein set forth, the Underwriters agree, severally and not
jointly, to purchase from the Company the respective aggregate
principal amount of Notes set forth opposite their names on
Schedule A . The purchase price per Note to be paid by the
several Underwriters to the Company shall be equal to 96.571% of
the principal amount thereof.
3.
Delivery and Payment; Representations and Warranties and
Covenants of the Underwriters .
(a) Delivery
of certificates for the Securities to be purchased by the
Underwriters and payment therefor shall be made at the offices of
Baker Botts L.L.P., 2001 Ross Avenue, Suite 600, Dallas, Texas
(or such other place as may be agreed to by the Company and the
Representatives) at 9:00 a.m. New York time, on October 9,
2009, or such other time and date not later than the third business
day thereafter (the time and date of such closing are called the
“Closing Date”).
(b)
Public Offering of the Notes. The Representatives hereby
advise the Company that the Underwriters intend to offer for sale
to the public, as described in the Disclosure Package and the
Prospectus, their respective portions of the Notes as soon after
this Agreement has been executed the Representatives, in their sole
judgment, have determined is advisable and practicable.
(c)
Payment for the Notes. Payment for the Notes shall be made
on the Closing Date by wire transfer of immediately available funds
to the order of the Company.
It
is understood that the Representatives have been authorized, for
their own account and the accounts of the several Underwriters, to
accept delivery of and receipt for, and make payment of the
purchase price for, the Notes. Banc of America Securities LLC,
individually and not as the Representative of the Underwriters, may
(but shall not be obligated to) make payment for any Notes to be
purchased by any Underwriter whose funds shall not have been
received by the Representatives by the Closing Date for the account
of such Underwriter, but any such payment shall not relieve such
Underwriter from any of its obligations under this
Agreement.
(d)
Delivery of the Securities. Delivery of the Securities shall
be made through the facilities of The Depository Trust Company
(“DTC”) unless the Representatives shall otherwise
instruct. Time shall be of the essence, and delivery at the time
and place specified in this Agreement is a further condition to the
obligations of the Underwriters.
(e)
Delivery of Prospectus to the Underwriters. Not later than
10:00 a.m. on the second business day following the date the
Notes are first released by the Underwriters for
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sale to the
public, the Company shall deliver or cause to be delivered, copies
of the Prospectus in such quantities and at such places as the
Representatives shall reasonably request.
4.
Covenants . The Company and the Notes Guarantors, jointly
and severally, covenant and agree with each of the Underwriters as
follows:
(a)
Representatives Review of Proposed Amendments and
Supplements. During the period beginning at the Applicable Time
and ending on the later of the Closing Date or such date, as in the
opinion of counsel for the Underwriters, the Prospectus is no
longer required by law to be delivered in connection with sales by
an Underwriter or dealer, including in circumstances where such
requirement may be satisfied pursuant to Rule 172 (the
“Prospectus Delivery Period”), prior to amending or
supplementing the Registration Statement, the Disclosure Package or
the Prospectus, the Company shall furnish to the Representatives
for review a copy of each such proposed amendment or supplement,
and the Company shall not file or use any such proposed amendment
or supplement to which the Representatives reasonably
object.
(b) Securities
Act Compliance. After the date of this Agreement and during the
Prospectus Delivery Period, the Company shall promptly advise the
Representatives in writing (i) when the Registration
Statement, if not effective at the Execution Time, shall have
become effective, (ii) of the receipt of any comments of, or
requests for additional or supplemental information from, the
Commission, (iii) of the time and date of any filing of any
post-effective amendment to the Registration Statement or any
amendment or supplement to any preliminary prospectus or the
Prospectus, (iv) of the time and date that any post-effective
amendment to the Registration Statement becomes effective, and
(v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of
any order or notice preventing or suspending the use of the
Registration Statement, any preliminary prospectus or the
Prospectus, or of any receipt by the Company of any notification
with respect to the suspension of the qualification of the Notes
for sale in any jurisdiction or of the threatening or initiation of
any proceedings for any of such purposes (including any notice or
order pursuant to Section 8A or Rule 401(g)(2) of the
Securities Act). The Company shall use commercially reasonable
efforts to prevent the issuance of any such stop order or notice of
prevention or suspension of such use. If the Commission shall enter
any such stop order or issue any such notice at any time, the
Company will use commercially reasonable efforts to obtain the
lifting or reversal of such order or notice at the earliest
possible moment, or, subject to Section 4(a), will file an
amendment to the Registration Statement or will file a new
registration statement and use its best efforts to have such
amendment or new registration statement declared effective as soon
as practicable. Additionally, the Company agrees that it shall
comply with the provisions of Rules 424(b) and 430B, as applicable,
under the Securities Act, including with respect to the timely
filing of documents thereunder, and will use commercially
reasonable efforts to confirm that any filings made by the Company
under such Rule 424(b) were received in a timely manner by the
Commission.
(c) Exchange
Act Compliance. During the Prospectus Delivery Period, the
Company will file all documents required to be filed with the
Commission pursuant to
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Section 13, 14 or 15 of the Exchange Act in
the manner and within the time periods required by the Exchange
Act.
(d) Final Term
Sheet. The Company will prepare a final term sheet containing
solely a description of the Notes, including the price at which the
Notes are to be sold to the public, in a form approved by the
Representatives, and will file such term sheet pursuant to Rule
433(d) under the Securities Act within the time required by such
rule (such term sheet, the “Final Term
Sheet”).
(e) Permitted
Free Writing Prospectuses. The Company represents that it has
not made, and agrees that, unless it obtains the prior written
consent of the Representatives, it will not make, any offer
relating to the Notes that constitutes or would constitute an
Issuer Free Writing Prospectus or that otherwise constitutes or
would constitute a “free writing prospectus” (as
defined in Rule 405 of the Securities Act) or a portion
thereof required to be filed by the Company with the Commission or
retained by the Company under Rule 433 of the Securities Act;
provided that the prior written consent of the Representatives
hereto shall be deemed to have been given in respect of the Free
Writing Prospectuses included in Schedule C hereto and any
electronic road show. Any such free writing prospectus consented to
by the Representatives is hereinafter referred to as a
“Permitted Free Writing Prospectus.” The Company agrees
that (i) it has treated and will treat, as the case may be,
each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus, and (ii) has complied and will comply, as the case
may be, with the requirements of Rules 164 and 433 of the
Securities Act applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission,
legending and record keeping. The Company consents to the use by
any Underwriter of a free writing prospectus that (a) is not
an “issuer free writing prospectus” as defined in
Rule 433, or (b) contains only (1) information
describing the preliminary terms of the Securities or their
offering, (2) information that describes the final terms of
the Securities or their offering and that is included in the Final
Term Sheet of the Company contemplated in Section 1(d)(iv) or
(3) information permitted under Rule 134 under the
Securities Act; provided that each Underwriter severally covenants
with the Company not to take any action without the Company’s
consent which consent shall be confirmed in writing that would
result in the Company being required to file with the Commission
under Rule 433(d) under the Securities Act a free writing
prospectus prepared by or on behalf of such Underwriter that
otherwise would not be required to be filed by the Company
thereunder, but for the action of the Underwriter.
(f) Amendments
and Supplements to the Registration Statement, Disclosure Package
and Prospectus and Other Security Act Matters. If, during the
Prospectus Delivery Period, any event or development shall occur or
condition exist as a result of which the Disclosure Package or the
Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein in the light of
the circumstances under which they were made or then prevailing, as
the case may be, not misleading, or if it shall be necessary to
amend or supplement the Disclosure Package or the Prospectus, or to
file under the Exchange Act any document incorporated by reference
in the Disclosure Package or the Prospectus, in order to make the
statements therein, in the light of the
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circumstances
under which they were made or then prevailing, as the case may be,
not misleading, or if in the opinion of the Representatives it is
otherwise necessary to amend or supplement the Registration
Statement, the Disclosure Package or the Prospectus, or to file
under the Exchange Act any document incorporated by reference in
the Disclosure Package or the Prospectus, or to file a new
registration statement containing the Prospectus, in order to
comply with law, including in connection with the delivery of the
Prospectus, the Company agrees to (i) notify the
Representatives of any such event or condition and (ii) promptly
prepare (subject to Section 4(a) and 4(e) hereof), file with the
Commission (and use its best efforts to have any amendment to the
Registration Statement or any new registration statement to be
declared effective) and furnish at its own expense to the
Underwriters and to dealers, amendments or supplements to the
Registration Statement, the Disclosure Package or the Prospectus,
or any new registration statement, necessary in order to make the
statements in the Disclosure Package or the Prospectus as so
amended or supplemented, in the light of the circumstances under
which they were made or then prevailing, as the case may be, not
misleading or so that the Registration Statement, the Disclosure
Package or the Prospectus, as amended or supplemented, will comply
with law.
(g) Copies of
any Amendments and Supplements to the Prospectus. The Company
agrees to furnish the Representatives, without charge, during the
Prospectus Delivery Period, as many copies of the Prospectus and
any amendments and supplements thereto (including any documents
incorporated or deemed incorporated by reference therein) and the
Disclosure Package as the Representatives may request.
(h) Copies of
the Registration Statements and the Prospectus. The Company
will furnish to the Representatives and counsel for the
Underwriters signed copies of the Registration Statement (including
exhibits thereto) and, during the Prospectus Delivery Period, as
many copies of each preliminary prospectus, the Prospectus and any
supplement thereto and the Disclosure Package as the
Representatives may reasonably request.
(i) Blue Sky
Compliance. The Company shall cooperate with the
Representatives and counsel for the Underwriters to qualify or
register the Securities for sale under (or obtain exemptions from
the application of) the state securities or blue sky laws or
Canadian provincial securities laws or other foreign laws of those
jurisdictions designated by the Representatives and consented to by
the Company, and the Company shall comply in all material respects
with such laws and shall continue such qualifications,
registrations and exemptions in effect so long as required for the
distribution of the Securities. The Company shall not be required
to qualify as a foreign corporation or to take any action that
would subject it
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