EXHIBIT 99.1
EXECUTION COPY
$225,000,000
OMI CORPORATION
2.875% Convertible Senior Notes due 2024
Purchase Agreement
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November 30, 2004
▇▇▇▇▇▇▇▇▇ & Company, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
OMI Corporation, a corporation incorporated under the laws of the
Republic of the ▇▇▇▇▇▇▇▇ Islands (the "Company"), proposes, subject to the terms
and conditions stated herein, to issue and sell to ▇▇▇▇▇▇▇▇▇ & Company, Inc.
(the "Purchaser") an aggregate of $225,000,000 principal amount of the
Convertible Senior Notes of the Company specified above (the "Notes"). The
Company also proposes to grant to the Purchaser an option to purchase up to
$25,000,000 additional principal amount of such Notes to cover over-allotments,
if any (the "Option Securities" and, together with the Notes, the "Securities").
The Securities are convertible into shares of Common Stock, par value $0.50 per
share (the "Common Stock"), of the Company at the conversion price set forth in
the Offering Memorandum (as defined below) (the "Conversion Price"). The
Securities will have the benefit of a registration rights agreement (the
"Registration Rights Agreement"), to be dated as of the First Closing Date (as
defined herein), between the Company and the Purchaser, pursuant to which the
Company will agree to register the resale of the Securities (and the Common
Stock issuable upon conversion thereof) under the Securities Act (as defined
below) subject to the terms and conditions therein specified. The use of the
neuter in this Agreement shall include the feminine and masculine wherever
appropriate.
The sale of the Securities to the Purchaser will be made without
registration of the Securities or the Common Stock issuable upon conversion
thereof under the Securities Act of 1933, as amended, (the "Securities Act") and
the rules and regulations (the "Rules and Regulations") of the Securities and
Exchange Commission thereunder, in reliance upon exemptions from the
registration requirements of the Securities Act.
1. The Company represents and warrants to, and agrees with, the
Purchaser that:
(a) A preliminary offering memorandum, dated November 29, 2004
(the "Preliminary Offering Memorandum") and an offering memorandum, dated
November 30, 2004 (the "Offering Memorandum"), have been prepared in connection
with the offering of the Securities. Any reference to the Preliminary Offering
Memorandum or the Offering Memorandum shall be deemed to refer to and include
any Additional Issuer Information (as defined in Section 5(e)) furnished by the
Company prior to the completion of the distribution of the Securities. The
Preliminary Offering Memorandum or the Offering Memorandum and any amendments or
supplements thereto did not and will not, as of their respective dates, contain
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by the Purchaser expressly for use therein.
(b) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements incorporated
into the Offering Memorandum 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,
otherwise than as set forth or contemplated in the Offering Memorandum material
to the Company and its subsidiaries taken as a whole and, since the respective
dates as of which information is given in the Offering Memorandum, there has not
been any change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of operations of
the Company and its subsidiaries taken as a whole (a "Material Adverse Effect"),
otherwise than as set forth or contemplated in the Offering Memorandum.
(c) Each of the Company and its subsidiaries has good and
marketable title in fee simple to all real property and good and marketable
title to all personal property (including each of the vessels listed in the
Offering Memorandum) owned by them, in each case free and clear of all liens,
encumbrances and defects except the security interests described in the Offering
Memorandum or such as do not materially affect the value of such property and do
not interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries taken as a whole.
(d) Each of the Company and its subsidiaries has been duly
incorporated or formed and is validly existing in good standing under the laws
of its jurisdiction of incorporation or formation with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Offering Memorandum, and has been duly qualified 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, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdictions.
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(e) The Securities have been duly authorized and, when issued
and delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
indenture to be dated as of December 7, 2004 (the "Indenture"), between the
Company and HSBC Bank USA, National Association, as Trustee (the "Trustee"),
under which they are to be issued; the Indenture has been duly authorized by the
Company and, when executed and delivered by the Company and the Trustee, the
Indenture will constitute a valid and legally binding instrument, enforceable
against the Company in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles; and
the Securities, the Common Stock issuable upon conversion of the Securities and
the Indenture will conform to the descriptions thereof in or incorporated into
the Offering Memorandum and will be in a form reasonably acceptable to the
Purchaser.
(f) The Company has an authorized capitalization as
incorporated by reference into the Offering Memorandum, and all of the issued
shares of capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable; the shares of Common Stock
initially issuable upon conversion of the Securities have been duly and validly
authorized and reserved for issuance and, when issued and delivered in
accordance with the provisions of the Securities and the Indenture will be duly
and validly issued, fully paid and non-assessable and will conform to the
description of the Common Stock contained in or incorporated into the Offering
Memorandum; Schedule I hereto constitutes a full and complete list of each
direct or indirect subsidiary of the Company; and all of the issued shares of
capital stock of each subsidiary of the Company or membership interests, as the
case may be, have been duly and validly authorized and issued, are fully paid
and non-assessable and (except as set forth on Schedule I and except for
directors' qualifying shares or interests where applicable) are owned directly
or indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims other than those related to pledges of membership interests
under the Credit Agreements (as defined in Annex I of this Agreement).
(g) The registration rights agreement dated as of the First
Closing Date (the "Registration Rights Agreement"), between the Company and
▇▇▇▇▇▇▇▇▇ & Company, Inc., has been duly authorized by the Company; and the
Registration Rights Agreement, when executed and delivered by the Company and
the Purchaser, will constitute a valid and legally binding instrument of the
Company, enforceable in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
(h) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale of the
Securities) will violate or result in a violation of Section 7 of the United
States Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any
regulation promulgated thereunder, including, without limitation, Regulations T,
U, and X of the Board of Governors of the Federal Reserve System.
(i) Prior to the date hereof, except for the repurchase of
Common Stock as described in "Use of Proceeds" in the Offering Memorandum,
neither the Company nor any of
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its affiliates has taken any action which is designed to or which has
constituted or which might have been expected to cause or result in
stabilization or manipulation of the price of any security of the Company in
connection with the offering of the Securities or the Common Stock issuable upon
the conversion of the Securities.
(j) The issue and sale of the Securities and the issuance of
the Common Stock upon conversion thereof and the compliance by the Company with
all of the provisions of the Securities, the Indenture, the Registration Rights
Agreement and this Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, (i) any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, (ii)
any of the provisions of the Articles of Incorporation or By-laws of the Company
or Certificate of Formation or Limited Liability Company Agreement of any of its
subsidiaries or (iii) any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any court or
governmental agency or body is required for the issue and sale of the Securities
or the issuance of the Common Stock upon conversion thereof, or the consummation
by the Company of the transactions contemplated by this Agreement, the
Registration Rights Agreement or the Indenture, except (i) as have been or will
be obtained or made on or prior to the time of purchase, (ii) consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Purchaser, or (iii) as may be required by
federal and state securities laws (including, without limitation, the Securities
Act, the Exchange Act and the Trust Indenture Act of 1939, as amended) with
respect to the Company's obligations under the Registration Rights Agreement and
the listing of the Common Stock issuable upon conversion of the Securities on
the New York Stock Exchange in connection therewith.
(k) Neither the Company nor any of its subsidiaries is (i) in
violation of its Certificate of Incorporation, Certificate of Formation, By-laws
or Limited Liability Company Agreement (as applicable) or (ii) in default in the
performance or observance of any material obligation, agreement, 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.
(l) The Company and each of its subsidiaries carry insurance
covering their respective vessels (including those vessels operating in
commercial alliances), properties, operations, personnel and businesses, in such
amounts and covering such risks as is adequate for the conduct of their business
and is customary to their business. The Company and each of its subsidiaries
also maintain appropriate levels of environmental damage and pollution insurance
coverage, consistent with standard industry practice. None of the Company or any
of its subsidiaries has received written notice from any insurer or agent of
such insurer that any material capital improvements or other material
expenditures are required or necessary to be made in order to continue such
insurance.
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(m) The Company and its subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations, international conventions and treaties relating to the protection
of human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants (including petroleum and petroleum
byproducts) ("Environmental Laws"), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permits, licenses, authorizations or approvals, except
for such noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses, authorizations or approvals that would
not, individually or in the aggregate, have a Material Adverse Effect.
(n) There has been no event in connection with the storage,
transportation or handling of, and no treatment, generation, disposal,
discharge, emission or other release of, any kind of any toxic or hazardous
substances or wastes, including petroleum and any petroleum products or
byproducts, due to, caused by or otherwise relating to the operations of the
Company or any of its subsidiaries (or, to the best knowledge of the Company,
any other entity (including any predecessor) for whose acts or omission the
Company or any of its subsidiaries is or could reasonably be expected to be
liable), except as, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
(o) In the ordinary course of its business, the Company
identifies and evaluates costs and liabilities associated with the effect of
Environmental Laws on the business, operations, and properties of the Company
and its subsidiaries (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties). The
Company has reasonably concluded that such associated costs and liabilities
would not, individually or in the aggregate, have a Material Adverse Effect.
(p) The statements set forth in the Offering Memorandum under
the caption "Description of Notes", insofar as they purport to constitute a
summary of the terms of the Securities and the Common Stock issuable upon the
conversion of the Securities, under the caption "Tax Considerations" and under
the caption "Plan of Distribution", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate, complete
and fair.
(q) Other than as set forth in the Offering Memorandum, there
are no legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the Company or
any of its subsidiaries, would, individually or in the aggregate, have a
Material Adverse Effect; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or by
others.
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(r) The Company is not, and after giving effect to the
offering and sale of the Securities, will not be an "investment company", as
such term is defined in the United States Investment Company Act of 1940, as
amended (the "Investment Company Act").
(s) In connection with the offer and sale of the Securities
(including the common stock issuable upon conversion thereof) to the Purchaser,
neither the Company nor its affiliates nor any person acting on its behalf has
employed any form of general solicitation or general advertisement within the
meaning of Rule 502(c) under the Securities Act. The Purchaser acknowledges that
the Company identified the Purchaser as the potential initial purchaser of the
Securities not later than November 16, 2004.
(t) Except in connection with the June 2004 offerings of
11,000,000 shares of common stock of the Company, for issuances of common stock
in connection with employee benefit, executive compensation and director plans,
or for sales by officers and directors which have been publicly disclosed,
within the preceding six months, neither the Company or its affiliates nor any
person acting on its or their behalf has offered or sold to any person any
Securities or any securities of the same or a similar class as the Securities,
other than Securities offered or sold to the Purchaser hereunder. The Company
will take reasonable precautions designed to insure that any offer or sale,
direct or indirect, in the United States of any Securities or any substantially
similar security issued by the Company, within six months subsequent to the date
on which the distribution of the Securities has been completed (as notified to
the Company by ▇▇▇▇▇▇▇▇▇ & Company, Inc.), is made under restrictions and other
circumstances reasonably designed not to affect the status of the offer and sale
of the Securities in the United States contemplated by this Agreement as
transactions exempt from the registration provisions of the Securities Act.
(u) Deloitte & Touche LLP, who have certified certain
financial statements of the Company and its subsidiaries, are an independent
registered public accounting firm as required by the Securities Act and the
rules and regulations of the Commission thereunder.
(v) Each of the vessels owned by the Company or one of its
subsidiaries has been duly registered in the name of the subsidiary of the
Company that owns it under the laws and regulations and the flag of the nation
of its registration and no other action is necessary to establish and perfect
such Subsidiary's title to and interest in such vessels as against any charterer
or third party.
(w) The Company and each of its subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorization, (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with GAAP, and to
maintain asset accountability, (iii) access to assets is permitted only in
accordance with management's general or specific authorization and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
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(x) The Company has established and maintains "disclosure
controls and procedures" (as defined in Rules 13a-15(e) and 15d-15(e) of the
Exchange Act); the Company's "disclosure controls and procedures" are reasonably
designed to ensure that all information (both financial and non-financial)
required to be disclosed by the Company in the reports that it files or submits
under the Exchange Act is recorded, processed, summarized and reported within
the time periods specified in the Rules and Regulations, and that all such
information is accumulated and communicated to the Company's management as
appropriate to allow timely decisions regarding required disclosure and to make
the certifications of the Chief Executive Officer and Chief Financial Officer of
the Company required under the Exchange Act with respect to such reports.
(y) The Company is in compliance in all material respects with
applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act that are effective as of the
date of this Agreement and is actively taking steps to ensure that it will be in
compliance in all material respects with other applicable provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act upon the effectiveness of such provisions.
2.
(a) Subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to the Purchaser, and the Purchaser agrees to
purchase from the Company, at a purchase price of 96.75% of the principal amount
thereof, plus accrued interest if any, from December 7, 2004 to the First
Closing Date (as defined below), the principal amount of the Notes set forth in
the first paragraph of this Agreement.
(b) Delivery of the Notes to be purchased by the Purchaser and
payment therefor shall be made at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. The time and date of such
delivery and payment shall be 9:30 a.m., New York City time, on December 7, 2004
or such other time and date as ▇▇▇▇▇▇▇▇▇ & Company, Inc. and the Company may
agree upon in writing. Such time and date are herein called the "First Closing
Date".
(c) In addition, on the basis of the representations,
warranties and agreements herein contained, and upon the terms but subject to
the conditions herein set forth, the Company hereby grants an option to the
Purchaser to purchase up to $25,000,000 aggregate principal amount of Option
Securities from the Company at the same price as the purchase price to be paid
by the Purchaser for the Notes. The option granted hereunder may be exercised at
any time (but not more than once) upon notice by the Purchaser to the Company,
which notice may be given at any time within 30 days from the date of this
Agreement. Such notice shall set forth (i) the amount (which shall be an
integral multiple of $1,000 in aggregate principal amount) of Option Securities
as to which the Purchaser is exercising the option, (ii) the names and
denominations in which the Option Securities are to be registered and (iii) the
time, date and place at which such Option Securities will be delivered (which
time and date may be simultaneous with, but not earlier than, the First Closing
Date; and in such case the term "First Closing Date" shall refer to the time and
date of delivery of the Notes and the Option Securities). Such time and date of
delivery, if subsequent to the First Closing Date, is called the "Second Closing
Date" and shall be determined by the Purchaser. Such date may be the same as the
First Closing Date but not
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earlier than the First Closing Date nor later than 10 business days after the
date of such notice. The Purchaser may cancel the option at any time prior to
its expiration by giving written notice of such cancellation to the Company.
3. Upon the authorization by you of the release of the Securities
the Purchaser proposes to offer the Securities for sale upon the terms and
conditions set forth in this Agreement and the Offering Memorandum, and the
Purchaser hereby represents and warrants to, and agrees with the Company that:
(a) it will offer and sell the Securities only to persons who
it reasonably believes are "qualified institutional buyers" ("QIBs") within the
meaning of Rule 144A under the Securities Act in transactions meeting the
requirements of Rule 144A;
(b) it is an "accredited investor" within the meaning of Rule
501 under the Securities Act; and
(c) it will not offer or sell the Securities by any form of
general solicitation or general advertising, including but not limited to the
methods described in Rule 502(c) under the Securities Act.
4. (a) The Securities to be purchased by the Purchaser hereunder
will be represented by one or more definitive global Securities in book-entry
form which will be deposited by or on behalf of the Company with The Depository
Trust Company ("DTC") or its designated custodian. The Company will deliver the
Securities to ▇▇▇▇▇▇▇▇▇ & Company, Inc., against payment by or on behalf of the
Purchaser of the purchase price therefor by wire transfer to an account
designated by the Company at least two business days prior to the First Closing
Date (and, if applicable, the Second Closing Date) in Federal (same day) funds,
by causing DTC to credit the Securities to the account of ▇▇▇▇▇▇▇▇▇ & Company,
Inc. at DTC. The Company will cause the certificates representing the Securities
to be made available to ▇▇▇▇▇▇▇▇▇ & Company, Inc. for checking one business day
prior to the First Closing Date or the Second Closing Date, as the case may be,
at the offices of DTC or its designated custodian (the "Designated Office").
(b) The documents to be delivered at the First Closing Date or
the Second Closing Date, as the case may be, by or on behalf of the parties
hereto pursuant to Section 7 hereof, including the cross-receipt for the
Securities and any additional documents requested by the Purchaser pursuant to
Section 7 hereof, will be delivered at such time and date at the offices of
▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ (the "Closing
Location"), and the Securities will be delivered at the Designated Office, all
at the First Closing Date (and, if applicable, the Second Closing Date). A
meeting will be held at the Closing Location at 3:00 p.m., New York City time,
on the New York Business Day next preceding the First Closing Date (or the
Second Closing Date, as the case may be), at which meeting the final drafts of
the documents to be delivered pursuant to the preceding sentence will be
available for review by the parties hereto. For the purposes of this Section 4,
"New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
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5. The Company agrees with the Purchaser:
(a) To prepare the Offering Memorandum in a form approved by
you; to make no amendment or any supplement to the Offering Memorandum which
shall be disapproved by you promptly after reasonable notice thereof and to
furnish you with copies thereof.
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities and the Common Stock issuable upon
conversion of the Securities for offering and sale under the securities laws of
such jurisdictions as you may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of the Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction.
(c) To furnish the Purchaser with copies of the Offering
Memorandum and each amendment or supplement thereto signed by an authorized
officer of the Company with the independent registered public accounting firm's
accountants' report(s) in the Offering Memorandum, and any amendment or
supplement containing amendments to the financial statements covered by such
report(s), signed by the accountants, and additional written and electronic
copies thereof in such quantities as you may from time to time reasonably
request, and if, at any time prior to the expiration of nine months after the
date of the Offering Memorandum, any event shall have occurred as a result of
which the Offering Memorandum 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 when such Offering Memorandum is delivered, not misleading,
or, if for any other reason it shall be necessary or desirable during such same
period to amend or supplement the Offering Memorandum, to notify you and upon
your request to prepare and furnish without charge to the Purchaser and to any
dealer in securities as many written and electronic copies as you may from time
to time reasonably request of an amended Offering Memorandum or a supplement to
the Offering Memorandum which will correct such statement or omission or effect
such compliance, and in case the Purchaser is required to deliver a Offering
Memorandum in connection with sales of any of the Securities at any time nine
months or more after the date of the Offering Memorandum, upon the Purchaser's
request but at the expense of the Purchaser, to prepare and deliver to the
Purchaser as many written and electronic copies as the Purchaser may request of
an amended or supplemented Offering Memorandum.
(d) Not to be or become, at any time prior to the expiration
of three years after the First Closing Date, an open-end investment company,
unit investment trust, closed-end investment company or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act.
(e) At any time when the Company is not subject to Section 13
or 15(d) of the Exchange Act, for the benefit of holders from time to time of
Securities, to furnish at its expense, upon request, to holders of Securities
and prospective purchasers of securities information (the
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"Additional Issuer Information") satisfying the requirements of subsection
(d)(4)(i) of Rule 144A under the Securities Act.
(f) If requested by you, to use its best efforts to cause the
Securities to be eligible for the PORTAL trading system of the National
Association of Securities Dealers, Inc.
(g) To furnish to the holders of the Securities as soon as
practicable after the end of each fiscal year an annual report (including a
balance sheet and statements of income, shareholders' equity and cash flows of
the Company and its consolidated subsidiaries certified by independent public
accountants) and, as soon as practicable after the end of each of the first
three quarters of each fiscal year (beginning with the fiscal quarter ending
after the date of the Offering Memorandum), to make available to its
shareholders consolidated summary financial information of the Company and its
subsidiaries for such quarter in reasonable detail.
(h) During a period of five years from the date of the
Offering Memorandum, to furnish to you copies of all reports or other
communications (financial or other) furnished to shareholders of the Company,
and to make available to you (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the Commission or
any securities exchange on which the Securities or any class of securities of
the Company is listed and (ii) such additional information concerning the
business and financial condition of the Company as you may from time to time
reasonably request (such financial statements to be on a consolidated basis to
the extent the accounts of the Company and its subsidiaries are consolidated in
reports furnished to its shareholders generally or to the Commission).
(i) During the period of two years after the First Closing
Date, the Company will not, and will not permit any of its "affiliates" (as
defined in Rule 144 under the Securities Act) to, resell any of the Securities
that have been reacquired by any of them except pursuant to an effective
registration statement under the Securities Act.
(j) To use the net proceeds received by it from the sale of
the Securities pursuant to this Agreement in the manner specified in the
Offering Memorandum under the caption "Use of Proceeds".
(k) To reserve and keep available at all times, free of
preemptive rights, shares of Common Stock for the purpose of enabling the
Company to satisfy any obligations to issue shares of its Common Stock upon
conversion of the Securities.
(l) To use its best efforts to list, subject to notice of
issuance, the shares of Common Stock issuable upon conversion if the Securities
on the New York Stock Exchange.
6. The Company covenants and agrees with the Purchaser that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
issue of the Securities and the shares of Common Stock issuable upon conversion
of the Securities and all other expenses in connection with the preparation,
printing and filing of the Preliminary Offering Memorandum and the Offering
Memorandum and any amendments and supplements thereto and the mailing and
delivering of copies thereof to the Purchaser and dealers; (ii) the cost of
printing or producing
10
this Agreement, the Indenture, the Blue Sky and legal investment surveys, the
closing documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities and
the shares of Common Stock issuable upon conversion of the Securities for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Purchaser in
connection with such qualification and in connection with the Blue Sky and legal
investment surveys; (iv) any fees charged by securities rating services for
rating the Securities; (v) the cost of preparing the Securities; (vi) the fees
and expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Securities; (vii) any cost incurred in connection with the designation of
the Securities for trading in PORTAL and the listing of the shares of Common
Stock issuable upon conversion of the Securities; and (viii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, and Sections 8 and 10 hereof, the
Purchaser will pay its own costs and expenses, including the fees of its
counsel, transfer taxes on resale of any of the Securities by them, and any
advertising expenses connected with any offers they may make.
7. The obligations of the Purchaser to purchase and pay for the
Securities as provided herein on the First Closing Date and, with respect to the
Option Securities, the Second Closing Date, shall be subject, in its discretion,
to (i) the condition that all representations and warranties and other
statements of the Company herein are true and correct as of the date hereof and
as of the First Closing Date as though then made and, with respect to the Option
Securities, as of the Second Closing Date as though then made, (ii) the
condition that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and (iii) the following additional conditions:
(a) On each of the First Closing Date and the Second Closing
Date, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Purchaser, shall have furnished to
you such opinion or opinions, dated as of such Closing Date, with respect to
such matters as you may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters.
(b) On each of the First Closing Date and the Second Closing
Date, ▇▇▇▇▇▇▇ ▇. London, general counsel for the Company, shall have furnished
to you his written opinion, dated as of such Closing Date, in form and substance
satisfactory to you, to the effect set forth on Annex II hereto.
(c) On each of the First Closing Date and the Second Closing
Date, Coudert Brothers LLP, counsel for the Company, shall have furnished to you
its written opinion, dated as of such Closing Date, in form and substance
satisfactory to you, to the effect set forth on Annex III hereto.
(d) On each of the First Closing Date and the Second Closing
Date, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Attorney-At-Law, counsel for the Company, shall have
furnished to you his written
11
opinion, dated as of such Closing Date, in form and substance satisfactory to
you, to the effect set forth on Annex IV hereto.
(e) On the date of the Offering Memorandum prior to the
execution of this Agreement and also on each of the First Closing Date and the
Second Closing Date, Deloitte & Touche LLP shall have furnished to you a letter
or letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you.
(f) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included in the Offering Memorandum 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, otherwise than as set forth or contemplated in the Offering Memorandum,
and (ii) since the respective dates as of which information is given in the
Offering Memorandum there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or contemplated in
the Offering Memorandum, the effect of which, in any such case described in
clause (i) or (ii), is in the judgment of ▇▇▇▇▇▇▇▇▇ & Company, Inc. so material
and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms and in the manner
contemplated in this Agreement and in the Offering Memorandum.
(g) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded any of the Company'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 Securities 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 Company's debt securities.
(h) 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 Company'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 change in financial,
political or economic conditions in the United States or elsewhere, if the
effect of any such event specified in clause (iv) or (v) in the judgment of
▇▇▇▇▇▇▇▇▇ & Company, Inc. makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Securities on the terms and in the
manner contemplated in this Agreement and in the Offering Memorandum.
(i) The Securities shall have been designated for trading on
PORTAL.
12
(j) The Company shall have furnished or caused to be furnished
to you on each of the First Closing Date and the Second Closing Date, if
applicable, certificates of officers of the Company satisfactory to you as to
the accuracy of the representations and warranties of the Company herein at and
as of such Closing Date, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Closing Date in all
material respects and as to such other matters as you may reasonably request.
(k) The Company and the Purchaser shall have executed and
delivered the Registration Rights Agreement (in form and substance satisfactory
to the Purchaser), and the Registration Rights Agreement shall be in full force
and effect.
8. (a) The Company will indemnify and hold harmless the Purchaser
against any losses, claims, damages or liabilities, joint or several, to which
it may become subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Offering Memorandum or the Offering
Memorandum, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact necessary
to make the statements therein not misleading, and will reimburse the Purchaser
for any legal or other expenses reasonably incurred by the Purchaser in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall 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
or omission or alleged omission made in any Preliminary Offering Memorandum or
the Offering Memorandum or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by the Purchaser
expressly for use therein.
(b) The Purchaser will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Offering Memorandum or the Offering
Memorandum, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary Offering
Memorandum or the Offering Memorandum or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by the Purchaser expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred. The Company acknowledges that the statements set forth in
the 8th, 9th and 12th paragraphs under the heading "Plan of Distribution" of the
Preliminary Memorandum and the Final Memorandum constitute the only information
furnished in writing by or on behalf of the Purchaser for inclusion in the
Preliminary Memorandum, the Final Memorandum or in any amendment or supplement
thereto.
13
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (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 shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Purchaser on
the other from the offering of the Securities. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Purchaser on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Purchaser 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 Company bear to the total discounts and
commissions received by the Purchaser. 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 Company on the one hand or the Purchaser
on the other and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Purchaser agree that it would not
14
be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Purchaser was treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in 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 such action or claim. 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
Securities purchased by it and distributed to investors were offered to
investors 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.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
the Purchaser within the meaning of the Securities Act; and the obligations of
the Purchaser under this Section 8 shall be in addition to any liability which
the Purchaser may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Securities Act.
9. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the Purchaser, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of the Purchaser or any controlling person of the Purchaser, or the Company, or
any officer or director or controlling person of the Company, and shall survive
delivery of and payment for the Securities.
10. If for any other reason, the Securities are not delivered by
or on behalf of the Company as provided herein, the Company will reimburse the
Purchaser for all out-of-pocket expenses approved in writing, including fees and
disbursements of counsel, reasonably incurred by the Purchaser in making
preparations for the purchase, sale and delivery of the Securities, but the
Company shall then be under no further liability to the Purchaser except as
provided in Sections 6 and 8 hereof.
11. All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Purchaser shall be delivered or sent by mail,
telex or facsimile transmission to the Purchaser at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Registration Department; and if to the Company
shall be delivered or sent by mail, telex or facsimile transmission to OMI
Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Corporate
Secretary. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
12. This Agreement shall be binding upon, and inure solely to the
benefit of, the Purchaser, the Company and its subsidiaries, and to the extent
provided in Sections 8 and 9
15
hereof, the officers and directors of the Company and each person who controls
the Company or the Purchaser, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from the Purchaser shall be deemed a successor or assign by reason
merely of such purchase.
13. Time shall be of the essence of this Agreement.
14. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to the conflict
of law principles thereof.
15. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such respective counterparts shall together constitute
one and the same instrument.
[the remainder of this page is blank]
16
If the foregoing is in accordance with your understanding, please sign
and return to us one counterpart hereof for the Company plus one counterpart
hereof for each counsel, and upon the acceptance hereof by you, this letter and
such acceptance hereof shall constitute a binding agreement between you and the
Company.
Very truly yours,
OMI Corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Chairman and Chief Executive
Officer
Accepted as of the date hereof:
▇▇▇▇▇▇▇▇▇ & Company, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Managing Director
[PURCHASE AGREEMENT SIGNATURE PAGE]
SCHEDULE I
SUBSIDIARIES JURISDICTION OF ORGANIZATION
-------------------------------------- ---------------------------------------
Amazon Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Ashley Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Bandar Ayu Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Charente Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Columbia Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Dakota Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Delaware Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Ganges Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Garonne Shipping LLC ▇▇▇▇▇▇▇▇ Islands
▇▇▇▇▇▇▇▇▇ Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Fox Shipping LLC ▇▇▇▇▇▇▇▇ Islands
▇▇▇▇▇▇ Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Isere Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Loire Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Madison Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Marne Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Moselle Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Neches Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Ohio Shipping LLC ▇▇▇▇▇▇▇▇ Islands
OMI Marine Services LLC Delaware
Orontes Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Ottawa Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Pecos Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Potomac Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Rhone Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Roanoke Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Rosetta Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Sabine Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Sacramento Shipping LLC ▇▇▇▇▇▇▇▇ Islands
San Jacinto Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Saone Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Seine Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Somjin Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Soyang Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Tamar Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Tandjung Ayu Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Tevere Shipping, LLC ▇▇▇▇▇▇▇▇ Islands
Tiber Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Trinity Shipping LLC ▇▇▇▇▇▇▇▇ Islands
ANNEX I
"Credit Agreements" means the secured reducing revolving credit facility in the
original amount of $348 million by Den Norske Bank, ASA (now known as DNB Nor
Bank, ASA) and the banks and financial institutions identified therein as
lenders, dated as of July 27, 2001; the secured term loan facility in the
original amount of $40 million by Deutsche Schiffsbank Aktiengesellschaft and
the banks and financial institutions identified therein, dated as of September
7, 2001; the secured term loan facility in the original amount of $44 million by
ING Bank NV and the banks and financial institutions identified therein, dated
as of December 13, 2001; the senior secured term loan in the original amount of
$64.8 million by ING Bank NV and the banks and financial institutions identified
therein as lenders, dated as of June 10, 2003; the senior secured loan facility
in the original amount of $34.475 million by Nordea Bank Finland PLC and the
banks and financial institutions identified therein as lenders, dated as of
August 11, 2003; the secured term loan facility in the original amount of $34.3
million by Deutsche Schiffsbank Aktiengesellschaft and the banks and financial
institutions identified therein, dated as of August 12, 2003; the senior secured
term loan facility in the original amount of $50.4 million by Societe Generale
and the banks and financial institutions identified therein as lenders, dated
December 8, 2003; the senior secured term loan facility in the original amount
of $24 million by NIB Capital Bank NV, dated December 18, 2003; and the senior
secured term loan facility in the original amount of up to $70.828 million by
ING Bank NV and the banks and financial institutions identified therein, dated
as of May 27, 2004; the secured term loan facility in the original amount of $
142 million by DNB Nor Bank, ASA, dated November 17, 2004; and the reducing
revolving credit facility in the original amount of $375 million by Nordea Bank
Finland PLC and the banks and financial institutions identified therein as
lenders, dated as of November 24, 2004.
ANNEX II
Pursuant to Section 7(b) of the Purchase Agreement, ▇▇▇▇▇▇▇ ▇. London,
general counsel for the Company, shall furnish his written opinion to the
Purchaser to the effect that:
(i) The Company has been duly qualified for the transaction of
business and is in good standing under the laws of each jurisdiction in
which it owns or leases properties or conducts any business so as to
require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; and the Company has an authorized capitalization as
incorporated by reference into the Offering Memorandum and all the
issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable
(such counsel being entitled to rely in respect of the opinions in this
clause upon opinions of local counsel and upon certificates of officers
of the Company or its subsidiaries, provided that such counsel shall
state that he believes that both you and he are justified in relying
upon such opinions and certificates).
(ii) Each subsidiary of the Company has been duly formed or
incorporated (as the case may be) under the laws of its jurisdiction of
formation and is validly existing as a limited liability company or
corporation (as the case may be) in good standing under the laws of its
jurisdiction of formation; and all of the membership interests of each
such subsidiary have been duly and validly authorized and issued, are
fully paid and non-assessable, and (except for directors' qualifying
interests to the extent applicable and except as set forth on Schedule
I hereto) are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims other than those
to related to pledges of membership interests under the Credit
Agreements (as defined in Annex I of this Agreement) (such counsel
being entitled to rely, in respect of matters of fact, upon
certificates of officers of the Company or its subsidiaries, provided
that such counsel shall state that he believes that both you and he are
justified in relying upon such certificates).
(iii) To the best of such counsel's knowledge and other than
as set forth in or incorporated by reference into the Offering
Memorandum, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company 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.
(iv) This Agreement and the Registration Rights Agreement have
been duly authorized, executed and delivered by the Company.
(v) The Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and
delivery by the Trustee,
constitutes a valid and legally binding instrument, enforceable against
the Company in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
(vi) The issue and sale of the Securities and the issuance of
the Common Stock upon conversion thereof and the compliance by the
Company with all of the provisions of this Agreement, the Securities,
the Indenture and the Registration Rights Agreement and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, (i) any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, (ii) any of the
provisions of the Certificate of Formation or Limited Liability Company
Agreement of any of the Company or any of its subsidiaries or (iii) to
the best of such counsel's knowledge, any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties.
(vii) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body is
required for the issue and sale to the Purchaser of the Securities or
the issuance of the Common Stock upon conversion thereof or the
performance by the Company of its obligations under this Agreement, the
Registration Rights Agreement or the Indenture, except (i) as have been
or will be obtained or made on or prior to the time of purchase, (ii)
consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the Purchaser,
or (iii) as may be required by federal and state securities laws
(including, without limitation, the Securities Act, the Exchange Act
and the Trust Indenture Act of 1939, as amended) with respect to the
Company's obligations under the Registration Rights Agreement and the
listing of the Common Stock issuable upon conversion of the Securities
on the New York Stock Exchange in connection therewith.
(viii) To the best of such counsel's knowledge, neither the
Company nor any of its subsidiaries is (i) in violation of its
Certificate of Incorporation, Certificate of Formation, By-laws or
Limited Liability Company Agreement or (ii) 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.
(ix) Such counsel has no reason to believe that the Offering
Memorandum and any further amendments or supplements thereto made by
the Company prior to such Closing Date (other than the financial
statements therein, as to which such counsel need express no opinion)
contained as of its date or contains as of such Closing Date an untrue
statement of a material fact or omitted or omits, as the case may be,
to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(x) The Company is not an "investment company," as such term
is defined in the Investment Company Act.
ANNEX III
Pursuant to Section 7(c) of the Purchase Agreement, Coudert Brothers
LLP, counsel for the Company, shall furnish its written opinion to the Purchaser
to the effect that:
(i) Assuming due authorization, execution and delivery by the
Trustee and the Company, the Indenture constitutes a valid and legally
binding instrument, enforceable against the Company in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(ii) Assuming due authorization, execution and delivery by the
Company, the Securities constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture; and the Securities and the Indenture conform to the
descriptions thereof in the Offering Memorandum.
(iii) The issue and sale of the Securities and the issuance of
the Common Stock upon conversion thereof and the compliance by the
Company with all of the provisions of this Agreement, the Securities,
the Indenture and the Registration Rights Agreement and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under any of the Credit
Agreements listed on Annex I to which the Company is a party or by
which the Company is bound.
(iv) No consent, approval, authorization, order, registration
or qualification of or with any New York or U.S. federal court or
governmental agency or body (except for any maritime or admiralty
agency or body) is required for the issue and sale to the Purchaser of
the Securities or the issuance of the Common Stock upon conversion
thereof or the performance by the Company of its obligations under this
Agreement, the Registration Rights Agreement or the Indenture, except
(i) as have been or will be obtained or made on or prior to the time of
purchase, (ii) consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Securities
by the Purchaser, or (iii) as may be required by federal and state
securities laws (including, without limitation, the Securities Act, the
Exchange Act and the Trust Indenture Act of 1939, as amended) with
respect to the Company's obligations under the Registration Rights
Agreement and the listing of the Common Stock issuable upon conversion
of the Securities on the New York Stock Exchange in connection
therewith.
(v) No registration of the Securities under the Securities
Act, and no qualification of an indenture under the United States Trust
Indenture Act of 1939 with respect thereto, is required for the offer
and sale of the Securities to the Purchaser in the manner contemplated
by this Agreement.
(vi) Such counsel has no reason to believe that the Offering
Memorandum and any further amendments or supplements thereto made by
the Company prior to such Closing Date (other than the financial
statements therein, as to which such counsel need express no opinion)
contained as of its date or contains as of such Closing Date an untrue
statement of a material fact or omitted or omits, as the case may be,
to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(vii) The Company is not an "investment company", as such term
is defined in the Investment Company Act.
(viii) The statements set forth in the Offering Memorandum
under the caption "Description of Notes", insofar as they purport to
constitute a summary of the terms of the Securities, under the caption
"Tax Considerations" and under the caption "Plan of Distribution",
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate, complete and fair.
ANNEX IV
Pursuant to Section 7(d) of the Purchase Agreement, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Attorney-At-Law, counsel for the Company, shall furnish his written opinion to
the Purchaser to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
Republic of the ▇▇▇▇▇▇▇▇ Islands, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Offering Memorandum.
(ii) All of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable.
(iii) Each subsidiary of the Company formed under the laws of
the Republic of the ▇▇▇▇▇▇▇▇ Islands (the "M.I. Subsidiaries") has been
duly formed and is validly existing as a limited liability company in
good standing under the laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands;
and all of the membership interests of each such subsidiary have been
duly and validly authorized and issued, are fully paid and
non-assessable, and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims other
than those related to pledges of membership interests under the Credit
Agreements (as defined in Annex I of this Agreement) (such counsel
being entitled to rely in respect of matters of fact upon certificates
of officers of the Company or its subsidiaries, provided that such
counsel shall state that they believe that both you and they are
justified in relying upon such certificates).
(iv) The Securities have been duly authorized and executed by
the Company; and the shares of Common Stock initially issuable upon
conversion of the Securities have been duly and validly authorized and
reserved for issuance and, when issued and delivered in accordance with
the provisions of the Indenture, will be duly and validly issued and
fully paid and non-assessable; and the shares of Common Stock initially
issuable upon conversion of the Securities will conform to the
description of the Common Stock contained in the Offering Memorandum.
(v) This Agreement, the Indenture and the Registration Rights
Agreement have been duly authorized, executed and delivered by the
Company.
(vi) The issue and sale of the Securities, the issuance of the
Common Stock upon conversion of the Securities and the compliance by
the Company and the M.I. Subsidiaries with all of the provisions of the
Securities, the Indenture, the Registration Rights Agreement and this
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in any violation of the
provisions of the Articles of Incorporation, Certificate of Formation,
Bylaws, Limited Liability Company Agreement, or similar organizational
document, as applicable, of the Company or any of the M.I.
Subsidiaries.
(vii) The laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands
applicable therein permit an action to be brought in a court of
competent jurisdiction in the Republic of the ▇▇▇▇▇▇▇▇ Islands on a
final and conclusive judgment in personam of a United States Federal
court or a court of the State of New York sitting in the Borough of
Manhattan in The City of New York (the "New York Court"), respecting
the enforcement of the Notes or the Indenture, that is not impeachable
as void or voidable under the laws of the State of New York and that is
for a sum certain in money if:
(A) the New York Court that rendered such judgment
has jurisdiction over the judgment debtor, as recognized by
the courts of the Republic of the ▇▇▇▇▇▇▇▇ Islands and in
accordance with its conflict of laws rules (and submission by
the Company and the M.I. Subsidiaries in the Indenture to the
jurisdiction of the New York Court will be sufficient for this
purpose);
(B) such judgment was not obtained by fraud or in a
manner contrary to natural justice and the enforcement thereof
would not be inconsistent with public policy, as such term is
understood under the laws of the Republic of the ▇▇▇▇▇▇▇▇
Islands applicable therein;
(C) the enforcement of such judgment does not
constitute, directly or indirectly, the enforcement of foreign
revenue, expropriatory, public or penal laws;
(D) no new admissible evidence relevant to the action
is discovered prior to the rendering of judgment by the court
in the Republic of the ▇▇▇▇▇▇▇▇ Islands; and
(E) the action to enforce such judgment is commenced
within six years after the date of such judgment.
(F) To the best of such counsel's knowledge, under
present laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands there is
no reason to believe that a court in the Republic of the
▇▇▇▇▇▇▇▇ Islands would avoid recognition of a judgment of a
New York Court under the Indenture or on the Notes based upon
a reasonable interpretation of public policy so long as the
provisions of the Republic of the ▇▇▇▇▇▇▇▇ Islands Uniform
Enforcement of Foreign Money Judgments Act are complied with.
