Exhibit 4.5
$110,000,000
XXXXXX OFFSHORE LLC
XXXXXX OFFSHORE FINANCE CORP.
10% Senior Notes due 2008
PURCHASE AGREEMENT
April 24, 1998
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXXXXXX XXXXXXX SECURITIES, INC.
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Xxxxxx Offshore LLC, a Delaware limited liability
company (the "Company"), and Xxxxxx Offshore Finance Corp., a Delaware
corporation ("Finance" and, together with the Company, the "Issuers"),
propose, subject to the terms and conditions stated herein, to issue and sell
to the several initial purchasers named in Schedule A hereto (the
"Purchasers") $110,000,000 aggregate principal amount of their 10% Senior
Notes due 2008 ("Offered Securities") to be issued under an indenture dated
as of April 29, 1998 (the "Indenture") among the Company, the Subsidiary
Guarantors (as defined below) and U.S. Bank Trust National Association, as
Trustee. The Offered Securities will be unconditionally guaranteed (the
"Guarantees") by Xxxxxx Columbus LLC, a Delaware limited liability company
("Columbus"), and Xxxxxx Magellan LLC, a Delaware limited liability company
("Magellan" and, together with Columbus, the "Subsidiary Guarantors"). The
United States Securities Act of 1933 is herein referred to as the "Securities
Act."
The Issuers and the Subsidiary Guarantors hereby agree, jointly and
severally, with the several Purchasers as follows:
2. Representations and Warranties of the Issuers and the Subsidiary
Guarantors. The Issuers and Subsidiary Guarantors, jointly and severally,
represent and warrant to, and agree with, the several Purchasers that:
(a) A preliminary offering circular and an offering circular
relating to the Offered Securities to be offered by the Purchasers have been
prepared by the Issuers and the Subsidiary Guarantors. Such preliminary
offering circular and offering circular, as supplemented as of the date of
this Agreement, and any other document approved by the Issuers and the
Subsidiary Guarantors for use in connection with the contemplated resale of
the Offered Securities are hereinafter collectively referred to as the
"Offering Document." On the date of this Agreement, the Offering Document
does not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions from the
Offering Document based upon written information furnished to the Issuers or
the Subsidiary Guarantors by any Purchaser through Credit Suisse First Boston
Corporation ("CSFBC") specifically for use therein, it being understood and
agreed that the only such information is that described as such in Section
7(b) hereto. The information required to be delivered to holders and
prospective purchasers of the Offered Securities pursuant to Section 4.2 of
the Indenture in accordance with Rule 144A(d)(4) under the Securities Act
does not include any 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, not misleading. The preceding
sentence does not apply to statements in or omissions from the Offering
Document based upon written information furnished to the Issuers or the
Subsidiary Guarantors by any Purchaser through CSFBC specifically for use
therein, it being understood and agreed that the only such information is
that described as such in Section 7(b) hereof.
(b) The Company has been duly formed and is an existing limited
liability company in good standing under the laws of the State of Delaware,
with power and authority (limited liability company and other) to own its
properties and conduct its business as described in the Offering Document;
and the Company is duly qualified to do business as a foreign limited
liability company in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires such
qualification.
(c) Finance has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Offering Document; and Finance is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification. All of the issued and
outstanding capital stock of Finance has been duly authorized and validly
issued and is fully paid and non-assessable; and the capital stock of Finance
is owned directly by the Company, free from liens or encumbrances.
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(d) Each of the Subsidiary Guarantors has been duly formed and is
an existing limited liability company in good standing under the laws of the
State of Delaware, with power and authority (limited liability company and
other) to own its properties and conduct its business as described in the
Offering Document; and each of the Subsidiary Guarantors is duly qualified to
do business as a foreign limited liability company in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the failure
to be so qualified would not have a material adverse effect on the Issuers
and the Subsidiary Guarantors taken as a whole; all of the issued and
outstanding member interests of each Subsidiary Guarantor has been duly
authorized and validly issued and is fully paid and nonassessable; and the
member interests of each Subsidiary Guarantor are owned directly by the
Company, free from liens or encumbrances. The Company has no direct or
indirect subsidiaries other than Finance and the Subsidiary Guarantors.
(e) The Indenture (including the Guarantees) has been duly
authorized; the Offered Securities have been duly authorized; and when the
Offered Securities are delivered and paid for pursuant to this Agreement on
the Closing Date (as defined below), the Indenture will have been duly
executed and delivered, such Offered Securities will have been duly executed,
authenticated, issued and delivered and will conform to the description
thereof contained in the Offering Document and the Indenture (including the
Guarantees) and such Offered Securities will constitute valid and legally
binding obligations of the Issuers and the Subsidiary Guarantors, as the case
may be, enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and to
general equity principles.
(f) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between any of the Issuers or the
Subsidiary Guarantors and any person that would give rise to a valid claim
against the Issuers or Subsidiary Guarantors or any Purchaser for a brokerage
commission, finder's fee or other like payment in connection with the sale of
the Offered Securities.
(g) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement and the
Registration Rights Agreement in connection with the issuance and sale of the
Offered Securities by the Issuers and the issuance of the Guarantees by the
Subsidiary Guarantors, or for the execution, delivery and performance of the
Indenture, the Escrow Agreement and the Escrow Security Agreement (as defined
in the Indenture), except such as may be required under state or foreign
securities laws and except for such filings with the Securities and Exchange
Commission as are required in connection with the Registration Rights
Agreement.
(h) The execution, delivery and performance of the Indenture, the
Registration Rights Agreement, the Escrow Agreement, the Escrow Security
Agreement and this Agreement, and the issuance and sale of the Offered
Securities and compliance with the terms and provisions thereof will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default
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under, any statute, any rule, regulation or order of any governmental agency
or body or any court, domestic or foreign, having jurisdiction over the
Issuers or the Subsidiary Guarantors or any of their properties, or any
agreement or instrument to which any of the Issuers or the Subsidiary
Guarantors is a party or by which the Issuers or the Subsidiary Guarantors
are bound or to which any of the properties of the Issuers or the Subsidiary
Guarantors are subject, or the Amended and Restated Operating Agreement, as
amended, of the Company, the Certificate of Incorporation and Bylaws of
Finance or the Operating Agreement of each of the Subsidiary Guarantors; and
the Issuers have full power and authority to authorize, issue and sell the
Offered Securities as contemplated by this Agreement.
(i) Each of this Agreement and Registration Rights Agreement has
been duly authorized, executed and delivered by the Issuers and the
Subsidiary Guarantors.
(j) Each of the Escrow Agreement and the Escrow Security Agreement
has been duly authorized by the Issuers; the Escrow Agreement will conform to
the description thereof contained in the Offering Document and the each of
the Escrow Agreement and the Escrow Security Agreement will constitute valid
and legally binding obligations of the Issuers, enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles. The
Escrow Security Agreement creates in favor of the Collateral Agent (as
defined therein) acting as agent for the Trustee as the secured party, a
valid perfected first priority security interest in all right, title and
interest in the Collateral (as defined therein).
(k) Except as disclosed in the Offering Document, the Issuers and
the Subsidiary Guarantors have good and marketable title to all real
properties and all other properties and assets owned by them, in each case
free from liens, encumbrances and defects that would materially affect the
value thereof or materially interfere with the use made or to be made thereof
by them; and except as disclosed in the Offering Document, the Issuers and
the Subsidiary Guarantors hold any leased real or personal property under
valid and enforceable leases with no exceptions that would materially
interfere with the use made or to be made thereof by them.
(l) The Issuers and the Subsidiary Guarantors possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by them and
have not received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if determined
adversely to the Issuers or the Subsidiary Guarantors, would individually or
in the aggregate have a material adverse effect on the Issuers and the
Subsidiary Guarantors taken as a whole.
(m) No labor dispute with the employees of the Issuers or the
Subsidiary Guarantors exists or, to the knowledge of the Issuers and
Subsidiary Guarantors, is imminent that might have a material adverse effect
on the Issuers and the Subsidiary Guarantors taken as a whole.
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(n) None of the Issuers or the Subsidiary Guarantors is in
violation of any statute, any rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign, relating to
the use, disposal or release of hazardous or toxic substances or relating to
the protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "environmental laws"), owns or
operates any real property contaminated with any substance that is subject to
any environmental laws, is liable for any off-site disposal or contamination
pursuant to any environmental laws, or is subject to any claim relating to
any environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a material adverse effect on the
Issuers and the Subsidiary Guarantors taken as a whole; and none of the
Issuers or the Subsidiary Guarantors is aware of any pending investigation
which might lead to such a claim.
(o) There are no pending actions, suits or proceedings against or
affecting the Issuers, the Subsidiary Guarantors or any of their respective
properties that, if determined adversely to the Issuers and the Subsidiary
Guarantors, would individually or in the aggregate have a material adverse
effect on the condition (financial or other), business, properties or results
of operations of the Issuers and the Subsidiary Guarantors taken as a whole,
or would materially and adversely affect the ability of the Issuers and the
Subsidiary Guarantors to perform their obligations under the Indenture, the
Registration Rights Agreement or the Escrow Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and no such
actions, suits or proceedings are threatened or, to the Issuers' or the
Subsidiary Guarantors' knowledge, contemplated.
(p) The assumptions used in preparing, and the estimates disclosed
in, the forecasted financial information under the caption "Certain Financial
Forecast Information" represent the Issuers' current best assumptions and
estimates of the anticipated results of operations for the Company and its
consolidated subsidiaries for each of the years in the three-year period
ended December 31, 2001, and the assumptions disclosed therein have been
prepared in good faith by the Issuers and on reasonable basis, and are all
those the Issuers and the Guarantors believe are significant to the
forecasted financial information.
(q) The financial statements included in the Offering Document
present fairly the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations and cash
flows for the periods shown, and such financial statements have been prepared
in conformity with the generally accepted accounting principles in the United
States applied on a consistent basis. The financial data included in the
Offering Document relating to payments under the Construction Contracts (as
defined in the Offering Document) and for owner furnished equipment and
overhead, with respect to 1997, fairly present actual payments made, and,
with respect to periods thereafter, represent the Company's best assumptions
and estimates of the amounts and timing of such payments, and have been
prepaid by the Issuers in good faith and on a reasonable basis. The
statements in the Offering Document in the second paragraph under the caption
"Management's Discussion and Analysis of Financial Condition and Results of
Operations --Overview" with respect to Finance and the Subsidiary Guarantors
are true and correct.
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(r) Since the date of the latest audited financial statements
included in the Offering Document there has been no material adverse change,
nor any development or event involving a prospective material adverse change,
in the condition (financial or other), business, properties (including,
without limitation, the construction in progress of the Rigs (as defined in
the Offering Document) and any owner furnished equipment relating thereto) or
results of operations of the Issuers and the Subsidiary Guarantors taken as a
whole, and there has been no dividend or distribution of any kind declared,
paid or made by the Issuers or the Subsidiary Guarantors.
(s) Each of the Construction Contracts and binder for the
"delay-in-delivery" insurance policy relating to the Rigs described in the
Offering Documents is in full force and effect and no default or event that
with notice, a lapse of time, or both, would constitute a default, exists
thereunder.
(t) None of the Issuers or the Subsidiary Guarantors is an open-end
investment company, unit investment trust or face-amount certificate company
that is or is required to be registered under Section 8 of the United States
Investment Company Act of 1940 (the "Investment Company Act"); and none of
the Issuers or the Subsidiary Guarantors is or, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Offering Document, will be, an
"investment company" as defined in the Investment Company Act.
(u) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities are listed on
any national securities exchange registered under Section 6 of the Securities
Exchange Act of 1934 (the "Exchange Act") or quoted in a U.S. automated
inter-dealer quotation system.
(v) Assuming the accuracy of the representations and warranties of
the Purchasers and the compliance by the Purchasers with the covenants set
forth in Section 4 hereof, the offer and sale of the Offered Securities in
the manner contemplated by this Agreement will be exempt from the
registration requirements of the Securities Act by reason of Section 4(2)
thereof, Rule 144A thereunder ("Rule 144A") and Regulation S under the
Securities Act ("Regulation S"); and prior to the effectiveness of a
registration statement as contemplated in the Registration Rights Agreement,
it is not necessary to qualify an indenture in respect of the Offered
Securities under the United States Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act").
(w) None of the Issuers, Subsidiary Guarantors or any of their
affiliates, or any person acting on its or their behalf (i) has, within the
six-month period prior to the date hereof, offered or sold in the United
States or to any U.S. person (as such terms are defined in Regulation S under
the Securities Act) the Offered Securities or any security of the same class
or series as the Offered Securities or (ii) has offered or will offer or sell
the Offered Securities (A) in the United States by means of any form of
general solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act or (B) with respect to any such securities sold in
reliance on Rule 903 of Regulation S, by means of any directed selling
efforts within the meaning of Rule 902(b) of
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Regulation S. Assuming the accuracy of the representations and warranties of
the Purchasers and compliance by the Purchaser with the covenants set forth
in Section 4 hereof, the Issuers, the Subsidiary Guarantors, their affiliates
and any person acting on their behalf have complied and will comply with the
offering restrictions requirement of Regulation S. The Issuers and the
Subsidiary Guarantors have not entered and will not enter into any
contractual arrangement with respect to the distribution of the Offered
Securities except for this Agreement and the Registration Rights Agreement.
(x) The proceeds to the Issuers from the offering of the Offered
Securities will not be used to purchase or carry any "margin security" or
"margin stock", within the meaning of Regulations G, T, U or X, as
applicable, of the Board of Governors of the Federal Reserve System.
(y) The proceeds to the Issuers from the offering of the Offered
Securities will be used as described in the Offering Document.
(z) None of the Issuers, the Guarantors, any of their respective
affiliates, or any director, officer, agent, employee or other person, in any
case, acting on behalf of the Issuers or the Guarantors has (i) used any
corporate funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; (ii) made any direct or
indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; (iii) violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; or (iv) made any
bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
(aa) As of the Closing Date and after the application of the
proceeds of the offering as described in the Offering Document, (i) the
amounts held in the Interest Escrow Account will provide cash at such times
and in such amounts as will be sufficient to pay, when due, interest on the
Offered Securities for the first two semi-annual interest payment dates, and
(ii) the amounts held in the Construction Escrow Account will provide cash at
such times and in such amounts as will be sufficient, after giving effect to
amounts paid prior to the Closing Date, cash on hand immediately prior to the
Closing Date and borrowing availability under the Bank Facility to pay, when
due, each installment payment for the Purchase Price (as defined in the
Indenture) for each Rig as well as all expenses for owner furnished equipment
and overhead allocable to such Rig prior to its Delivery Date, in each case
as set forth in the table appearing in the Offering Document under the
caption "Business - The Construction Contracts."
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Issuers agree to sell to
the Purchasers, and the Purchasers agree, severally and not jointly, to
purchase from the Issuers, at a purchase price of 97.25% of the principal
amount thereof plus accrued interest from April 29, 1998 to the Closing Date
(as hereinafter defined), the respective principal amounts of Securities set
forth opposite the names of the several Purchasers in Schedule A hereto.
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The Issuers will deliver against payment of the purchase price the
Offered Securities in the form of one or more permanent global Securities in
registered form without interest coupons (the "Global Securities") which will
be deposited with the Trustee as custodian for The Depository Trust Company
("DTC") and registered in the name of Cede & Co., as nominee for DTC.
Interests in any permanent global Securities will be held only in book-entry
form through DTC, except in the limited circumstances described in the
Offering Document. Payment for Offered Securities shall be made by the
Purchasers in Federal (same day) funds by wire transfer to an account at a
bank acceptable to CSFBC, at the office of Xxxxxxx & Xxxxx L.L.P., 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m. (New York time),
April 29, 1998, or at such other time not later than seven full business days
thereafter as CSFBC and the Company determine, such time being herein
referred to as the "Closing Date", against delivery to the Trustee as
custodian for DTC of Global Securities representing all of the Securities.
The Global Securities will be made available for checking at the above office
of Xxxxxxx & Xxxxx L.L.P. at least 24 hours prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers. (a) Each
Purchaser severally represents and warrants to the Issuers that it is an
"accredited investor" within the meaning of Regulation D under the Securities
Act.
(b) Each Purchaser severally acknowledges that the Offered
Securities have not been registered under the Securities Act and may not be
offered or sold within the United States or to, or for the account or benefit
of, U.S. persons except in accordance with Regulation S or pursuant to an
exemption from the registration requirements of the Securities Act. Each
Purchaser severally represents and agrees that it has offered and sold the
Offered Securities, and will offer and sell the Offered Securities, only in
accordance with Rule 903 or Rule 144A. Accordingly, neither such Purchaser
nor its affiliates, nor any persons acting on its or their behalf, have
engaged or will engage in any directed selling efforts with respect to the
Offered Securities, and such Purchaser, its affiliates and all persons acting
on its or their behalf have complied and will comply with the offering
restrictions requirement of Regulation S. Each Purchaser severally agrees
that, at or prior to confirmation of sale of the Offered Securities, other
than a sale pursuant to Rule 144A, such Purchaser will have sent to each
distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases the Offered Securities from it during the
restricted period under Regulation S 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 (the "Securities Act") and may not be
offered or sold within the United States or to, or for the account or
benefit of, U.S. persons except in accordance with Regulation S (or
Rule 144A if available) under the Securities Act. Terms used above
have the meanings given to them by Regulation S."
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
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(c) Each Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered Securities except
for any such arrangements with the other Purchasers or affiliates of the
other Purchasers with the prior written consent of the Company.
(d) Each Purchaser severally represents that it and each of its
affiliates has not offered, and each Purchaser severally agrees that it and
each of its affiliates will not offer or sell, the Offered Securities in the
United States by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act,
including, but not limited to (i) any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or
broadcast over television or radio, or (ii) any seminar or meeting whose
attendees have been invited by any general solicitation or general
advertising. Each Purchaser severally agrees, with respect to resales made in
reliance on Rule 144A of any of the Offered Securities, to deliver either
with the confirmation of such resale or otherwise prior to settlement of such
resale a notice to the effect that the resale of such Offered Securities has
been made in reliance upon the exemption from the registration requirements
of the Securities Act provided by Rule 144A.
(e) Each of the Purchasers severally represents and agrees that (i)
it has not offered or sold and prior to the date six months after the date of
issue of the Offered Securities will not offer or sell any Offered Securities
to persons in the United Kingdom except 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 otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (ii) it has complied and will comply with all
applicable provisions of the Financial Services Xxx 0000 with respect to
anything done by it in relation to the Offered Securities in, from or
otherwise involving the United Kingdom; and (iii) it has only issued or
passed on and will only issue or pass on in the United Kingdom any document
received by it in connection with the issue of the Offered Securities to a
person who is of a kind described in Article 11(3) of the Financial Services
Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996 or is a person
to whom such document may otherwise lawfully be issued or passed on.
5. Certain Agreements of the Issuers and the Subsidiary Guarantors. The
Issuers and the Subsidiary Guarantors, jointly and severally, agree with the
several Purchasers that:
(a) The Issuers and the Subsidiary Guarantors will advise CSFBC
promptly of any proposal to amend or supplement the Offering Document and
will not effect such amendment or supplementation without CSFBC's consent,
nor to be unreasonably withheld. If, at any time prior to the completion of
the resale of the Offered Securities by the Purchasers, any event occurs as a
result of which the Offering Document as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, the Issuers and the
Subsidiary Guarantors promptly will notify CSFBC of such event and promptly
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will prepare, at their own expense, an amendment or supplement which will
correct such statement or omission. Neither CSFBC's consent to, nor the
Purchasers' delivery to offerees or investors of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in
Section 6.
(b) The Issuers and the Subsidiary Guarantors will furnish to CSFBC
copies of any preliminary offering circular, the Offering Document and all
amendments and supplements to such documents, in each case as soon as
available and in such quantities as CSFBC requests and, upon request, the
Issuers and the Subsidiary Guarantors will furnish to CSFBC on the date
hereof three copies of the Offering Document signed by a duly authorized
officer of each of the Issuers and the Subsidiary Guarantors, one of which
will include the independent accountants' reports therein manually signed by
such independent accountants. At any time when the Issuers and the Subsidiary
Guarantors are not subject to Section 13 or 15(d) of the Exchange Act, the
Issuers and the Subsidiary Guarantors will promptly furnish or cause to be
furnished to CSFBC (and, upon request, to each of the other Purchasers) and,
upon request of holders and prospective purchasers of the Offered Securities,
to such holders and purchasers, copies of the information required to be
delivered to holders and prospective purchasers of the Offered Securities
pursuant to Rule 144A(d)(4) under the Securities Act (or any successor
provision thereto) in order to permit compliance with Rule 144A in connection
with resales by such holders of the Offered Securities. The Company will pay
the expenses of printing and distributing to the Purchasers all such
documents.
(c) The Issuers will arrange for the qualification of the Offered
Securities for sale and the determination of their eligibility for investment
under the laws of such jurisdictions in the United States and Canada as CSFBC
designates and will continue such qualifications in effect so long as
required for the resale of the Offered Securities by the Purchasers, provided
that the Issuers and the Subsidiary Guarantors will not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any such state or take any action that would subject it to general
service of process or to taxation in any jurisdiction where it is not then so
subject.
(d) During the period of five years hereafter, the Company will
furnish to CSFBC and, upon request, to each of the other Purchasers, as soon
as practicable after the end of each fiscal year, a copy of its annual report
to members for such year; and the Company will furnish to CSFBC and, upon
request, to each of the other Purchasers (i) as soon as available, a copy of
each report or financial statement furnished to or filed with the Commission
or any securities exchange on which any class of securities of either of the
Issuers is listed, and (ii) from time to time, such other information
concerning the Company as CSFBC may reasonably request.
(e) During the period of two years after the Closing Date, the
Issuers will, upon request, furnish to CSFBC, each of the other Purchasers
and any holder of Offered Securities a copy of the restrictions on transfer
applicable to the Offered Securities.
(f) During the period of two years after the Closing Date, neither
the Issuers nor the Subsidiary Guarantors will, and they will not permit any
of their affiliates (as defined in Rule 144
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under the Securities Act) to, resell any of the Offered Securities that have
been reacquired by any of them.
(g) During the period of two years after the Closing Date, neither
the Issuers nor the Subsidiary Guarantors will be or become, an open-end
investment company, unit investment trust or face-amount certificate company
that is or is required to be registered under Section 8 of the Investment
Company Act.
(h) The Issuers will pay all expenses incidental to the performance
of their obligations under this Agreement, the Indenture, the Escrow
Agreement and the Registration Rights Agreement, including (i) the fees and
expenses of the Trustee and its professional advisers; (ii) all expenses in
connection with the execution, issue, authentication, packaging and initial
delivery of the Offered Securities, the preparation and printing of this
Agreement, the Offered Securities, the Registration Rights Agreement and the
Indenture, the Offering Document and amendments and supplements thereto, and
any other document relating to the issuance, offer, sale and delivery of the
Offered Securities; (iii) the cost of listing the Offered Securities and
qualifying the Offered Securities for trading in The PortalSM Market
("PORTAL") of the Nasdaq Stock Market, Inc. and any expenses incidental
thereto; (iv) the cost of any advertising approved by the Company in
connection with the issue of the Offered Securities; (v) for any expenses
(including fees and disbursements of counsel) incurred in connection with
qualification of the Offered Securities for sale under the laws of such
jurisdictions in the United States and Canada as CSFBC designates and the
printing of memoranda relating thereto; (vi) for any fees charged by
investment rating agencies for the rating of the Securities, and (vii) for
expenses incurred in distributing preliminary offering circulars and the
Offering Document (including any amendments and supplements thereto) to the
Purchasers. The Issuers will also pay or reimburse the Purchasers (to the
extent incurred by them) for all air travel expenses and hotel accommodations
of the Issuers' officers and employees and any other expenses of the Issuers
in connection with attending or hosting meetings with prospective purchasers
of the Offered Securities from the Purchasers.
(i) In connection with the offering, until CSFBC shall have
notified the Issuers and the other Purchasers of the completion of the resale
of the Offered Securities, neither the Issuers nor any of their affiliates
has or will, either alone or with one or more other persons, bid for or
purchase for any account in which it or any of its affiliates has a
beneficial interest any Offered Securities or attempt to induce any person to
purchase any Offered Securities; and neither it nor any of its affiliates
will make bids or purchases for the purpose of creating actual, or apparent,
active trading in, or of raising the price of, the Offered Securities.
6. Conditions of the Obligations of the Purchasers. The obligations of
the several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of
the Issuers and the Subsidiary Guarantors herein, to the accuracy of the
statements of officers of the Issuers and the Subsidiary Guarantors made
pursuant to the provisions hereof, to the performance by the Issuers and the
Subsidiary Guarantors of their obligations hereunder and to the following
additional conditions precedent:
11
(a) The Purchasers shall have received a letter, dated the date of
this Agreement, of Xxxxxx Xxxxxxxx LLP in form and substance satisfactory to
the Purchasers concerning the financial information with respect to the
Issuers and the Subsidiary Guarantors set forth in the Offering Document.
(b) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) a change in U.S. or international
financial, political or economic conditions or currency exchange rates or
exchange controls as would, in the judgment of CSFBC, be likely to prejudice
materially the success of the proposed issue, sale or distribution of the
Offered Securities, whether in the primary market or in respect of dealings
in the secondary market, or (ii) (A) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Issuers and the
Subsidiary Guarantors which, in the judgment of a majority in interest of the
Purchasers including CSFBC, is material and adverse and makes it impractical
or inadvisable to proceed with completion of the offering or the sale of and
payment for the Offered Securities; (B) any downgrading in the rating of any
debt securities of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Securities Act), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of the Company
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating); (C)
any suspension or limitation of trading in securities generally on the New
York Stock Exchange; (D) any banking moratorium declared by U.S. Federal or
New York authorities; or (E) any outbreak or escalation of major hostilities
in which the United States is involved, any declaration of war by Congress or
any other substantial national or international calamity or emergency if, in
the judgment of a majority in interest of the Purchasers including CSFBC, the
effect of any such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the
offering or sale of and payment for the Offered Securities.
(c) The Purchasers shall have received an opinion, dated the
Closing Date, of Weil, Gotshal & Xxxxxx LLP, counsel for the Issuers and the
Subsidiary Guarantors, that:
(i) The Company has been duly formed and is an existing
corporation in good standing under the laws of the State of Delaware,
with limited liability company power and authority to own its properties
and conduct its business as described in the Offering Document; and the
Company is duly qualified to do business as a foreign limited liability
company in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified would
not have a material adverse effect on the Issuers and the Subsidiary
Guarantors taken as a whole.
(ii) Finance has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Offering
12
Document; and Finance is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified would
not have a material adverse effect on the Issuers and the Subsidiary
Guarantors taken as a whole. All of the issued and outstanding capital
stock of Finance has been duly authorized and validly issued and is
fully paid and non-assessable; and the capital stock of Finance is owned
directly of record and, to such counsel's knowledge, beneficially, by
the Company free, to such counsel's knowledge, from liens or
encumbrances.
(iii) Each of the Subsidiary Guarantors has been duly formed
and is an existing limited liability company in good standing under the
laws of the jurisdiction of Delaware, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Offering Document; and each of the Subsidiary
Guarantors is duly qualified to do business as a foreign limited
liability company in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so qualified
would not have a material adverse effect on the Issuers and the
Subsidiary Guarantors taken as a whole; all of the issued and
outstanding member interests of each Subsidiary Guarantor has been duly
authorized and validly issued and is fully paid and nonassessable; and
the member interests of each Subsidiary Guarantor are owned directly of
record and, to such counsel's knowledge, beneficially by the Company
free, to such counsel's knowledge, from liens or encumbrances. To such
counsel's knowledge, the Company has no direct or indirect subsidiaries
other than Finance and the Subsidiary Guarantors.
(iv) The Indenture (including the Guarantees) has been duly
authorized; the Offered Securities have been duly authorized for
issuance; and when the Offered Securities are delivered and paid for
pursuant to this Agreement on the Closing Date (as defined below)
(assuming the due authorization, execution and delivery of the Indenture
by the Trustee and the execution and authentication of the Offered
Securities in the manner prescribed by the Indenture by a duly
authorized officer of the Trustee), the Indenture will have been duly
executed and delivered, such Offered Securities will have been duly
executed, authenticated, issued and delivered and will conform to the
description thereof contained in the Offering Document and the Indenture
(including the Guarantees) and such Offered Securities will constitute
valid and legally binding obligations of the Issuers and the Subsidiary
Guarantors, as the case may be, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and remedies and to general
equity principles, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether a proceeding is
sought at law or in equity).
(v) None of the Issuers or Subsidiary Guarantors is nor, after
giving effect to the offering and sale of the Offered Securities and the
application of the proceeds thereof
13
as described in the Prospectus, will be, an "investment company" as
defined in the Investment Company Act.
(vi) No consent, approval, authorization or order of, or
filing with, any New York, Texas, Delaware corporate or United States
federal governmental authority is required for the consummation of the
transactions contemplated by this Agreement and the Registration Rights
Agreement in connection with the issuance or sale of the Offered
Securities by the Issuers, or for the execution, delivery and
performance of the Indenture and the Escrow Agreement, except such as
may be required under state securities laws and except for such filings
with the Commission as are required in connection with the Registration
Rights Agreement, as to all of which such counsel need express no
opinion.
(vii) The execution, delivery and performance of the
Indenture, this Agreement, the Registration Rights Agreement, the Escrow
Agreement and the Escrow Security Agreement and the issuance and sale of
the Offered Securities pursuant to this Agreement and compliance with
the terms and provisions thereof will not conflict with or constitute a
default under, or violate any Xxx Xxxx, Xxxxx, Xxxxxxxx xxxxxxxxx xx
Xxxxxx Xxxxxx federal statute, any rule, regulation or order of any Xxx
Xxxx, Xxxxx, Xxxxxxxx xxxxxxxxx xx Xxxxxx Xxxxxx federal governmental
authority having jurisdiction over the Issuers or the Subsidiary
Guarantors of which such counsel is aware (other than state securities
or "blue sky" law, rules and regulations, as to which such counsel need
not express any opinion in this paragraph), or any agreement or
instrument (including, without limitation, the Bank Facility (as defined
in the Offering Document)) to which the Issuers or the Subsidiary
Guarantors is a party or by which the Issuers or the Subsidiary
Guarantors, of which such counsel is aware or the Operating Agreement,
as amended, of the Company, the Certificate of Incorporation and Bylaws
of Finance or the Operating Agreement of each of the Subsidiary
Guarantors; and the Issuers have full power and authority to authorize,
issue and sell the Offered Securities as contemplated by this Agreement.
(viii) The provisions of the Escrow Security Agreement are
effective to create in favor of the Trustee, acting as agent for the
Collateral Agent, a valid security interest in all right, title and
interest of the Issuers in the Collateral. Assuming, with respect to the
Assigned Agreement (as defined in the Escrow Security Agreement) and the
proceeds thereof, the filing of appropriate financing statements under
the New York Uniform Commercial Code, no further action is required to
be taken under or pursuant to the laws of the State of New York in order
to perfect such security interest therein. Assuming, with respect to the
Collateral described in Sections 2(a)(i) and (ii) of the Escrow Security
Agreement and the proceeds thereof, compliance with the provisions of
the Escrow Agreement and the Escrow Security Agreement and the other
requirements set forth in such opinion, no further action is required be
taken under or pursuant to the laws of the State of Minnesota in order
to perfect such security interest therein. Such counsel need express no
opinion as to the priority of any such security interest referred to in
this paragraph.
14
(ix) The descriptions in the Offering Document under the
captions "Business," "Management," "Principal Members," "Controlling
Member," "Certain Relationships and Related Transactions," "Description
of Bank Facility" and "Description of the Notes" insofar as they
describe the provisions of documents and instruments therein described,
constitute fair summaries thereof, and are accurate in all material
respects; the statements in the Offering Document under the caption
"Business--Governmental Regulation," insofar as they purport to describe
federal environmental laws of the United States, fairly present in all
material respects the information set forth therein; and the statements
in the Offering Document under the caption "Certain United States
Federal Income Tax Consequences to Non-U.S. Holders," insofar as they
purport to describe federal income tax laws of the United States, fairly
present in all material respects the information set forth therein; it
being understood that such counsel need express no opinion as to the
financial statements, the financial forecast or other financial or
statistical data contained in the Offering Document. Insofar as such
opinion covers federal environmental laws of the United States, such
counsel may rely solely upon the opinion of Gardere Xxxxx Xxxxxx & Xxxxx
L.L.P.
(x) Each of this Agreement and the Registration Rights
Agreement has been duly authorized, executed and delivered by the
Issuers and the Subsidiary Guarantors.
(xi) Each of the Escrow Agreement and the Escrow Security
Agreement has been duly authorized, executed and delivered by the
Issuers; the Escrow Agreement will conform to the description thereof
contained in the Offering Document and each of the Escrow Agreement and
the Escrow Security Agreement will constitute a valid and legally
binding obligation of the Issuers, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and remedies and to general
equity principles, including principles of commercial reasonableness,
good faith and fair dealing (regarding of whether a proceeding is sought
at law or in equity).
(xii) It is not necessary in connection with (A) the offer,
sale and delivery of the Offered Securities by the Issuers to the
several Purchasers pursuant to this Agreement or (B) the resales of the
Offered Securities by the several Purchasers in the manner contemplated
by this Agreement and the Offering Document, to register the Offered
Securities under the Securities Act or to qualify an indenture in
respect thereof under the Trust Indenture Act.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of New York, the State of Texas or the United States or the
corporation law and limited liability company law of the State of
Delaware, to the extent they deem proper and specified in such opinion,
upon the opinion of other counsel of good standing whom they believe to
be reliable and who are satisfactory to counsel for the Purchasers and
(B) as to matters of fact, to the extent they deem proper, on
15
certificates of responsible officers of the Company and public
officials. References to the Offering Document in this paragraph (c)
include any supplements thereto on or prior to the Closing Date.
In addition to the foregoing, such counsel shall state that it has
participated in conferences with directors, executive officers and other
representatives of the Company, representatives of the Purchasers and
their counsel and representatives of the Company's independent public
accountants, at which conferences the contents of the Offering Document
and related matters were discussed, and although such counsel has not
independently verified and has not passed upon or assumed any
responsibility for the accuracy, completeness or fairness of the
statements contained in such documents (except to the extent set forth
in paragraph (ix) above), no facts have come to such counsel's attention
to lead it to believe that the Offering Document and any further
amendments or supplements thereto as of their respective dates and on
the date of such opinion letter contained or contains an untrue
statement of a material fact or omitted or omits to state a material
fact required to be stated therein, or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading (it being understood that such counsel need not express any
view with respect to the financial statements and related notes, the
financial statement schedules, the financial forecasts and the other
financial, statistical and accounting data included in the Offering
Document).
(d) The Purchasers shall have received from Xxxxxxx & Xxxxx L.L.P.,
counsel for the Purchasers, such opinion, dated the Closing Date, with
respect to the formation of the Issuers and the Subsidiary Guarantors, the
validity of the Offered Securities, the Offering Document, the exemption from
registration for the offer and sale of the Offered Securities by the Issuers
to the several Purchasers and the resales by the several Purchasers as
contemplated hereby and other related matters as CSFBC may require, and the
Issuers and the Subsidiary Guarantors shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass upon
such matters.
(e) The Purchasers shall have received a certificate, dated the
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of each of the Issuers and the Subsidiary
Guarantors in which such officers, to the best of their knowledge after
reasonable investigation, shall state that the representations and warranties
of the applicable party in this Agreement are true and correct, that the
applicable party has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to
the Closing Date, and that, subsequent to the date of the most recent
financial statements in the Offering Document there has been no material
adverse change, nor any development or event involving a prospective material
adverse change, in the condition (financial or other), business, properties
or results of operations of the Issuers and Subsidiary Guarantors taken as a
whole except as set forth in or contemplated by the Offering Document or as
described in such certificate. Such certificate from such officer of Finance
further shall attach a balance sheet of Finance as of a recent date and
certify that such balance sheet presents fairly the financial position of
Finance as of such date in
16
conformity with generally accepted accounting principles in the United States
and further certify that Finance had as of such date and has as of the
Closing Date no liabilities (other than, as of the Closing Date, the Notes).
(f) The Purchasers shall have received a letter, dated the Closing
Date, of Xxxxxx Xxxxxxxx LLP which meets the requirements of subsection (a)
of this Section, except that the specified date referred to in such
subsection will be a date not more than three business days prior to the
Closing Date for the purposes of this subsection. In the event the Issuers
shall elect to deposit into the Interest Escrow Account any Temporary Cash
Investments rather than cash only in the aggregate amount of the first two
semi-annual interest payments, the Purchasers also shall have received from
Xxxxxx Xxxxxxxx LLP a letter which shall certify that as of the Closing Date
and after the application of the proceeds of the Offering as described in the
Offering Document, the amounts held in the Interest Escrow Account will
provide cash at such times and in such amounts as will be sufficient to pay,
when due, interest on the Offered Securities for the first two semi-annual
interest payment dates.
(g) The Offered Securities shall have been made eligible for
trading in PORTAL.
(h) Each of the Construction Contracts and the binder for the
"delay-in-delivery" insurance policy relating to the Rigs described in the
Offering Document shall be in full force and effect, and no default or event
that with notice, a lapse of time, or both, would constitute a default, shall
exist thereunder.
(i) The Company shall have entered into the Bank Facility and no
default or event that with notice, a lapse of time, or both, would constitute
a default, shall exist thereunder.
(j) The Issuers shall have entered into the Escrow Agreement and no
default or event that with notice, a lapse of time, or both would constitute
a default, shall exist thereunder. Concurrently with the Closing, the
aggregate net proceeds of the Offered Securities shall have been deposited in
the Escrow Accounts.
The Issuers will furnish the Purchasers with such conformed copies of
such opinions, certificates, letters and documents as the Purchasers
reasonably request. CSFBC may in its sole discretion waive on behalf of the
Purchasers compliance with any conditions to the obligations of the
Purchasers hereunder, whether in respect of the Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Issuers and the Subsidiary
Guarantors , jointly and severally, will indemnify and hold harmless each
Purchaser against any losses, claims, damages or liabilities, joint or
several, to which such Purchaser may become subject, under the Securities Act
or the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any breach of any of the representations and warranties of the Issuers and
the Subsidiary Guarantors contained herein or any untrue statement or alleged
untrue statement of any material fact contained in the Offering Document, or
any
17
amendment or supplement thereto, or any related preliminary offering
circular, or arise out of or are based upon the omission or alleged omission
to state therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and will reimburse each Purchaser for any legal or other expenses
reasonably incurred by such Purchaser in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that the Issuers and the Subsidiary
Guarantors will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Purchaser through CSFBC
specifically for use therein, it being understood and agreed that the only
such information consists of the information described as such in subsection
(b) below.
(b) Each Purchaser will severally and not jointly indemnify and
hold harmless the Issuers and the Subsidiary Guarantors against any losses,
claims, damages or liabilities to which the Issuers and the Subsidiary
Guarantors may become subject, under the Securities Act or the Exchange Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Offering Document, or any amendment or supplement thereto, or any related
preliminary offering circular, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, 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 reliance upon and in conformity with written
information furnished to the Issuers by such Purchaser through CSFBC
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Issuers and the Subsidiary Guarantors in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Purchaser consists of
the following information in the Offering Document furnished on behalf of
each Purchaser: the last paragraph at the bottom of the cover page concerning
the terms of the offering by the Purchasers, the legend concerning
over-allotments and stabilizing on the inside front cover page and paragraph
seven under the caption "Plan of Distribution."
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party (except to the extent that a defense or counterclaim thereto has been
foreclosed thereby) otherwise than under subsection (a) or (b) above. In case
any such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party
18
(who shall not, except with the consent of the indemnified party, be counsel
to the indemnifying party), and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by
such indemnified party unless such settlement includes an unconditional
release of such indemnified party from all liability on any claims that are
the subject matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuers and Subsidiary Guarantors on the one hand
and the Purchasers on the other from the offering of the Offered Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Issuers and the Subsidiary Guarantors on the one hand and the
Purchasers on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the
Issuers and the Subsidiary Guarantors on the one hand and the Purchasers on
the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
Issuers and the Subsidiary Guarantors bear to the total discounts and
commissions received by the Purchasers from the Issuers and the Subsidiary
Guarantors under this Agreement. The relative fault 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 the Issuers and the
Subsidiary Guarantors or the Purchasers and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Purchaser shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities purchased by it were
resold exceeds the amount of any damages which such Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Purchasers' obligations in this subsection
(d) to contribute are several in proportion to their respective purchase
obligations and not joint.
19
(e) The obligations of the Issuers and the Subsidiary Guarantors
under this Section shall be in addition to any liability which the Issuers
and the Subsidiary Guarantors may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Purchaser
within the meaning of the Securities Act or the Exchange Act; and the
obligations of the Purchasers under this Section shall be in addition to any
liability which the respective Purchasers may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls the Issuers and the Subsidiary Guarantors within the meaning of the
Securities Act or the Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default in
their obligations to purchase Offered Securities hereunder and the aggregate
amount of Offered Securities that such defaulting Purchaser or Purchasers
agreed but failed to purchase does not exceed 10% of the total principal
amount of Offered Securities, CSFBC may make arrangements satisfactory to the
Issuers and the Subsidiary Guarantors for the purchase of such Offered
Securities by other persons, including any of the Purchasers, but if no such
arrangements are made by such Closing Date, the non-defaulting Purchasers
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Offered Securities that such defaulting Purchasers
agreed but failed to purchase. If any Purchaser or Purchasers so default and
the aggregate principal amount of Offered Securities with respect to which
such default or defaults occur exceeds 10% of the total principal amount of
Offered Securities and arrangements satisfactory to CSFBC and the Issuers and
the Subsidiary Guarantors for the purchase of such Offered Securities by
other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Purchaser
or the Issuers and the Subsidiary Guarantors, except as provided in Section
9. As used in this Agreement, the term "Purchaser" includes any person
substituted for a Purchaser under this Section. Nothing herein will relieve a
defaulting Purchaser from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
the Issuers and the Subsidiary Guarantors or its officers and of the several
Purchasers set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation, or statement as to
the results thereof, made by or on behalf of any Purchaser, the Issuers and
the Subsidiary Guarantors or any of their respective officers or directors or
any controlling person, and will survive delivery of and payment for the
Offered Securities. If this Agreement is terminated pursuant to Section 8 or
if for any reason the purchase of the Offered Securities by the Purchasers is
not consummated, the Issuers and the Subsidiary Guarantors shall remain
responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Issuers and the Subsidiary
Guarantors and the Purchasers pursuant to Section 7 shall remain in effect.
If the purchase of the Offered Securities by the Purchasers is not
consummated for any reason other than solely because of the termination of
this Agreement pursuant to Section 8 or the occurrence of any event specified
in clause (C), (D) or (E) of Section 6(b)(ii), the Issuers and the Subsidiary
Guarantors will reimburse the Purchasers for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
20
10. Notices. All communications hereunder will be in writing and, if
sent to the Purchasers will be mailed, delivered or telecopied and confirmed
to the Purchasers c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking
Department--Transactions Advisory Group, or, if sent to the Issuers and the
Subsidiary Guarantors, will be mailed, delivered or telegraphed and confirmed
to it at Xxxxxx Offshore LLC, 1370 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxxxxx; provided, however, that
any notice to a Purchaser pursuant to Section 7 will be mailed, delivered or
telegraphed and confirmed to such Purchaser.
11. Successors. This Agreement will be binding upon the parties hereto
and their respective successors, and will inure to the benefit of the parties
hereto and their respective successors, and the controlling persons referred
to in Section 7, and no other person will have any right or obligation
hereunder, except that holders of Offered Securities shall be entitled to
enforce the agreements for their benefit contained in the second and third
sentences of Section 5(b) hereof against the Issuers and the Subsidiary
Guarantors as if such holders were parties thereto.
12. Representation of Purchasers. You will act for the several
Purchasers in connection with this purchase, and any action under this
Agreement taken by you jointly or by CSFBC will be binding upon all the
Purchasers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York without regard to
principles of conflicts of laws.
Each of the Issuers and the Subsidiary Guarantors hereby submits to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
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If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement among the Issuers and the
Subsidiary Guarantors and the several Purchasers in accordance with its terms.
Very truly yours,
XXXXXX OFFSHORE LLC
By /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President & CEO
XXXXXX OFFSHORE FINANCE CORP.
By /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President & CEO
XXXXXX COLUMBUS LLC
By /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President & CEO
XXXXXX MAGELLAN LLC
By /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President & CEO
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The foregoing Purchase Agreement is hereby
confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXXXXXX XXXXXXX SECURITIES, INC.
By: CREDIT SUISSE FIRST BOSTON
CORPORATION
By: /s/ Rome Xxxxxx
-----------------------------------
Name: Rome Xxxxxx
Title: Managing Director
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SCHEDULE A
Principal Amount
of Offered
Purchaser Securities
Credit Suisse First Boston Corporation.................. $ 77,000,000
Xxxxxxxxxxx Xxxxxxx Securities, Inc..................... 33,000,000
----------------------
Total........................................... $ 110,000,000
----------------------
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