EXHIBIT 4.2
EXECUTION COPY
$150,000,000
SEACOR SMIT INC.
7.20% SENIOR DEBENTURES DUE 2009
PURCHASE AGREEMENT
New York, New York
September 15, 1997
Salomon Brothers Inc
Credit Suisse First Boston Corporation
Bear, Xxxxxxx & Co. Inc.
c/o Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
SEACOR SMIT Inc., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several initial purchasers named in Schedule I hereto (the
"Purchasers"), $150,000,000 aggregate principal amount of 7.20% Senior Notes Due
September 15, 2009 of the Company (the "Securities") in the amounts as set forth
on Schedule I hereto to be issued under an Indenture dated as of September 22,
1997 (the "Indenture"), between the Company and First Trust National
Association, as Trustee.
The sale of the Securities to the Purchasers will
be made without registration of the Securities under the Securities Act of 1933,
as amended (the "Securities Act"), in reliance upon exemptions from the
registration requirements of the Securities Act. You have advised the Company
that the Purchasers will make an offering of the Securities purchased by them
hereunder in accordance with Section 4 hereof on the terms set forth in the
Offering Memorandum (as defined below), as soon as you deem advisable after this
Agreement has been executed and delivered.
In connection with the sale of the Securities, the
Company has prepared a preliminary offering memorandum, dated September 5, 1997
(the "Preliminary Memorandum"), and a final offering memorandum, dated September
15, 1997 (the "Offering Memorandum"). Each of the Preliminary Memorandum and the
Offering Memorandum sets forth certain information
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concerning the Company and the Securities. The Company hereby confirms that it
has authorized the use of the Preliminary Memorandum and the Offering Memorandum
in connection with the offering and resale by the Purchasers of the Securities.
Any references herein to the Preliminary Memorandum or the Offering Memorandum
shall be deemed to include all exhibits thereto and all documents incorporated
by reference therein which were filed under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), on or before the Execution Time (as defined
below); and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Offering Memorandum shall be deemed to refer to
and include the filing of any document under the Exchange Act after the
Execution Time which is incorporated by reference therein.
Holders (including subsequent transferees) of the
Securities will have the registration rights set forth in the Registration
Agreement dated as of the Closing Date (the "Registration Agreement") to be
entered into between the Company and the Purchasers. Pursuant to the
Registration Agreement, the Company has agreed to file with the Securities and
Exchange Commission (the "Commission") an exchange offer registration statement
or a shelf registration statement (each, a "Registration Statement") pursuant to
the Securities Act of 1933, as amended (the "Securities Act"), to register
sales, or resales, of the Securities following the sale of the Securities
contemplated hereby. "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
1. Representations and Warranties. (a) The
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Company represents and warrants to, and agrees with, each Purchaser as set forth
below in this Section 1(a):
(i) The Preliminary Offering Memorandum and 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. The preceding
sentence does not apply to statements in or omissions from
the Offering Memorandum, based upon written information
furnished to the Company by any Purchaser specifically for
use therein, it being understood and agreed that the only
such information is that described as such in Section 7(b)
hereof. The
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Company's Annual Report on Form 10-K most recently filed
with the Commission and all subsequent reports, on the
respective dates filed by the Company (collectively, the
"Exchange Act Reports"), which have been filed by the
Company with the Commission or sent to stockholders
pursuant to the Exchange Act do 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. Such documents, when they were filed with the
Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and
regulations of the Commission thereunder.
(ii) Assuming the accuracy of the representations
and warranties of the Purchasers and the compliance by the
Purchasers with the covenants set forth in Section 1(b)
hereof, the offer and sale of the 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 and
Regulation S ("Regulation S") under the Securities Act
thereunder, and it is not necessary to qualify an indenture
in respect of the Securities under the United States Trust
Indenture Act of 1939, as amended (the "Trust Indenture
Act"), except as contemplated by the Registration
Agreement.
(iii) When the Securities are issued and
delivered pursuant to this Agreement, no securities of the
same class (within the meaning of Rule 144A(d)(3) under the
Securities Act) as the Securities are listed on any
national securities exchange registered under Section 6 of
the Exchange Act or quoted in a U.S. automated interdealer
quotation system.
(iv) Neither the Company, nor any of its
affiliates, nor 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 Securities or any security of the same
class or series as the Securities or (ii) has offered or
will offer or sell the Securities
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(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 Regulation S. Assuming
the accuracy of the representations and warranties of the
Purchasers and the compliance by the Purchasers with the
covenants set forth in Section 1(b) hereof, the Company,
its affiliates and any person acting on its or their behalf
have complied and will comply with the offering
restrictions requirement of Regulation S. The Company has
not entered and will not enter into any contractual
arrangement with respect to the distribution of the
Securities except for this Agreement.
(v) The Company is not 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"), nor is it a closed end
investment company required to be registered, but not
registered thereunder; and the Company is not and, after
giving effect to the offering and sale of the Securities
and the application of the proceeds thereof as described in
the Offering Memorandum, will not be an "investment
company" as defined in the Investment Company Act.
(vi) The Company is subject to the reporting
requirements of Section 13 or 15(d) under the Exchange Act.
(vii) This Agreement has been duly authorized,
executed and delivered by the Company.
(viii) 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 Agreement in connection with the issuance and
sale of the Securities by the Company, except in connection
with the registration of the Securities and the
qualification of the Indenture pursuant to the Registration
Agreement, and except as to state or foreign securities
laws.
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(ix) The Indenture has been duly authorized; and
when the Securities are delivered and paid for pursuant to
this Agreement on the Closing Date (as defined below), will
have been duly executed and delivered; the Securities have
been duly authorized; such Securities will have been duly
executed, authenticated, issued and delivered and will
conform to the description thereof contained in the
Offering Memorandum and the Indenture and such Securities
will constitute valid and legally binding obligations of
the Company, 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.
(x) Neither the Company nor any of its sub-
sidiaries has sustained since the date of the latest
audited financial statements included in the Offering
Memorandum any material loss or interference with its
business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Offering
Memorandum; 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, stockholders'
equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth
or contemplated in the Offering Memorandum.
(xi) The Company and its subsidiaries have good
title to all real and personal property owned by them free
and clear of all liens, encumbrances and defects other than
liens in respect of crews' wages, salaries, general
average, demurrage, claims arising under maritime torts and
maritime contract liens and except such as are 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
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be made of such property by the Company and its
subsidiaries; any real property and buildings held under
lease by the Company and its subsidiaries are held by them
under valid, subsisting leases enforceable against them
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;
since entering into the DnB Facility (as defined in the
Offering Memorandum) on June 30, 1997, neither the Company
nor any of its subsidiaries has granted or conveyed any
mortgage or any other security interest with respect to any
of its vessels; and since June 30, 1997, the only vessels
the Company has sold are the SAN XXXX ISLAND and the XXXX
XxXXXX XX.
(xii) The Company has been duly incorporated and
is validly existing as a 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 Memorandum, and has
been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, except where the failure to be so qualified
would not have a material adverse effect on the general
affairs, prospects, management, financial position,
stockholders' equity or result of operations of the Company
and its subsidiaries, taken as a whole (a "Material Adverse
Effect"); and each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in
good standing under the laws of its jurisdiction of
incorporation.
(xiii) The Company has an authorized capital-
ization as set forth under the heading "Capitalization" in
the Offering Memorandum, and all of the outstanding shares
of capital stock of the Company have been validly
authorized and issued, are fully paid and nonassessable and
conform to the description of the capital stock of the
Company incorporated by reference in the Offering
Memorandum; and all of the outstanding shares of capital
stock of each subsidiary of the Company have been validly
authorized and issued, are fully paid and nonassessable and
(except for directors'
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qualifying shares and except as set forth in the Offering
Memorandum) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances,
equities or claims.
(xiv) The Registration Agreement has been duly
authorized by the Company and, when executed and delivered,
will conform in all material respects to the description
thereof contained in the Offering Memorandum. The
Registration Agreement when validly executed and delivered
by the Company will constitute a valid and legally binding
obligation of the Company and will be enforceable against
it in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors'
rights and to general equity principles and except as the
right to indemnity and contribution under the Registration
Agreement may be limited by state or federal securities
laws or the public policy underlying such laws.
(xv) The execution, delivery and performance of
the Indenture, this Agreement, the Registration Agreement
and the issuance and sale of Securities and compliance with
the terms and provisions thereof 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
indenture, mortgage, deed of trust, loan agreement,
stockholders' 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 its subsidiaries is bound or to
which any of the property or assets of the Company or any
of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the Restated
Certificate of Incorporation or Amended By-laws of the
Company or 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 such court or governmental agency or body is
required for the issuance and sale of the Securities or the
consummation by the Company of the transactions
contemplated by this Agreement, except such consents,
approvals,
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authorizations, registrations or qualifications as may be
required (i) under state securities or Blue Sky laws in
connection with the purchase and distribution of the
Securities by the Purchasers and (ii) in connection with
the registration of the Securities and the qualification of
the Indenture pursuant to the Registration Agreement.
(xvi) 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 by governmental authorities
or threatened by others.
(xvii) The Company is a citizen of the United
States within the meaning of Section 2 of the Shipping Act
of 1916, as amended (the "Shipping Act") and is qualified
to engage in the coastwise trade of the United States; the
issue and sale of the Securities by the Company and the
compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions
herein contemplated will not cause the Company to cease to
be a citizen of the United States within the meaning of
Section 2 of the Shipping Act or cause the Company to cease
to be qualified to engage in the coastwise trade of the
United States.
(xviii) The Company and its subsidiaries hold all
licenses, consents and approvals required by, and are in
compliance with, all regulations of state, Federal and
foreign governmental authorities that regulate the conduct
of the business of the Company and its subsidiaries, except
where the failure to hold any such license, consent or
approval or to be in compliance with any such regulation
would not have a Material Adverse Effect.
(xix) National Response Corporation ("NRC") has
been designated an Oil Spill Removal Organization by the
U.S. Coast Guard pursuant to the Oil Pollution Act of 1990.
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(xx) Except as disclosed in the Offering
Memorandum, there are no contracts, agreements or
understandings between the Company and any person relating
to the offering of the Securities that would give rise to a
valid claim against the Company or any Purchaser for a
brokerage commission, finder's fee or other like payment.
(b) Each Purchaser severally represents and warrants to,
and agrees with the Company as set forth below in this Section 1(b)
(terms used in this Section 1(b) that are defined in Rule 144A or
Regulation S under the Securities Act are used herein as defined
therein).
(i) Each Purchaser severally represents and
warrants to the Company that it is an "accredited investor"
within the meaning of Regulation D under the Securities
Act.
(ii) Each Purchaser severally acknowledges that
the 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 Rule 144A under the Securities Act. Each Purchaser
severally represents and agrees that it has offered and
sold the Securities, and will offer and sell the Securities
(A) as part of its distribution at any time and (B)
otherwise, until 40 days after the later of the
commencement of the sale of the offering and the latest
Closing Date, only in accordance with Rule 903 or Rule 144A
under the Securities Act ("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
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 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
Securities from it during the restricted period a
confirmation or notice to substantially the following
effect:
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"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 (i) as part
of their distribution at any time or (ii)
otherwise, until 40 days after the later of the
date of the commencement of the offering and the
closing date, except in either case 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."
(iii) 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 Securities except for any such
arrangements with the other Purchasers or affiliates of the
other Purchasers or with the prior written consent of the
Company.
(iv) Each Purchaser severally agrees that it and
each of its affiliates will not offer or sell the
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
Securities, to deliver either with the confirmation of such
resale or otherwise prior to settlement of such resale
notice to the effect that the resale of such Securities has
been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by
Rule 144A.
(v) 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
Securities will not offer or sell any Securities to persons
in the United Kingdom except to persons whose ordinary
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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 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 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.
2. Purchase and Sale. Subject to the terms and conditions
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and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Purchaser, and each Purchaser agrees, severally
and not jointly, to purchase from the Company, at a purchase price of 99.20% of
the principal amount thereof, plus accrued interest from September 22, 1997 to
the Closing Date (as hereinafter defined), the respective principal amounts of
the Securities set forth opposite such Purchaser's name in Schedule I hereto.
3. Delivery and Payment. The Company will
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deliver against payment of the purchase price the Securities in the form of one
or more permanent global Securities in definitive form (the "Global Securities")
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 Memorandum.
Payment for the Securities shall be made by the Purchasers in Federal (same day)
funds by wire transfer to an account previously designated to Salomon Brothers
Inc by the Company at a bank acceptable to Salomon Brothers Inc drawn to the
order of such payee as designated by the Company in writing to the Purchasers at
the office of Cravath, Swaine & Xxxxx, Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 at 9:30 A.M. (New York time), on September 22, 1997, or at
such other time not later than seven full business days
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thereafter, as Salomon Brothers Inc and the Company determine, such time being
herein referred to as the "Closing Date", against delivery to the Trustee as
custodian for DTC of the Global Securities representing all of the Securities.
The Global Securities will be made available for checking at the above office of
Cravath, Swaine & Xxxxx at least 24 hours prior to the Closing Date.
The Company agrees to have the Securities
available for inspection, checking and packaging by the Purchasers in New York,
New York, not later than 1:00 p.m. on the business day prior to the Closing
Date.
4. Agreements.
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(a) The Company agrees with the several
Purchasers that:
(i) The Company will advise Salomon Brothers Inc
promptly of any proposal to amend or supplement the
Offering Memorandum and will not effect such amendment or
supplementation without Salomon Brothers Inc's consent, if,
at any time prior to the completion of the resale of the
Securities by the Purchasers, any event occurs 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, not
misleading, or if it is necessary at any such time to amend
or supplement the Offering Memorandum to comply with any
applicable law, the Company promptly will notify Salomon
Brothers Inc of such event and promptly will prepare, at
its own expense, an amendment or supplement which will
correct such statement or omission or effect such
compliance. Neither Salomon Brothers Inc'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 5.
(ii) During the period that the Securities are
outstanding, the Company will furnish to Salomon Brothers
Inc 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 shareholders for such year;
and the Company will furnish to Salomon Brothers Inc and,
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upon request, to each of the other Purchasers as soon as
available, a copy of each report and any definitive proxy
statement of the Company filed with the Commission under
the Exchange Act or mailed to shareholders.
(iii) The Company will furnish to Salomon
Brothers Inc copies of the Preliminary Offering Memorandum,
the Offering Memorandum and all amendments and supplements
to such documents, in each case as soon as available and in
such quantities as Salomon Brothers Inc reasonably
requests, and the Company will furnish to Salomon Brothers
Inc promptly after the date hereof four copies of the
Offering Memorandum signed by a duly authorized officer of
the Company. At any time when the Company is not subject to
Section 13 or 15(d) of the Exchange Act, the Company will
promptly furnish or cause to be furnished to Salomon
Brothers Inc (and, upon request, to each of the other
Purchasers) and, upon request of holders and prospective
purchasers of the Securities, to such holders and
purchasers, copies of the information required to be
delivered to holders and prospective purchasers of the
Securities pursuant to Rule 144A(d)(4) under the Securities
Act (or any successor provisions thereto) in order to
permit compliance with Rule 144A in connection with resales
by such holders of the Securities. The Company will pay the
expenses of printing and distributing to the Purchaser(s)
all such documents.
(iv) The Company will arrange for the
qualification of the Securities for sale and the
determination of their eligibility for investment under the
laws of such jurisdictions in the United States and Canada
as Salomon Brothers Inc designates and will continue such
qualification in effect so long as required for the resale
of the Securities by the Purchasers, provided that the
Company will not be required to (i) qualify generally to do
business in any jurisdiction where it is not then so
qualified or (ii) take any action which would subject it to
general service of process or to taxation in any
jurisdiction where it is not then so subject.
(v) During the period of two years after the
Closing Date, the Company will, upon request, furnish to
Salomon Brothers Inc, each of the other
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Purchasers and any holder of Securities a description of
the restrictions on transfer applicable to the Securities.
(vi) During the period of two years after the
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.
(vii) During the period of two years after the
Closing Date, the Company will not 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, and is not, and will not be or become, a closed-end
investment company required to be registered, but not
registered, under the Investment Company Act.
(viii) The Company will pay all expenses
incidental to the performance of its obligations under this
Agreement and the Indenture, including (i) the fees and
expenses of the Trustee and its professional advisers and
(ii) all expenses in connection with the execution, issue,
authentication, packaging and initial delivery of the
Securities, the preparation and printing of this Agreement,
the Securities, the Indenture, the Preliminary Offering
Memorandum, the Offering Memorandum and amendments and
supplements thereto, and any other document relating to the
issuance, offer, sale and delivery of the Securities. The
Company will also pay or reimburse the Purchasers (to the
extent incurred by them) for any expenses (including fees
and disbursements of counsel) incurred in connection with
qualification of the Securities for sale under the laws of
such jurisdictions in the United States and Canada as
Salomon Brothers Inc designates and the printing of
memoranda relating thereto for any fees charged by
investment rating agencies for the rating of the
Securities, and for expenses incurred in distributing the
Preliminary Offering Memorandum and the Offering Memorandum
(including any amendments and supplements thereto) to the
Purchasers.
(ix) In connection with the Offering, until
Salomon Brothers Inc shall have notified the
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Company and the other Purchasers of the completion of the
resale of the Securities, neither the Company nor any of
its 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 Securities or attempt to induce any person to purchase
any 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 Securities.
5. Conditions to the Obligations of the
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Purchasers. The obligations of the Purchasers to purchase the Securities, shall
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be subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the Execution Time, the Closing Date and any
settlement date pursuant to Section 3 hereof, to the accuracy of the statements
of the Company made in any certificates pursuant to the provisions hereof, to
the performance by the Company of their respective obligations hereunder and to
the following additional conditions precedent:
(a) The Company shall have furnished to the Purchasers the
opinion of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated
the Closing Date, to the effect that:
(i) the Company is a corporation duly
incorporated, validly existing and in good standing under
the laws of the State of Delaware. Each of SEACOR Worldwide
Inc., SEACOR Marine Inc., SEACOR-SMIT Offshore
(International) Inc., SEACOR- SMIT Offshore I Inc., Xxxxxx
Boats Inc. and Xxxxxx Offshore Inc. (each a "Delaware
Subsidiary" and collectively, the "Delaware Subsidiaries")
is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware. Each
of the Company and the Delaware Subsidiaries has all
requisite corporate power and authority to own its
properties and to conduct its business as described or
incorporated by reference in the Offering Memorandum;
(ii) the Indenture has been duly authorized,
executed and, when delivered by the Company (assuming the
due authorization, execution and delivery thereof by the
Trustee), will constitute
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the legal, valid and binding obligation of the Company,
enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally, and
subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether a
proceeding is sought at law or in equity); the Securities
have been duly authorized by the Company for issuance and,
when executed and delivered by the Company (and assuming
the due authorization, execution and delivery of the
Indenture by the Trustee and the execution and
authentication of the Securities in the manner prescribed
by the Indenture by a duly authorized officer of the
Trustee), will be duly executed, authenticated, issued and
delivered and will constitute valid and legally binding
obligations of the Company enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies
generally and subject, as to enforceability, to general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of
whether a proceeding is sought at law or in equity); the
Securities conform to the description thereof contained in
the Offering Memorandum;
(iii) the Company is not an "investment company"
within the meaning of, and is not registered or otherwise
required to be registered under, the Investment Company Act
of 1940, as amended;
(iv) to the knowledge of such counsel, there is
no action, suit or proceeding pending before or threatened
by any court or public or governmental authority or
arbitrator involving the Company or any of its subsidiaries
of a character required to be disclosed in the Offering
Memorandum which is not adequately disclosed or
incorporated by reference in the Offering Memorandum;
(v) the Company has all requisite corporate power
and authority to execute and deliver the Purchase Agreement
and to perform its obligations thereunder; the execution,
delivery and
17
performance of the Purchase Agreement by the Company and
the consummation by the Company of the transactions
contemplated thereby have been duly authorized by all
necessary corporate action on the part of the Company; the
Purchase Agreement has been duly authorized, executed and
delivered by the Company;
(vi) no consent, approval, waiver, license,
permit, authorization or other action by or filing with any
New York, Delaware corporate or United States governmental
authority is required in connection with the issuance and
sale by the Company to the Purchasers on the Closing Date
of the Securities, or the consummation by the Company of
the transactions contemplated by the Purchase Agreement,
the Indenture or the Registration Agreement, except for (i)
state securities or "blue sky" laws, rules or regulations,
and maritime and admiralty laws, rules and regulations, and
(ii) with respect to the Registration Agreement only,
filings and other actions required pursuant to the
Securities Act, the Exchange Act, the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the
Commission promulgated thereunder, as to all of which we
express no opinion, and those consents, approvals, waivers,
licenses, permits or authorizations which have heretofore
been obtained;
(vii) none of the issuance and sale by the
Company of the Securities pursuant to the Purchase
Agreement, the execution and delivery of the Purchase
Agreement, the Indenture or the Registration Agreement, the
compliance by the Company with the terms and provisions
thereof, or the consummation by the Company of any of the
transactions contemplated thereby, will conflict with,
constitute a default under, or violate (i) any of the
terms, conditions or provisions of the Restated Certificate
of Incorporation or Amended By-laws of the Company, (ii)
any of the terms, conditions or provisions of any document,
agreement or other 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, of which we are aware,
(iii) any New York, Delaware corporate or United States
federal law or regulation (other than United States federal
and state securities or "blue sky" laws, rules and
18
regulations, as to which such counsel need not express any
opinion in this paragraph and maritime and admiralty laws,
rules and regulations, as to which such counsel need not
express any opinion), or (iv) any judgment, writ,
injunction, decree or order of any court or governmental
authority binding on the Company or any of its subsidiaries
(other than public or governmental authorities having
jurisdiction over maritime or admiralty matters or who
promulgate, enforce or interpret any maritime or admiralty
laws, rules or regulations, as to which such counsel need
not express any opinion) of which such counsel is aware;
(viii) neither the registration of the Securities
under the Securities Act, nor the qualification of the
Indenture under the Trust Indenture Act of 1939, as
amended, with respect thereto, is required for the offer
and sale of the Securities by the Company to the Purchasers
or the reoffer and resale of the Securities by the
Purchasers in the manner contemplated by the Purchase
Agreement and the Offering Memorandum;
(ix) the outstanding shares of capital stock of
each Delaware Subsidiary are duly authorized, validly
issued, fully paid and nonassessable and are owned of
record and, to such counsel's knowledge, beneficially, by
the Company either directly or indirectly through wholly
owned subsidiaries, free and clear, to such counsel's
knowledge, of all liens, security interests, encumbrances
or claims;
(x) the Company's authorized capitalization is as
set forth in the Offering Memorandum under the caption
"Capitalization" and all of the outstanding shares of
capital stock of the Company have been duly authorized,
validly issued, fully paid and are nonassessable;
(xi) the Registration Agreement has been duly
authorized by the Company and, when executed and delivered,
will conform in all material respects to the description
thereof contained in the Offering Memorandum; the
Registration Agreement, when validly executed and delivered
by the Company, will constitute a valid and legally binding
obligation of the Company and will be enforceable against
it in accordance with its
19
terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies
generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of
whether a proceeding is sought at law or in equity) and
except that rights to indemnification and contribution
thereunder may be limited by federal or state securities
laws or public policy relating thereto;
(xii) except as disclosed in the Offering
Memorandum or as exhibits to documents incorporated by
reference in the Offering Memorandum, no holders of
securities of the Company have rights to the registration
of such securities under the Restated Certificate of
Incorporation of the Company or pursuant to the terms of
any agreement to which the Company is a party, of which
such counsel is aware;
(xiii) the statements in the Offering Memorandum
under the caption "Description of Notes" insofar as they
describe the provisions of the documents and instruments
therein described, constitute fair summaries thereof
accurate in all material respects, and the statements in
the Offering Memorandum under the caption "Certain United
States Federal Income Tax Considerations for 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.
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 or the United States or
the corporation 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 certificates of responsible
officers of the Company and public officials. References to the
Offering Memorandum in this paragraph (b) include any supplements
thereto on or prior to the Closing Date.
20
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 Memorandum 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, no facts have come to such
counsel's attention to lead it to believe that the Offering
Memorandum 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 and the other financial, statistical and
accounting data included in the Offering Memorandum).
(b) The Company shall have furnished to the Purchasers the
opinion of De Brauw Blackstone Westbroek, Netherlands counsel for the
Company, dated the Closing Date, in form and substance satisfactory
to you, to the effect that each of SEACOR-SMIT Offshore I B.V. and
SEACOR-SMIT Holdings B.V. (each a "Netherlands Subsidiary" and
collectively the "Netherlands Subsidiaries") has been duly
incorporated and is validly existing under the laws of the
Netherlands as a private company with limited liability, with full
corporate power and authority to own its properties and conduct its
business within the scope of its objects clause as set forth in its
articles of association; all the outstanding shares of capital stock
of each Netherlands Subsidiary have been duly and validly authorized
and issued and are fully paid and nonassessable, and, except as
otherwise set forth in the Offering Memorandum, all outstanding
shares of capital stock of the Netherlands Subsidiaries are owned by
the Company either directly or through wholly owned subsidiaries free
and clear of any pledge, right of usufruct or attachment.
21
(c) The Company shall have furnished to the Purchasers the
opinion of Fort & Schlefer, special counsel for the Company, dated
the Closing Date, in form and substance satisfactory to you, to the
effect that SEACOR-SMIT Offshore (Worldwide) Ltd. has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the Bahamas, with full corporate power and
authority to own its properties and conduct its business as described
in the Offering Memorandum; all the outstanding shares of capital
stock of SEACOR-SMIT Offshore (Worldwide) Ltd. have been duly and
validly authorized and issued and are fully paid and nonassessable,
and all outstanding shares of capital stock of SEACOR-SMIT Offshore
(Worldwide) Ltd. are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, after due inquiry,
any other security interests, claims, liens or encumbrances.
(d) The Company shall have furnished to the Purchasers the
opinion of Fort & Schlefer, special regulatory counsel for the
Company, dated the Closing Date, to the effect that:
(i) the issue and sale of the Securities and the
compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions
herein contemplated will not conflict with, or violate or
constitute a default under, (a) any U.S. Federal maritime
or admiralty law or regulation, or (b) any judgment, writ,
injunction, decree or order binding on the Company or any
of its subsidiaries of which such counsel is aware of any
U.S. Federal court or governmental authority having
jurisdiction over any maritime or admiralty matters or who
enforce or interpret any maritime or admiralty laws or
promulgate any regulations as to such matters;
(ii) no consent, approval, waiver, license or
other authorization by or filing with any U.S. Federal
maritime or admiralty governmental authority is required
for the issue and sale of the Securities or the
consummation by the Company of the transactions
contemplated herein;
(iii) on the Closing Date, the Company is a
citizen of the United States within the meaning of
Section 2 of the Shipping Act and was qualified to
22
operate vessels in the coastwise trade of the
United States; and
(iv) the statements in the Company's Form 10-K
for the year ended December 31, 1996 (the"10-K") under the
captions "Business--Offshore Marine Services--Government
Regulation--Domestic Regulation" and "--Foreign Regulation"
fairly identify the domestic governmental and international
maritime regulation to which the Company is subject.
In rendering such opinion, such counsel may rely
(A) as to matters involving the application of laws of any jurisdiction other
than the District of Columbia or the United States, 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 certificates of responsible officers of the Company and public
officials. References to the Offering Memorandum in this paragraph (d) include
any supplements thereto at the Closing Date.
(e) The Purchasers shall have received from Cravath, Swaine
& Xxxxx, counsel for the Purchasers, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the
Securities, the Offering Memorandum (other than the financial
statements and related schedules therein, as to which such counsel
need express no view), the exemption from registration for the offer
and sale of the Securities by the Company to the several Purchasers
and the resales by the several Purchasers as contemplated hereby and
other related matters as the Purchasers may reasonably require, and
the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such
matters.
(f) The Company shall have furnished to the Purchasers a
certificate of the Company, signed by the Chairman of the Board or
the President and the principal financial or accounting officer of
the Company, dated the Closing Date, to the effect that the signers
of such certificate have carefully examined the Offering Memorandum
together with any supplements thereto, and this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in
23
all material respects on and as of the Closing Date with
the same effect as if made on the Closing Date and the
Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied
at or prior to the Closing Date;
(ii) since the date of the most recent financial
statements incorporated by reference in the Offering
Memorandum (exclusive of any supplement thereto), there has
been no material adverse change in the condition (financial
or other), earnings, business or properties of the Company
and its subsidiaries, whether or not arising from
transactions in the ordinary course of business, except as
set forth in or contemplated in the Offering Memorandum
(exclusive of any supplement thereto).
(g) At the Execution Time and at the Closing Date, Xxxxxx
Xxxxxxxx LLP shall have furnished to the Purchasers a letter or
letters, dated respectively as of the Execution Time and as of the
Closing Date, in form and substance satisfactory to the Purchasers,
confirming that they are independent accountants within the meaning
of the Act and the applicable published rules and regulations
thereunder and stating in effect that:
(i) in their opinion the audited financial
statements and financial statement schedules and pro forma
financial statements included or incorporated in the
Offering Memorandum and reported on by them comply in form
in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the
related published rules and regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the
Company and its subsidiaries; their limited review in
accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited
interim financial information for the six-month period
ended June 30, 1997, and as at June 30, 1997, as indicated
in their report incorporated by reference in the Offering
Memorandum; carrying out certain specified procedures (but
not an examination in accordance with generally accepted
auditing standards) which would not necessarily
24
reveal matters of significance with respect to the comments
set forth in such letter; a reading of the minutes of the
meetings of the stockholders, directors and committees of
the Company and its subsidiaries; and inquiries of certain
officials of the Company who have responsibility for xxxxx-
cial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to
December 31, 1996, nothing came to their attention which
caused them to believe that:
(1) any unaudited financial statements
included in the Offering Memorandum do not comply
in form in all material respects with applicable
accounting requirements and with the published
rules and regulations of the Commission with
respect to financial statements included or
incorporated in quarterly reports on Form 10-Q
under the Exchange Act; and said unaudited
financial statements are not in conformity with
generally accepted accounting principles applied
on a basis substantially consistent with that of
the audited financial statements included in the
Offering Memorandum;
(2) with respect to the period subse
quent to June 30, 1997, there were any changes,
at a specified date not more than three business
days prior to the date of the letter, in the
long-term debt of the Company and its
subsidiaries or capital stock of the Company or
decreases in the stockholders' equity of the
Company or decreases in working capital of the
Company and its subsidiaries as compared with the
amounts shown on the June 30, 1997, consolidated
balance sheet included or incorporated by
reference in the Offering Memorandum, or for the
period from July 1, 1997, to such specified date
there were any decreases, as compared with the
corresponding period in the preceding year in
operating income, net revenues or income before
income taxes or in total or per share amounts of
net income of the Company and its subsidiaries,
except in all instances for changes or decreases
set forth in such letter, in which case the
letter shall be accompanied by an explanation by
the Company as to the significance thereof unless
said
25
explanation is not deemed necessary by the
Purchasers;
(iii) they have performed certain other speci-
fied procedures as a result of which they determined that
certain information of an accounting, financial or
statistical nature (which is limited to accounting,
financial or statistical information derived from the
general accounting records of the Company and its
subsidiaries) set forth in the Offering Memorandum and the
documents incorporated by reference therein, including the
information set forth under the captions "Summary", "Risk
Factors", "Use of Proceeds" and "Capitalization", and
certain other specified information incorporated by
reference in the Offering Memorandum agrees with the
accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation; and
(iv) on the basis of a reading of the unaudited
pro forma financial statements incorporated by reference in
the Offering Memorandum (the "pro forma financial
statements"); carrying out certain specified procedures;
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters; and
proving the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the pro
forma financial statements, nothing came to their attention
which caused them to believe that the pro forma financial
statements do not comply in form in all material respects
with the applicable accounting requirements of Rule 11-02
of Regulation S-X.
References to the Offering Memorandum in this
paragraph (g) include any supplement thereto at the date of
the letter.
(h) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Offering Memorandum
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (g) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries the effect
of which, in any case referred to in clause (i) or (ii) above, is, in
the
26
judgment of the Purchasers, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery
of the Securities as contemplated by the Offering Memorandum
(exclusive of any supplement thereto).
(i) Subsequent to the Execution Time, there shall not have
been (i) any decrease in the rating of any of the Company's debt
securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act)
or any notice given of any intended or potential decrease in any such
rating or of a possible change in any such rating that does not
indicate the direction of the possible change, (ii) any suspension of
trading in the Company's Common Stock by the Commission or the New
York Stock Exchange, Inc. or any suspension or limitation of trading
in securities generally on the New York Stock Exchange, Inc. or The
Nasdaq Stock Market's National Market or any establishment of minimum
prices on either of such Exchange or Market System, (iii) any
declaration of a banking moratorium either by Federal or New York
State authorities or (iv) any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war or
other calamity or crisis the effect of which on financial markets is
such as to make it, in the judgment of the Purchasers, impracticable
or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Offering Memorandum (exclusive of
any supplement thereto).
(j) Prior to the Closing Date, the Company shall have
furnished to the Purchasers such further information, certificates
and documents as the Purchasers may reasonably request.
(k) The Registration Agreement shall have been duly
executed and delivered by the Company.
If any of the conditions specified in this
Section 5 shall not have been fulfilled in all material respects when and as
provided in this Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Purchasers and counsel for
the Purchasers, this Agreement and all obligations of the Purchasers hereunder
may be canceled at, or at any time prior to, the Closing Date by the Purchasers.
Notice of such cancelation shall be
27
given to the Company in writing or by telephone or telegraph
confirmed in writing.
The documents required to be delivered by this
Section 5 shall be delivered at the office of Cravath, Swaine & Xxxxx, counsel
for the Purchasers, at Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
xx the Closing Date.
6. Reimbursement of Purchasers' Expenses. If the
-------------------------------------
sale of the Securities provided for herein is not consummated because any
condition to the obligations of the Purchasers set forth in Section 5 hereof is
not satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Purchasers, the Company will
reimburse the Purchasers severally upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
7. Indemnification and Contribution. (a) The
--------------------------------
Company agrees to indemnify and hold harmless each Purchaser, the directors,
officers, employees and agents of each Purchaser and each person who controls
any Purchaser within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, 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 Preliminary Offering
Memorandum or the Offering Memorandum or any amendment or supplement thereto, or
the incorporated Exchange Act Reports, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, and will reimburse each Purchaser, promptly after the receipt of
demand therefor accompanied by an invoice in reasonable detail, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company 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 any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any
28
Purchaser through Salomon Brothers Inc specifically for inclusion therein, it
being understood and agreed that the only such information consists of the
information described as such in subsection (b) below; and provided, further,
that with respect to any untrue statement or alleged untrue statement in or
omission or alleged omission from the Preliminary Offering Memorandum, the
indemnity agreement contained in this subsection (a) shall not inure to the
benefit of any Purchaser that sold the Securities concerned to the person
asserting any such losses, claims, damages or liabilities, to the extent that
such sale was an initial resale by such Purchaser and any such loss, claim,
damage or liability of such Purchaser results from the fact that there was not
sent or given to such person, at or prior to the written confirmation of the
sale of such Securities to such person, a copy of the Offering Memorandum
(exclusive of any material included therein but not attached thereto) if the
Company had previously furnished copies thereof to such Purchaser. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Purchaser will severally and not jointly
indemnify and hold harmless the Company, each of its directors, each of its
officers, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Purchaser, but only with reference to written information
relating to such Purchaser furnished to the Company by or on behalf of such
Purchaser through Salomon Brothers Inc specifically for inclusion in the
documents referred to in the foregoing indemnity, it being understood and agreed
that the only such information furnished by any Purchaser consists of the
following information in the Offering Memorandum 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 stabilizing on
page three of the Offering Memorandum, the second sentence of the second
paragraph and the sixth paragraph, each under the caption "Plan of
Distribution." This indemnity agreement will be in addition to any liability
which any Purchaser may otherwise have.
(c) Promptly after receipt by an indemnified
party under this Section 7 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 this Section 7, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph (a) or
(b) above unless and to the
29
extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
repre- sent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses
of one firm of such separate counsel plus one firm of counsel in each local
jurisdiction where the employment of separate local counsel is necessary or
material to the defense of an action by the indemnified party if (i) the
use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect
of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in
paragraph (a) or (b) of this Section 7 is unavailable to or
30
insufficient to hold harmless an indemnified party for any reason, the Company
and the Purchasers agree to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which the Company, and one or more of the Purchasers may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Company and by the Purchasers, respectively, from the offering of the
Securities; provided, however, that in no case shall any Purchaser (except as
may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such Purchaser
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Purchasers shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company and of the Purchasers, respectively, in
connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. For the purpose of this
subparagraph 7(d), benefits received by the Company shall be deemed to be equal
to the total net proceeds from the offering (before deducting expenses) received
by each of them, and benefits received by the Purchasers shall be deemed to be
equal to the total underwriting discounts and commissions, in each case as set
forth on the cover page of the Offering Memorandum. Relative fault shall be
determined by reference to whether any alleged untrue statement or omission
relates to information provided by the Company or the Purchasers. The Company
and the Purchasers agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person who
controls a Purchaser within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of a Purchaser shall have the
same rights to contribution as such Purchaser, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
31
8. Default by a Purchaser. If any one or more
----------------------
Purchasers shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Purchaser or Purchasers hereunder on the Closing Date and such
failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Purchasers shall be
obligated severally to take up and pay for (in the respective proportions which
the amount of Securities set forth opposite their names in Schedule I hereto
bears to the aggregate amount of Securities set forth opposite the names of all
the remaining Purchasers) the Securities which the defaulting Purchaser or
Purchasers agreed but failed to purchase; provided, however, that in the event
that the aggregate amount of Securities which the defaulting Purchaser or
Purchasers agreed but failed to purchase shall exceed 10% of the total principal
amount of Securities that the Purchasers are obligated to purchase on such
Closing Date, the remaining Purchasers shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities, and if
such nondefaulting Purchasers do not purchase all the Securities to be
purchased on such Closing Date, this Agreement will terminate without liability
to any nondefaulting Purchaser or the Company. In the event of a default by any
Purchaser as set forth in this Section 8, such Closing Date shall be postponed
for such period, not exceeding seven days, as the Purchasers shall determine in
order that the required changes in the Offering Memorandum or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Purchaser of its liability, if any, to the Company
and any nondefaulting Purchaser for damages occasioned by its default hereunder.
As used in this Agreement, the term "Purchaser" includes any person substituted
for a Purchaser under this Section.
9. Representations and Indemnities to Survive.
------------------------------------------
The respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Purchasers set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Purchaser or the Company or any
of the officers, directors or controlling persons referred to in Section 7
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 6 and 7 hereof shall survive the termination or
cancelation of this Agreement.
10. Notices. All communications hereunder will be
-------
in writing and effective only on receipt, and, if sent to the Purchasers, will
be mailed, delivered or telegraphed and confirmed to them, care of Salomon
Brothers Inc, at Seven
00
Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Investment Banking
Department; or, if sent to the Company, will be mailed, delivered or telegraphed
and confirmed to it at 1370 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, attention of Xxxxxxx Xxxxx.
11. Successors. This Agreement will inure to the
----------
benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 7 hereof, and no other person will have any right or obligation
hereunder.
12. Representation of Purchasers. Salomon
----------------------------
Brothers Inc will act for the several Purchasers in connection with the
transactions contemplated by this Agreement, and any action under this Agreement
taken by the Purchasers jointly or by Salomon Brothers Inc will be binding upon
all the Purchasers.
13. Applicable Law. This Agreement shall be governed
--------------
by and construed in accordance with the laws of the State of New York without
regard to principle of conflicts of laws.
The Company 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.
14. Counterparts. 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 counterparts shall
together constitute one and the same instrument.
If the foregoing is in accordance with your understanding
of our agreement, please sign and return to us the
33
enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and the several Purchasers.
Very truly yours,
SEACOR SMIT Inc.
By: /s/ Xxxxxxx Xxxxx
--------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Vice President
Chief Financial Officer
and Secretary
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Brothers Inc
Credit Suisse First Boston Corporation
Bear, Xxxxxxx & Co. Inc.
By: Salomon Brothers Inc
By: /s/ Xxxx Xxxxxx
------------------------
Name: Xxxx Xxxxxx
Title: Director
Schedule I
Purchasers
Principal
Purchasers Amount
---------- -------
Salomon Brothers Inc....................................... $50,000,000
Bear, Xxxxxxx & Co. Inc.................................... 50,000,000
Credit Suisse First Boston Corporation..................... 50,000,000
...........
TOTAL $150,000,000
