Allis-Chalmers Energy Inc. and the Guarantors listed on Schedule B hereto
Exhibit 10.1
Xxxxx-Xxxxxxxx Energy Inc.
and
the Guarantors listed on Schedule B hereto
$250,000,000
8.50% Senior Notes due 2017
dated January 24, 2007
RBC Capital Markets Corporation
Xxxxxx Xxxxxx & Co. Inc
January 24, 2007
Xxxxxx Xxxxxx & Co. Inc
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Securities issued in book-entry form will be issued in the name of Cede & Co., as nominee of
The Depository Trust Company (“DTC” or the “Depositary”) pursuant to a DTC Blanket
Letter of Representations, to be dated as of or prior to the Closing Date (as defined in Section 2)
(the “DTC Agreement”), from the Company to the Depositary.
The Company’s obligations under the Notes, the Exchange Notes (as defined below) and the
Indenture will be, jointly and severally, unconditionally guaranteed, on a senior unsecured basis,
by (i) each of the Company’s domestic subsidiaries as of the date hereof, which are listed on
Schedule B hereto, and (ii) any subsidiary of the Company formed or acquired on or after the
Closing Date that executes the Indenture or a supplemental indenture setting forth an additional
guarantee in accordance with the terms of the Indenture, and their respective successors and
assigns (collectively, the “Guarantors”), pursuant to their guarantees included in the
Indenture (the “Guarantees”). The Notes and the Guarantees thereof are herein collectively
referred to as the “Securities”; and the Exchange Notes (as defined below) and the
Guarantees thereof are herein collectively referred to as the “Exchange Securities.”
The holders of the Securities will be entitled to the benefits of a registration rights
agreement to be dated as of the Closing Date (the “Registration Rights Agreement”) among
the Company, the Guarantors and the Initial Purchasers, pursuant to which the Company and each of
the Guarantors will agree to file with the Securities and Exchange Commission (the “SEC”),
under the circumstances set forth therein, (i) a registration statement under the Securities Act of
1933, as amended, relating to an offer (the “Exchange Offer”) to exchange another series of
debt securities of the Company with terms substantially identical to the Notes (the “Exchange
Notes”) and (ii) to the extent required by the Registration Rights Agreement, a shelf
registration statement pursuant to Rule 415 of the Securities Act relating to the resale by certain
holders of
the Notes. The Securities Act of 1933, as amended, together with the rules and regulations of
the SEC promulgated thereunder, is referred to herein as the “Securities Act.”
As more fully described in the Preliminary Offering Memorandum and in the Offering Memorandum
(as each term is defined below), the Company purchased substantially all of the assets of Oil & Gas
Rental Services, Inc. (“Oil & Gas Rental”) on December 18, 2006. The purchase by the
Company of substantially all of the assets of Oil & Gas Rental, as described in the Preliminary
Offering Memorandum and in the Offering Memorandum, is referred to herein as the
“Acquisition.” In connection with the Acquisition, the Company (a) received a limited
waiver of certain provisions of Sections 2.04, 7.01 and 7.04 of the Company’s $25 million senior
secured credit facility among the Company, each lender from time to time party thereto, and Royal
Bank of Canada (the “Bank Credit Facility”) and (b) will (i) offer and sell the Securities
contemplated by this Agreement and (ii) offer and sell the Common Stock pursuant to an underwriting
agreement dated January 23, 2007, between the Company and the underwriters named therein. The
proceeds of this offering, together with the proceeds from the offering of the Common Stock, will
be used to repay the debt outstanding under the Company’s $300 million bridge loan facility, which
the Company incurred to finance the Acquisition. The aforementioned transactions are collectively
referred to herein as the “Transactions.”
The Company understands that the Initial Purchasers propose to make an offering of the
Securities on the terms and in the manner set forth herein and in the Preliminary Offering
Memorandum (as defined below) and agrees that the Initial Purchasers may resell, subject to the
conditions set forth herein, all or a portion of the Securities to purchasers (the “Subsequent
Purchasers”) at any time after the date of this Agreement. The Securities are to be offered
and sold to or through the Initial Purchasers without registration with the SEC under the
Securities Act, in reliance upon exemptions therefrom. The terms of the Securities and the
Indenture will require that investors that acquire Securities expressly agree that Securities may
only be resold or otherwise transferred, after the date hereof, if such resale or transfer is
registered under the Securities Act or if an exemption from the registration requirements of the
Securities Act is available (including the exemptions afforded by Rule 144A (“Rule 144A”)
or Regulation S (“Regulation S”) thereunder).
The Company has prepared and delivered to the Initial Purchasers copies of a preliminary
offering memorandum, dated January 2, 2007 (the “Preliminary Offering Memorandum”), and has
prepared and delivered to the Initial Purchasers copies of a pricing supplement dated January 24,
2007 (the “Pricing Supplement”) describing the terms of the Securities, each for use by the
Initial Purchasers in connection with their solicitation of offers to purchase the Securities. As
used herein, the term “Offering Memorandum” shall mean the Preliminary Offering Memorandum,
as supplemented by the Pricing Supplement, and any exhibits thereto, in the most recent form that
has been prepared and delivered by the Company to the Initial Purchasers in connection with their
solicitation of offers to buy Securities. Promptly after this Agreement is executed by the parties
hereto (the “Time of Execution”) and in any event no later than the second Business Day
following the Time of Execution, the Company will prepare and deliver to the Initial Purchasers a
final Offering Memorandum (the “Final Offering Memorandum”) which will consist of the
Preliminary Offering Memorandum with only such changes therein as are required to reflect the
information contained in the Pricing Supplement, and from and after the time such Final Offering
Memorandum is delivered to the Initial Purchasers, all references herein
2
to the Offering Memorandum shall be deemed to refer to both the Offering Memorandum and the
Final Offering Memorandum.
The Company and the Guarantors hereby confirm their agreement with the Initial Purchasers as
follows:
SECTION 1. Representations and Warranties. The Company and the Guarantors, jointly and
severally, hereby represent, warrant and covenant to the Initial Purchasers as follows:
3
1934, as amended (the “Exchange Act”), or quoted in a U.S. automated interdealer
quotation system.
(f) The Purchase Agreement. This Agreement has been duly authorized, executed and delivered
by, and is a valid and binding agreement of, the Company and each Guarantor, enforceable against
the Company and each Guarantor in accordance with its terms, except as rights to indemnification
hereunder may be limited by applicable law and except as the enforcement hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting
the rights and remedies of creditors or by general equitable principles.
(h) The DTC Agreement. At the Closing Date, the DTC Agreement will have been duly authorized,
executed and delivered by, and (assuming the due authorization, execution and
4
delivery thereof by the other parties thereto) will be a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general equitable principles.
5
6
Company and its subsidiaries or of DLS, Specialty Rental Tools Inc., W. T. Enterprises, Inc.,
Delta Rental Service, Inc., Capcoil Tubing Services, Inc. and Petro-Rentals, Incorporated
(“Petro-Rentals”), as the case may be, as of and at the dates indicated and the
consolidated results of their respective operations and cash flows for the periods specified. Such
financial statements have been prepared in conformity with generally accepted accounting
principles, as applied in the United States, applied on a consistent basis throughout the periods
involved, except as may be expressly stated in the related notes thereto. The historical financial
information set forth in the Preliminary Offering Memorandum and in the Offering Memorandum under
the caption “Offering Memorandum Summary—Summary Historical and Pro Forma Consolidated Financial
Information” fairly present the information set forth therein on a basis consistent with that of
the audited financial statements contained in the Preliminary Offering Memorandum and in the
Offering Memorandum. The pro forma consolidated condensed financial statements of the Company and
its subsidiaries and the related notes thereto included under the caption “Offering Memorandum
Summary—Summary Historical and Pro Forma Consolidated Financial Information,” “Unaudited Pro Forma
As Adjusted Consolidated Financial Information” and elsewhere in the Preliminary Offering
Memorandum and in the Offering Memorandum present fairly the information contained therein, have
been prepared in accordance with the SEC’s rules and guidelines with respect to pro forma financial
statements and have been properly presented on the bases described therein, and the assumptions
used in the preparation thereof are reasonable and the adjustments used therein are appropriate to
give effect to the transactions and circumstances referred to therein.
7
notice or lapse of time, would be in default) (“Default”) under any indenture,
mortgage, loan or credit agreement, note, contract, franchise, lease or other instrument to which
the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any of its subsidiaries is subject (each, an
“Existing Instrument”), except for such Defaults as would not, individually or in the
aggregate, result in a Material Adverse Change. The Company’s and each Guarantor’s execution,
delivery and performance of this Agreement, the Registration Rights Agreement, the DTC Agreement
(in the case of the Company only) and the Indenture, and the issuance and delivery of the
Securities or the Exchange Securities, and consummation of the transactions contemplated hereby and
thereby and by the Preliminary Offering Memorandum and the Offering Memorandum (i) have been duly
authorized by all necessary corporate action and will not result in any violation of the provisions
of the charter, by-laws or equivalent organizational documents of the Company or any subsidiary,
(ii) will not conflict with or constitute a breach of, or Default or a Debt Repayment Triggering
Event (as defined below) under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, or
require the consent of any other party to, any Existing Instrument, except for such conflicts,
breaches, Defaults, liens, charges or encumbrances as would not, individually or in the aggregate,
result in a Material Adverse Change and (iii) will not result in any violation of any law,
administrative regulation or administrative or court decree applicable to the Company or any
subsidiary, except for such violations as would not, individually or in the aggregate, result in a
Material Adverse Change. No consent, approval, authorization or other order of, or registration or
filing with, any court or other governmental or regulatory authority or agency, is required for the
Company’s or each Guarantor’s execution, delivery and performance of this Agreement, the
Registration Rights Agreement, the DTC Agreement (in the case of the Company only) or the
Indenture, or the issuance and delivery of the Securities or the Exchange Securities, or
consummation of the transactions contemplated hereby and thereby and by the Preliminary Offering
Memorandum and the Offering Memorandum (including, but not limited to, the Acquisition), except
such as have been obtained or made by the Company or the Guarantors and are in full force and
effect under the Securities Act, applicable state securities or blue sky laws and except such as
may be required by federal and state securities laws or blue sky laws with respect to the Company’s
or each Guarantor’s obligations under the Registration Rights Agreement. As used herein, a
“Debt Repayment Triggering Event” means any event or condition which gives, or with the
giving of notice or lapse of time would give, the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the Company or any of its
subsidiaries.
8
Memorandum in the “Use of Proceeds” section. No labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the best of the Company’s and each of the
Guarantor’s knowledge, is threatened or imminent which, if determined adversely to the Company
would reasonably be expected to result in a Material Adverse Change.
9
consolidated subsidiaries has not been finally determined, except where the failure to make
such charges, accruals and reserves would not result in a Material Adverse Change.
10
11
amended, and the regulations and published interpretations thereunder (collectively,
“ERISA”)) established or maintained by the Company, its subsidiaries or their “ERISA
Affiliates” (as defined below) are in compliance with ERISA, except for any such noncompliance as
would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse
Change. “ERISA Affiliate” means, with respect to the Company or a subsidiary, any member
of any group of organizations described in Section 414(b), (c), (m) or (o) of the Internal Revenue
Code of 1986, as amended, and the regulations and published interpretations thereunder (the
“Code”) of which the Company or such subsidiary is a member. No “reportable event” (as
defined under ERISA) has occurred or is reasonably expected to occur with respect to any “employee
benefit plan” established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates. No “employee benefit plan” (as defined in Section 3(3) of ERISA) established or
maintained by the Company, its subsidiaries or any of their ERISA Affiliates, if such “employee
benefit plan” were terminated, would have any “amount of unfunded benefit liabilities” (as defined
under ERISA) that could reasonably be expected to result in a Material Adverse Change. Neither the
Company, its subsidiaries nor any of their ERISA Affiliates has incurred or reasonably expects to
incur any liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from,
any “employee benefit plan” or (ii) Section 412, 4971, 4975 or 4980B of the Code that could
reasonably be expected to result in a Material Adverse Change. Each “employee benefit plan”
established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates that is
intended to be qualified under Section 401(a) of the Code is so qualified and nothing has occurred,
including by action or failure to act, which would cause the loss of such qualification, that has
given or would give rise to any tax, penalty or other liability that could reasonably be expected
to result in a Material Adverse Change.
12
(hh) Forward Looking Statements. No forward-looking statement (within the meaning of Section
27A of the Act and Section 21E of the Exchange Act) or presentation of market-related or
statistical data contained in the Preliminary Offering Memorandum or Offering Memorandum has been
made or reaffirmed without a reasonable basis or has been disclosed in other than good faith.
Any certificate signed by an officer of the Company and delivered to the Initial Purchasers or
to counsel for the Initial Purchasers shall be deemed to be a representation and warranty by the
Company to each Initial Purchaser as to the matters set forth therein.
SECTION 2. Purchase, Sale and Delivery of the Securities.
(b) The Closing Date. Delivery of and payment for the Securities shall be made at the offices
of Shearman & Sterling LLP in New York or such other place as shall be agreed upon by the Company
and the Initial Purchasers at 9:00 a.m., New York City time, on January 29, 2007 or at such time on
such later date as the Initial Purchasers and the Company shall designate, which date and time may
be postponed by agreement between the Initial Purchasers and the Company (such date and time of
delivery and payment for the Securities being herein called the “Closing Date”). The
Company hereby acknowledges that circumstances under which the Initial Purchasers may provide
notice to postpone the Closing Date as originally scheduled include, but are in no way limited to,
any determination by the Company or the Initial Purchasers to recirculate to investors copies of an
amended or supplemented Offering Memorandum or a delay as contemplated by the provisions of Section
18.
13
inspection on the business day preceding the Closing Date at a location in New York City, as
the Initial Purchasers may designate. 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 Initial
Purchasers.
SECTION 3. Additional Covenants. The Company and, as applicable, each of the Guarantors,
jointly and severally, further covenant and agree with each Initial Purchaser as follows:
14
process in any such jurisdiction where it is not presently qualified or where it would be
subject to taxation as a foreign corporation, limited liability company or other entity. The
Company will advise the Initial Purchasers promptly of the suspension of the qualification or
registration of (or any such exemption relating to) the Securities for offering, sale or trading in
any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the
event of the issuance of any order suspending such qualification, registration or exemption, the
Company shall use its commercially reasonable efforts to obtain the withdrawal thereof at the
earliest possible moment.
15
The Initial Purchasers, may, in their sole discretion, waive in writing the performance by the
Company of any one or more of the foregoing covenants or extend the time for their performance.
SECTION 4. Payment of Expenses. The Company and the Guarantors, jointly and severally, agree
to pay all costs, fees and expenses incurred in connection with the performance of their
obligations hereunder and in connection with the transactions contemplated hereby, including
without limitation, (i) all expenses incident to the issuance and delivery of the Securities, (ii)
all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the
Securities to the Initial Purchasers, (iii) all fees and expenses of the Company’s and the
Guarantors’ counsel, independent registered public accounting firms or independent certified public
accountants and other advisors, (iv) all costs and expenses incurred in connection with the
preparation, printing, filing, shipping and distribution of each Preliminary Offering Memorandum
and the Offering Memorandum (including financial statements and exhibits), and all amendments and
supplements thereto, this Agreement, the Registration Rights Agreement, the Indenture, the DTC
Agreement, and the Securities, (v) all filing fees, attorneys’ fees and expenses incurred by the
Company or the Initial Purchasers in connection with qualifying or registering (or obtaining
exemptions from the qualification or registration of) all or any part of the Securities for offer
and sale under the state securities or blue sky laws and, if requested by the Initial Purchasers,
preparing and printing a “Blue Sky Survey” or memorandum, and any supplements thereto, advising the
Initial Purchasers of such qualifications, registrations and exemptions, (vi) the fees and expenses
of the Trustee, including the fees and disbursements of counsel for the Trustee in connection with
the Indenture, the Securities and the Exchange Securities, (vii) any fees payable in connection
with the rating of the Securities or the Exchange Securities with the ratings agencies and the
listing of the Securities with The PORTALSM Market, (viii) all fees and expenses
(including reasonable fees and expenses of counsel) of the Company and the Guarantors in connection
with approval of the Securities by DTC for “book-entry” transfer, (ix) the transportation and other
expenses incurred by or on behalf of the representatives of the Company in connection with
presentations to prospective purchasers of the Securities, including, but not limited to, the cost
of any chartered aircraft and (x) all other costs and expenses incident to the performance by the
Company and the Guarantors of their respective other obligations under this Agreement. Except as
provided in this Section 4, Section 6, Section 8 and Section 9 hereof, the Initial Purchasers shall
pay their own expenses, including the fees and disbursements of their counsel.
SECTION 5. Conditions of the Obligations of the Initial Purchasers. The obligations of the
several Initial Purchasers to purchase and pay for the Securities as provided herein on the Closing
Date shall be subject to (A) the accuracy in all material respects of the representations and
warranties on the part of the Company and the Guarantors set forth in Section 1 hereof that are not
qualified by materiality as of the date hereof and as of the Closing Date as though then made, (B)
to the accuracy of the representations and warranties on the part of the Company and the Guarantors
set forth in Section 1 hereof that are qualified by materiality as of the date hereof
16
and as of the Closing Date as though then made, (C) the timely performance by the Company of
its covenants and other obligations hereunder and (D) each of the following additional conditions:
(i) there shall not have occurred any Material Adverse Change; and
(ii) 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
securities of the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization” as such term is defined for purposes of Rule 436 under the
Securities Act.
(i) an opinion of Xxxxxxx Xxxxx LLP, special counsel for the Company and the
Guarantors, substantially to the effect set forth in Exhibit A-1; and
(ii) an opinion of Liskow & Xxxxx, special Louisiana counsel for the Company and the
Guarantors, substantially to the effect set forth in Exhibit A-2 hereto.
17
of the Closing Date, to the effect set forth in subsection (b) of this Section 5, and further
to the effect that:
(i) the representations and warranties of the Company and the Guarantors set forth in
Section 1 of this Agreement that are not qualified by materiality are true and correct in
all material respects as of the Time of Execution and are true and correct as of the Closing
Date, and the representations and warranties and of the Company and the Guarantors that are
qualified by materiality are true and correct as of the Time of Execution and are true and
correct as of the Closing Date, in each case, with the same force and effect as though
expressly made on and as of the Closing Date; and
(ii) the Company and the Guarantors have complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
If any condition specified in this Section 5 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by the Initial Purchasers by notice to the Company at
any time on or prior to the Closing Date, which termination shall be without liability on the part
of any party to any other party, except that Section 4, Section 6, Section 8 and Section 9 shall at
all times be effective and shall survive such termination.
SECTION 6. Reimbursement of Initial Purchasers’ Expenses. If this Agreement is terminated by
the Initial Purchasers pursuant to Section 5, or if the sale to the Initial Purchasers of the
Securities on the Closing Date is not consummated because of any refusal, inability or
18
failure on the part of the Company or any Guarantor to perform any agreement herein or to
comply with any provision hereof, the Company and the Guarantors, jointly and severally, agree to
reimburse the Initial Purchasers upon demand for all out-of-pocket expenses that shall have been
reasonably incurred by the Initial Purchasers in connection with the proposed purchase and the
offering and sale of the Securities, including but not limited to fees and disbursements of
counsel, printing expenses, travel expenses, postage, facsimile and telephone charges.
SECTION 7. Offer, Sale and Resale Procedures. Each of the Initial Purchasers, on the one
hand, and the Company and each of the Guarantors, on the other hand, hereby establish and agree to
observe the following procedures in connection with the offer and sale of the Securities:
(a) Offers and sales of the Securities will be made only by the Initial Purchasers or
Affiliates thereof qualified to do so in the jurisdictions in which such offers or sales are made.
Each such offer or sale shall only be made to (i) persons whom the offeror or seller reasonably
believes to be qualified institutional buyers (as defined in Rule 144A under the Securities Act) or
(ii) non-U.S. persons outside the United States to whom the offeror or seller reasonably believes
offers and sales of the Securities may be made in reliance upon Regulation S under the Securities
Act, upon the terms and conditions set forth in Annex I hereto, which Annex I is hereby expressly
made a part hereof.
(b) The Securities will be offered by approaching prospective Subsequent Purchasers on an
individual basis. No general solicitation or general advertising (within the meaning of Rule 502
under the Securities Act) will be used in the United States in connection with the offering of the
Securities.
(c) Upon original issuance by the Company, and until such time as the same is no longer
required under the applicable requirements of the Securities Act, the Securities (and all
securities issued in exchange therefor or in substitution thereof, other than the Exchange
Securities) shall bear the legend set forth in the Preliminary Offering Memorandum and the Offering
Memorandum under the caption “Notice to Investors.”
(d) Each of the Initial Purchasers represents and agrees that:
(i) European Economic Area. In relation to each Member State of the European Economic
Area which has implemented the Prospectus Directive (each, a “Relevant Member
State”) it has not made and will not make an offer of the Notes to the public in that
Relevant Member State except that it may, with effect from and including the Relevant
Implementation Date, make an offer of Notes to the public in that Relevant Member State:
(A) in (or in Germany, where the offer starts within) the period beginning on
the date of publication of a prospectus in relation to those Notes which has been
approved by the competent authority in that Relevant Member State or, where
appropriate, approved in another Relevant Member State and notified to the competent
authority in that Relevant Member State, all in accordance with the Prospectus
Directive and ending on the date which is 12 months after the date of such
publication;
19
(B) at any time to legal entities which are authorized or regulated to operate
in the financial markets or, if not so authorized or regulated, whose corporate
purpose is solely to invest in securities;
(C) at any time to any legal entity which has two or more of (x) an average of
at least 250 employees during the last financial year; (y) a total balance sheet of
more than €443,000,000 and (z) an annual net turnover of more than
€450,000,000 as shown in its last annual or consolidated accounts; or
(D) at any time in any other circumstances which do not require the publication
by the issuer of a prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of this provision, the expression an “offer of Notes to the public”
in relation to any Notes in any Relevant Member State means to communication in any
form and by any means of sufficient information on the terms of the offer and the
Notes to be offered so as to enable an investor to decide to purchase or subscribe
the Notes, as the same may be varied in that Member State, by any measure
implementing the Prospectus Directive in that Member State and the expression
“Prospectus Directive” means Directive 2003/71/EC and includes any relevant
implementing measure in each Relevant Member State.
(ii) United Kingdom. A. No deposit taking: (1) it is a person whose ordinary
activities involve it in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of its business and (2) it has not offered or sold and
will not offer or sell any Notes other than to persons whose ordinary activities involve
them in acquiring, holding, managing or disposing of investments (as principal or agent) for
the purposes of their businesses or who it is reasonable to expect will acquire, hold,
manage or dispose of investments (as principal or agent) for the purposes of their
businesses where the issue of the Notes would otherwise constitute a contravention of
Section 19 of the Financial Services and Markets Act of 2000, or the FSMA, by the Company;
B. Financial promotion: it has only communicated or caused to be communicated
and will only communicate or cause to be communicated an invitation or inducement to
engage in investment activity (within the meaning of Section 21 of the FSMA)
received by it in connection with the issue or sale of any Notes in circumstances in
which Section 21(1) of the FSMA does not or, in the case of the Company, would not,
if it was not an authorized institution, apply to the Company; and
C. General compliance: it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation to any Notes
in, from or otherwise involving the United Kingdom.
(iii) Switzerland. In connection with the initial placement of any Notes in
Switzerland, the Notes will not be offered or sold in Switzerland except to a limited
20
group of persons within the meaning of Article 652(a)(2) of the Swiss Code of
Obligations of March 30, 1911.
Following the sale of the Securities by the Initial Purchasers to Subsequent Purchasers
pursuant to the terms hereof, the Initial Purchasers shall not be liable or responsible to the
Company or any Guarantor for any losses, damages or liabilities suffered or incurred by the Company
or any Guarantor, including any losses, damages or liabilities under the Securities Act, arising
from or relating to any resale or transfer of any Security.
SECTION 8. Indemnification.
21
consent of such Initial Purchaser), insofar as such loss, claim, damage, liability or expense
(or actions in respect thereof as contemplated below) (i) arises out of or is based upon any untrue
or alleged untrue statement of a material fact contained in the Preliminary Offering Memorandum or
the Offering Memorandum (or any amendment or supplement thereto), or (ii) arises out of or is based
upon the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Preliminary Offering Memorandum or the Offering Memorandum (or any
amendment or supplement thereto), in reliance upon and in conformity with written information
furnished to the Company by the Initial Purchasers expressly for use therein; and to reimburse the
Company, the Guarantors or any such director, officer, employee or controlling person for any legal
and other expenses reasonably incurred by the Company, the Guarantors or any such director,
officer, employee or controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or action. The Company and
each Guarantor hereby acknowledges that the only information that the Initial Purchasers have
furnished to the Company expressly for use in the Preliminary Offering Memorandum or the Offering
Memorandum (or any amendment or supplement thereto) is (i) the names of the Initial Purchasers as
set forth on the front and back covers of the Preliminary Offering Memorandum and the Offering
Memorandum and as further set forth in the table in the first paragraph under the caption “Plan of
Distribution,” (ii) the statements set forth in the fourth and fifth sentences of the paragraph
under the caption “Risk Factors — If an active trading market does not develop for these notes you
may not be able to resell them”; provided however, that with respect to this subclause (ii) only,
such information has been solely provided by RBC, and not by Xxxxxx Xxxxxx in its capacity as an
Initial Purchaser or otherwise, (iii) the statements set forth in the first sentence of the third
paragraph, under the caption “Plan of Distribution” in the Preliminary Offering Memorandum and the
Offering Memorandum and (iv) the statements set forth in the fourth sentence of the tenth paragraph
and the eleventh, twelfth and thirteenth paragraphs, concerning stabilization by the Initial
Purchasers, under the caption “Plan of Distribution” in the Preliminary Offering Memorandum and the
Offering Memorandum; provided however, that with respect to this subclause (iv) only, such
information has been solely provided by RBC, and not by Xxxxxx Xxxxxx in its capacity as an Initial
Purchaser or otherwise; and the Initial Purchasers confirm that such statements are correct. The
indemnity agreement set forth in this Section 8(b) shall be in addition to any liabilities that
each Initial Purchaser may otherwise have.
22
assume the defense thereof with counsel reasonably satisfactory to such indemnified party;
provided, however, if the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded that a conflict may
arise between the positions of the indemnifying party and the indemnified party in conducting the
defense of any such action or that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select separate counsel to assume
such legal defenses and to otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of such indemnifying party’s election so to assume the defense of such action and
approval by the indemnified party of counsel, which such approval shall not be unreasonably
withheld, the indemnifying party will not be liable to such indemnified party under this Section 8
for any legal or other expenses subsequently incurred by such indemnified party in connection with
the defense thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being understood, however,
that the indemnifying party shall not be liable for the expenses of more than one separate counsel
(together with local counsel), approved by the indemnifying party, representing the indemnified
parties who are parties to such action) or (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party within a
reasonable time after notice of commencement of the action, in each of which cases the reasonable
fees and expenses of counsel shall be at the expense of the indemnifying party.
SECTION 9. Contribution. If the indemnification provided for in Section 8 is for any reason
held to be unavailable to or otherwise insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified
party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to
therein (i) in such proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors, on the one hand, and the Initial Purchasers, on the other hand, from
the offering of the Securities pursuant to this Agreement 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 Guarantors, on the one hand, and the Initial Purchasers, on the other hand,
in connection with the statements or omissions or inaccuracies in the representations and
warranties
23
herein which resulted in such losses, claims, damages, liabilities or expenses, as well as any
other relevant equitable considerations. The relative benefits received by the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, in connection with the
offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities pursuant to this
Agreement (before deducting expenses) received by the Company or the Guarantors, and the total
discount received by the Initial Purchasers, bear to the aggregate initial offering price of the
Securities. The relative fault of the Company and the Guarantors, on the one hand, and the Initial
Purchasers, on the other hand, shall be determined by reference to, among other things, whether any
such untrue or alleged untrue statement of a material fact or omission or alleged omission to state
a material fact or any such inaccurate or alleged inaccurate representation or warranty relates to
information supplied by the Company or the Guarantors, on the one hand, or the Initial Purchasers,
on the other hand, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations set forth in
Section 8, any legal or other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim. The provisions set forth in Section 8 with respect
to notice of commencement of any action shall apply if a claim for contribution is to be made under
this Section 9; provided, however, that no additional notice shall be required with respect to any
action for which notice has been given under Section 8 for purposes of indemnification.
The Company, the Guarantors and the Initial Purchasers agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even
if the Initial Purchasers 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 this Section
9.
Notwithstanding the provisions of this Section 9, no Initial Purchaser shall be required to
contribute any amount in excess of the discount received by such Initial Purchaser in connection
with the Securities distributed by it. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11 of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Initial Purchasers’ obligations to
contribute pursuant to this Section 9 are several, and not joint, in proportion to their respective
commitments as set forth opposite their names in Schedule A. For purposes of this Section 9, each
director, officer and employee of an Initial Purchaser and each person, if any, who controls an
Initial Purchaser within the meaning of the Securities Act and the Exchange Act shall have the same
rights to contribution as such Initial Purchaser, and each director, officer and employee of the
Company or any Guarantor, and each person, if any, who controls the Company or any Guarantor within
the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution
as the Company or any Guarantor.
SECTION 10. Termination of this Agreement. Prior to the Closing Date, this Agreement may be
terminated by the Initial Purchasers by notice given to the Company if at any time: (i) trading or
quotation in any of the Company’s securities shall have been suspended or limited by
24
the SEC or by the American Stock Exchange, or trading in securities generally on the
American Stock Exchange, the Nasdaq Stock Market or the New York Stock Exchange shall have been
suspended or limited, or minimum or maximum prices shall have been generally established on any of
such stock exchanges by the SEC or the NASD; (ii) a general banking moratorium shall have been
declared by any of federal or New York authorities; (iii) there has been a material disruption in
commercial banking or securities settlement, payment or clearance services in the United States;
(iv) there shall have occurred any outbreak or escalation of national or international hostilities
or any crisis or calamity, or any change in the United States or international financial markets,
or any substantial change or development involving a prospective substantial change in United
States’ or international political, financial or economic conditions, as in the judgment of the
Initial Purchasers is material and adverse and makes it impracticable to market the Securities in
the manner and on the terms described in the Preliminary Offering Memorandum and the Offering
Memorandum or to enforce contracts for the sale of securities; (v) in the reasonable judgment of
the Initial Purchasers there shall have occurred any Material Adverse Change; or (vi) the Company
or any Guarantor shall have sustained a loss by strike, fire, flood, earthquake, accident or other
calamity of such character as in the judgment of the Initial Purchasers would reasonably be
expected to result in a Material Adverse Change. Any termination pursuant to this Section 10 shall
be without liability on the part of (i) the Company or any Guarantor to any Initial Purchaser,
except that the Company and the Guarantors shall be obligated to reimburse the expenses of the
Initial Purchasers pursuant to Sections 4 and 6 hereof, (ii) any Initial Purchaser to the Company
or any Guarantor or (iii) any party hereto to any other party except that the provisions of Section
8 and Section 9 shall at all times be effective and shall survive such termination.
SECTION 11. Representations and Indemnities to Survive Delivery. The respective indemnities,
agreements, representations, warranties and other statements of the Company and the Guarantors, of
its officers and of the several Initial Purchasers set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by or on behalf of any
Initial Purchaser or the Company or the Guarantors or any of its or their respective partners,
officers or directors or any controlling person, as the case may be, and will survive delivery of
and payment for the Securities sold hereunder and any termination of this Agreement.
SECTION 12. Notices. All communications hereunder shall be in writing and shall be mailed,
hand delivered or telecopied and confirmed to the parties hereto as follows:
If to the Initial Purchasers:
RBC Capital Markets Corporation
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: High Yield Capital Markets
RBC Capital Markets Corporation
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: High Yield Capital Markets
Xxxxxx Xxxxxx & Co., Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
25
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxx, Esq.
Attention: Xxxxxx Xxxx, Esq.
with a copy (which shall not constitute notice) to:
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxx, Esq.
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxx, Esq.
If to the Company, the Guarantors or the Guarantors:
Xxxxx-Xxxxxxxx Energy Inc.
0000 Xxxxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. Pound III, Esq.
Xxxxx-Xxxxxxxx Energy Inc.
0000 Xxxxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. Pound III, Esq.
with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxxx LLP
000 Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxx LLP
000 Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Any party hereto may change the address for receipt of communications by giving written notice
to the others in accordance with this Section 12.
SECTION 13. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto, including any substitute Initial Purchaser or Initial Purchasers pursuant to
Section 18 hereof, and to the benefit of the employees, officers, directors and controlling persons
referred to in Section 8 and Section 9, and in each case their respective successors, and no other
person will have any right or obligation hereunder. The term “successors” shall not include any
purchaser of the Securities as such from any of the Initial Purchasers merely by reason of such
purchase.
SECTION 14. Partial Unenforceability. The invalidity or unenforceability of any Section,
paragraph or provision of this Agreement shall not affect the validity or enforceability of any
other Section, paragraph or provision hereof. If any Section, paragraph or provision of this
Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be
made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.
SECTION 15. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
26
SECTION 16. Consent to Jurisdiction. Any legal suit, action or proceeding arising out of or
based upon this Agreement or the transactions contemplated hereby (“Related Proceedings”)
may be instituted in the federal courts of the United States of America located in the City and
County of New York or the courts of the State of New York in each case located in the City and
County of New York (collectively, the “Specified Courts”), and each party irrevocably
submits to the non-exclusive jurisdiction (except for proceedings instituted in regard to the
enforcement of a judgment of any such court (a “Related Judgment”), as to which such
jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of
any process, summons, notice or document by mail to such party’s address set forth above shall be
effective service of process for any suit, action or other proceeding brought in any such court.
The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit,
action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and
agree not to plead or claim in any such court that any such suit, action or other proceeding
brought in any such court has been brought in an inconvenient forum.
SECTION 17. New York Contacts. Initial Purchasers hereby acknowledge and agree that their
chief executive office or an office from which it has conducted a substantial part of the
negotiations relating to the transactions contemplated by this Agreement is located in the State of
New York.
SECTION 18. Default of One or More of the Several Initial Purchasers. If any one or more of
the several Initial Purchasers shall fail or refuse to purchase Securities that it or they have
agreed to purchase hereunder on the Closing Date, and the aggregate number of Securities which such
defaulting Initial Purchaser or Initial Purchasers agreed but failed or refused to purchase does
not exceed 10% of the aggregate number of the Securities to be purchased on such date, the other
Initial Purchasers shall be obligated, severally, in the proportions that the number of Securities
set forth opposite their respective names on Schedule A bears to the aggregate number of Securities
set forth opposite the names of all such non-defaulting Initial Purchasers, or in such other
proportions as may be specified by the Initial Purchasers with the consent of the non-defaulting
Initial Purchasers, to purchase the Securities which such defaulting Initial Purchaser or Initial
Purchasers agreed but failed or refused to purchase on such date. If any one or more of the
Initial Purchasers shall fail or refuse to purchase Securities and the aggregate number of
Securities with respect to which such default occurs exceeds 10% of the aggregate number of
Securities to be purchased on the Closing Date, and arrangements satisfactory to the Initial
Purchasers and the Company for the purchase of such Securities are not made within 48 hours after
such default, this Agreement shall terminate without liability of any party to any other party
except that the provisions of Sections 4, 6, 8, 9, 12, 14, 15, 16, 17, 18 and 19 shall at all times
be effective and shall survive such termination. In any such case either the Initial Purchasers or
the Company shall have the right to postpone the Closing Date, as the case may be, but in no event
for longer than seven days in order that the required changes, if any, to the Offering Memorandum
or any other documents or arrangements may be effected.
As used in this Agreement, the term “Initial Purchaser” shall be deemed to include any person
substituted for a defaulting Initial Purchaser under this Section 18. Any action taken under this
Section 18 shall not relieve any defaulting Initial Purchaser from liability in respect of any
default of such Initial Purchaser under this Agreement.
27
SECTION 19. No Fiduciary Duty. The Company and each Guarantor hereby acknowledges that the
Initial Purchasers are each acting solely as an initial purchaser in connection with the purchase
and sale of the Securities. The Company further acknowledges that the Initial Purchasers are
acting pursuant to a contractual relationship created solely by this Agreement entered into on an
arm’s length basis and in no event do the parties intend that the Initial Purchasers act or be
responsible as a fiduciary to the Company or any Guarantor, their management, stockholders,
creditors or any other person in connection with any activity that the Initial Purchasers may
undertake or has undertaken in furtherance of the purchase and sale of the Securities, either
before or after the date hereof. The Initial Purchasers hereby expressly disclaim any fiduciary or
similar obligations to the Company or any Guarantor, either in connection with the transactions
contemplated by this Agreement or any matters leading up to such transactions, and the Company and
each Guarantor hereby confirms its understanding and agreement to that effect. The Company, each
Guarantor and the Initial Purchasers agree that they are each responsible for making their own
independent judgments with respect to any such transactions, and that any opinions or views
expressed by the Initial Purchasers to the Company or any Guarantor regarding such transactions,
including but not limited to any opinions or views with respect to the price or market for the
Securities, do not constitute advice or recommendations to the Company or any Guarantor. The
Company and each Guarantor hereby waives and releases, to the fullest extent permitted by law, any
claims that the Company or any Guarantor may have against the Initial Purchasers with respect to
any breach or alleged breach of any fiduciary or similar duty to the Company or any Guarantor in
connection with the transactions contemplated by this Agreement or any matters leading up to such
transactions.
SECTION 20. General Provisions. This Agreement constitutes the entire agreement of the
parties to this Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter hereof. This
Agreement may be executed in two or more counterparts, each one of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same instrument. This
Agreement may not be amended or modified unless in writing by all of the parties hereto, and no
condition herein (express or implied) may be waived unless waived in writing by each party whom the
condition is meant to benefit. The section headings herein are for the convenience of the parties
only and shall not affect the construction or interpretation of this Agreement.
28
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company the enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.
Very truly yours, COMPANY: XXXXX-XXXXXXXX ENERGY INC. |
||||
By: | /s/ Xxxxxx X. Xxxxx | |||
Name: | Xxxxxx X. Xxxxx | |||
Title: | Chief Financial Officer | |||
GUARANTORS: ALLIS-XXXXXXXX XX, LLC |
||||
By: | /s/ Xxxxxxxx X. Pound III | |||
Name: | Xxxxxxxx X. Pound III | |||
Title: | Vice President and Secretary | |||
XXXXX-XXXXXXXX LP, LLC |
||||
By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxxx | |||
Title: | Vice President and Secretary | |||
XXXXX-XXXXXXXX MANAGEMENT, LP |
||||
By: | Allis-Xxxxxxxx XX, LLC, its sole general partner |
|||
By: | /s/ Xxxxxxxx X. Pound III | |||
Name: | Xxxxxxxx X. Pound III | |||
Title: | Vice President and Secretary | |||
XXXXX-XXXXXXXX PRODUCTION SERVICES, INC. |
||||
By: | /s/ Xxxxxxxx X. Pound III | |||
Name: | Xxxxxxxx X. Pound III | |||
Title: | Vice President and Secretary | |||
XXXXX-XXXXXXXX RENTAL SERVICES, INC. |
||||
By: | /s/ Xxxxxxxx X. Pound III | |||
Name: | Xxxxxxxx X. Pound III | |||
Title: | Vice President and Secretary | |||
XXXXX-XXXXXXXX TUBULAR SERVICES, INC. |
||||
By: | /s/ Xxxxxxxx X. Pound III | |||
Name: | Xxxxxxxx X. Pound III | |||
Title: | Vice President and Secretary | |||
AIRCOMP L.L.C. |
||||
By: | /s/ Xxxxxxxx X. Pound III | |||
Name: | Xxxxxxxx X. Pound III | |||
Title: | Vice President and Secretary | |||
MOUNTAIN COMPRESSED AIR, INC. |
||||
By: | /s/ Xxxxxxxx X. Pound III | |||
Name: | Xxxxxxxx X. Pound III | |||
Title: | Vice President and Secretary | |||
OILQUIP RENTALS, INC. |
||||
By: | /s/ Xxxxxxxx X. Pound III | |||
Name: | Xxxxxxxx X. Pound III | |||
Title: | Vice President and Secretary | |||
PETRO RENTALS, INCORPORATED |
||||
By: | /s/ Xxxxxxxx X. Pound III | |||
Name: | Xxxxxxxx X. Pound III | |||
Title: | Vice President and Secretary | |||
STRATA DIRECTIONAL TECHNOLOGY, INC. |
||||
By: | /s/ Xxxxxxxx X. Pound III | |||
Name: | Xxxxxxxx X. Pound III | |||
Title: | Vice President and Secretary | |||
The foregoing Purchase Agreement is hereby confirmed and accepted by the Initial Purchasers as
of the date first above written.
RBC CAPITAL MARKETS CORPORATION |
||||
By: | /s/ Xxxxx Xxxxxxx | |||
Name: | Xxxxx Xxxxxxx | |||
Title: | Director | |||
XXXXXX XXXXXX & CO., INC |
||||
By: | /s/ Xxxxxx X. Silver | |||
Name: | Xxxxxx X. Silver | |||
Title: | Managing Director | |||
SCHEDULE A
Aggregate Principal | ||||
Amount of Securities | ||||
Initial Purchaser | to be Purchased | |||
RBC Capital Markets Corporation |
$ | 228,000,000 | ||
Xxxxxx Xxxxxx & Co., Inc. |
$ | 22,000,000 | ||
Total |
$ | 250,000,000 |
Schedule A
SCHEDULE B
DOMESTIC SUBSIDIARIES OF THE COMPANY (Guarantors)
Name | State of Organization | |
Allis-Xxxxxxxx XX, LLC
|
Delaware | |
Xxxxx-Xxxxxxxx LP, LLC Xxxxx-Xxxxxxxx Management LP |
Delaware Texas |
|
Xxxxx-Xxxxxxxx Production Services, Inc.
|
Texas | |
Xxxxx-Xxxxxxxx Rental Services, Inc.
|
Texas | |
Xxxxx-Xxxxxxxx Tubular Services, Inc.
|
Texas | |
Aircomp, L.L.C.
|
Delaware | |
Mountain Compressed Air Inc.
|
Texas | |
OilQuip Rentals, Inc.
|
Delaware | |
Petro-Rentals, Incorporated
|
Louisiana | |
Strata Directional Technology, Inc.
|
Texas | |
FOREIGN SUBSIDIARIES OF THE COMPANY (Non-Guarantors)
|
||
Name | Jurisdiction of Organization | |
DLS Drilling, Logistics & Services Corporation
|
British Virgin Islands | |
DLS Argentina Limited
|
British Virgin Islands |
Schedule B
SCHEDULE C
Name of Accountants | Name of Entity | |
UHY Xxxx Frankfort Xxxxx & Xxxx CPAs, LLP
|
Xxxxx-Xxxxxxxx Energy Inc. Specialty Rental Tools, Inc. |
|
UHY LLP
|
Xxxxx-Xxxxxxxx Energy Inc. Oil & Gas Rental Services, Inc. |
|
Xxxxxx, Xxxxxx and Banks, LLP
|
Xxxxx-Xxxxxxxx Energy Inc. | |
Accounting & Consulting Group, LLP
|
W. T. Enterprises, Inc. | |
Xxxxxx, Moore, Dehart, Xxxxxx & Xxxxxxxxxx, LLC
|
Delta Rental Service, Inc. | |
Xxxxxx Xxxxxxx & Co., PC
|
Capcoil Tubing Services, Inc. | |
Xxxxxxx (la firma argentina miembro de KPMG
International, una cooperativa suiza)
|
DLS Drilling, Logistics & Services Corporation | |
Broussard, Poche, Xxxxx & Xxxxxx, L.L.P.
|
Petro-Rentals, Incorporated |
Schedule C-1
SCHEDULE D
The Company’s Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2006
(the “Third Quarter 2006 Form 10-Q”), as originally filed with the Commission on November
8, 2006, did not include each of the following documents as exhibits thereto, each of which was
subsequently filed with the Commission on December 29, 2006 as an exhibit to Amendment No. 1 on
Form 10-Q/A to the Third Quarter 2006 Form 10-Q:
• | Strategic Agreement dated July 1, 2003 (the “Strategic Agreement”) between Pan American Energy LLC Sucursal Argentina and DLS Argentina Limited Sucursal Argentina; | |
• | Amendment No. 1 dated May 18, 2005 to the Strategic Agreement; and | |
• | Amendment No. 2 dated January 1, 2006 to the Strategic Agreement. |
Schedule D-1
EXHIBIT A-1
Opinion of Xxxxxxx Xxxxx LLP
Exhibit X-0-0
XXXXXXX X-0
Opinion of Liskow & Xxxxx
Exhibit A-2-1
ANNEX I
The Initial Purchaser agrees that it has not offered or sold and will not offer or sell the
Securities in the United States or to, or for the benefit or account of, a U.S. Person (other than
a distributor), in each case, as defined in Rule 902 under the Securities Act (i) as part of its
distribution at any time and (ii) otherwise until 40 days after the later of the commencement of
the offering of the Securities pursuant hereto and the Closing Date, other than in accordance with
Regulation S of the Securities Act or another exemption from the registration requirements of the
Securities Act. The Initial Purchaser agrees that, during such 40-day restricted period, it will
not cause any advertisement with respect to the Securities (including any “tombstone”
advertisement) to be published in any newspaper or periodical or posted in any public place and
will not issue any circular relating to the Securities, except such advertisements as permitted by
and include the statements required by Regulation S.
The Initial Purchaser agrees that, at or prior to confirmation of a sale of Securities by it
to any distributor, dealer or person receiving a selling concession, fee or other remuneration
during the 40-day restricted period referred to in Rule 903 under the Securities Act, it will send
to such distributor, dealer or person receiving a selling concession, fee or other remuneration a
confirmation or notice to substantially the following effect:
“The Securities covered hereby have not been registered under the U.S. Securities
Act of 1933, as amended (the “Securities Act”), and may not be offered and sold
within the United States or to, or for the account or benefit of, U.S. persons (i)
as part of your distribution at any time or (ii) otherwise until 40 days after the
later of the commencement of the Offering and the Closing Date, except in either
case in accordance with Regulation S under the Securities Act (or Rule 144A or to
Accredited Institutions in transactions that are exempt from the registration
requirements of the Securities Act), and in connection with any subsequent sale by
you of the Notes covered hereby in reliance on Regulation S during the period
referred to above to any distributor, dealer or person receiving a selling
concession, fee or other remuneration, you must deliver a notice to substantially
the foregoing effect. Terms used above have the meanings assigned to them in
Regulation S.”
The Initial Purchaser agrees that (i) the Initial Purchaser and its affiliates or any person
acting on its or their behalf have not engaged in any directed selling efforts within the meaning
of Regulation S with respect to the Securities, (ii) the Securities offered and sold by the Initial
Purchaser pursuant hereto in reliance on Regulation S have been and will be offered and sold only
in offshore transactions and (iii) the sale of Securities offered and sold by the Initial Purchaser
pursuant hereto in reliance on Regulation S is not part of a plan or scheme to evade the
registration provisions of the Securities Act.
Annex I-1