DEALER MANAGERS AGREEMENT
January -, 2002
Xxxxxxx, Xxxxx & Co.,
As Dealer Managers,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Transocean Sedco Forex Inc., a Cayman Islands exempted company
(the "Offeror"), plans to make offers to exchange the outstanding 6.50% Notes
due April 15, 2003, 6.75% Notes due April 15, 2005, 6.95% Notes due April 15,
2008, 7.375% Notes due April 15, 2018, 9.125% Notes due December 15, 2003 and
9.50% Notes due December 15, 2008 (collectively, the "R&B Falcon Notes"), of R&B
Falcon Corporation, a Delaware corporation ("R&B Falcon"), for newly issued
6.50% Notes due April 15, 2003, 6.75% Notes due April 15, 2005, 6.95% Notes due
April 15, 2008, 7.375% Notes due April 15, 2018, 9.125% Notes due December 15,
2003 and 9.50% Notes due December 15, 2008, respectively, of the Offeror
(collectively, the "Offeror Notes"), and engage in a related solicitation of
consents from holders of R&B Falcon Notes to proposed amendments to the
indentures under which the R&B Falcon Notes were issued (the "R&B Falcon
Indentures") (such offers and consent solicitations, as they may be amended or
supplemented from time to time, the "Exchange Offers"), upon the terms
and subject to the conditions set forth in the exchange offer and consent
solicitation materials (collectively, the "Exchange Offer Material"), copies of
which have been delivered to you, namely:
(a) The Registration Statement (as defined in Section 4(a)
hereof);
(b) The Prospectus (as defined in Section 4(a) hereof);
(c) The form of Letter of Transmittal and Consent (the "Letter
of Transmittal") to be used by holders to tender R&B Falcon Notes and grant
consents pursuant to the Exchange Offers;
(d) The form of letter, dated the date hereof, from you to
brokers, securities dealers, commercial banks, trust companies and nominees;
(e) The form of press release, dated the date hereof, relating
to the Exchange Offers; and
(f) The form of letter, dated the date hereof, to holders of
R&B Falcon Notes relating to the Exchange Offer.
The Offeror hereby appoints you as the Dealer Managers in
connection with the Exchange Offers and authorizes you to act on its behalf in
accordance with this letter agreement and the terms of the Exchange Offer
Material, which Exchange Offer Material has been prepared or approved by the
Offeror. Each of the Registration Statement and the Prospectus has been or will
be filed with the Securities and Exchange Commission (the "Commission") pursuant
to the requirements of the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (collectively,
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the "Act"). You and any other broker or securities dealer or any commercial bank
or trust company are authorized to use the Exchange Offer Material in connection
with the solicitation of tenders along with such other offering materials and
information as the Offeror may prepare or approve ("Other Material"). You agree
to furnish no other written material to holders in connection with the Exchange
Offers. You further agree to be regarded as the broker-dealers that are making
the Exchange Offers on behalf of the Offeror to holders and beneficial owners of
R&B Falcon Notes in any states of the United States in which it is required that
such offers be made by or through a registered or licensed broker-dealer, and
you represent that you are registered or licensed in each of such states. It is
understood that nothing in this letter agreement nor the nature of your services
shall be deemed to create a fiduciary or agency relationship between you on the
one hand, and the Offeror on the other hand.
1. Mailing of Exchange Offer Material. The Offeror shall cause
to be delivered to each registered holder of any R&B Falcon Notes, to each
participant in the Depository Trust Company ("DTC") appearing in the most recent
available DTC securities position listing as a holder of R&B Falcon Notes and to
each Non Objecting Beneficial Owner ("NOBO") appearing in the most recent
available NOBO list as an owner of R&B Falcon Notes (each such registered
holder, participant or owner, a "Registered or Beneficial Owner"), as soon as
practicable, copies of appropriate Exchange Offer Material and Other Material.
Thereafter, to the extent practicable until the expiration of the Exchange
Offers, the Offeror shall use its best efforts to cause copies of such material
to be mailed to each person who becomes a Registered or Beneficial Owner of R&B
Falcon Notes.
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2. Solicitation of Tenders and Consents.
(a) As Dealer Managers, you agree, in accordance with your
customary practice, to perform in connection with the Exchange Offers those
services that are customarily performed by investment banking concerns in
connection with similar offers, including to use your reasonable best efforts to
solicit tenders of R&B Falcon Notes and consents pursuant to the Exchange
Offers. The performance by you of such services shall commence on the date of
the mailing (the "Commencement Date") of the Prospectus, the Letter of
Transmittal and related cover letters and documents to each holder of R&B Falcon
Notes. Neither you nor any of your affiliates, partners, directors, officers,
agents, employees or controlling persons (if any) shall have any liability to
the Offeror or any other person for any act or omission on the part of any
securities broker or dealer (other than yourselves), commercial bank or trust
company that solicits tenders or consents, and neither you nor any of such
persons or entities referred to above shall have any liability, based on your or
their exclusive or contributory negligence or otherwise, to the Offeror or any
person asserting claims on behalf of or in right of the Offeror in connection
with or as a result of either your engagement or any matter referred to in this
letter agreement, except to the extent that such liability results from your
gross negligence or bad faith in performing the services that are the subject of
this letter agreement. In soliciting tenders and consents, no securities broker
or dealer (other than yourselves), commercial bank or trust company shall be
deemed to act as your agent or the agent of the Offeror, and you, as Dealer
Managers, shall not be deemed the agent of any other securities broker or dealer
or of any commercial bank or trust company.
(b) The Offeror shall prepare the Prospectus in a form
approved by you and timely file such Prospectus with the Commission following
its preparation. The Offeror shall not make any amendment or supplement to the
Registration Statement or
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Prospectus which shall be disapproved by you promptly after reasonable notice.
The Offeror shall advise you, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed or becomes
effective or when any supplement to the Prospectus or any amended Prospectus has
been filed and to furnish you with copies thereof; to file promptly all reports
and any definitive proxy or information statements required to be filed by the
Offeror with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (collectively, the "Exchange Act") subsequent to the date
of the Prospectus and for as long as the delivery of a prospectus is required in
connection with the offering or sale of the Offeror Notes; to advise you,
promptly after it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus, of the suspension of the qualification of
the Offeror Notes for offering or sale in any jurisdiction, of the initiation or
threat of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus or suspending any such qualification,
promptly to use its best efforts to obtain the withdrawal of such order;
provided that in connection therewith the Offeror shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction unless such qualification or filing is required for
the consummation of the transactions contemplated by this letter agreement and
in the Exchange Offer Material.
(c) The Offeror agrees to furnish to you as many copies as you
may reasonably request of the Exchange Offer Material and Other Material,
including the
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Prospectus, in final form for use by you in connection with the Exchange Offers.
Except as contemplated by Section 2(m), the Offeror shall not amend or
supplement the Exchange Offer Material, or prepare or approve any Other Material
for use in connection with the Exchange Offers, without your consent, which
consent shall not be unreasonably withheld.
(d) If the delivery of a prospectus is required at any time in
connection with the offering and sale of the Offeror Notes and if at such time
any event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus was
delivered, not misleading, or if for any other reason it shall be necessary
during such period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in order
to comply with the Act or the Exchange Act, the Offeror agrees to notify you and
upon your request to file such document and to prepare and furnish without
charge to you as many copies as you may from time to time reasonably request of
an amended Prospectus or a supplement to the Prospectus which shall correct such
statement or omission or effect such compliance.
(e) The Offeror shall promptly from time to time take such
action as you may reasonably request to qualify the Offeror Notes for offering
and sale under the securities laws of such jurisdictions as you may reasonably
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for so long as may be necessary to
complete the distribution of the Offeror Notes; provided that in connection
therewith the Offeror shall not be required to qualify as a foreign corporation
or file a general consent to service of process in any jurisdiction.
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(f) The Offeror agrees to furnish to you, from time to time
upon your request, to the extent the same can be obtained by the Offeror, cards
or lists or copies thereof showing the names and addresses of, and principal
amount of each series of R&B Falcon Notes held by, the Registered or Beneficial
Owners of R&B Falcon Notes as of a recent date. You agree to use such
information only in connection with the Exchange Offers and not to furnish such
information to any other person except in connection with the Exchange Offers.
(g) The Offeror shall arrange for the Exchange Agent named in
the Prospectus orally to inform you during each business day during the Exchange
Offers (to be followed on a daily basis by written confirmation) as to the
principal amount of each series of R&B Falcon Notes that have been tendered
pursuant to the Exchange Offers during the interval since its previous daily
report to you under this provision.
(h) The Offeror shall arrange for the Information Agent named
in the Prospectus to advise you as to such matters relating to the Exchange
Offers as you may reasonably request and to furnish you with any written reports
concerning any such information as you may reasonably request.
(i) During a period of three years from the effective date of
the Registration Statement, the Offeror shall furnish to you all such
information concerning the business and financial condition of the Offeror as
you may from time to time reasonably request.
(j) The Offeror shall make generally available to its
securityholders as soon as practicable, but in any event not later than eighteen
months after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act) an earnings statement of the Offeror and its
subsidiaries (which need not be audited)
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complying with Section 11(a) of the Act (including, at the Offeror's option,
Rule 158 thereunder).
(k) The Offeror shall advise you promptly of the occurrence of
any event which could cause the Offeror to withdraw, rescind or modify any or
all of the Exchange Offers and of any litigation or governmental action with
respect to any or all of the Exchange Offers.
(l) Neither the Offeror nor any entity controlled, directly or
indirectly, by the Offeror has taken, or shall take, directly or indirectly, any
action which is designed to or which has constituted or which might reasonably
be expected to cause or result in stabilization or manipulation of the price of
any security of the Offeror to facilitate the sale or resale of Offeror Notes in
connection with any or all of the Exchange Offers.
(m) In the event that not all of the conditions precedent
required to be satisfied or waived pursuant to Section 5 hereof on the date on
which R&B Falcon Notes of any series are accepted for exchange (each, an
"Acceptance Date") are so satisfied or waived, the Offeror shall not accept any
R&B Falcon Notes for exchange unless and until (i) a post-effective amendment to
the Registration Statement, disclosing in a form reasonably satisfactory to you,
that Xxxxxxx, Xxxxx & Co. ("Xxxxxxx Sachs") are no longer acting as Dealer
Managers or performing other services related to the Exchange Offers, has been
filed by the Offeror with the Commission and (ii) a period of at least 10
business days has expired from the date of such filing.
(n) The Offeror acknowledges that (i) you are a full service
securities firm engaged in securities trading and brokerage activities, as well
as providing investment banking and financial advisory services and (ii) in the
ordinary course of your trading and brokerage activities, you or your affiliates
may at any time hold long or short positions, and may trade or otherwise effect
transactions for your or their own account or
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the account of customers, in debt or equity securities of the Offeror or any
other company that may be involved in the Exchange Offers.
3. Compensation and Expenses.
(a) The Offeror shall pay to you, as compensation for your
services to the Offeror hereunder, a fee equal to: (i) if the Consent Condition
(as defined in the Prospectus) is satisfied with respect to all six series and
each of the Exchange Offers is completed, 0.002 (i.e., 20 basis points) times
the aggregate principal amount of such series held at commencement by persons or
entities not affiliated with the Offeror (regardless of the principal amount
thereof that is tendered or accepted for exchange); provided that, if Xxxxxxx
Xxxxx cease to act as Dealer Managers under the circumstances contemplated by
Section 2(m) hereof, Xxxxxxx Sachs shall not be entitled to any fee under this
clause (i); or (ii) if the Consent Condition is not
satisfied with respect to all six series or any of the Exchange Offers is not
completed, 0.002 (i.e., 20 basis points) times the aggregate principal amount of
R&B Falcon Notes of any series tendered and accepted for exchange by the Offeror
pursuant to the applicable Exchange Offer; provided that, if Xxxxxxx Xxxxx cease
to act as Dealer Managers under the circumstances contemplated by Section 2(m)
hereof, Xxxxxxx Sachs shall not be entitled to any fee under this clause (ii).
(b) Whether or not any R&B Falcon Notes are acquired or
consents are obtained pursuant to the Exchange Offers, the Offeror shall pay all
expenses incident to the performance of the Offeror's obligations hereunder and
under the Exchange Offers, including, without limiting the generality of the
foregoing, all costs and
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expenses (i) incurred by brokers and dealers (including yourselves), commercial
banks, trust companies and nominees for their customary mailing and handling
expenses incurred in forwarding the Exchange Offer Material and any Other
Material to their customers, (ii) incident to the preparation, issuance,
execution and delivery of the Offeror Notes to be delivered in connection with
the Exchange Offers, (iii) incident to the preparation, printing and filing
under the Act of the Registration Statement and the Prospectus and any other
Exchange Offer Materials or Other Materials (including all exhibits, amendments
and supplements thereto), (iv) incurred in connection with the registration or
qualification of the Offeror Notes under the laws of such jurisdictions as you
may reasonably designate (including fees and disbursements of your counsel), (v)
in connection with the preparation and printing (including word processing and
duplication costs) and delivery of all Exchange Offer Material and any Other
Material (including this letter agreement and any preliminary and supplemental
Blue Sky memoranda), including mailing and shipping, as herein provided, (vi)
incident to the appointment of the Exchange Agent and the Information Agent,
including the fees and expenses of the Exchange Agent and the Information Agent,
(vii) relating to advertising and (viii) constituting applicable transfer taxes
payable in connection with the Exchange Offers and the transactions contemplated
thereby; provided, however, that the Offeror shall only be required to reimburse
you for your reasonable out-of-pocket expenses incurred in connection with the
foregoing. The Offeror shall reimburse you for all reasonable out-of-pocket
expenses incurred in connection with your services under this letter agreement
including, without limitation, the reasonable fees and disbursements of your
counsel and any expenses incurred as a result of presenting testimony or
evidence, or preparing to present testimony or evidence in connection with any
court or government proceeding arising out of or related to any of the Exchange
Offers.
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4. Certain Representations and Warranties by the Offeror. The
Offeror represents and warrants to you that:
(a) A registration statement on Form S-4 (Registration No.
333-77064) (the "Initial Registration Statement") in respect of the Offeror
Notes has been filed with the Commission; the Initial Registration Statement and
any post-effective amendment thereto, each in the form heretofore delivered to
you, have been declared effective by the Commission in such form; other than (i)
the documents incorporated by reference in the prospectus included therein
(which have heretofore been delivered to you), (ii) the exhibits to such
registration statement and such documents and (iii) any prospectuses filed
pursuant to Rule 424(b) under the Act (which have heretofore been delivered to
you), no document with respect to such registration statement or document
incorporated by reference therein has heretofore been filed with the Commission;
and no stop order suspending the effectiveness of the Initial Registration
Statement or any post-effective amendment thereto has been issued and no
proceeding for that purpose has been initiated or threatened by the Commission
(any preliminary prospectus included in the Initial Registration Statement or
filed with the Commission pursuant to Rule 424(a) of the rules and regulations
of the Commission under the Act, is herein called a "Preliminary Prospectus");
the various parts of the Initial Registration Statement, including all exhibits
(but excluding the Form T-1), annexes and schedules thereto and including (i)
the information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section 2(b)
hereof and (ii) the documents incorporated by reference into the prospectus
contained in the Initial Registration Statement at the time such part of the
registration statement
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became effective, each as amended at the time such part of the registration
statement became effective, is herein collectively called the "Registration
Statement"; such final prospectus, in the form included in the Registration
Statement at the time it became effective or first filed pursuant to Rule 424(b)
under the Act, is hereinafter called the "Prospectus"; and any reference herein
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the relevant
item or items of Form S-4 under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; and any reference to any amendment
or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any document filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Exchange Act, and
incorporated by reference into 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 Offeror 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 into the
Registration Statement;
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to
the requirements of the Act, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(c) 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 Act or the
Exchange Act, as applicable, and none of such documents contained an untrue
statement of a material
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fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; and
any further documents so filed 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 Act or the Exchange Act, as
applicable, and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading;
(d) The Registration Statement conforms, and the Prospectus,
any further amendments or supplements to the Registration Statement or the
Prospectus, the Exchange Offer Material and any Other Material will conform, in
all material respects to the requirements of the Act, the Exchange Act and the
Trust Indenture Act of 1939, as amended, and the rules and regulations
promulgated thereunder (the "Trust Indenture Act"), as applicable, and do not
and will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto, as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto and as of the date of first
use as to any other Exchange Offer Material or Other Material, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
(e) Neither the Offeror nor any of its subsidiaries has
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus as amended or supplemented any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended or
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supplemented, except for losses or interferences that would not, individually or
in the aggregate, have a material adverse effect on the general affairs,
management, financial position, shareholders' equity or results of operations of
the Offeror and its subsidiaries considered as one enterprise (a "Material
Adverse Effect"); and, since the respective dates as of which information is
given in the Prospectus as amended or supplemented, there has not been any
change in the share capital or capital stock (other than pursuant to any
employee benefit plans of the Offeror) or increase in long-term debt of the
Offeror or any of its subsidiaries or any change that would have a Material
Adverse Effect, or any development involving a prospective change that, to the
best knowledge of the Offeror, would reasonably be expected to have a Material
Adverse Effect, otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented;
(f) The Offeror has been duly incorporated and is validly
existing as an exempted company in good standing under the laws of the Cayman
Islands, with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus as amended or
supplemented, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any business, so
as to require such qualification, except where the failure to be so qualified
would not have a Material Adverse Effect; and each subsidiary of the Offeror
listed on Exhibit A hereto has been duly organized, is validly existing and in
good standing (if applicable) under the laws of its jurisdiction of
organization;
(g) The Offeror has an authorized capitalization as set forth
in the Prospectus as amended or supplemented, and all of the issued shares of
the Offeror have been duly and validly authorized and issued and are fully paid
and non-assessable;
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(h) The Offeror Notes have been duly authorized and, when
issued and delivered in exchange for the R&B Falcon Notes pursuant to this
letter agreement and the Exchange Offer Material, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Offeror entitled to the benefits provided by the
indenture, dated April 15, 1997 (the "Original Offeror Indenture"), between
Transocean Offshore Inc., the predecessor to the Offeror, and Texas Commerce
Bank National Association, the predecessor to The Bank of New York, as trustee
(the "Trustee"), as amended and supplemented by the First Supplemental
Indenture, Second Supplemental Indenture, Third Supplemental Indenture and
Fourth Supplemental Indenture thereto, dated April 15, 1997, May 14, 1999, May
24, 2000 and May 11, 2001, respectively (the Original Offeror Indenture as so
amended and supplemented, the "Offeror Indenture"), under which they are to be
issued; each of the Offeror Indenture and the Agreement of Resignation,
Appointment and Acceptance, dated January 15, 2002, among the Offeror, JPMorgan
Chase Bank and The Bank of New York (the "Trustee Agreement") has been duly
authorized, executed and delivered by the Offeror and the Trustee, has been duly
qualified under the Trust Indenture Act and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms, except as the
enforceability thereof may be subject to the effect of any bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium and other laws of
general applicability relating to or affecting creditors' rights and to general
principles of equity and public policy (regardless of whether enforcement is
sought in a proceeding at law or in equity) and to the discretion of the court
before which any proceeding may be brought; and the Offeror Notes will conform,
and the Offeror Indenture conforms, in all material respects to the descriptions
thereof in the Prospectus as amended or supplemented;
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(i) The making and consummation of the Exchange Offers, the
issue and sale of the Offeror Notes and the compliance by the Offeror with all
of the provisions of the Offeror Notes, the Offeror Indenture and this letter
agreement and the consummation of the transactions contemplated herein will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default or result in the acceleration of any
obligations under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Offeror or any of its subsidiaries is
a party or by which the Offeror or any of its subsidiaries is bound or to which
any of the property or assets of the Offeror or any of its subsidiaries is
subject, nor will such action result in any violation of the provisions of the
Memorandum and Articles of Association of the Offeror or any statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Offeror or any of its subsidiaries or any of their
properties, except, in each case other than with respect to such Memorandum and
Articles of Association, for any such conflict, breach, violation or default
which would not, individually or in the aggregate, have a Material Adverse
Effect and would not impair the Offeror's ability to perform its obligations
hereunder or under the Exchange Offer Material, the Offeror Notes or the Offeror
Indenture; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for any of the foregoing actions, except for such consents, approvals,
authorizations, registrations or qualifications as (i) have been obtained
(including registration under the Act) or (ii) may be required under state
securities or Blue Sky laws in connection with the distribution of the Offeror
Notes pursuant to the Exchange Offers;
(j) Neither the Offeror nor any of its subsidiaries is in
violation of its Memorandum and Articles of Association or its Certificate of
Incorporation or By-laws, as
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the case may be, or in default in the performance or observance of any material
obligation, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, except for any such
violation or default which would not, individually or in the aggregate, have a
Material Adverse Effect;
(k) The statements set forth in the Prospectus as amended or
supplemented under the caption "Description of the Transocean Sedco Forex
Notes", insofar as they purport to constitute a summary of the terms of the
Offeror Notes, and under the captions "Description of Differences between the
R&B Falcon Notes and the Transocean Sedco Forex Notes", "The Proposed
Amendments", "Description of the Transocean Sedco Forex Notes", "Material U.S.
Federal Income Tax Consequences" and "Cayman Islands Tax Consequences", insofar
as they purport to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair in all material respects;
(l) Other than as set forth in the Prospectus as amended or
supplemented, there are no legal or governmental proceedings pending to which
the Offeror or any of its subsidiaries is a party or of which any property of
the Offeror or any of its subsidiaries is the subject which, if determined
adversely to the Offeror or any of its subsidiaries, would, individually or in
the aggregate, have a Material Adverse Effect; and, to the best of the Offeror's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(m) The Offeror is not, and after giving effect to the
offering and sale of the Offeror Notes and the consummation of the Exchange
Offers, 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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(n) The Offeror has duly taken all necessary corporate action
to authorize the making and consummation of the Exchange Offers and the
execution, delivery and performance of this letter agreement; and this letter
agreement has been duly executed and delivered by the Offeror and constitutes a
valid and binding agreement of the Offeror;
(o) R&B Falcon has duly taken all necessary corporate action
to authorize (i) the execution and delivery of the supplemental indentures to
the R&B Falcon Indentures as contemplated by the Exchange Offers and (ii) the
performance of the R&B Falcon Indentures as so supplemented. Assuming
satisfaction of the Consent Condition (as defined in the Prospectus) and the due
authorization, execution and delivery of such supplemental indentures by the
trustee thereunder, upon the due execution and delivery thereof by R&B Falcon,
each of the R&B Falcon Indentures as supplemented will constitute a valid and
legally binding instrument, enforceable in accordance with its terms, except as
the enforceability thereof may be subject to the effect of any bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium and other laws of
general applicability relating to or affecting creditors' rights and to general
principles of equity and public policy (regardless of whether enforcement is
sought in a proceeding at law or in equity) and to the discretion of the court
before which any proceeding may be brought;
(p) The execution and delivery of the supplements to the R&B
Falcon Indentures as contemplated by the Exchange Offers and the performance by
R&B Falcon of its obligations under the R&B Falcon Indentures as so supplemented
will not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default or result in the acceleration of any
obligations under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which R&B Falcon or any of its subsidiaries is
a party or by which R&B Falcon or any of its subsidiaries is bound or to which
any of the property or assets of R&B
-18-
Falcon or any of its subsidiaries is subject, nor will such action result in any
violation of the provisions of the Certificate of Incorporation or By-laws of
R&B Falcon or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over R&B Falcon or any of its
subsidiaries or any of their properties, except, in each case other than with
respect to such Certificate of Incorporation or By-laws, for any such conflict,
breach, violation or default which would not, individually or in the aggregate,
have a Material Adverse Effect and would not impair R&B Falcon's ability to
perform its obligations under the R&B Falcon Notes or the R&B Falcon Indentures;
and no consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for any of the
foregoing actions, except for such consents, approvals, authorizations,
registrations or qualifications as (i) have been obtained (including
registration under the Act) or (ii) may be required under state securities or
Blue Sky laws in connection with the distribution of the Offeror Notes pursuant
to the Exchange Offers;
(q) Since the end of its latest fiscal year, the Offeror has
timely filed all documents and amendments to previously filed documents required
to be filed by it pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange
Act;
(r) To the knowledge of the Offeror, each of Ernst & Young
LLP, PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, who have certified
certain financial statements of the Offeror or its subsidiaries, are independent
public accountants as required by the Act; and
(s) Within two business days after the Commencement Date, the
Offeror will have made appropriate arrangements, to the extent applicable, with
The
-19-
Depository Trust Company and any other "qualified" registered securities
depository to allow for the book-entry movement of tendered R&B Falcon Notes
between depository participants and the Exchange Agent.
5. Conditions of Obligations. Your obligation to act as Dealer
Managers hereunder shall at all times be subject, in your discretion, to the
condition that all representations and warranties and other statements of the
Offeror herein are as of the date of this letter agreement, and at all times
during the Exchange Offers (including on each Acceptance Date), true and
correct, the condition that the Offeror shall have performed in all material
respects all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus shall have been either (i) filed with the
Commission pursuant to Rule 424(b) under the Act within the applicable time
period prescribed for such filing by the rules and regulations under the Act in
accordance with Section 2(b) hereof or (ii) included in the Registration
Statement; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction;
(b) On the Commencement Date and each Acceptance Date,
Xxxxxxxx & Xxxxxxxx, your counsel, shall have furnished to you, as Dealer
Managers, such opinion or opinions, dated the respective date of delivery
thereof, with respect to the matters covered in paragraphs (i), (ii), (ix) and
(x) and the third to last paragraph of subsection (d) below as well as such
other related matters as you may reasonably
-20-
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(c) On the Commencement Date and each Acceptance Date,
Walkers, special Cayman Islands counsel to the Offeror, shall have furnished to
you their written opinion, dated the respective date of delivery thereof, in
form and substance satisfactory to you, to the effect that:
(i) The Offeror has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the Cayman
Islands, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus as
amended or supplemented;
(ii) The Offeror has an authorized capitalization as set forth
in the Prospectus as amended or supplemented, and all of the issued
shares of the Offeror have been duly and validly authorized;
(iii) The making and consummation of the Exchange Offers have
been duly authorized by the Offeror; and each of this letter agreement,
the Second Supplemental Indenture, the Third Supplemental Indenture and
the Fourth Supplemental Indenture to the Original Offeror Indenture and
the Trustee Agreement have been duly authorized by the Offeror, and
assuming its due execution and delivery by the Offeror insofar as such
matters are governed by New York law, will be duly executed and
delivered by the Offeror;
(iv) The Offeror Notes have been duly authorized by the
Offeror,
(v) The making and consummation of the Exchange Offers, the
issue and sale of the Offeror Notes and the compliance by the Offeror
with all of the provisions of the Offeror Notes, the Offeror Indenture
and this letter agreement and the consummation of the transactions
contemplated herein will not result in
-21-
any violation of the Memorandum and Articles of Association of the
Offeror or any statute or any order, rule or regulation of any court or
governmental agency or body in the Cayman Islands having jurisdiction
over the Offeror or any of its subsidiaries or any of their properties;
(vi) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body in
the Cayman Islands is required for the consummation by the Offeror of
the Exchange Offers or the transactions contemplated by this letter
agreement; and
(vii) The statements set forth in the Prospectus as amended or
supplemented under the caption "Cayman Islands Tax Consequences",
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate, complete and fair in all
material respects;
(d) On the Commencement Date and each Acceptance Date, Xxxxx
Xxxxx L.L.P., United States counsel for the Offeror, shall have furnished to you
their written opinion, dated the respective date of delivery thereof in form and
substance satisfactory to you, to the effect that:
(i) Each of the Original Offeror Indenture and the First
Supplemental Indenture thereto has been duly authorized, executed and
delivered by Transocean Offshore Inc., a Delaware corporation; each of
the Second Supplemental Indenture, the Third Supplemental Indenture and
the Fourth Supplemental Indenture to the Original Offeror Indenture and
the Trustee Agreement, assuming its due authorization, and further
assuming its due execution and delivery by the Offeror insofar as such
matters are governed by Cayman Islands law, has been duly executed and
delivered by the Offeror; and the Offeror Indenture and the Trustee
Agreement, assuming the due
-22-
authorization, execution and delivery thereof by the trustee
thereunder, further assuming the due authorization of the Second
Supplemental Indenture, the Third Supplemental Indenture, the Fourth
Supplemental Indenture and the Trustee Agreement by the Offeror, and
further assuming the due execution and delivery of the Second
Supplemental Indenture, the Third Supplemental Indenture, the Fourth
Supplemental Indenture and the Trustee Agreement by the Offeror insofar
as such matters are governed by Cayman Islands law, constitutes a valid
and legally binding agreement of the Offeror, enforceable against the
Offeror in accordance with its terms, except as the enforceability
thereof may be subject to the effect of any bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and other laws of
general applicability relating to or affecting creditors' rights and to
general principles of equity and public policy (regardless of whether
enforcement is sought in a proceeding at law or in equity) and to the
discretion of the court before which any proceeding may be brought; and
the Offeror Indenture has been duly qualified under the Trust Indenture
Act;
(ii) The Offeror Notes, when duly executed, authenticated in
accordance with the Indenture and delivered as contemplated in this
letter agreement and the Exchange Offer Material, assuming their due
authorization, will constitute valid and legally binding obligations of
the Offeror, enforceable against the Offeror in accordance with their
terms, except as the enforceability thereof may be subject to the
effect of any bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and other laws of general applicability relating
to or affecting creditors' rights and to general principles of equity
and public policy (regardless of whether enforcement is sought in a
proceeding at law or in equity) and to the discretion of the court
before which any
-23-
proceeding may be brought; and the Offeror Indenture conforms, and when
the Offeror Notes have been duly executed, authenticated, issued and
delivered pursuant to the Offeror Indenture they will conform, in all
material respects to the descriptions thereof in the Prospectus as
amended or supplemented;
(iii) This letter agreement, assuming its due authorization,
and further assuming its due execution and delivery by the Offeror
insofar as such matters are governed by Cayman Islands law, has been
duly executed and delivered by the Offeror;
(iv) The making and consummation of the Exchange Offers, the
issue and sale of the Offeror Notes and the compliance by the Offeror
with all of the provisions of the Offeror Notes, the Offeror Indenture
and this letter agreement and the consummation of the transactions
contemplated herein will not conflict with or result in a breach or
violation of any of the terms of, or constitute a default or result in
the acceleration of any obligations under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument that is
included as an exhibit to the Offeror's Annual Report on Form 10-K for
the year ended December 31, 2000, nor will such actions result in any
violation of any statute, rule or regulation or any order known to such
counsel of any court or governmental agency or body having jurisdiction
over the Offeror or any of its subsidiaries or any of their properties,
except for any such conflict, breach, violation, default or
acceleration which would not, individually or in the aggregate, have a
Material Adverse Effect and could not reasonably be expected to
adversely affect the Offeror's ability to perform its obligations
hereunder or under the Exchange Offer Material, the Offeror Notes or
the Offeror Indenture (it being understood that for purposes of this
opinion, such counsel shall not be required
-24-
to pass upon compliance with respect to antifraud or similar provisions
of any law, rule or regulation);
(v) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body
which, to the best of such counsel's knowledge, has jurisdiction over
the Offeror or any of its subsidiaries or any of their properties is
required under the laws of the State of New York or the State of Texas
for the consummation of the Exchange Offers, the consummation by the
Offeror of the transactions contemplated by this letter agreement or
the Offeror Indenture, the execution and delivery of the supplements to
the R&B Falcon Indentures as contemplated by the Exchange Offers and
the performance by R&B Falcon of the R&B Falcon Indentures as so
supplemented, except for such consents, approvals, authorizations,
registrations or qualifications as (i) have been obtained (including
registration under the Act) or (ii) may be required under state
securities or Blue Sky laws in connection with the distribution of the
Offeror Notes pursuant to the Exchange Offers;
(vi) R&B Falcon has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware;
(vii) The execution and delivery by R&B Falcon of the
supplemental indentures to the R&B Falcon Indentures as contemplated by
the Exchange Offers have been duly authorized, and assuming
satisfaction of the Consent Condition and the due execution and
delivery thereof by R&B Falcon, and further assuming the due
authorization, execution and delivery thereof by the trustee
thereunder, each of the R&B Falcon Indentures as supplemented will
constitute a valid and legally binding instrument, enforceable in
accordance with its terms, except as the enforceability thereof may be
subject to the effect of any
-25-
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium and other laws of general applicability relating to or
affecting creditors' rights and to general principles of equity and
public policy (regardless of whether enforcement is sought in a
proceeding at law or in equity) and to the discretion of the court
before which any proceeding may be brought;
(viii) The execution and delivery of the supplements to the
R&B Falcon Indentures as contemplated by the Exchange Offers and the
performance by R&B Falcon of its obligations under the R&B Falcon
Indentures as so supplemented will not result in any violation of the
provisions of the Certificate of Incorporation or By-laws of R&B Falcon
or any statute, rule or regulation or any order known to such counsel
of any court or governmental agency or body having jurisdiction over
R&B Falcon or any of its subsidiaries or any of their properties,
except, in each case other than with respect to such Certificate of
Incorporation or By-laws, for any such conflict, breach, violation or
default which would not, individually or in the aggregate, have a
Material Adverse Effect and could not reasonably be expected to
adversely affect R&B Falcon's ability to perform its obligations under
the R&B Falcon Notes or the R&B Falcon Indentures (it being understood
that for purposes of this opinion, such counsel shall not be required
to pass upon compliance with respect to antifraud or similar provisions
of any law, rule or regulation); and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required under the laws of the
State of New York or the State of Texas for any of the foregoing
actions, except for such consents, approvals, authorizations,
registrations or qualifications as (i) have been obtained (including
registration under the Act) or (ii) may be required under
-26-
state securities or Blue Sky laws in connection with the distribution
of the Offeror Notes pursuant to the Exchange Offers;
(ix) The statements set forth in the Prospectus as amended or
supplemented under the caption "Description of the Transocean Sedco
Forex Notes", insofar as they purport to constitute a summary of the
terms of the Offeror Notes, and under the captions "Description of
Differences between the R&B Falcon Notes and the Transocean Sedco Forex
Notes", "The Proposed Amendments", "Description of the Transocean Sedco
Forex Notes" and "Material U.S. Federal Income Tax Consequences",
insofar as they purport to constitute a summary of the provisions of
the laws and documents referred to therein, are accurate in all
material respects;
(x) The Offeror is not, and after giving effect to the
offering and sale of the Offeror Notes and the consummation of the
Exchange Offers, will not be, an "investment company", as such term is
defined in the Investment Company Act; and
(xi) The Registration Statement, Prospectus, any further
amendments and supplements to the Registration Statement or the
Prospectus made by the Offeror prior to the date of such opinion (other
than the financial statements and schedules, the notes thereto and the
auditors' report thereon and other financial and accounting data
included or incorporated by reference therein, or omitted therefrom, as
to which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be,
appeared on their face to comply as to form in all material respects
with the requirements of the Act and the Trust Indenture Act, as
applicable.
-27-
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Offeror, representatives of independent public accountants for the Offeror and
with representatives of and counsel for the Dealer Managers, at which the
contents of the Registration Statement and the Prospectus as amended or
supplemented and related matters were discussed, and although such counsel did
not independently verify such information and is not passing upon, and does not
assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Prospectus as amended or
supplemented (except for those referred to in the opinion in subsection (ix) of
this Section 5(d)) or the Exchange Offer Material, on the basis of the foregoing
(relying as to materiality to a certain extent upon statements of officers and
other representatives of the Offeror), no facts have come to such counsel's
attention that would lead such counsel to believe (i) that, as of its effective
date, the Registration Statement or any further amendment thereto made by the
Offeror prior to the date of such opinion (other than the financial statements
and schedules, the notes thereto and the auditors' report thereon and other
financial and accounting data included or incorporated by reference therein, or
omitted therefrom, or the exhibits thereto, as to which such counsel need
express no opinion) contained an untrue statement of a
-28-
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (ii) that, as of its
date, the Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Offeror prior to the date of such opinion (other
than the financial statements and schedules, the notes thereto and the auditors'
report thereon and other financial and accounting data included or incorporated
by reference therein, or omitted therefrom, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading or (iii) that,
as of its date, any other Exchange Offer Material (when read together with the
Prospectus) contained an untrue statement of a material fact or omitted to state
a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In such opinion, phrases such as "to the best of such
counsel's knowledge", "known to such counsel" and those with equivalent wording
shall refer to the conscious awareness of information by the lawyers who have
prepared the opinion, signed the opinion or been actively involved in assisting
or advising the Offeror in connection with the preparation of the Prospectus as
amended or supplemented or related documents. Such counsel may rely as to
matters of Cayman Islands law upon the opinion of Walkers furnished pursuant to
Section 5(c) of this letter agreement.
Such counsel may limit the foregoing opinions in all respects
to the laws of the State of Texas and the State of New York, the General
Corporation Law of the State of Delaware and applicable Federal law, in each
case as in effect on the date of such opinions;
(e) On the Commencement Date and each Acceptance Date, Xxxx X.
Xxxxx, Senior Vice President and General Counsel of the Offeror, shall have
furnished to you his written opinion, dated the respective date of delivery
thereof, in form and substance satisfactory to you, to the effect that:
(i) To the best of such counsel's knowledge, neither the
Offeror nor any of its subsidiaries is in default in the performance or
observance of any material obligation, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it
-29-
is a party or by which it is bound or to which any of its property or
assets is subject, except for any such defaults which would not,
individually or in the aggregate, have a Material Adverse Effect;
(ii) To the best of such counsel's knowledge and other than as
set forth in the Prospectus as amended or supplemented, there are no
legal or governmental proceedings pending to which the Offeror or any
of its subsidiaries is a party or of which any property of the Offeror
or any of its subsidiaries is the subject which, if determined
adversely to the Offeror or any of its subsidiaries, would,
individually or in the aggregate, have a Material Adverse Effect; and,
to the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(iii) The making and consummation of the Exchange Offers,
issue and sale of the Offeror Notes and the compliance by the Offeror
with all of the provisions of the Offeror Notes, the Offeror Indenture
and this letter agreement and the consummation of the transactions
contemplated herein will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
or result in the acceleration of any obligations under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel (after reasonable inquiry) to which
the Offeror or any of its subsidiaries is a party or by which the
Offeror or any of its subsidiaries is bound or to which any of the
property or assets of the Offeror or any of its subsidiaries is
subject, except for any such conflict, breach, violation or default
which would not, individually or in the aggregate, have a Material
Adverse Effect and would not impair the Offeror's ability to perform
its obligations
-30-
here\under or under the Exchange Offer Material, the Offeror Notes or
the Offeror Indenture;
(iv) The execution and delivery of the supplements to the R&B
Falcon Indentures as contemplated by the Exchange Offers and the
performance by R&B Falcon of the R&B Falcon Indentures as so
supplemented will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default or result
in the acceleration of any obligations under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument known to
such counsel (after reasonable inquiry), to which R&B Falcon or any of
its subsidiaries is a party or by which R&B Falcon or any of its
subsidiaries is bound or to which any of the property or assets of R&B
Falcon or any of its subsidiaries is subject, except for any such
conflict, breach, violation, default or acceleration, which would not,
individually or in the aggregate, have a Material Adverse Effect and
would not impair R&B Falcon's ability to perform its obligations under
the R&B Falcon Notes or the R&B Falcon Indentures;
(v) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements and
schedules, the notes thereto and the auditors' report thereon and other
financial and accounting data included or incorporated by reference
therein, or omitted therefrom, as to which such counsel has not been
asked to comment), when they were filed with the Commission appeared on
their face to comply as to form in all material respects with the
requirements of the Exchange Act.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Offeror, representatives of independent public accountants for the Offeror and
with representatives of and counsel
-31-
for the Dealer Managers, at which the contents of the Registration Statement and
the Prospectus as amended or supplemented and related matters were discussed,
and although such counsel did not independently verify such information and is
not passing upon, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Prospectus as amended or supplemented or the Exchange Offer
Material, on the basis of the foregoing (relying as to materiality to a certain
extent upon statements of officers and other representatives of the Offeror), no
facts have come to such counsel's attention that would lead such counsel to
believe (i) that, as of its effective date, the Registration Statement or any
further amendment thereto made by the Offeror prior to the date of such opinion
(other than the financial statements and schedules, the notes thereto and the
auditors' report thereon and other financial and accounting data included or
incorporated by reference therein, or omitted therefrom, or the exhibits
thereto, as to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, (ii)
that, as of its date, the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Offeror prior to the date of such
opinion (other than the financial statements and schedules, the notes thereto
and the auditors' report thereon and other financial and accounting data
included or incorporated by reference therein, or omitted therefrom, as to which
such counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or (iii) that, as of its date, any other Exchange Offer
Material (when read together with the Prospectus) contained an untrue statement
of a material fact or omitted to state a material
-32-
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and such counsel does
not know of any amendment to the Registration Statement required to be filed or
any contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference or described as
required.
Such counsel may rely as to matters of Cayman Islands law upon
the opinion of Walkers furnished pursuant to Section 5(c) of this letter
agreement. Such counsel may limit the foregoing opinions in all respects to the
laws of the State of Texas and applicable Federal law, in each case as in effect
on the date of such opinions;
(f) On the Commencement Date and each Acceptance Date, each of
Ernst & Young LLP, PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP shall have
furnished to you a letter, dated the respective date of delivery thereof,
substantially in the form attached hereto as Annex I-A, I-B or I-C,
respectively;
-33-
(g) (i) Neither the Offeror nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
incorporated by reference in the Prospectus as amended or supplemented any loss
or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, that would, individually or in the
aggregate, have a Material Adverse Effect, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented, and (ii) since the
respective dates as of which information is given in the Prospectus as amended
or supplemented, there shall not have been any change in the share capital or
capital stock (other than pursuant to any employee benefit plans of the Offeror)
or increase in long-term debt of the Offeror or any of its subsidiaries or any
change that would have a Material Adverse Effect, or any development involving a
prospective change that would have a Material Adverse Effect, otherwise than as
set forth or contemplated in the Prospectus as amended or supplemented, the
effect of which, in any such case described in clause (i) or (ii), is in the
reasonable judgment of the Dealer Managers so material and adverse as to make it
impracticable or inadvisable to proceed with the Exchange Offer or the delivery
of Offeror Notes on the terms and in the manner contemplated in the Exchange
Offer Material;
(h) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Offeror's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Offeror's
debt securities;
-34-
(i) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension or
material limitation in trading in the Offeror's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities declared
by either Federal or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United
States; (iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or war;
or (v) the occurrence of any other calamity or crisis or any adverse change in
financial, political or economic conditions in the United States or elsewhere;
if the effect of any such event specified in clauses (iv) and (v) in the
reasonable judgment of the Dealer Managers makes it impracticable or inadvisable
to proceed with any of the Exchange Offers or the delivery of the Offeror Notes
on the terms and in the manner contemplated in the Exchange Offer Material or
Other Material; and
(j) On each of the Commencement Date and the Acceptance Date,
the Offeror shall have furnished or caused to be furnished to you a certificate
or certificates of officers of the Offeror satisfactory to you as to the
accuracy of the representations and warranties of the Offeror herein at and as
of such date, as to the performance by the Offeror of all of its obligations
hereunder to be performed at or prior to such date, as to the matters set forth
in subsections (a) and (g) of this Section 5 and as to such other matters as you
may reasonably request.
6. Indemnification and Contribution.
(a) The Offeror agrees: (i) to indemnify and hold you harmless
against any and all losses, damages, liabilities or claims (or actions in
respect thereof) (A) that
-35-
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Exchange Offer Material or any Other
Material, including the Registration Statement or the Prospectus, or any of the
documents referred to therein or in any amendment or supplement to any of the
foregoing, or that arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, (B) that arise out of or are based
upon any breach by the Offeror of any representation or warranty or failure by
the Offeror to comply with any obligation set forth herein or (C) that arise out
of or are based upon a withdrawal, rescission, termination or modification of or
a failure to make or consummate the Exchange Offers; and (ii) to indemnify and
hold you harmless against any and all other losses, damages, liabilities or
claims (or actions in respect thereof) that otherwise arise out of or are based
upon or asserted against you by any person, including shareholders of the
Offeror, in connection with or as a result of your acting as Dealer Managers or
rendering financial advisory services in connection with the Exchange Offers or
that arise in connection with any other matter referred to in this letter
agreement and without regard to your exclusive or contributory negligence,
except to the extent that such losses, damages, liabilities or claims referred
to in this clause (ii) results from your gross negligence or bad faith in
performing the services that are the subject of this letter agreement. The
Offeror further agrees, in the event that you become involved in any capacity in
any action, proceeding or investigation brought by or against any person,
including shareholders of the Offeror, in connection with any matter referred to
in this letter agreement, periodically to reimburse you for your reasonable
legal and other out-of-pocket expenses (including the cost of any investigation
and preparation) incurred in connection therewith. The Offeror also agrees that
neither you
-36-
nor any of your affiliates, nor any partners, directors, officers, agents,
employees or controlling persons (if any), as the case may be, of you or any
such affiliates, shall have any liability, based on your or their exclusive or
contributory negligence or otherwise, to the Offeror or R&B Falcon or any person
asserting claims on behalf of or in right of any of the Offeror or R&B Falcon
for or in connection with any matter referred to in this letter agreement,
except to the extent that any loss, damage, expense, liability or claim incurred
by the Offeror or R&B Falcon results from your gross negligence or bad faith in
performing the services that are the subject of this letter agreement.
(b) Promptly after receipt by you of notice of your
involvement in any action, proceeding or investigation, you shall, if a claim in
respect thereof is to be made against the Offeror under subsection (a) of this
Section 6, notify the Offeror in writing of such involvement, but the failure so
to notify the Offeror shall not relieve the Offeror from any liability which it
may otherwise have to you under subsection (a) of this Section 6, except to the
extent that the Offeror suffers actual prejudice as a result of such failure,
and in no event shall such failure relieve the Offeror from any obligation to
provide reimbursement and contribution to you other than under subsection (a) of
this Section 6 (except to the extent expressly provided otherwise in subsection
(c) of this Section 6). In the event that any such action, proceeding or
investigation is brought against or otherwise involves you and you notify the
Offeror of the commencement thereof or your involvement therein, the Offeror
shall be entitled to participate therein or, at the option of the Offeror,
assume the defense thereof, with counsel reasonably satisfactory to you. Upon
assumption by the Offeror of the defense of such action, proceeding or
investigation, you shall have the right to participate in such action,
proceeding or investigation and to retain your own counsel, but the Offeror
shall not be liable to you under this subsection (b) for any reasonable legal
fees and out-of-pocket expenses of
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other counsel subsequently incurred by you in connection with the defense
thereof unless (i) the Offeror has agreed to pay such expenses, (ii) the Offeror
has failed to employ counsel reasonably satisfactory to you in a timely manner
or (iii) you have been advised by counsel that there are actual or potential
conflicting interests between the Offeror and you, including situations in which
there are one or more legal defenses available to you that are different from or
additional to those available to the Offeror; provided that the Offeror shall
not, in connection with any one such action or proceeding or separate but
substantially similar actions or proceedings arising out of the same general
allegations, be liable for any legal fees and expenses of more than one separate
counsel retained by you at any time, except to the extent that local counsel, in
addition to regular counsel, is required in order to effectively defend against
such action or proceeding. The Offeror shall not consent to any compromise or
settlement of any such action, proceeding or investigation involving you without
your prior consent, unless such compromise or settlement (i) unconditionally
releases you from all liability arising out of such action, proceeding or
investigation and (ii) does not include a statement as to or an admission of
your fault, culpability or failure to act.
(c) If for any reason the indemnification provided for in
subsection (a) of this Section 6 is unavailable or insufficient to hold you
harmless, then, except to the extent (but only to the extent) that the Offeror
suffers actual prejudice as a result of any failure by you to notify the Offeror
of any action, proceeding or investigation as contemplated by the first sentence
of subsection (b) of this Section 6, the Offeror shall contribute to the amount
paid or payable by you as a result of such loss, damage, expense, liability or
claim (or action in respect thereof) referred to in subsection (a) of this
Section 6 in such proportion as is appropriate to reflect the relative benefits
of the Offeror on the one hand and you on the other hand in the matters
contemplated by this
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letter agreement as well as the relative fault of the Offeror on the one hand
and you on the other hand with respect to such loss, damage, expense, liability
or claim (or action in respect thereof) and any other relevant equitable
considerations. The relative benefits of the Offeror on the one hand and you on
the other hand in the matters contemplated by this letter agreement shall be
deemed to be in the same proportion as the maximum aggregate value of the
consideration proposed to be paid by the Offeror to acquire R&B Falcon Notes
pursuant to the Exchange Offers bears to the maximum aggregate fee proposed to
be paid to you pursuant to Section 3 of this letter agreement as a result of
such acquisition of R&B Falcon Notes. The relative fault of the Offeror on the
one hand and you on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by, or relating to, the Offeror or its respective
affiliates on the one hand or you on the other hand, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Offeror and you agree that it would not be just
and equitable if contribution pursuant to this subsection (c) were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in this subsection (c).
(d) The agreements contained in Section 3 and in this Section
6 and in Section 7, and the representations and warranties of the Offeror set
forth in Section 4, shall survive any termination or cancellation of this letter
agreement, any completion of the engagement provided by this letter agreement,
any investigation made by or on behalf of you, any of your officers or partners
or any person controlling you, any termination or expiration of the Exchange
Offers and any acquisition of R&B Falcon Notes, whether pursuant to the Exchange
Offers or otherwise.
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(e) The reimbursement, indemnity and contribution obligations
of the Offeror under this Section 6 shall be in addition to any liability that
the Offeror may otherwise have, shall extend upon the same terms and conditions
to your affiliates and the partners, directors, officers, agents, employees and
controlling persons (if any), as the case may be, of you and any such affiliate,
and shall be binding upon and inure to the benefit of any successors, assigns,
heirs and personal representatives of the Offeror, you, any such affiliate and
any such other person referred to above.
7. Miscellaneous.
(a) This letter agreement is made solely for the benefit of
you, the Offeror and any partner, director, officer, agent, employee, affiliate
or controlling person referred to in Section 6 hereof, and their respective
successors, assigns, heirs and legal representatives, and no other person shall
acquire or have any right under or by virtue of this letter agreement. Neither
of the parties hereto will assign this letter agreement without the prior
written consent of the other party.
(b) Except as otherwise expressly provided in this letter
agreement, whenever notice is required by the provisions of this letter
agreement to be given to (i) the Offeror, such notice shall be in writing
addressed to the Offeror, at its office at 0 Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxx
00000, Attention: General Counsel; and (ii) you, such notice shall be in writing
addressed to you, at the address indicated on the first page hereof.
(c) This letter agreement supersedes all prior agreements,
understandings and negotiations with respect to your acting as Dealer Managers
of the Exchange Offers. THIS LETTER AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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(d) The descriptive headings contained in this letter
agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this letter agreement.
(e) In the event that any provision hereof shall be determined
to be invalid or unenforceable in any respect, such determination shall not
affect such provision in any other respect or any other provision hereof, which
shall remain in full force and effect.
(f) None of the provisions of this letter agreement may be
amended or waived except by an agreement in writing signed by each party to be
bound thereby.
(g) Any right to trial by jury with respect to any action or
proceeding arising in connection with or as a result of either your engagement
or any matter referred to in this letter agreement is hereby waived by the
parties hereto.
(h) The Offeror agrees that any suit, action or proceeding
arising out of or relating to this letter agreement or the Exchange Offer
Material will be tried exclusively in the United States District Court for the
Southern District of New York, or, if that court does not have subject matter
jurisdiction, in any state court located in The City of New York and the Offeror
agrees to submit to the jurisdiction of, and venue in, such courts. The Offeror
irrevocably waives, to the full extent permitted by law, any objection that it
may have to the laying of venue of any such suit, action or proceeding brought
in such a court and any claim that any such suit, action or proceeding brought
in such a court has been brought in an inconvenient forum. The Offeror
represents and warrants that it has irrevocably appointed CT Corporation System
as its agent to accept and acknowledge on its behalf service of any and all
process that may be served in any such suit, action or proceeding in any court
sitting in New York City.
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(i) Except as provided in Section 6(d) hereof, this letter
agreement shall terminate upon the earliest to occur of (i) the consummation of
the Exchange Offers, (ii) the earliest date on which the Dealer Managers shall
have given notice to the Offeror that any of the conditions specified in Section
5 have not been fulfilled as of any date such condition is required to be
fulfilled pursuant to Section 5 and (iii) the date on which the Offeror
terminates or withdraws all of the Exchange Offers.
(j) This letter agreement may be executed in any number of
separate counterparts, each of which will be an original, but all such
counterparts shall together constitute one and the same agreement.
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Please sign and return to us a duplicate of this letter
agreement, whereupon it will become a binding agreement.
Very truly yours,
TRANSOCEAN SEDCO FOREX INC.
By
----------------------------------------
Name:
Title:
The undersigned hereby
confirm that the foregoing
letter agreement, as of the
date thereof, correctly
sets forth the agreement
between the Offeror
and the undersigned.
---------------------------------
(Xxxxxxx, Xxxxx & Co.)
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Exhibit A
LIST OF SUBSIDIARIES
COMPANY NAME JURISDICTION
------------ ------------
Transocean Offshore Deepwater Drilling Inc. Delaware
Transocean Offshore International Ventures Ltd. Cayman Islands
Sedco Forex Holdings Ltd. British Virgin Islands
Sedco Forex International Inc. Panama
Transocean Holdings Inc. Delaware
R&B Falcon Corporation Delaware
R&B Falcon Drilling (International & Deepwater) Inc. Delaware
R&B Falcon Drilling Co. Oklahoma
Cliffs Drilling Company Delaware
ANNEX I-A
DESCRIPTION OF COMFORT LETTER
ANNEX I-B
DESCRIPTION OF COMFORT LETTER
ANNEX I-C
DESCRIPTION OF COMFORT LETTER
