OASIS PETROLEUM INC. Purchase Agreement
Exhibit 10.1
$400,000,000
7.25% Senior Notes due 2019
Purchase Agreement
January 28, 2011
X.X. Xxxxxx Securities LLC
as Representative of the
several Initial Purchasers listed
in Schedule 1 hereto
as Representative of the
several Initial Purchasers listed
in Schedule 1 hereto
c/o X.X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Oasis Petroleum Inc., a Delaware corporation (the “Company”), proposes to issue and
sell to the several initial purchasers listed in Schedule 1 hereto (the “Initial
Purchasers”), for whom you are acting as representative (the “Representative”),
$400,000,000 principal amount of its 7.25% Senior Notes due 2019 (the “Securities”). The
Securities will be issued pursuant to an Indenture to be dated as of February 2, 2011 (the
“Base Indenture”) between the Company and U.S. Bank National Association, as trustee (the
“Trustee”), as amended and supplemented by the First Supplemental Indenture thereto dated
as of February 2, 2011 (the “Supplemental Indenture”) among the Company, the guarantors
listed in Schedule 2 hereto (the “Guarantors”) and the Trustee. The Base Indenture
as amended and supplemented by the Supplemental Indenture is referred to herein as the
“Indenture.” The Securities will be guaranteed on an unsecured senior basis pursuant to
guarantees (the “Guarantees”) by each of the Guarantors as set forth in the Indenture.
The Securities will be sold to the Initial Purchasers in a transaction not registered under
the Securities Act of 1933, as amended (the “Securities Act”), in reliance upon an
exemption therefrom. The Company and the Guarantors have prepared a preliminary offering memorandum
dated January 24, 2011 (the “Preliminary Offering Memorandum”) and will prepare an offering
memorandum dated the date hereof (the “Offering Memorandum”) setting forth information
concerning the Company and the Securities. Copies of the Preliminary Offering Memorandum have been,
and copies of the Offering Memorandum will be, delivered by the Company to the Initial Purchasers
pursuant to the terms of this Agreement. The Company hereby confirms that it has authorized the use
of the Preliminary Offering Memorandum, the other Time of Sale Information (as defined below), the
Recorded Road Show (as defined below) and the Offering
Memorandum in connection with the offering and resale of the Securities by the Initial
Purchasers in the manner contemplated by this Agreement. Capitalized terms used but not defined
herein shall have the meanings given to such terms in the Preliminary Offering Memorandum.
References herein to the Preliminary Offering Memorandum, the Time of Sale Information and the
Offering Memorandum shall be deemed to refer to and include any document incorporated by reference
therein.
At or prior to 12:15 p.m. (Eastern Standard Time) on the date hereof, which is before the time
when sales of the Securities were first made (the “Time of Sale”), the following
information shall have been prepared (collectively, the “Time of Sale Information”): the
Preliminary Offering Memorandum, as supplemented and amended by the written communications listed
on Annex A hereto.
Holders of the Securities (including the Initial Purchasers and their direct and indirect
transferees) will be entitled to the benefits of a Registration Rights Agreement, to be dated the
Closing Date (as defined below) and substantially in the form attached hereto as Exhibit A
(the “Registration Rights Agreement”), pursuant to which the Company and the Guarantors
will agree to file one or more registration statements with the Securities and Exchange Commission
(the “Commission”) providing for the registration under the Securities Act of the resale of
the Securities or the offer and issuance of the Exchange Securities referred to (and as defined) in
the Registration Rights Agreement.
The Company and the Guarantors hereby confirm their agreement with the several Initial
Purchasers concerning the purchase and resale of the Securities, as follows:
1. Purchase and Resale of the Securities. (a) On the basis of the representations,
warranties and agreements set forth herein and subject to the conditions set forth herein, the
Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in
this Agreement, and each Initial Purchaser agrees, severally and not jointly, to purchase from the
Company, the respective principal amount of Securities set forth opposite such Initial Purchaser’s
name in Schedule 1 hereto at a price equal to 97.75% of the principal amount thereof plus
accrued interest, if any, from February 2, 2011 to the Closing Date. The Company will not be
obligated to deliver any of the Securities except upon payment for all the Securities to be
purchased as provided herein.
(b) The Company understands that the Initial Purchasers intend to offer the Securities for
resale on the terms set forth in the Time of Sale Information. Each Initial Purchaser, severally
and not jointly, represents, warrants and agrees that:
(i) it is a qualified institutional buyer within the meaning of Rule 144A under the
Securities Act (a “QIB”) and an accredited investor within the meaning of Rule
501(a) under the Securities Act;
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers
for, or offer or sell, the Securities by means of any form of general solicitation or
general advertising within the meaning of Rule 502(c) of Regulation D under the Securities
Act
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(“Regulation D”) or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers
for, or offer or sell, the Securities as part of their initial offering except:
(A) within the United States to persons whom it reasonably believes to be QIBs
in transactions pursuant to Rule 144A under the Securities Act (“Rule 144A”)
and in connection with each such sale, it has taken or will take reasonable steps to
ensure that the purchaser of the Securities is aware that such sale is being made in
reliance on Rule 144A; or
(B) in accordance with the restrictions set forth in Annex C hereto.
(c) Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the
“no registration” opinions to be delivered to the Initial Purchasers pursuant to Sections
6(g) and 6(h), Xxxxxx & Xxxxxx LLP as counsel for the Company, and Xxxxxxx Xxxxx LLP as
counsel for the Initial Purchasers, respectively, may rely upon the accuracy of the representations
and warranties of the Initial Purchasers, and compliance by the Initial Purchasers with their
agreements, contained in paragraph (b) above (including Annex C hereto), and each
Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may offer and sell
Securities to or through any affiliate of an Initial Purchaser and that any such affiliate may
offer and sell Securities purchased by it to or through any Initial Purchaser.
(e) The Company and the Guarantors acknowledge and agree that the Initial Purchasers are
acting solely in the capacity of an arm’s length contractual counterparty to the Company and the
Guarantors with respect to the offering of Securities contemplated hereby (including in connection
with determining the terms of the offering) and not as financial advisors or fiduciaries to, or
agents of, the Company, the Guarantors or any other person. Additionally, neither the
Representative nor any other Initial Purchaser is advising the Company, the Guarantors or any other
person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The
Company and the Guarantors shall consult with their own advisors concerning such matters and shall
be responsible for making their own independent investigation and appraisal of the transactions
contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any
responsibility or liability to the Company or the Guarantors with respect thereto. Any review by
the Representative or any Initial Purchaser of the Company, the Guarantors, and the transactions
contemplated hereby or other matters relating to such transactions will be performed solely for the
benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on
behalf of the Company, the Guarantors or any other person.
2. Payment and Delivery.
(a) Payment for and delivery of the Securities will be made at the offices of Xxxxxx & Xxxxxx
LLP at 10:00 A.M., New York City time, on February 2, 2011, or at such other time or place on the
same or such other date, not later than the fifth business day thereafter, as the
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Representative and the Company may agree upon in writing. The time and date of such payment
and delivery is referred to herein as the “Closing Date.”
(b) Payment for the Securities shall be made by wire transfer in immediately available funds
to the account(s) specified by the Company to the Representative against delivery to the nominee of
The Depository Trust Company (“DTC”), for the account of the Initial Purchasers, of one or
more global notes representing the Securities (collectively, the “Global Note”), with any
transfer taxes payable in connection with the sale of the Securities duly paid by the Company. The
Global Note will be made available for inspection by the Representative not later than 1:00 P.M.,
New York City time, on the business day prior to the Closing Date.
3. Representations and Warranties of the Company and the Guarantors. The Company and
the Guarantors jointly and severally represent and warrant to each Initial Purchaser that:
(a) Preliminary Offering Memorandum, Time of Sale Information and Offering Memorandum. The
Preliminary Offering Memorandum, as of its date, did not, the Time of Sale Information, at the Time
of Sale, did not, and at the Closing Date, will not, and the Offering Memorandum, in the form first
used by the Initial Purchasers to confirm sales of the Securities and as of the Closing Date, will
not, contain any 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 that the Company and the Guarantors make no representation or
warranty with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Initial Purchaser furnished to the Company in writing by such Initial
Purchaser through the Representative expressly for use in the Preliminary Offering Memorandum, the
Time of Sale Information or the Offering Memorandum.
(b) Additional Written Communications. The Company and the Guarantors (including their agents
and representatives, other than the Initial Purchasers in their capacity as such) have not
prepared, made, used, authorized, approved or referred to and will not prepare, make, use,
authorize, approve or refer to any written communication that constitutes an offer to sell or
solicitation of an offer to buy the Securities (each such communication by the Company and the
Guarantors or their agents and representatives (other than a communication referred to in
clauses (i), (ii) and (iii) below) an “Issuer Written
Communication”) other than (i) the Preliminary Offering Memorandum, (ii) the Offering
Memorandum, (iii) the documents listed on Annex A hereto, including a term sheet
substantially in the form of Annex B hereto, which constitute part of the Time of Sale
Information, and (iv) any electronic road show (the “Recorded Road Show”) or other written
communications, in each case used in accordance with Section 4(c). Each such Issuer Written
Communication, when taken together with the Time of Sale Information, did not, and at the Closing
Date will not, contain any 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 that the Company and Guarantors make no
representation and warranty with respect to any statements or omissions made in each such Issuer
Written Communication in reliance upon and in conformity with information relating to any Initial
Purchaser furnished to the Company in writing by such Initial Purchaser through the
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Representative expressly for use in any Issuer Written Communication. Each Issuer Written
Communication does not conflict with the Time of Sale Information or the Offering Memorandum.
(c) Incorporated Documents. The documents incorporated by reference in each of the Time of
Sale Information and the Offering Memorandum, when filed with the Commission, conformed or will
conform, as the case may be, in all material respects to the requirements of the Exchange Act and
the rules and regulations of the Commission thereunder, and, when filed, did not or will not, as
applicable, contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(d) Financial Statements. The historical consolidated financial statements (including the
related notes and supporting schedules, if any) of the Company and its consolidated subsidiaries
included or incorporated by reference in each of the Time of Sale Information and the Offering
Memorandum present fairly, in all material respects, the consolidated financial position of the
Company and its subsidiaries as of the dates and for the periods specified; such financial
statements have been prepared in accordance with the applicable accounting requirements of
Regulation S-X under the Securities Act and in conformity with generally accepted accounting
principles in the United States (“GAAP”) applied on a consistent basis throughout the
periods involved and the supporting schedules included or incorporated by reference in each of the
Time of Sale Information and Offering Memorandum present fairly in all material respects the
information stated therein. The summary historical consolidated data set forth in each of the Time
of Sale Information and the Offering Memorandum under the caption “Summary—Summary historical
consolidated financial data,” and the selected historical consolidated data set forth under the
caption “Selected historical consolidated financial data” in each of the Time of Sale Information
and Offering Memorandum is accurately presented in all material respects and prepared on a basis
consistent with the historical financial statements from which it has been derived. All
disclosures contained in each of the Time of Sale Information and the Offering Memorandum regarding
“non-GAAP financial measures” (as such term is defined by the rules and regulations of the
Commission) comply in all material respects with Regulation G under the Exchange Act and Item 10 of
Regulation S-K of the Securities Act, to the extent applicable. Any other financial information
included or incorporated by reference in each of the Time of Sale Information and the Offering
Memorandum has been derived from the accounting records of the Company and its subsidiaries and
presents fairly, in all material respects, the information shown thereby.
(e) No Material Adverse Change. Except as set forth in each of the Time of Sale Information
and the Offering Memorandum, since the date of the most recent financial statements of the Company
included or incorporated by reference in each of the Time of Sale Information and Offering
Memorandum, there has not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise, or in the earnings,
business or operations, capitalization or long-term debt of the Company and its subsidiaries, taken
as a whole.
(f) Organization and Good Standing of the Company. The Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the State of
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Delaware, has the corporate power and authority to own, lease, operate or hold its property
and to conduct its business and to enter into and assume the liabilities and obligations assumed or
to be assumed by it pursuant to the Transaction Documents (as defined below) to which it is a
party, as described in each of the Time of Sale Information and Offering Memorandum, and is duly
qualified to transact business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or lease of property requires such qualification, except to the
extent the failure to be so qualified or be in good standing would not, individually or in the
aggregate, have a material adverse effect on the business, properties, financial position,
stockholders’ equity, results of operations, or prospects of the Company and its subsidiaries,
taken as a whole, or on the performance by the Company and the Guarantors of their obligations
under the Securities and the Guarantees (a “Material Adverse Effect”).
(g) Organization and Good Standing of the Subsidiaries. The Company has no subsidiaries other
than those identified on Schedule 3. Each subsidiary of the Company, including the
Guarantors, has been duly incorporated, formed or organized, as applicable, is validly existing as
an entity in good standing under the laws of the jurisdiction of its incorporation, formation or
organization, as applicable (such jurisdictions listed on Schedule 3), has the corporate or
other power and authority to own, lease, operate or hold its property and to conduct its business,
and to enter into and assume the liabilities and obligations assumed or to be assumed by it
pursuant to the Transaction Documents to which it is a party, as described in each of the Time of
Sale Information and the Offering Memorandum, and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its ownership or lease
of property requires such qualification (such jurisdictions listed on Schedule 3), except
to the extent that the failure to be so qualified or be in good standing would not have a Material
Adverse Effect. The Company does not own, directly or indirectly, equity securities or other
ownership interests of any entity other than its interests in such subsidiaries.
(h) Capitalization. The table under the heading “Capitalization” in each of the Time of Sale
Information and the Offering Memorandum sets forth as of the date of such table, (i) the actual
capitalization of the Company and its subsidiaries on a consolidated basis and (ii) the as adjusted
capitalization of the Company and its subsidiaries on a consolidated basis, after giving effect to
the issuance of the Securities and the application of the net proceeds therefrom as described in
each of the Time of Sale Information and in the Offering Memorandum under the section entitled “Use
of proceeds.” The limited liability company agreements governing all limited liability company
interests of each subsidiary of the Company have been validly executed and delivered, and all
capital contributions required under such limited liability company agreements have been paid in
full; and all of the limited liability company interests of each subsidiary of the Company have
been duly and validly authorized and issued, fully paid and are non-assessable, and are owned
directly or indirectly by the Company, free and clear of any lien, charge, encumbrance, security
interest, restriction on voting or transfer or any other claim of any third party, except as
otherwise described in each of the Time of Sale Information and the Offering Memorandum, including
liens under the Amended and Restated Credit Agreement, dated as of February 26, 2010, by and among
Oasis Petroleum LLC, Oasis Petroleum North America LLC, the guarantors party thereto, BNP Paribas,
as Administrative Agent and the lenders thereto, as amended by the First Amendment to Amended and
Restated Credit Agreement, dated as of June 3, 2010, the Second Amendment to Amended and Restated
Credit Agreement, dated as of August 11, 2010, and the Third Amendment to Amended and Restated
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Credit Agreement and Limited Waiver, dated as of January 21, 2011 (as so amended, the
“Credit Agreement”).
(i) Due Authorization. The Company and each of the Guarantors have full right, power and
authority to execute and deliver this Agreement, the Securities, the Indenture (including each
Guarantee set forth therein), the Exchange Securities and the Registration Rights Agreement
(collectively, the “Transaction Documents”) and to perform their respective obligations
hereunder and thereunder; and all action required to be taken for the due and proper authorization,
execution and delivery of each of the Transaction Documents and the consummation of the
transactions contemplated thereby has been duly and validly taken.
(j) The Base Indenture and the Supplemental Indenture. The Base Indenture has been duly
authorized by the Company and, when duly executed and delivered in accordance with its terms by the
Company, the Base Indenture will constitute a valid and legally binding agreement of the Company
enforceable against the Company in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of
creditors rights generally or by equitable principles relating to enforceability (collectively, the
“Enforceability Exceptions”); the Supplemental Indenture has been duly authorized by the
Company and each of the Guarantors and, when duly executed and delivered in accordance with its
terms by each of the parties thereto, the Supplemental Indenture will constitute a valid and
legally binding agreement of the Company and each of the Guarantors enforceable against the Company
and each of the Guarantors in accordance with its terms, subject to the Enforceability
Exceptions; and on the Closing Date, the Indenture will conform in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”),
and the rules and regulations of the Commission applicable to an indenture that is qualified
thereunder.
(k) The Securities and the Guarantees. The Securities have been duly authorized by the Company
and, when duly executed, authenticated, issued and delivered as provided in the Indenture and paid
for as provided herein, will be duly and validly issued and outstanding and will constitute valid
and legally binding obligations of the Company enforceable against the Company in accordance with
their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of and
be in the form contemplated by the Indenture; and the Guarantees have been duly authorized by each
of the Guarantors and, when the Securities have been duly executed, authenticated, issued and
delivered as provided in the Indenture and paid for as provided herein, will be valid and legally
binding obligations of each of the Guarantors, enforceable against each of the Guarantors in
accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the
benefits of and be in the form contemplated by the Indenture.
(l) The Exchange Securities. On the Closing Date, the Exchange Securities (including the
related guarantees thereof by the Guarantors) will have been duly authorized by the Company and
each of the Guarantors and, when duly executed, authenticated, issued and delivered in accordance
with the Indenture and as contemplated by the Registration Rights Agreement, will be duly and
validly issued and outstanding and will constitute valid and legally binding obligations of the
Company, as issuer, and each of the Guarantors, as guarantor, enforceable against the Company and
each of the Guarantors in accordance with their terms,
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subject to the Enforceability Exceptions, and will be entitled to the benefits of and be in
the form contemplated by the Indenture.
(m) Purchase and Registration Rights Agreements. This Agreement has been duly authorized,
executed and delivered by the Company and each of the Guarantors; and the Registration Rights
Agreement has been duly authorized by the Company and each of the Guarantors and on the Closing
Date will be duly executed and delivered by the Company and each of the Guarantors and, when duly
executed and delivered in accordance with its terms by each of the parties thereto, will constitute
a valid and legally binding agreement of the Company and each of the Guarantors enforceable against
the Company and each of the Guarantors in accordance with its terms, subject to the Enforceability
Exceptions, and except that rights to indemnity and contribution thereunder may be limited by
applicable law and public policy.
(n) Descriptions of the Transaction Documents. Each Transaction Document conforms in all
material respects to the description thereof contained in each of the Time of Sale Information and
the Offering Memorandum.
(o) No Violation or Default. Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws or similar organizational documents; (ii) in default, and no
event has occurred that, with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition contained in 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; or
(iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and
(iii) above, for any such default or violation that would not, individually or in the
aggregate, have a Material Adverse Effect.
(p) No Conflicts. The execution, delivery and performance by the Company and each of the
Guarantors of each of the Transaction Documents to which each is a party, the issuance and sale of
the Securities (and the Guarantees), and compliance by the Company and each of the Guarantors with
the terms thereof and the consummation of the transactions contemplated by the Transaction
Documents will not (i) conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its subsidiaries
pursuant to, 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) result in any violation of the provisions of the charter or
by-laws or similar organizational documents of the Company or any of its subsidiaries or (iii)
result in the violation of any law or statute or any judgment, order, rule or regulation of any
court or arbitrator or governmental or regulatory authority, except for any such conflict, breach,
violation, default, lien, charge or encumbrance described in clauses (i) and (iii)
above, which would not, individually or in the aggregate, have a Material Adverse Effect.
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(q) No Consents Required. No consent, approval, authorization, order, filing, registration or
qualification of or with any court or arbitrator or governmental or regulatory authority is
required for the execution, delivery and performance by the Company and each of the Guarantors of
each of the Transaction Documents to which each is a party, the issuance and sale of the Securities
(and the Guarantees), and compliance by the Company and each of the Guarantors with the terms
thereof and the consummation of the transactions contemplated by the Transaction Documents, except
for such consents, approvals, authorizations, orders, filings and registrations or qualifications
(i) as may be required under applicable state securities laws in connection with the purchase and
resale of the Securities by the Initial Purchasers or (ii) with respect to the Exchange Securities
(and the related guarantees thereof by the Guarantors) as may be required under the Securities Act,
the Trust Indenture Act and applicable state securities laws as contemplated by the Registration
Rights Agreement.
(r) Legal Proceedings. There are no legal, governmental or regulatory investigations, actions,
suits or proceedings pending to which the Company or any of its subsidiaries is a party (or with
respect to any of the foregoing in existence on the date hereof, to which the Company or any of its
subsidiaries could reasonably be expected to become a party) or to which any property of the
Company or any of its subsidiaries is subject (or with respect to any of the foregoing in existence
on the date hereof, to which any such property could reasonably be expected to become subject)
other than (i) as accurately described in each of the Time of Sale Information and the Offering
Memorandum and (ii) that, individually or in the aggregate, would not have a Material Adverse
Effect; and, to the knowledge of the Company and each of the Guarantors, no such investigations,
actions, suits or proceedings are threatened or contemplated by any governmental or regulatory
authority or by others.
(s) Independent Accountants. PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public accountants with respect to
the Company and its subsidiaries within the applicable rules and regulations adopted by the
Commission and the Public Company Accounting Oversight Board (United States) and as required by
Regulation S-X.
(t) Title to Real and Personal Property. Each of the Company and its subsidiaries has (i) good
and defensible title to all of its oil and gas properties (including oil and gas xxxxx, producing
leasehold interests and appurtenant personal property), title investigations having been carried
out by the Company or its subsidiaries consistent with the reasonable practice in the oil and gas
industry in the areas in which the Company and its subsidiaries operate and (ii) good and
marketable title to all other real and personal property owned by the Company and its subsidiaries,
in each case, free and clear of all liens, encumbrances and defects except such as are described in
each of the Time of Sale Information and the Offering Memorandum or such as do not materially
affect the value of the properties of the Company and its subsidiaries, considered as one
enterprise, and do not interfere in any material respect with the use made and proposed to be made
of such properties by the Company and its subsidiaries, considered as one enterprise; and all of
the leases and subleases under which the Company or any of its subsidiaries holds or uses
properties are in full force and effect, with such exceptions as would not reasonably be expected
to have a Material Adverse Effect, and neither the Company nor any of its subsidiaries has any
notice of any material claim of any sort that has been asserted by anyone adverse to the rights of
the Company or its subsidiaries under any of the leases or subleases mentioned above,
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or affecting or questioning the rights of the Company or any subsidiary thereof to the
continued possession or use of the leased or subleased premises. The working interests in oil, gas
and mineral leases or mineral interests which constitute a portion of the real property held by the
Company reflect in all material respects the right of the Company to explore, develop or receive
production from such real property, and the care taken by the Company and its subsidiaries with
respect to acquiring or otherwise procuring such leases or mineral interests was generally
consistent with standard industry practices in the areas in which the Company and its subsidiaries
operate for acquiring or procuring leases and interests therein to explore, develop or produce for
hydrocarbons.
(u) Rights-of-Way. The Company and its subsidiaries have such consents, easements,
rights-of-way or licenses from any person (“rights-of-way”) as are necessary to enable the
Company and its subsidiaries to conduct their business in the manner described in each of the Time
of Sale Information and the Offering Memorandum, subject to such qualifications as may be set forth
in each of the Time of Sale Information and the Offering Memorandum, and except for such
rights-of-way the lack of which would not have, individually or in the aggregate, a Material
Adverse Effect.
(v) Title to Intellectual Property. The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, all patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and trade names currently employed
by them in connection with the business now operated by them, except where the failure to so own or
possess would not, individually or in the aggregate, have a Material Adverse Effect, and neither
the Company nor any of its subsidiaries has received any notice of infringement of or conflict with
asserted rights of others with respect to any of the foregoing, which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be
expected to have a Material Adverse Effect.
(w) No Undisclosed Relationships. No relationship, direct or indirect, exists between or among
the Company or any of its subsidiaries, on the one hand, and the directors, officers,
equityholders, customers or suppliers of the Company or any of its subsidiaries, on the other, that
is required by the Securities Act to be described in a registration statement that is not described
or incorporated by reference in each of the Time of Sale Information and the Offering Memorandum.
There are no outstanding loans, extensions of credit or advances or guarantees of indebtedness by
the Company to or for the benefit of any of the officers or directors of the Company or any of the
members of the families of any of them.
(x) Investment Company Act. Neither the Company nor any of its subsidiaries is, and after
giving effect to the offering and sale of the Securities and the application of the proceeds
thereof as described in each of the Time of Sale Information and the Offering Memorandum under the
heading “Use of proceeds,” none of them will be, an “investment company” or an entity “controlled”
by an “investment company” within the meaning of the Investment Company Act of 1940, as amended,
and the rules and regulations of the Commission thereunder (collectively, the “Investment
Company Act”).
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(y) Taxes. All United States federal income tax returns of the Company and its subsidiaries
required by law to be filed have been filed through the date of this Agreement (taking into account
timely filed extensions) and all taxes shown by such returns or otherwise assessed, which are due
and payable, have been paid, except assessments against which appeals have been or will be promptly
taken and as to which adequate reserves have been provided in accordance with GAAP. The Company
and its subsidiaries have filed all other tax returns that are required to have been filed through
the date of this Agreement (taking into account timely filed extensions) pursuant to applicable
foreign, state, local or other law except insofar as the failure to file such returns would not
result in a Material Adverse Effect, and have paid all taxes due pursuant to such returns or
pursuant to any assessment received by the Company and its subsidiaries, except (i) for such taxes,
if any, as are being contested in good faith and as to which adequate reserves have been provided
in accordance with GAAP, or (ii) insofar as the failure to pay would not result in a Material
Adverse Effect.
(z) Licenses and Permits. The Company and its subsidiaries possess all licenses, certificates,
authorizations and permits issued by, and have made all declarations and filings with, the
appropriate federal, state, local or foreign governmental or regulatory authorities necessary to
own or lease their respective properties and to conduct their respective businesses, except where
the failure to possess such licenses, certificates, authorizations or permits would not,
individually or in the aggregate, have a Material Adverse Effect; and except as described in each
of the Time of Sale Information and the Offering Memorandum, neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the revocation, nonrenewal or
modification of any such license, certificate, authorization or permit which, individually or in
the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be
expected to have a Material Adverse Effect.
(aa) No Labor Disputes. No labor disturbance by or dispute with the employees of the Company
or any of its subsidiaries exists or, to the knowledge of the Company or any of the Guarantors, is
threatened or imminent, except for any such disturbance or dispute that would not reasonably be
expected to have a Material Adverse Effect; and neither the Company nor any Guarantor is aware of
any existing, threatened or imminent labor disturbance by or dispute with the employees of any of
the Company’s or any of the Company’s subsidiaries’ principal suppliers, manufacturers, contractors
or consultants, except as would not, individually or in the aggregate, have a Material Adverse
Effect.
(bb) Compliance With Environmental Laws. The Company and its subsidiaries (i) are in
compliance with any and all applicable federal, state and local laws and regulations relating to
the protection of human health and safety (to the extent such health and safety relate to exposure
to hazardous or toxic substances or wastes, pollutants or contaminants), the environment or
hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii)
have received all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses as they are currently being conducted,
and (iii) are in compliance with all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to receive such required permits,
licenses or other approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, individually or in the aggregate, have a Material Adverse Effect.
There are no costs or liabilities arising under Environmental Laws with
11
respect to the operations or properties of the Company and its subsidiaries (including,
without limitation, any capital or operating expenditures required for clean-up or closure of
properties, compliance with Environmental Laws, any permit, license or approval or any related
legal constraints on operating activities, and any potential liabilities of third parties assumed
under contract by the Company or its subsidiaries) that would, individually or in the aggregate,
have a Material Adverse Effect.
(cc) Compliance with ERISA. Except as would not, individually or in the aggregate, have a
Material Adverse Effect, (i) each employee benefit plan, within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), for which the
Company or any member of its “Controlled Group” (defined as any organization which is a member of a
controlled group of corporations within the meaning of Section 414 of the Internal Revenue Code of
1986, as amended (the “Code”)) would have any liability (each, a “Plan”) has been
maintained in compliance with its terms and the requirements of any applicable statutes, orders,
rules and regulations, including but not limited to ERISA and the Code; (ii) no prohibited
transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred
with respect to any Plan excluding transactions effected pursuant to a statutory or administrative
exemption; (iii) for each Plan that is subject to the funding rules of Section 412 of the Code or
Section 302 of ERISA, no “accumulated funding deficiency” as defined in Section 412 of the Code,
whether or not waived, has occurred or is reasonably expected to occur; (iv) the fair market value
of the assets of each Plan exceeds the present value of all benefits accrued under such Plan
(determined based on those assumptions used to fund such Plan); (v) no “reportable event” (within
the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur; and (vi)
neither the Company nor any member of the Controlled Group has incurred, nor reasonably expects to
incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums to
the PBGC, in the ordinary course and without default) in respect of a Plan (including a
“multiemployer plan”, within the meaning of Section 4001(a)(3) of ERISA).
(dd) Disclosure Controls. The Company and its subsidiaries maintain a system of “disclosure
controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to
ensure that information required to be disclosed by the Company in reports that it files or submits
under the Exchange Act is recorded, processed, summarized and reported within the time periods
specified in the Commission’s rules and forms, including controls and procedures designed to ensure
that such information is accumulated and communicated to the Company’s management as appropriate to
allow timely decisions regarding required disclosure. The Company and its subsidiaries have carried
out evaluations of the effectiveness of their disclosure controls and procedures as required by
Rule 13a-15 of the Exchange Act.
(ee) Accounting Controls. The Company and its subsidiaries maintain a system of “internal
control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply
with the requirements of the Exchange Act and have been designed by, or under the supervision of,
their respective principal executive and principal financial officers, or persons performing
similar functions, to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with GAAP. The
Company and its subsidiaries (A) make and keep books, records and accounts, which, in reasonable
detail, accurately and fairly reflect the transactions and
12
dispositions of their assets and (B) maintain internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance with management’s
general or specific authorizations; (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. Except as
disclosed in each of the Time of Sale Information and the Offering Memorandum, since the end of
Oasis Petroleum LLC’s most recent audited fiscal year, (i) the Company has no reason to believe
that there has been any material weakness in the Company’s internal control over financial
reporting (whether or not remediated) and (ii) there has been no change in the Company’s internal
control over financial reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over financial reporting.
(ff) Insurance. The Company and each of its subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as are prudent and
customary in the businesses in which they are engaged; neither the Company nor any of its
subsidiaries has been refused any insurance coverage sought or applied for; and neither the Company
nor any of its subsidiaries has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that would not have a
Material Adverse Effect, except as described in each of the Time of Sale Information and Offering
Memorandum.
(gg) No Unlawful Payments. Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company and each of the Guarantors, any director, officer, agent, employee or
other person associated with or acting on behalf of the Company or any of its subsidiaries has (i)
used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds; (iii) violated or is in
violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(hh) Compliance with Money Laundering Laws. The operations of the Company and its subsidiaries
are and have been conducted at all times in compliance in all material respects with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of jurisdictions where the Company
and its subsidiaries conduct business, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by any governmental
agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or
before any court or governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best
knowledge of the Company and the Guarantors, threatened.
(ii) Compliance with OFAC. None of the Company, any of its subsidiaries or, to the knowledge
of the Company and the Guarantors, any director, officer, agent, employee or affiliate of the
Company or any of its subsidiaries is currently subject to any U.S. sanctions administered
13
by the Office of Foreign Assets Control of the U.S. Department of the Treasury
(“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering
of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions administered by OFAC.
(jj) Solvency. On and immediately after the Closing Date, the Company (after giving effect to
the issuance of the Securities and the other transactions related thereto as described in each of
the Time of Sale Information and the Offering Memorandum) will be Solvent. As used in this
paragraph, the term “Solvent” means, with respect to a particular date, that on such date
(i) the present fair market value (or present fair saleable value) of the assets of the Company is
not less than the total amount required to pay the liabilities of the Company on its total existing
debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii)
the Company is able to realize upon its assets and pay its debts and other liabilities, contingent
obligations and commitments as they mature and become due in the normal course of business; (iii)
assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Time
of Sale Information and the Offering Memorandum, the Company is not incurring debts or liabilities
beyond its ability to pay as such debts and liabilities mature; (iv) the Company is not engaged in
any business or transaction, and does not propose to engage in any business or transaction, for
which its property would constitute unreasonably small capital after giving due consideration to
the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not
a defendant in any civil action that would result in a judgment that the Company is or would become
unable to satisfy.
(kk) No Restrictions on Subsidiaries. Except as set forth in Section 9.04 of the Credit
Agreement, no subsidiary of the Company is currently prohibited, directly or indirectly, under any
agreement or other instrument to which it is a party or is subject, from paying any dividends to
the Company, from making any other distribution on such subsidiary’s equity securities or similar
ownerships interest, from repaying to the Company any loans or advances to such subsidiary from the
Company or from transferring any of such subsidiary’s properties or assets to the Company or any
other subsidiary of the Company.
(ll) No Broker’s Fees. Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person (other than this Agreement) that would give
rise to a valid claim against the Company or any of its subsidiaries or any Initial Purchaser for a
brokerage commission, finder’s fee or like payment in connection with the offering and sale of the
Securities.
(mm) Rule 144A Eligibility. On the Closing Date, the Securities will not be of the same class
as securities listed on a national securities exchange registered under Section 6 of the Exchange
Act or quoted on an automated inter-dealer quotation system; and each of the Preliminary Offering
Memorandum and the Offering Memorandum, as of its respective date, contains or will contain all the
information that, if requested by a prospective purchaser of the Securities, would be required to
be provided to such prospective purchaser pursuant to Rule 144A(d)(4) under the Securities Act.
14
(nn) No Integration. Neither the Company nor any of its affiliates (as defined in Rule 501(b)
of Regulation D) has, directly or through any agent, sold, offered for sale, solicited offers to
buy or otherwise negotiated in respect of, any security (as defined in the Securities Act), that is
or will be integrated with the sale of the Securities in a manner that would require registration
of the Securities under the Securities Act.
(oo) No General Solicitation or Directed Selling Efforts. None of the Company or any of its
affiliates or any other person acting on its or their behalf (other than the Initial Purchasers, as
to which no representation is made) has (i) solicited offers for, or offered or sold, the
Securities by means of any form of general solicitation or general advertising within the meaning
of Rule 502(c) of Regulation D or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act or (ii) engaged in any directed selling efforts within the
meaning of Regulation S under the Securities Act (“Regulation S”), and all such persons
have complied with the offering restrictions requirement of Regulation S. The sale of the
Securities pursuant to Regulation S is not part of a plan or scheme to evade the registration
provisions of the Securities Act.
(pp) Securities Law Exemptions. Assuming the accuracy of the representations and warranties of
the Initial Purchasers contained in Section 1(b) (including Annex C hereto) and
their compliance with their agreements set forth therein, it is not necessary, in connection with
the issuance and sale of the Securities to the Initial Purchasers and the offer, resale and
delivery of the Securities by the Initial Purchasers in the manner contemplated by this Agreement,
the Time of Sale Information and the Offering Memorandum, to register the offer and sale of the
Securities under the Securities Act or to qualify the Indenture under the Trust Indenture Act.
(qq) No Stabilization. Neither the Company nor any of the Guarantors has taken, directly or
indirectly, any action designed to or that could reasonably be expected to cause or result in any
stabilization or manipulation of the price of the Securities.
(rr) Margin Rules. Neither the issuance, sale and delivery of the Securities nor the
application of the proceeds thereof by the Company as described in each of the Time of Sale
Information and the Offering Memorandum will violate Regulation T, U or X of the Board of Governors
of the Federal Reserve System or any other regulation of such Board of Governors. Each of the
Company and its subsidiaries does not own, and none of the proceeds from the offering of Securities
contemplated hereby will be used directly or indirectly to purchase or carry, any Margin Stock (as
defined in Regulation U of the Board of Governors of the Federal Reserve System).
(ss) Forward-Looking Statements. No forward-looking statement (within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act) contained or incorporated by
reference in any of the Time of Sale Information or the Offering Memorandum has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(tt) Statistical and Market Data. Nothing has come to the attention of the Company or any
Guarantor that has caused the Company or any Guarantor to believe that the statistical and
market-related data included or incorporated by reference in each of the Time of Sale
15
Information and the Offering Memorandum is not based on or derived from sources that are
reliable and accurate in all material respects.
(uu) Engineers; Reserve Reports. The information underlying the estimates of the Company’s and
Oasis Petroleum LLC’s reserves that was supplied to each of XxXxxxxx and XxxXxxxxxxx and X.X. Xxx
Xxxxxx & Co. (the “Reserve Engineers”) for the purposes of preparing the reserve reports
and estimates of the proved reserves of the Company referenced, included or incorporated by
reference in each of the Time of Sale Information and the Offering Memorandum (the “Reserve
Reports”), including production and costs of operation and estimates of future capital
expenditures and other future exploration and development costs, was true and correct in all
material respects on the dates such estimates were made, and such information was supplied and
prepared in good faith, with a reasonable basis and in accordance with customary industry
practices; other than normal production of the reserves, the impact of changes in prices and costs,
and fluctuations in demand for oil and natural gas, and except as disclosed in or contemplated by
each of the Time of Sale Information and the Offering Memorandum, neither the Company nor any of
the Guarantors is aware of any facts or circumstances that would in the aggregate result in a
material adverse change in the aggregate net proved reserves, or the aggregate present value or the
standardized measure of the future net cash flows therefrom, as described in each of the Time of
Sale Information and the Offering Memorandum and as reflected in the Reserve Reports; and the
estimates of such reserves and the standardized measure of such reserves as described in each of
the Time of Sale Information and the Offering Memorandum and reflected in the Reserve Reports
referenced therein have been prepared in a manner that complies with the applicable requirements of
the rules under the Securities Act with respect to such estimates. Each of the Reserve Engineers
was, as of the date of each of the Reserve Reports prepared by them, and are, as of the date
hereof, an independent petroleum engineer with respect to the Company and its subsidiaries.
(vv) Xxxxxxxx-Xxxxx Act. There is and has been no failure on the part of the Company or any of
the Company’s directors or officers, in their capacities as such, to comply with any provision of
the Xxxxxxxx-Xxxxx Act of 2002 (the “Sarbanes Oxley Act”) and the rules and regulations
promulgated in connection therewith, including Section 402 related to loans and Sections 302 and
906, related to certifications.
(ww) Certain Statements and Agreements. The statements relating to legal matters, documents or
proceedings included in each of the Time of Sale Information and the Offering Memorandum under the
captions “Certain United States federal income tax considerations” and “Description of notes” in
each case are accurate in all material respects and fairly summarize such matters, documents or
proceedings. All material contracts, agreements or other documents that are required to be filed
with the SEC as exhibits pursuant to the Securities Act or the Exchange Act have been filed as
required.
(xx) Certain Transactions. Subsequent to the respective dates as of which information is
given in each of the Time of Sale Information and the Offering Memorandum, (i) the Company and its
subsidiaries have not incurred any material liability or obligation, direct or contingent, nor
entered into any material transaction; (ii) the Company has not purchased any of its outstanding
capital stock or equity, nor declared, paid or otherwise made any dividend or distribution of any
kind on its capital stock; and (iii) there has not been any material change in
16
the capital stock or equity, short-term debt or long-term debt of the Company and its
subsidiaries, except in each case as described in each of the Time of Sale Information and the
Offering Memorandum, respectively.
4. Further Agreements of the Company and the Guarantors. The Company and each of the
Guarantors jointly and severally covenant and agree with each Initial Purchaser that:
(a) Delivery of Copies. The Company will deliver, without charge, to the Initial Purchasers as
many copies of the Preliminary Offering Memorandum, any other Time of Sale Information, any Issuer
Written Communication and the Offering Memorandum (including all amendments and supplements
thereto) as the Representative may reasonably request.
(b) Offering Memorandum Amendments or Supplements. Before finalizing the Offering Memorandum
or making or distributing any amendment or supplement to any of the Time of Sale Information or the
Offering Memorandum, or filing with the Commission any document that will be incorporated by
reference therein, the Company will furnish to the Representative and counsel for the Initial
Purchasers a copy thereof for review, and will not distribute any such proposed Offering
Memorandum, amendment or supplement or file any such document with the Commission to which the
Representative reasonably objects.
(c) Additional Written Communications. Before making, preparing, using, authorizing, approving
or referring to any Issuer Written Communication, the Company will furnish to the Representative
and counsel for the Initial Purchasers a copy of such written communication for review and will not
make, prepare, use, authorize, approve or refer to any such written communication to which the
Representative reasonably objects.
(d) Notice to the Representative. The Company will advise the Representative promptly, and
confirm such advice in writing, (i) of the issuance by any governmental or regulatory authority of
any order preventing or suspending the use of any of the Time of Sale Information, any Issuer
Written Communication or the Offering Memorandum or the initiation or threatening of any proceeding
for that purpose; (ii) of the occurrence of any event at any time prior to the completion of the
initial offering of the Securities as a result of which any of the Time of Sale Information, any
Issuer Written Communication or the Offering Memorandum as then amended or supplemented would
include any 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 existing when such Time of Sale
Information, Issuer Written Communication or the Offering Memorandum is delivered to a purchaser,
not misleading; and (iii) of the receipt by the Company of any notice with respect to any
suspension of the qualification of the Securities for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and the Company will use its
reasonable best efforts to prevent the issuance of any such order preventing or suspending the use
of any of the Time of Sale Information, any Issuer Written Communication or the Offering Memorandum
or suspending any such qualification of the Securities and, if any such order is issued, will
obtain as soon as possible the withdrawal thereof.
(e) Time of Sale Information. If at any time prior to the Closing Date (i) any event shall
occur or condition shall exist as a result of which any of the Time of Sale Information as
17
then amended or supplemented would include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (ii) it is necessary to amend or
supplement any of the Time of Sale Information to comply with law, the Company will immediately
notify the Initial Purchasers thereof and forthwith prepare, at the expense of the Company, and,
subject to paragraph (b) above, furnish to the Initial Purchasers such amendments or
supplements to any of the Time of Sale Information (or any document to be filed with the Commission
and incorporated by reference therein) as may be necessary so that the statements in any of the
Time of Sale Information as so amended or supplemented (including such document to be incorporated
by reference therein) will not, in light of the circumstances under which they were made, be
misleading or so that any of the Time of Sale Information will comply with law.
(f) Ongoing Compliance of the Offering Memorandum. If at any time prior to the completion of
the initial offering of the Securities (i) any event shall occur or condition shall exist as a
result of which the Offering Memorandum as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances existing when the Offering Memorandum is
delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the
Offering Memorandum to comply with law, the Company will immediately notify the Initial Purchasers
thereof and forthwith prepare, at the expense of the Company, and, subject to paragraph (b)
above, furnish to the Initial Purchasers such amendments or supplements to the Offering Memorandum
(or any document to be filed with the Commission and incorporated by reference therein) as may be
necessary so that the statements in the Offering Memorandum as so amended or supplemented
(including such document to be incorporated by reference therein) will not, in the light of the
circumstances existing when the Offering Memorandum is delivered to a purchaser, be misleading or
so that the Offering Memorandum will comply with law.
(g) Blue Sky Compliance. The Company will qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representative shall reasonably request
and will continue such qualifications in effect so long as required for the offering and resale of
the Securities; provided that neither the Company nor any of the Guarantors shall be required to
(i) qualify as a foreign corporation or other entity or as a dealer in securities in any such
jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent
to service of process in any such jurisdiction or (iii) subject itself to taxation in any such
jurisdiction if it is not otherwise so subject.
(h) Clear Market. During the period from the date hereof through and including the date that
is 60 days after the date hereof, the Company and each of the Guarantors will not, without the
prior written consent of the Representative, offer, sell, contract to sell or otherwise dispose of
any debt securities issued or guaranteed by the Company or any of the Guarantors and having a tenor
of more than one year.
(i) Use of Proceeds. The Company will apply the net proceeds from the sale of the Securities
as described in each of the Time of Sale Information and the Offering Memorandum under the heading
“Use of proceeds.”
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(j) Supplying Information. While the Securities remain outstanding and are “restricted
securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Company and each of
the Guarantors will, during any period in which the Company is not subject to and in compliance
with Section 13 or 15(d) of the Exchange Act, furnish to holders of the Securities and prospective
purchasers of the Securities designated by such holders, upon the request of such holders or such
prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act.
(k) DTC. The Company will assist the Initial Purchasers in arranging for the Securities to be
eligible for clearance and settlement through DTC.
(l) No Resales by the Company. 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
acquired by any of them, except for Securities purchased by the Company or any of its affiliates
and resold in a transaction registered under the Securities Act.
(m) No Integration. Neither the Company nor any of its affiliates (as defined in Rule 501(b)
of Regulation D) will, directly or through any agent, sell, offer for sale, solicit offers to buy
or otherwise negotiate in respect of, any security (as defined in the Securities Act), that is or
will be integrated with the sale of the Securities in a manner that would require registration of
the Securities under the Securities Act.
(n) No General Solicitation or Directed Selling Efforts. None of the Company, the Guarantors
or any of their respective affiliates or any other person acting on its or their behalf (other than
the Initial Purchasers, as to which no covenant is given) will (i) solicit offers for, or offer or
sell, the Securities by means of any form of general solicitation or general advertising within the
meaning of Rule 502(c) of Regulation D or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act or (ii) engage in any directed selling efforts
(within the meaning of Regulation S), and all such persons will comply with the offering
restrictions requirement of Regulation S.
(o) No Stabilization. Neither the Company nor any of the Guarantors will take, directly or
indirectly, any action designed to or that could reasonably be expected to cause or result in any
stabilization or manipulation of the price of the Securities.
5. Certain Agreements of the Initial Purchasers. Each Initial Purchaser hereby
represents and agrees that it has not and will not use, authorize use of, refer to, or participate
in the planning for use of, any written communication that constitutes an offer to sell or the
solicitation of an offer to buy the Securities other than (i) the Preliminary Offering Memorandum
and the Offering Memorandum, (ii) a written communication that contains no “issuer information” (as
defined in Rule 433(h)(2) under the Securities Act) that was not included (including through
incorporation by reference) in the Preliminary Offering Memorandum or the Offering Memorandum,
(iii) any written communication listed on Annex A or prepared pursuant to Section
4(c) above (including any electronic road show), (iv) any written communication prepared by
such Initial Purchaser and approved by the Company in advance in writing or (v) any written
communication relating to or that contains the terms of the Securities and/or other
19
information that was included (including through incorporation by reference) in the
Preliminary Offering Memorandum or the Offering Memorandum.
6. Conditions of Initial Purchasers’ Obligations. The obligation of each Initial
Purchaser to purchase Securities on the Closing Date as provided herein is subject to the
performance by the Company and each of the Guarantors of their respective covenants and other
obligations hereunder and to the following additional conditions:
(a) Representations and Warranties. The representations and warranties of the Company and the
Guarantors contained herein shall be true and correct on the date hereof and on and as of the
Closing Date; and the statements of the Company, the Guarantors and their respective officers made
in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the
Closing Date.
(b) No Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B) the execution and
delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the
Company or any of its subsidiaries, the Securities or any other debt securities or preferred stock
issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization”, as such term is defined by the Commission for purposes of Section
3(a)(62) under the Exchange Act; and (ii) no such organization shall have indicated that it has
under surveillance or review, or has changed its outlook with respect to, its rating of the
Securities or of any other debt securities or preferred stock issued or guaranteed by the Company
or any of its subsidiaries (other than an announcement with positive implications of a possible
upgrading).
(c) No Material Adverse Change. Subsequent to the execution and delivery of this Agreement, no
event or condition of a type described in Section 3(e) hereof shall have occurred or shall
exist, which event or condition is not described in each of the Time of Sale Information (excluding
any amendment or supplement thereto) and the Offering Memorandum (excluding any amendment or
supplement thereto) the effect of which in the judgment of the Representative makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on
the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the
Offering Memorandum.
(d) Officers’ Certificate. The Representative shall have received on and as of the Closing
Date a certificate of two executive officers of the Company and of each Guarantor who have specific
knowledge of the Company’s or such Guarantor’s financial matters and is satisfactory to the
Representative (i) confirming that such officers have carefully reviewed the Time of Sale
Information and the Offering Memorandum and, to the best knowledge of each such officer, the
representations set forth in Sections 3(a), 3(b) and 3(c) hereof are true
and correct, (ii) confirming that the other representations and warranties of the Company and the
Guarantors in this Agreement are true and correct and that the Company and the Guarantors have
complied with all agreements and satisfied all conditions on their part to be performed or
satisfied hereunder at or prior to the Closing Date, (iii) to the effect set forth in
paragraphs (b) and (c) above and (iv) that, to the knowledge of each such officer,
the statements of the Company and its officers made in any certificates delivered pursuant to this
Agreement are true and correct on and as of the Closing Date.
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(e) Comfort Letters. On the date of this Agreement and on the Closing Date,
PricewaterhouseCoopers LLP shall have furnished to the Representative, at the request of the
Company, letters, dated the respective dates of delivery thereof and addressed to Representative on
behalf of the Initial Purchasers, in form and substance reasonably satisfactory to the
Representative, containing statements and information of the type customarily included in
accountants’ “comfort letters” to underwriters with respect to the financial statements and certain
financial information of the Company and its subsidiaries contained or incorporated by reference in
each of the Time of Sale Information and the Offering Memorandum; provided that the letter
delivered on the date of this Agreement and the Closing Date shall use a “cut-off” date no more
than three business days prior to such date.
(f) Reserve Engineer Letters. The Representative shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may
be, in form and substance satisfactory to the Representative, from each of the Reserve Engineers,
letters containing statements and information ordinarily included in reserve engineers’ “comfort
letters” with respect to the applicable reserve reports and related information contained or
incorporated by reference in the Time of Sale Information or the Offering Memorandum.
(g) Opinion and 10b-5 Statement of Counsel for the Company. The Representative shall have
received the written opinion and 10b-5 statement, dated the Closing Date and addressed to the
Initial Purchasers, from Xxxxxx & Xxxxxx L.L.P., counsel for the Company and the Guarantors, in
substantially the form set forth as Exhibit B and in form and substance reasonably
satisfactory to the Representative and counsel for the Initial Purchasers.
(h) Opinion and 10b-5 Statement of Counsel for the Initial Purchasers. The Representative
shall have received on and as of the Closing Date an opinion and 10b-5 statement of Xxxxxxx Xxxxx
LLP, counsel for the Initial Purchasers, with respect to such matters as the Representative may
reasonably request, and such counsel shall have received such documents and information as they may
reasonably request to enable them to pass upon such matters.
(i) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any federal, state or foreign
governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or
sale of the Securities or the issuance of the Guarantees; and no injunction or order of any
federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent
the issuance or sale of the Securities or the issuance of the Guarantees.
(j) Good Standing. The Representative shall have received on and as of the Closing Date
satisfactory evidence of the good standing of the Company and its subsidiaries in their respective
jurisdictions of organization and their qualification and good standing in such other jurisdictions
in which the conduct of the Company’s and its subsidiaries’ business or ownership or leasing of
property or assets requires such qualification, in each case in writing or any standard form of
telecommunication, from the appropriate governmental authorities of such jurisdictions.
21
(k) Indenture. The Company, the Guarantors and the Trustee shall have entered into the
Indenture in form and substance reasonably satisfactory to the Representative, and the
Representative shall have received a counterpart of the Indenture that shall have been executed and
delivered by the Trustee and a duly authorized officer of the Company and each of the Guarantors.
(l) Registration Rights Agreement. The Representative shall have received a counterpart of the
Registration Rights Agreement that shall have been executed and delivered by a duly authorized
officer of the Company and each of the Guarantors.
(m) DTC. The Securities shall be eligible for clearance and settlement through DTC.
(n) Additional Documents. On or prior to the Closing Date, the Company and the Guarantors
shall have furnished to the Representative such further certificates and documents as the
Representative may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Initial Purchasers.
7. Indemnification and Contribution.
(a) Indemnification of the Initial Purchasers. The Company and each of the Guarantors jointly
and severally agree to indemnify and hold harmless each Initial Purchaser, its affiliates who have,
or who are alleged to have, participated in the distribution of Securities, directors and officers
and each person, if any, who controls (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) such Initial Purchaser, and the successors and assigns of all the
foregoing persons, from and against any and all losses, claims, damages and liabilities (including,
without limitation, legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that
arise out of, or are based upon, any untrue statement or alleged untrue statement of a material
fact contained or incorporated by reference in the Preliminary Offering Memorandum, any of the
other Time of Sale Information, any Issuer Written Communication or the Offering Memorandum (or any
amendment or supplement thereto) or any omission or alleged omission to state therein a material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, in each case except insofar as such losses, claims, damages
or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with any information relating to any
Initial Purchaser furnished to the Company in writing by such Initial Purchaser through the
Representative expressly for use therein, it being understood and agreed that the only such
information furnished by any Initial Purchaser consists of the information described as such in
paragraph (b) below.
(b) Indemnification of the Company. Each Initial Purchaser agrees, severally and not jointly,
to indemnify and hold harmless the Company, each of the Guarantors, each of their respective
directors and officers and each person, if any, who controls the Company or any of the Guarantors
(within the meaning of Section 15 of the Securities Act or Xxxxxxx 00 xx xxx
00
Xxxxxxxx Xxx) to the same extent as the indemnity set forth in paragraph (a) above,
but only with respect to any losses, claims, damages or liabilities that arise out of, or are based
upon, any untrue statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information relating to such Initial Purchaser furnished to the
Company in writing by such Initial Purchaser through the Representative expressly for use in the
Preliminary Offering Memorandum, any of the other Time of Sale Information, any Issuer Written
Communication or the Offering Memorandum (or any amendment or supplement thereto), it being
understood and agreed that the only such information consists of the following: the information
contained in the third and fourth sentences of the tenth paragraph and the twelfth paragraph,
respectively, under the caption “Plan of distribution” in the Preliminary Offering Memorandum and
the Offering Memorandum.
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to either paragraph (a) or
(b) above, such person (the “Indemnified Person”) shall promptly notify the person
against whom such indemnification may be sought (the “Indemnifying Person”) in writing;
provided that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have under paragraph (a) or (b) above except to the extent
that it has been materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and provided, further, that the failure to notify the Indemnifying
Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise
than under paragraph (a) or (b) above. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof,
the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who
shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to
represent the Indemnified Person and any others entitled to indemnification pursuant to this
Section 7 that the Indemnifying Person may designate in such proceeding and shall pay the
fees and expenses of such proceeding and shall pay the fees and expenses of such counsel related to
such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed in writing to the contrary; (ii) the Indemnifying Person has failed within a
reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying Person; or (iv) the
named parties in any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or
related proceeding in the same jurisdiction, be liable for the reasonably incurred fees and
expenses of more than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be paid or reimbursed as they are incurred. Any
such separate firm for any Initial Purchaser, its affiliates, directors and officers and any
control persons of such Initial Purchaser shall be designated in writing by X.X. Xxxxxx Securities
LLC and any such separate firm for the Company, the Guarantors, their respective directors and
officers and any control persons of the Company and the Guarantors shall be designated in
23
writing by the Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent (which shall not be unreasonably withheld), but if
settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an
Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified
Person for fees and expenses of counsel as contemplated by this paragraph (c), the
Indemnifying Person shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after receipt by the
Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the written consent of the Indemnified Person (which shall not
be unreasonably withheld), effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnification could have been
sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional
release of such Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of such proceeding and
(y) does not include any statement as to or any admission of fault, culpability or a failure to act
by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a) and
(b) above is unavailable to an Indemnified Person or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying Person under such
paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by
the Company and the Guarantors on the one hand and the Initial Purchasers on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the Company and the
Guarantors on the one hand and the Initial Purchasers on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative benefits received by the Company and the
Guarantors on the one hand and the Initial Purchasers on the other shall be deemed to be in the
same respective proportions as the net proceeds (before deducting expenses) received by the Company
from the sale of the Securities and the total discounts and commissions received by the Initial
Purchasers in connection therewith, as provided in this Agreement, bear to the aggregate offering
price of the Securities. The relative fault of the Company and the Guarantors on the one hand and
the Initial Purchasers on the other 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 or any Guarantor
or by the Initial Purchasers and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) Limitation on Liability. The Company, the Guarantors and the Initial Purchasers agree that
it would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for
24
such purpose) or by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or payable by an
Indemnified Person as a result of the losses, claims, damages and liabilities referred to in
paragraph (d) above shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses incurred by such Indemnified Person in connection with any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall an Initial
Purchaser be required to contribute any amount in excess of the amount by which the total discounts
and commissions received by such Initial Purchaser with respect to the offering of the Securities
exceeds the amount of any damages that such Initial Purchaser has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Initial Purchasers’ obligations to contribute pursuant to this Section
7 are several in proportion to their respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not
exclusive and shall not limit any rights or remedies that may otherwise be available to any
Indemnified Person at law or in equity.
8. Termination. This Agreement may be terminated in the absolute discretion of the
Representative, by notice to the Company, if after the execution and delivery of this Agreement and
on or prior to the Closing Date (i) trading generally shall have been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices
have been required, on or by any of the New York Stock Exchange, the Nasdaq Global Select Market or
the over-the-counter market; (ii) trading of any securities issued or guaranteed by the Company or
any of the Guarantors shall have been suspended on any exchange or in any over-the-counter market;
(iii) a material disruption in securities settlement, payment or clearance services in the United
States shall have occurred; (iv) a general moratorium on commercial banking activities shall have
been declared by federal or New York State authorities; (v) there shall have occurred any outbreak
or escalation of hostilities or any change in financial markets or any calamity or crisis, either
within or outside the United States, that, in the judgment of the Representative, is material and
adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of
the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale
Information and the Offering Memorandum; or (vi) there has been, since the time of execution of
this Agreement or since the respective dates as of which information is given in the Time of Sale
Information or the Offering Memorandum, any change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and its subsidiaries, taken as
a whole, whether or not arising in the ordinary course of business, that, in the judgment of the
Representative, is material and adverse and makes it impracticable or inadvisable to proceed with
the offering, sale or delivery of the Securities on the terms and in the manner contemplated by
this Agreement, the Time of Sale Information and the Offering Memorandum.
25
9. Defaulting Initial Purchaser.
(a) If, on the Closing Date, any Initial Purchaser defaults on its obligation to purchase the
Securities that it has agreed to purchase hereunder, the non-defaulting Initial Purchasers may in
their discretion arrange for the purchase of such Securities by other persons satisfactory to the
Company on the terms contained in this Agreement. If, within 36 hours after any such default by any
Initial Purchaser, the non-defaulting Initial Purchasers do not arrange for the purchase of such
Securities, then the Company shall be entitled to a further period of 36 hours within which to
procure other persons satisfactory to the non-defaulting Initial Purchasers to purchase such
Securities on such terms. If other persons become obligated or agree to purchase the Securities of
a defaulting Initial Purchaser, either the non-defaulting Initial Purchasers or the Company may
postpone the Closing Date for up to five full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Initial Purchasers may be necessary in
the Time of Sale Information, the Offering Memorandum or in any other document or arrangement, and
the Company agrees to promptly prepare any amendment or supplement to the Time of Sale Information
or the Offering Memorandum that effects any such changes. As used in this Agreement, the term
“Initial Purchaser” includes, for all purposes of this Agreement unless the context
otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this
Section 9, purchases Securities that a defaulting Initial Purchaser agreed but failed to
purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Initial Purchaser or Initial Purchasers by the non-defaulting Initial Purchasers and the
Company as provided in paragraph (a) above, the aggregate principal amount of such
Securities that remains unpurchased does not exceed one-eleventh of the aggregate principal amount
of all the Securities, then the Company shall have the right to require each non-defaulting Initial
Purchaser to purchase the principal amount of Securities that such Initial Purchaser agreed to
purchase hereunder plus such Initial Purchaser’s pro rata share (based on the principal amount of
Securities that such Initial Purchaser agreed to purchase hereunder) of the Securities of such
defaulting Initial Purchaser or Initial Purchasers for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Initial Purchaser or Initial Purchasers by the non-defaulting Initial Purchasers and the
Company as provided in paragraph (a) above, the aggregate principal amount of such
Securities that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all
the Securities, or if the Company shall not exercise the right described in paragraph (b)
above, then this Agreement shall terminate without liability on the part of the non-defaulting
Initial Purchasers. Any termination of this Agreement pursuant to this Section 9 shall be
without liability on the part of the Company or the Guarantors, except that the Company and each of
the Guarantors will continue to be liable for the payment of expenses as set forth in Section
10 hereof and except that the provisions of Section 7 hereof shall not terminate and
shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Initial Purchaser of any liability it
may have to the Company, the Guarantors or any non-defaulting Initial Purchaser for damages caused
by its default.
26
10. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company and each of the Guarantors jointly and severally agree to pay
or cause to be paid all costs and expenses incident to the performance of their respective
obligations hereunder, including without limitation, (i) the costs incident to the authorization,
issuance, sale, preparation and delivery of the Securities and any transfer fees or taxes payable
in that connection; (ii) the costs incident to the preparation, printing of the Preliminary
Offering Memorandum, any other Time of Sale Information, any Issuer Written Communication and the
Offering Memorandum (including any amendment or supplement thereto) and the distribution thereof;
(iii) the costs of reproducing and distributing each of the Transaction Documents; (iv) the fees
and expenses of the Company’s and the Guarantors’ counsel, the independent accountants and reserve
engineers; (v) the fees and expenses incurred in connection with the registration or qualification
and determination of eligibility for investment of the Securities under the laws of such
jurisdictions as the Representative may designate and the preparation, printing and distribution of
a Blue Sky Memorandum (including the related fees and expenses of counsel for the Initial
Purchasers); (vi) any fees charged by rating agencies for rating the Securities; (vii) the fees and
expenses of the Trustee and any paying agent (including related fees and expenses of any counsel to
such parties); (viii) all expenses and application fees incurred in connection with the approval of
the Securities for book-entry transfer by DTC; and (ix) all expenses incurred by the Company in
connection with any “road show” presentation to potential investors (including, without limitation,
expenses associated with the preparation or dissemination of any electronic road show, expenses
associated with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the prior approval of the
Company, travel and lodging expenses of the representatives and officers of the Company and any
such consultants; provided that notwithstanding clause (ix) above, the Initial Purchasers
shall pay one-half of the lease expenses associated with any airplane which is used in connection
with such “road show” presentations.
(b) If (i) this Agreement is terminated pursuant to clauses (ii) or (vi) of
Section 8, (ii) the Company for any reason fails to tender the Securities for delivery to
the Initial Purchasers or (iii) the Initial Purchasers decline to purchase the Securities for any
reason permitted under this Agreement, the Company and each of the Guarantors jointly and severally
agrees to reimburse the Initial Purchasers for all out-of-pocket costs and expenses (including the
fees and expenses of their counsel) reasonably incurred by the Initial Purchasers in connection
with this Agreement and the offering contemplated hereby.
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and any
controlling persons referred to herein, and the affiliates, officers and directors of each Initial
Purchaser referred to in Section 7 hereof. Nothing in this Agreement is intended or shall
be construed to give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein. No purchaser of Securities from any
Initial Purchaser shall be deemed to be a successor merely by reason of such purchase.
12. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company, the Guarantors and the Initial Purchasers contained
27
in this Agreement or made by or on behalf of the Company, the Guarantors or the Initial
Purchasers pursuant to this Agreement or any certificate delivered pursuant hereto shall survive
the delivery of and payment for the Securities and shall remain in full force and effect,
regardless of any termination of this Agreement or any investigation made by or on behalf of the
Company, the Guarantors or the Initial Purchasers.
13. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; (c) the term “Exchange Act” means the Securities Exchange
Act of 1934, as amended; (d) except where otherwise expressly provided, the term “subsidiary” has
the meaning set forth in Rule 405 under the Securities Act; and (e) the term “written
communication” has the meaning set forth in Rule 405 under the Securities Act.
14. Miscellaneous.
(a) Authority of the Representative. Any action by the Initial Purchasers hereunder may be
taken by X.X. Xxxxxx Securities LLC on behalf of the Initial Purchasers, and any such action taken
by X.X. Xxxxxx Securities LLC shall be binding upon the Initial Purchasers.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Initial Purchasers shall be given to the Representative c/o X.X.
Xxxxxx Securities LLC, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: (000) 000-0000);
Attention: Xxxxxxxx Xxxxxx. Notices to the Company and the Guarantors shall be given to them at
0000 Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attention: Xxxx Xxxxxxxxxxx (fax: (000) 000-0000).
(c) Governing Law. This Agreement and any claim, controversy or dispute arising under or
related to this Agreement shall be governed by and construed in accordance with the laws of the
State of New York.
(d) Counterparts. This Agreement may be signed in counterparts (which may include counterparts
delivered by any standard form of telecommunication), each of which shall be an original and all of
which together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
[Signature pages to follow]
28
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
| Very truly yours, OASIS PETROLEUM INC. |
||||
| /s/ Xxxxxx X. Xxxx | ||||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | President and Chief Executive Officer | |||
| OASIS PETROLEUM LLC |
||||
| /s/ Xxxxxx X. Xxxx | ||||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | President and Chief Executive Officer | |||
| OASIS PETROLEUM NORTH AMERICA LLC |
||||
| /s/ Xxxxxx X. Xxxx | ||||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | President and Chief Executive Officer | |||
SIGNATURE PAGE TO PURCHASE AGREEMENT
Accepted: January 28, 2011
X.X. XXXXXX SECURITIES LLC
On behalf of itself and each of the
several Initial Purchasers listed in
Schedule 1 hereto.
several Initial Purchasers listed in
Schedule 1 hereto.
| By: | /s/ Xxxxx Xxxxxx | |||
| Authorized Signatory | ||||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Managing Director | |||
SIGNATURE PAGE TO PURCHASE AGREEMENT
Schedule 1
| Initial Purchaser | Principal Amount | |||
X.X. Xxxxxx Securities LLC |
$ | 140,000,000 | ||
Xxxxx Fargo Securities, LLC |
$ | 100,000,000 | ||
BNP Paribas Securities Corp. |
$ | 40,000,000 | ||
UBS Securities LLC |
$ | 40,000,000 | ||
Xxxxxxx Rice & Company L.L.C. |
$ | 23,000,000 | ||
Xxxxxx Xxxxxx & Company, Inc. |
$ | 11,000,000 | ||
RBS Securities Inc. |
$ | 23,000,000 | ||
Tudor, Pickering, Xxxx & Co. Securities, Inc. |
$ | 23,000,000 | ||
TOTAL: |
$ | 400,000,000 | ||
Schedule 1
Schedule 2
| Guarantors | Jurisdiction of | |
| Name of Subsidiary | Organization | |
OASIS PETROLEUM LLC
|
Delaware | |
OASIS PETROLEUM NORTH AMERICA, LLC
|
Delaware |
Schedule 2
Schedule 3
| Beneficial | ||||||||
| Jurisdiction of | Foreign | Ownership by the | ||||||
| Subsidiary | Organization | Qualifications | Company | |||||
Oasis Petroleum LLC
|
Delaware | Texas | 100 | % | ||||
Oasis Petroleum North America LLC |
Delaware | Montana, North Dakota, South Dakota and Texas | 100 | % | ||||
Oasis Petroleum International LLC |
Delaware | None | 100 | % | ||||
Oasis Petroleum Columbia LLC |
Delaware | None | 100 | % | ||||
Schedule 3
ANNEX A
Additional Time of Sale Information
1. Term sheet containing the terms of the Securities, substantially in the form of Annex B.
Annex A-1
ANNEX B
Pricing Term Sheet
Annex B-1
Supplement, dated January 28, 2011
to Preliminary Offering Memorandum Dated January 24, 2011
Strictly confidential
to Preliminary Offering Memorandum Dated January 24, 2011
Strictly confidential
This Supplement is qualified in its entirety by reference to the Preliminary Offering Memorandum
(as supplemented through and including the date hereof, the “Preliminary Offering
Memorandum”). The information in this Supplement supplements the Preliminary Offering
Memorandum and updates and supersedes the information in the Preliminary Offering Memorandum to the
extent it is inconsistent with the information in the Preliminary Offering Memorandum. Capitalized
terms used in this Supplement but not defined herein have the meanings given them in the
Preliminary Offering Memorandum.
The notes have not been registered under the Securities Act of 1933 and are being offered only to
(1) “qualified institutional buyers” as defined in Rule 144A under the Securities Act and (2)
outside the United States to non-U.S. persons in compliance with Regulation S under the Securities
Act.
Issuer:
|
Oasis Petroleum Inc. | |
Title of Securities:
|
7.25% Senior Notes due 2019 | |
Aggregate Principal Amount:
|
$400,000,000 | |
Gross Proceeds:
|
$400,000,000 | |
Distribution:
|
144A/Regulation S with Registration Rights as set forth in the Preliminary Offering Memorandum | |
Final Maturity Date:
|
February 1, 2019 | |
Issue Price:
|
100% | |
Coupon:
|
7.25% | |
Yield to Maturity:
|
7.25% | |
Spread to Benchmark
Treasury:
|
+429 bps | |
Benchmark Treasury:
|
UST 2.75% due February 15, 2019 | |
Interest Payment Dates:
|
February 1 and August 1 | |
First Interest Payment Date:
|
August 1, 2011 | |
Ratings:
|
Moody’s: Caa1 S&P: B- | |
| A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time. | ||
Optional Redemption:
|
On and after February 1, 2015, in whole or in part, at the |
Annex B-2
| prices set forth below (expressed as percentages of the principal amount), plus accrued and unpaid interest, if any, to the date of redemption, on February 1 of the years set forth below: | ||
| Date | Price | |||||
| 2015 | 103.625% | |||||
| 2016 | 101.813% | |||||
| 2017 and thereafter | 100.000% | |||||
Optional Redemption with Equity Proceeds: |
In addition, prior to February 1, 2014, up to 35% at a redemption price equal to 107.25% of the aggregate principal amount thereof, plus accrued and unpaid interest thereon, if any, to the date of redemption. | |
Change of Control:
|
Putable at 101% of principal, plus accrued and unpaid interest to the date of purchase. | |
CUSIP / ISIN Numbers:
|
144A: 000000XX0 US674215AA68 Regulation S: X00000XX0 USU65204AA40 |
|
Denominations/Multiple:
|
$2,000 x 1,000 | |
Trade Date:
|
January 28, 2011 | |
Settlement:
|
(T+3) on February 2, 2011 | |
Initial Purchasers of
Senior Notes:
|
Joint Book-Running Managers: X.X. Xxxxxx Securities LLC Xxxxx Fargo Securities, LLC BNP Paribas Securities Corp. UBS Securities LLC |
|
| Co-Managers: | ||
| Xxxxxxx Rice & Company L.L.C. | ||
| Xxxxxx Xxxxxx & Company, Inc. | ||
| RBS Securities Inc. | ||
| Tudor, Pickering, Xxxx & Co. Securities, Inc. |
Other Information:
Summary—Our business strategy
The following disclosure under “Summary—Our business strategy—Maintain financial flexibility and
conservative financial position” on page 4 of the Preliminary Offering Memorandum and each other
location where such disclosure appears in the Preliminary Offering Memorandum are amended to read
as follows:
“As of December 31, 2010, we had no outstanding borrowings under our revolving credit facility and
expect to have $671.0 million of liquidity available as a result of this offering, including
approximately $533.5 million in cash and $137.5 million available under our revolving credit
facility after giving effect to our recent amendment to our
Annex B-3
revolving credit facility and increase in the aggregate principal amount of notes offered hereby
from $300 million to $400 million.”
Summary—Recent developments—Amendment to revolving credit facility and redetermination of
borrowing base
The disclosure under “Summary—Recent developments—Amendment to revolving credit facility and
redetermination of borrowing base” on page 5 of the Preliminary Offering Memorandum is supplemented
with the following disclosure:
“As a result of increasing the aggregate principal amount of notes offered hereby from $300 million
to $400 million, our borrowing base will automatically decrease by $12.5 million to $137.5
million.”
Summary—The offering—Ranking
The following disclosure under “Summary—The offering—Ranking” on page 7 if the Preliminary
Offering Memorandum is amended to read as follows:
“As of December 31, 2010, on an as adjusted basis after giving effect to the sale of the notes, the
application of the net proceeds therefrom as described under “Use of proceeds” in this offering
memorandum and the recent adjustments to the borrowing base under our revolving credit facility,
Oasis would have had no indebtedness outstanding, other than the notes, and Oasis would have had
approximately $137.5 million of secured borrowing capacity available under its revolving credit
facility after taking into account approximately $25,000 of outstanding letters of credit. As of
December 31, 2010, the non-guarantor subsidiaries of Oasis had no material assets and no
indebtedness outstanding.”
Summary—Summary historical and reserve data
The fifth sentence of footnote 2 to the table under “Summary—Summary historical and reserve data”
on page 15 and to the table under “Business—Our operations—Estimated proved reserves” on page 82
of the Preliminary Offering Memorandum and each other location where such disclosure appears in the
Preliminary Offering Memorandum are amended to read as follows:
“As of December 31, 2010, the effect of income tax on our discounted future net cash flows was
$212.1 million, resulting in a Standardized Measure of $485.7 million.”
As a result, Standardized Measure at December 31, 2010 in the tables on pages 15 and 82 and each
other location where such disclosure appears in the Preliminary Offering Memorandum will be
increased to $485.7 million.
Risk Factors
The disclosure under “Risk Factors—We may be able to incur substantially more debt. This could
exacerbate the risks associated with our indebtedness.” on page 18 of the Preliminary Offering
Memorandum is supplemented with the following disclosure:
“As a result of increasing the aggregate principal amount of notes offered hereby from $300 million
to $400 million, our borrowing base will automatically decrease by $12.5 million to $137.5
million.”
The disclosure under “Risk Factors—Payment of principal and interest on the notes will be
effectively subordinated to our senior secured debt to the extent of the value of the assets
securing that debt and structurally subordinated to the liabilities of any of our subsidiaries that
do not guarantee the notes.” on page 18 of the Preliminary Offering Memorandum is supplemented with
the following disclosure:
“As a result of increasing the aggregate principal amount of notes offered hereby from $300 million
to $400 million, our borrowing base will automatically decrease by $12.5 million to $137.5
million.”
Annex B-4
The first sentence of the disclosure under “Risk Factors—Our level of indebtedness may increase
and reduce our financial flexibility.” on page 37 of the Preliminary Offering Memorandum is amended
to read as follows:
“At the closing of this offering, we expect to have up to $137.5 million available for future
secured borrowings under our revolving credit facility, subject to periodic borrowing base
redeterminations.”
Use of proceeds
The following disclosure under “Use of proceeds” on page 42 of the Preliminary Offering Memorandum
and each other location where such disclosure may appear in the Preliminary Offering Memorandum are
amended to read as follows:
“We estimate that the net proceeds from this offering will be approximately $390.0 million after
deducting the initial purchasers’ discount and our estimated offering expenses.”
Capitalization
The following numbers in the “As adjusted for this offering” column of the table under
“Capitalization” on page 43 of the Preliminary Offering Memorandum and each other location where
such disclosure may appear in the Preliminary Offering Memorandum are amended to read as follows:
| As of September 30, 2010 | ||||
| As adjusted for | ||||
| this offering | ||||
| (Dollars in thousands, except share amounts) | ||||
Cash and cash equivalents(1) |
$ | 659,623 | ||
Long-term debt: |
||||
Revolving credit facility(2) |
— | |||
7.25% Senior Notes due 2019 |
400,000 | |||
Total long-term debt |
400,000 | |||
Stockholders’ equity: |
||||
Common stock, $0.01 par value; 300,000,000 shares
authorized; 92,216,545 shares issued and outstanding |
920 | |||
Additional paid-in-capital |
639,559 | |||
Retained deficit |
(94,432 | ) | ||
Total stockholders’ equity |
546,047 | |||
Total capitalization |
$ | 946,047 | ||
| (1) | Cash and cash equivalents at December 31, 2010 was $143.5 million. | |
| (2) | On January 21, 2011, we entered into an amendment to our revolving credit facility in order to, among other things, increase the size of the facility from $250 million to $600 million and increase our borrowing base from $120 to $150 million. As a result of increasing the aggregate principal amount of notes offered hereby from $300 million to $400 million, our borrowing base will automatically decrease by $12.5 million to $137.5 million. Please read “Description of other indebtedness.” |
Annex B-5
Management’s discussion and analysis of financial condition and results of operations
The disclosure under “Management’s discussion and analysis of financial condition and results of
operations—Liquidity and capital resources” on page 61 of the Preliminary Offering Memorandum is
supplemented with the following disclosure:
“As a result of increasing the aggregate principal amount of notes offered hereby from $300 million
to $400 million, our borrowing base will automatically decrease by $12.5 million to $137.5
million.”
Description of other indebtedness
The disclosure under “Description of other indebtedness—Our revolving credit facility” on page 112
of the Preliminary Offering Memorandum is supplemented with the following disclosure:
“As a result of increasing the aggregate principal amount of notes offered hereby from $300 million
to $400 million, our borrowing base will automatically decrease by $12.5 million to $137.5
million.”
Any disclaimer or other notice that may appear below is not applicable to this communication and
should be disregarded. Such disclaimer or notice was automatically generated as a result of this
communication being sent by Bloomberg or another email system.
Annex B-6
ANNEX C
Restrictions on Offers and Sales Outside the United States
In connection with offers and sales of the Securities outside the United States:
(a) Each Initial Purchaser 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 pursuant to an exemption from, or in transactions not subject to,
the registration requirements of the Securities Act.
(b) Each Initial Purchaser, severally and not jointly, represents, warrants and agrees that:
(i) Such Initial Purchaser has offered and sold the Securities, and will offer and sell
the Securities, (A) as part of their distribution at any time and (B) otherwise until 40
days after the later of the commencement of the offering of the Securities and the Closing
Date, only in accordance with Regulation S under the Securities Act (“Regulation S”)
or Rule 144A or any other available exemption from registration under the Securities Act.
(ii) None of such Initial Purchaser or any of its affiliates or any other person acting
on its or their behalf has engaged or will engage in any directed selling efforts with
respect to the Securities, and all such persons have complied and will comply with the
offering restrictions requirement of Regulation S.
(iii) At or prior to the confirmation of sale of any Securities sold in reliance on
Regulation S, such Initial Purchaser will have sent to each distributor, dealer or other
person receiving a selling concession, fee or other remuneration that purchases Securities
from it during the distribution compliance period a confirmation or notice to substantially
the following effect:
“The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933, as amended (the “Securities
Act”), and may not be offered 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 commencement of the offering of the Securities and
the date of original issuance of the Securities, except in
accordance with Regulation S or Rule 144A or any other available
exemption from registration under the Securities Act. Terms used
above have the meanings given to them by Regulation S.”
(iv) Such Initial Purchaser has not and will not enter into any contractual arrangement
with any distributor with respect to the distribution of the Securities, except with its
affiliates or with the prior written consent of the Company.
Annex C-1
Terms used in paragraph (a) and this paragraph (b) and not otherwise defined in this Agreement have
the meanings given to them by Regulation S.
(c) Each Initial Purchaser, severally and not jointly, represents, warrants and agrees that:
(i) it has only communicated or caused to be communicated and will only communicate or
cause to be communicated an invitation or inducement to engage in investment activity
(within the meaning of Section 21 of the Financial Services and Markets Act of 2000 (the
“FSMA”)) received by it in connection with the issue or sale of the Securities in
circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(ii) it has complied and will comply with all applicable provisions of the FSMA with
respect to anything done by it in relation to the Securities in, from or otherwise involving
the United Kingdom.
(d) Each Initial Purchaser acknowledges that no action has been or will be taken by the
Company that would permit a public offering of the Securities, or possession or distribution of any
of the Time of Sale Information, the Offering Memorandum, any Issuer Written Communication or any
other offering or publicity material relating to the Securities, in any country or jurisdiction
where action for that purpose is required.
Annex C-2
Exhibit A
Form of Registration Rights Agreement
Form of Registration Rights Agreement
$400,000,000
7.25% Senior Notes due 2019
Registration Rights Agreement
This REGISTRATION RIGHTS AGREEMENT dated February 2, 2011 (the “Agreement”) is entered into
by and among Oasis Petroleum Inc., a Delaware corporation (the “Company”), Oasis Petroleum
LLC, a Delaware limited liability company, and Oasis Petroleum North America, LLC, a Delaware
limited liability company (the “Guarantors”), and X.X. Xxxxxx Securities LLC (“X.X.
Xxxxxx”), Xxxxx Fargo Securities, LLC, BNP Paribas Securities Corp., UBS Securities LLC,
Xxxxxxx Rice & Company L.L.C., Xxxxxx Xxxxxx & Company, Inc., RBS Securities Inc., and Tudor,
Pickering, Xxxx & Co. Securities, Inc. (collectively, the “Initial Purchasers”).
The Company, the Guarantors and the Initial Purchasers are parties to the Purchase Agreement
dated January 28, 2011 (the “Purchase Agreement”), which provides for the sale by the
Company to the Initial Purchasers of $400,000,000 aggregate principal amount of the Company’s 7.25%
Senior Notes due 2019 (the “Securities”) which will be guaranteed on an unsecured senior
basis by each of the Guarantors. As an inducement to the Initial Purchasers to enter into the
Purchase Agreement, the Company and the Guarantors have agreed to provide to the Initial Purchasers
and their direct and indirect transferees the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
15. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
“Additional Guarantor” shall mean any subsidiary of the Company that executes a
Subsidiary Guarantee under the Indenture after the date of this Agreement.
“Business Day” shall mean any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed.
“Company” shall have the meaning set forth in the preamble and shall also include the
Company’s successors.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to
time.
“Exchange Dates” shall have the meaning set forth in Section 2(a)(ii) hereof.
Exhibit A-1
“Exchange Offer” shall mean the exchange offer by the Company and the Guarantors of
Exchange Securities for Registrable Securities pursuant to Section 2(a) hereof.
“Exchange Offer Registration” shall mean a registration under the Securities Act
effected pursuant to Section 2(a) hereof.
“Exchange Offer Registration Statement” shall mean an exchange offer registration
statement on Form S-4 (or, if applicable, on another appropriate form) and all amendments and
supplements to such registration statement, in each case including the Prospectus contained therein
or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.
“Exchange Securities” shall mean senior notes issued by the Company and guaranteed by
the Guarantors under the Indenture containing terms identical to the Securities (except that the
Exchange Securities will not be subject to restrictions on transfer or to any increase in annual
interest rate for failure to comply with this Agreement) and to be offered to Holders of Securities
in exchange for Securities pursuant to the Exchange Offer.
“FINRA” means the Financial Industry Regulatory Authority, Inc.
“Free Writing Prospectus” means each free writing prospectus (as defined in Rule 405
under the Securities Act) prepared by or on behalf of the Company or used or referred to by the
Company in connection with the sale of the Securities or the Exchange Securities.
“Guarantors” shall have the meaning set forth in the preamble and shall also include
any Guarantor’s successors that guarantee the Securities and any Additional Guarantors.
“Holders” shall mean the Initial Purchasers, for so long as they own any Registrable
Securities, and each of their successors, assigns and direct and indirect transferees who become
owners of Registrable Securities under the Indenture; provided that for purposes of
Sections 4 and 5 of this Agreement, the term “Holders” shall include
Participating Broker-Dealers.
“Indemnified Person” shall have the meaning set forth in Section 5(c) hereof.
“Indemnifying Person” shall have the meaning set forth in Section 5(c) hereof.
“Indenture” shall mean the Indenture dated as of February 2, 2011 among the Company
and U.S. Bank National Association, as trustee, as amended and supplemented by the First
Supplemental Indenture relating to the Securities dated as of February 2, 2011 among the Company,
the Guarantors and U.S. Bank National Association, as trustee, and as the same may be further
amended from time to time in accordance with the terms thereof.
“Initial Purchasers” shall have the meaning set forth in the preamble.
“Inspector” shall have the meaning set forth in Section 3(a)(xiv) hereof.
“Issuer Information” shall have the meaning set forth in Section 5(a) hereof.
Exhibit - A-2
“X.X. Xxxxxx” shall have the meaning set forth in the preamble.
“Majority Holders” shall mean the Holders of a majority of the aggregate principal
amount of the outstanding Registrable Securities; provided that whenever the consent or
approval of Holders of a specified percentage of Registrable Securities is required hereunder, any
Registrable Securities owned directly or indirectly by the Company or any of its affiliates shall
not be counted in determining whether such consent or approval was given by the Holders of such
required percentage or amount; and provided, further, that if the Company shall
issue any additional Securities under the Indenture prior to consummation of the Exchange Offer or,
if applicable, the effectiveness of any Shelf Registration Statement, such additional Securities
and the Registrable Securities to which this Agreement relates shall be treated together as one
class for purposes of determining whether the consent or approval of Holders of a specified
percentage of Registrable Securities has been obtained.
“Notice and Questionnaire” shall mean a notice of registration statement and selling
security holder questionnaire distributed to a Holder by the Company upon receipt of a Shelf
Request from such Holder.
“Participating Broker-Dealers” shall have the meaning set forth in Section
4(a) hereof.
“Participating Holder” shall mean any Holder of Registrable Securities that has
returned a completed and signed Notice and Questionnaire to the Company in accordance with
Section 2(b) hereof.
“Person” shall mean an individual, partnership, limited liability company,
corporation, trust or unincorporated organization, or a government or agency or political
subdivision thereof.
“Prospectus” shall mean the prospectus included in, or, pursuant to the rules and
regulations of the Securities Act, deemed a part of, a Registration Statement, including any
preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration Statement, and by all other
amendments and supplements to such prospectus, and in each case including any document incorporated
by reference therein.
“Purchase Agreement” shall have the meaning set forth in the preamble.
“Registrable Securities” shall mean the Securities; provided that the
Securities shall cease to be Registrable Securities (i) when a Registration Statement with respect
to such Securities has become effective under the Securities Act and such Securities have been
exchanged or disposed of pursuant to such Registration Statement or (ii) when such Securities cease
to be outstanding.
“Registration Expenses” shall mean any and all expenses incident to performance of or
compliance by the Company and the Guarantors with this Agreement, including without limitation: (i)
all SEC, stock exchange or FINRA registration and filing fees, (ii) all fees and expenses incurred
in connection with compliance with state securities or blue sky laws (including reasonable fees and
disbursements of counsel for any Underwriters or Holders in connection with blue sky qualification
of any Exchange Securities or Registrable Securities), (iii)
Exhibit - A-3
all expenses of any Persons in preparing or assisting in preparing, word processing, printing
and distributing any Registration Statement, any Prospectus, any Free Writing Prospectus and any
amendments or supplements thereto, any underwriting agreements, securities sales agreements or
other similar agreements and any other documents relating to the performance of and compliance with
this Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating to the
qualification of the Indenture under applicable securities laws, (vi) the fees and disbursements of
the Trustee and its counsel, (vii) the fees and disbursements of counsel for the Company and the
Guarantors and, in the case of a Shelf Registration Statement, the fees and disbursements of one
counsel for the Participating Holders (which counsel shall be selected by the Participating Holders
holding a majority of the aggregate principal amount of Registrable Securities held by such
Participating Holders and which counsel may also be counsel for the Initial Purchasers) and (viii)
the fees and disbursements of the independent public accountants and independent petroleum
engineers of the Company and the Guarantors, including the expenses of any special audits,
“comfort” letters or letters concerning oil and gas reserve estimates, as applicable, required by
or incident to the performance of and compliance with this Agreement, but excluding fees and
expenses of counsel to the Underwriters (other than fees and expenses set forth in clause
(ii) above) or the Holders and underwriting discounts and commissions, brokerage commissions
and transfer taxes, if any, relating to the sale or disposition of Registrable Securities by a
Holder.
“Registration Statement” shall mean any registration statement filed under the
Securities Act of the Company and the Guarantors that covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement and all amendments and
supplements to any such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any
document incorporated by reference therein.
“SEC” shall mean the United States Securities and Exchange Commission.
“Securities” shall have the meaning set forth in the preamble.
“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.
“Shelf Effectiveness Period” shall have the meaning set forth in Section 2(b)
hereof.
“Shelf Registration” shall mean a registration effected pursuant to Section
2(b) hereof.
“Shelf Registration Statement” shall mean a “shelf” registration statement of the
Company and the Guarantors that covers all or a portion of the Registrable Securities (but no other
securities unless approved by a majority in aggregate principal amount of the Registrable
Securities held by the Participating Holders) on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any
document incorporated by reference therein.
“Shelf Request” shall have the meaning set forth in Section 2(b) hereof.
Exhibit - A-4
“Subsidiary Guarantees” shall mean the guarantees of the Securities and Exchange
Securities by the Guarantors under the Indenture.
“Staff” shall mean the staff of the SEC.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended from time
to time.
“Trustee” shall mean the trustee with respect to the Securities under the Indenture.
“Underwriter” shall have the meaning set forth in Section 3(e) hereof.
“Underwritten Offering” shall mean an offering in which Registrable Securities are
sold to an Underwriter for reoffering to the public.
16. Registration Under the Securities Act. (a) To the extent not prohibited by any
applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use
commercially reasonable efforts to (i) cause to be filed an Exchange Offer Registration Statement
covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities
and (ii) have such Registration Statement remain effective until 180 days after the last Exchange
Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall
commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared
effective by the SEC and use commercially reasonable efforts to complete the Exchange Offer not
later than 60 days after such effective date.
The Company and the Guarantors shall commence the Exchange Offer by mailing or making
available the related Prospectus, appropriate letters of transmittal and other accompanying
documents to each Holder stating, in addition to such other disclosures as are required by
applicable law, substantially the following:
| (i) | that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange; | ||
| (ii) | the dates of acceptance for exchange (which shall be a period of at least 20 Business Days from the date such notice is mailed or made available) (the “Exchange Dates”); | ||
| (iii) | that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein; | ||
| (iv) | that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such |
Exhibit - A-5
| Registrable Security, in each case prior to the close of business on the last Exchange Date; and | |||
| (v) | that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) sending to the institution and at the address specified in the notice, a telegram, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. |
As a condition to participating in the Exchange Offer, a Holder will be required to represent
to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be
acquired in the ordinary course of its business, (ii) at the time of the commencement of the
Exchange Offer it has no arrangement or understanding with any Person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of
the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule
405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a
broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable
Securities that were acquired as a result of market-making or other trading activities, then such
Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus
to purchasers) in connection with any resale of such Exchange Securities.
As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
| (i) | accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and | ||
| (ii) | deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. |
The Company and the Guarantors shall use commercially reasonable efforts to complete the
Exchange Offer as provided above and shall comply with the applicable requirements of the
Securities Act, the Exchange Act and other applicable laws and regulations in connection with the
Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate any applicable law or applicable interpretations of the Staff.
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer
Registration provided for in Section 2(a) above is not available or the Exchange Offer may
not be completed as soon as practicable after the last Exchange Date because it would violate any
applicable law or applicable interpretations of the Staff, (ii) the Exchange Offer is not for any
other reason completed by January 28, 2012 or (iii) any Initial Purchaser shall so request
Exhibit - A-6
in connection with any offer or sale of Registrable Securities (a “Shelf Request”),
the Company and the Guarantors shall use commercially reasonable efforts to cause to be filed as
soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf
Registration Statement providing for the sale of all the Registrable Securities by the Holders
thereof and to have such Shelf Registration Statement become effective; provided that no
Holder will be entitled to have any Registrable Securities included in any Shelf Registration
Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement,
until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided
such other information regarding such Holder to the Company as is contemplated by Section
3(b) hereof.
In the event that the Company and the Guarantors are required to file a Shelf Registration
Statement pursuant to clause (iii) of the preceding sentence, the Company and the
Guarantors shall use commercially reasonable efforts to file and have declared effective by the SEC
(or file and become effective automatically, as the case may be) both an Exchange Offer
Registration Statement pursuant to Section 2(a) above with respect to all Registrable
Securities and a Shelf Registration Statement (which may be a combined Registration Statement with
the Exchange Offer Registration Statement) with respect to offers and sales of Registrable
Securities held by the Initial Purchasers after completion of the Exchange Offer.
The Company and the Guarantors agree to use commercially reasonable efforts to keep the Shelf
Registration Statement continuously effective until the earlier of one year following the effective
date of the Shelf Registration Statement and such time as all the Registrable Securities covered by
the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the
“Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement
or amend the Shelf Registration Statement, the related Prospectus and any Free Writing Prospectus
if required by the rules, regulations or instructions applicable to the registration form used by
the Company for such Shelf Registration Statement or by the Securities Act or by any other rules
and regulations thereunder or if reasonably requested by a Participating Holder with respect to
information relating to such Holder, and, to the extent necessary, to use commercially reasonable
efforts to cause any such amendment to become effective and such Shelf Registration Statement,
Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter
practicable. The Company and the Guarantors agree to furnish to the Participating Holders copies
of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any
registration pursuant to Section 2(a) or Section 2(b) hereof. Each Holder shall
pay all underwriting discounts and commissions, brokerage commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf
Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not
be deemed to have become effective unless it has been declared effective by the SEC. A Shelf
Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become
effective unless it has been declared effective by the SEC or is automatically effective upon
filing with the SEC as provided by Rule 462 under the Securities Act.
Exhibit - A-7
In the event that either the Exchange Offer is not completed or the Shelf Registration
Statement, if required hereby, is not declared effective (or does not automatically become
effective) on or prior to January 28, 2012, the Company will pay liquidated damages to Holders of
Registrable Securities with the effect that the interest rate on the Registrable Securities will be
increased by 1.00% per annum until the Exchange Offer is completed or the Shelf Registration
Statement, if required hereby, is declared effective by the SEC (or becomes automatically
effective). All liquidated damages will be paid by the Company on the next scheduled interest
payment date in the same manner as interest is paid on the Securities under the Indenture.
If the Shelf Registration Statement, if required hereby, has been declared effective or
automatically becomes effective, as the case may be, and thereafter either ceases to be effective
or the Prospectus contained therein ceases to be usable at any time during the Shelf Effectiveness
Period, and such failure to remain effective or usable exists for more than 30 days (whether or not
consecutive) in any 12-month period, unless such failure to remain effective or usable relates or
is directly attributable to an acquisition or disposition being undertaken by the Company then the
Company will pay liquidated damages to the Holders of Registrable Securities with the effect that
the interest rate on the Registrable Securities will be increased by 1.00% per annum commencing on
the 31st day in such 12-month period and ending on such date that the Shelf Registration Statement
has again been declared (or automatically becomes) effective or the Prospectus again becomes
usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the
Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply
with their obligations under Section 2(a) and Section 2(b) hereof may result in
material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate
remedy at law, that it will not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief
as may be required to specifically enforce the Company’s and the Guarantors’ obligations under
Section 2(a) and Section 2(b) hereof. The provisions for liquidated damages set
forth in Section 2(d) above shall be the only monetary remedy available to the Holders
under this Agreement.
17. Registration Procedures. (a) In connection with their obligations pursuant to
Section 2(a) and Section 2(b) hereof, the Company and the Guarantors shall as
expeditiously as possible:
| (i) | prepare and file with the SEC a Registration Statement on the appropriate form under the Securities Act, which form (x) shall be selected by the Company and the Guarantors, (y) shall, in the case of a Shelf Registration, be available for the sale of the Registrable Securities by the Participating Holders thereof and (z) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements and oil and gas reserve information required by the SEC to be filed therewith; and use commercially reasonable efforts to cause such Registration Statement to become effective and remain effective for the applicable period in accordance with Section 2 hereof; |
Exhibit - A-8
| (ii) | prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement effective for the applicable period in accordance with Section 2 hereof and cause each Prospectus to be supplemented by any required prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424 under the Securities Act; and keep each Prospectus current during the period described in Section 4(3) of and Rule 174 under the Securities Act that is applicable to transactions by brokers or dealers with respect to the Registrable Securities or Exchange Securities; | ||
| (iii) | to the extent any Free Writing Prospectus is used, file with the SEC any Free Writing Prospectus that is required to be filed by the Company or the Guarantors with the SEC in accordance with the Securities Act and to retain any Free Writing Prospectus not required to be filed; | ||
| (iv) | in the case of a Shelf Registration, furnish to each Participating Holder, to counsel for the Initial Purchasers, to counsel for such Participating Holders and to each Underwriter of an Underwritten Offering of Registrable Securities, if any, without charge, as many copies of each Prospectus, including each preliminary prospectus or Free Writing Prospectus, and any amendment or supplement thereto, as such Participating Holder, counsel or Underwriter may reasonably request in order to facilitate the sale or other disposition of the Registrable Securities thereunder; and, subject to Section 3(c) below, the Company and the Guarantors’ consent to the use of such Prospectus, preliminary prospectus or such Free Writing Prospectus and any amendment or supplement thereto in accordance with applicable law by each of the Participating Holders and any such Underwriters in connection with the offering and sale of the Registrable Securities covered by and in the manner described in such Prospectus, preliminary prospectus or such Free Writing Prospectus or any amendment or supplement thereto in accordance with applicable law; | ||
| (v) | use commercially reasonable efforts to register or qualify the Registrable Securities under all applicable state securities or blue sky laws of such jurisdictions as any Participating Holder shall reasonably request in writing by the time the applicable Registration Statement becomes effective; cooperate with such Participating Holders in connection with any filings required to be made with FINRA, and do any and all other acts and things that may be reasonably necessary or advisable to enable each Participating Holder to complete the disposition in each such jurisdiction of the Registrable Securities owned by such Participating Holder; provided that neither the Company nor any Guarantor shall be required to (1) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (2) file any general consent to service of process in any such jurisdiction or (3) subject itself to taxation in any such jurisdiction if it is not so subject; | ||
| (vi) | notify counsel for the Initial Purchasers and, in the case of a Shelf Registration, notify each Participating Holder and counsel for such Participating Holders |
Exhibit - A-9
| promptly and, if requested by any such Participating Holder or counsel, confirm such advice in writing (1) when a Registration Statement has become effective, when any post-effective amendment thereto has been filed and becomes effective, when any Free Writing Prospectus has been filed or any amendment or supplement to the Prospectus or any Free Writing Prospectus has been filed, (2) of any request by the SEC or any state securities authority for amendments and supplements to a Registration Statement, Prospectus or any Free Writing Prospectus or for additional information after the Registration Statement has become effective, (3) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, including the receipt by the Company of any notice of objection of the SEC to the use of a Shelf Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act, (4) if, between the applicable effective date of a Shelf Registration Statement and the closing of any sale of Registrable Securities covered thereby, the representations and warranties of the Company or any Guarantor contained in any underwriting agreement, securities sales agreement or other similar agreement, if any, relating to an offering of such Registrable Securities cease to be true and correct in all material respects or if the Company or any Guarantor receives any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose, (5) of the happening of any event during the period a Registration Statement is effective that makes any statement made in such Registration Statement or the related Prospectus or any Free Writing Prospectus untrue in any material respect or that requires the making of any changes in such Registration Statement or Prospectus or any Free Writing Prospectus in order to make the statements therein, in the light of the circumstances in which they were made in the case of the Prospectus or any Free Writing Prospectus, not misleading and (6) of any determination by the Company or any Guarantor that a post-effective amendment to a Registration Statement or any amendment or supplement to the Prospectus or any Free Writing Prospectus would be appropriate; | |||
| (vii) | use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement or, in the case of a Shelf Registration, the resolution of any objection of the SEC pursuant to Rule 401(g)(2) under the Securities Act, including by filing an amendment to such Registration Statement on the proper form, at the earliest practicable moment and provide immediate notice to each Holder or Participating Holder of the withdrawal of any such order or such resolution; | ||
| (viii) | in the case of a Shelf Registration, furnish or make available to each Participating Holder, without charge, at least one conformed copy of each Registration Statement and any post-effective amendment thereto (without any documents incorporated therein by reference or exhibits thereto, unless requested); |
Exhibit - A-10
| (ix) | in the case of a Shelf Registration, cooperate with the Participating Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends and enable such Registrable Securities to be issued in such denominations and registered in such names (consistent with the provisions of the Indenture) as such Participating Holders may reasonably request at least one Business Day prior to the closing of any sale of Registrable Securities; | ||
| (x) | upon the occurrence of any event contemplated by Section 3(a)(vi)(5) hereof, use commercially reasonable efforts to prepare and file with the SEC a supplement or post-effective amendment to the Exchange Offer Registration Statement or Shelf Registration Statement or the related Prospectus or any Free Writing Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered (or, to the extent permitted by law, made available) to purchasers of the Registrable Securities, such Prospectus or Free Writing Prospectus, as the case may be, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the Company and the Guarantors shall notify the Participating Holders (in the case of a Shelf Registration Statement) and the Initial Purchasers and any Participating Broker-Dealers known to the Company (in the case of the Exchange Offer Registration Statement) to suspend use of the Prospectus or any Free Writing Prospectus as promptly as practicable after the occurrence of such an event, and such Participating Holders, such Participating Broker-Dealers and the Initial Purchasers, as applicable, hereby agree to suspend use of the Prospectus or any Free Writing Prospectus, as the case may be, until the Company and the Guarantors have amended or supplemented the Prospectus or the Free Writing Prospectus, as the case may be, to correct such misstatement or omission; provided that the obligations under this Section 3(a)(x) with respect to the Exchange Offer Registration Statement shall terminate at the end of the period set forth in Section 2(a)(ii) of this Agreement; | ||
| (xi) | a reasonable time prior to the filing of any Registration Statement, any Prospectus, any Free Writing Prospectus, any amendment to a Registration Statement or amendment or supplement to a Prospectus or a Free Writing Prospectus, provide copies of such document to the Initial Purchasers and their counsel (and, in the case of a Shelf Registration Statement, to the Participating Holders and their counsel) and make such of the representatives of the Company and the Guarantors as shall be reasonably requested by the Initial Purchasers or their counsel (and, in the case of a Shelf Registration Statement, the Participating Holders or their counsel) available for discussion of such document; and the Company and the Guarantors shall not, at any time after initial filing of a Registration Statement, use or file any Prospectus, any Free Writing Prospectus, any amendment of or supplement to a Registration Statement, a Prospectus or a Free Writing Prospectus, of which the Initial Purchasers and their counsel (and, in the case of a Shelf Registration Statement, the Participating Holders and their counsel) shall not have previously been advised and furnished a copy or to which |
Exhibit - A-11
| the Initial Purchasers or their counsel (and, in the case of a Shelf Registration Statement, the Participating Holders or their counsel) shall reasonably object; | |||
| (xii) | obtain a CUSIP number for all Exchange Securities or Registrable Securities, as the case may be, not later than the initial effective date of a Registration Statement; | ||
| (xiii) | cause the Indenture to be qualified under the Trust Indenture Act in connection with the registration of the Exchange Securities or Registrable Securities, as the case may be; cooperate with the Trustee and the Holders to effect such changes to the Indenture as may be required for the Indenture to be so qualified in accordance with the terms of the Trust Indenture Act; and execute, and use commercially reasonable efforts to cause the Trustee to execute, all documents as may be required to effect such changes and all other forms and documents required to be filed with the SEC to enable the Indenture to be so qualified in a timely manner; | ||
| (xiv) | in the case of a Shelf Registration, make available for inspection by a representative of the Participating Holders (an “Inspector”), any Underwriter participating in any disposition pursuant to such Shelf Registration Statement, any attorneys and accountants designated by a majority in aggregate principal amount of the Registrable Securities held by the Participating Holders and any attorneys and accountants designated by such Underwriter, at reasonable times and in a reasonable manner, all pertinent financial and other records, documents and properties of the Company and its subsidiaries, and cause the respective officers, directors and employees of the Company and the Guarantors to supply all information reasonably requested by any such Inspector, Underwriter, attorney or accountant in connection with a Shelf Registration Statement; provided that if any such information is identified by the Company or any Guarantor as being confidential or proprietary, each Person receiving such information shall take such actions as are reasonably necessary to protect the confidentiality of such information to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of any Inspector, Participating Holder or Underwriter; | ||
| (xv) | if reasonably requested by any Participating Holder, promptly include in a Prospectus supplement or post-effective amendment such information with respect to such Participating Holder as such Participating Holder reasonably requests to be included therein and make all required filings of such Prospectus supplement or such post-effective amendment as soon as the Company has received notification of the matters to be so included in such filing; | ||
| (xvi) | in the case of a Shelf Registration, enter into such customary agreements and take all such other commercially reasonable actions in connection therewith (including those requested by the Participating Holders of a majority in principal amount of the Registrable Securities covered by the Shelf Registration Statement) in order to expedite or facilitate the disposition of such Registrable Securities including, but |
Exhibit - A-12
| not limited to, an Underwritten Offering and in such connection, (1) to the extent possible, make such representations and warranties to the Participating Holders and any Underwriters of such Registrable Securities with respect to the business of the Company and its subsidiaries and the Registration Statement, Prospectus, any Free Writing Prospectus and documents incorporated by reference or deemed incorporated by reference, if any, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings and confirm the same if and when requested, (2) obtain opinions of counsel to the Company and the Guarantors (which counsel and opinions, in form, scope and substance, shall be reasonably satisfactory to the Participating Holders and such Underwriters and their respective counsel) addressed to each Participating Holder and Underwriter of Registrable Securities, covering the matters customarily covered in opinions requested in underwritten offerings, (3) obtain “comfort” letters from the independent certified public accountants of the Company and the Guarantors (and, if necessary, any other certified public accountant of any subsidiary of the Company or the Guarantors, or of any business acquired by the Company or the Guarantors for which financial statements and financial data are or are required to be included in the Registration Statement) addressed to each Participating Holder (to the extent permitted by applicable professional standards) and Underwriter of Registrable Securities, such letters to be in customary form and covering matters of the type customarily covered in “comfort” letters in connection with underwritten offerings, including but not limited to financial information contained in any preliminary prospectus, Prospectus or Free Writing Prospectus, (4) obtain oil and gas reserve report letters from any independent petroleum engineering firms whose reports relating to the Company’s reserves have, prior to the date of such Shelf Registration, been previously publicly disclosed in a filing by the Company and (5) deliver such documents and certificates as may be reasonably requested by the Participating Holders of a majority in principal amount of the Registrable Securities being sold or the Underwriters, and which are customarily delivered in underwritten offerings, to evidence the continued validity of the representations and warranties of the Company and the Guarantors made pursuant to clause (1) above and to evidence compliance with any customary conditions contained in an underwriting agreement; and | |||
| (xvii) | So long as any Registrable Securities remain outstanding, cause each Additional Guarantor upon the creation or acquisition by the Company of such Additional Guarantor, to execute a counterpart to this Agreement in the form attached hereto as Annex A and to deliver such counterpart, together with an opinion of counsel as to the enforceability thereof against such entity, to the Initial Purchasers no later than five Business Days following the execution thereof. |
(b) In the case of a Shelf Registration Statement, the Company may require each Holder of
Registrable Securities to furnish to the Company a Notice and Questionnaire and such other
information regarding such Holder and the proposed disposition by such Holder of such Registrable
Securities as the Company and the Guarantors may from time to time reasonably request in writing.
Exhibit - A-13
(c) Each Participating Holder agrees that, upon receipt of any notice from the Company and the
Guarantors of the happening of any event of the kind described in Section 3(a)(vi)(3) or
Section 3(a)(vi)(5) hereof, such Participating Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the Shelf Registration Statement until such
Participating Holder’s receipt of the copies of the supplemented or amended Prospectus and any Free
Writing Prospectus contemplated by Section 3(a)(x) hereof and, if so directed by the
Company and the Guarantors, such Participating Holder will deliver to the Company and the
Guarantors all copies in its possession, other than permanent file copies then in such
Participating Holder’s possession, of the Prospectus and any Free Writing Prospectus covering such
Registrable Securities that is current at the time of receipt of such notice.
(d) If the Company and the Guarantors shall give any notice to suspend the disposition of
Registrable Securities pursuant to a Registration Statement, the Company and the Guarantors shall
extend the period during which such Registration Statement shall be maintained effective pursuant
to this Agreement by the number of days during the period from and including the date of the giving
of such notice to and including the date when the Holders of such Registrable Securities shall have
received copies of the supplemented or amended Prospectus or any Free Writing Prospectus necessary
to resume such dispositions. The Company and the Guarantors may give any such notice only twice
during any 365-day period and any such suspensions shall not exceed 30 days for each suspension and
there shall not be more than two suspensions in effect during any 365-day period.
(e) The Participating Holders who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment bank or investment banks
and manager or managers (each an “Underwriter”) that will administer the offering will be
selected by the Holders of a majority in principal amount of the Registrable Securities included in
such offering; provided, however, that such Underwriter must be reasonably satisfactory to the
Company.
18. Participation of Broker-Dealers in Exchange Offer. (a) The Staff has taken the
position that any broker-dealer that receives Exchange Securities for its own account in the
Exchange Offer in exchange for Securities that were acquired by such broker-dealer as a result of
market-making or other trading activities (a “Participating Broker-Dealer”) may be deemed
to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus
meeting the requirements of the Securities Act in connection with any resale of such Exchange
Securities.
The Company and the Guarantors understand that it is the Staff’s position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution
containing a statement to the above effect and the means by which Participating Broker-Dealers may
resell the Exchange Securities, without naming the Participating Broker-Dealers or specifying the
amount of Exchange Securities owned by them, such Prospectus may be delivered by Participating
Broker-Dealers (or, to the extent permitted by law, made available to purchasers) to satisfy their
prospectus delivery obligation under the Securities Act in connection with resales of Exchange
Securities for their own accounts, so long as the Prospectus otherwise meets the requirements of
the Securities Act.
Exhibit - A-14
(b) In light of the above, and notwithstanding the other provisions of this Agreement, the
Company and the Guarantors agree to amend or supplement the Prospectus contained in the Exchange
Offer Registration Statement for a period of up to 180 days after the last Exchange Date (as such
period may be extended pursuant to Section 3(d) of this Agreement), in order to expedite or
facilitate the disposition of any Exchange Securities by Participating Broker-Dealers consistent
with the positions of the Staff recited in Section 4(a) above. The Company and the
Guarantors further agree that Participating Broker-Dealers shall be authorized to deliver such
Prospectus (or, to the extent permitted by law, make available) during such period in connection
with the resales contemplated by this Section 4.
(c) The Initial Purchasers shall have no liability to the Company, any Guarantor or any Holder
with respect to any request that they may make pursuant to Section 4(b) above.
19. Indemnification and Contribution. (a) The Company and the Guarantors, jointly and
severally, agree to indemnify and hold harmless each Initial Purchaser and each Holder, their
respective affiliates, directors and officers and each Person, if any, who controls any Initial
Purchaser or any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and liabilities (including,
without limitation, legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that
arise out of, or are based upon, (1) any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or any 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, or (2) any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus, any Free Writing Prospectus or any “issuer information” (“Issuer
Information”) filed or required to be filed pursuant to Rule 433(d) under the Securities Act,
or any omission or alleged omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading,
in each case except insofar as such losses, claims, damages or liabilities arise out of, or are
based upon, any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to any Initial Purchaser or
information relating to any Holder furnished to the Company in writing through X.X. Xxxxxx or any
selling Holder expressly for use therein. In connection with any Underwritten Offering permitted
by Section 3, the Company and the Guarantors, jointly and severally, will also indemnify
the Underwriters, if any, selling brokers, dealers and similar securities industry professionals
participating in the distribution, their respective affiliates and each Person who controls such
Persons (within the meaning of the Securities Act and the Exchange Act) to the same extent as
provided above with respect to the indemnification of the Holders, if requested in connection with
any Registration Statement, any Prospectus, any Free Writing Prospectus or any Issuer Information.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company,
the Guarantors, the Initial Purchasers and the other selling Holders, the directors of the Company
and the Guarantors, each officer of the Company and the Guarantors who signed the Registration
Statement and each Person, if any, who controls the Company, the Guarantors, any Initial Purchaser
and any other selling Holder within the meaning of Section 15
Exhibit - A-15
of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity
set forth in paragraph (a) above, but only with respect to any losses, claims, damages or
liabilities that arise out of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with any information relating
to such Holder furnished to the Company in writing by such Holder expressly for use in any
Registration Statement, any Prospectus and any Free Writing Prospectus.
(c) If any suit, action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any Person in respect of which indemnification
may be sought pursuant to either paragraph (a) or (b) above, such Person (the
“Indemnified Person”) shall promptly notify the Person against whom such indemnification
may be sought (the “Indemnifying Person”) in writing; provided that the failure to
notify the Indemnifying Person shall not relieve it from any liability that it may have under
paragraph (a) or (b) above except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b)
above. If any such proceeding shall be brought or asserted against an Indemnified Person and
it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain
counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and
any others entitled to indemnification pursuant to this Section 5 that the Indemnifying
Person may designate in such proceeding and shall pay the fees and expenses of such counsel related
to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it that are different
from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any
such proceeding (including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be
reimbursed as they are incurred. Any such separate firm (x) for any Initial Purchaser, its
affiliates, directors and officers and any control Persons of such Initial Purchaser shall be
designated in writing by X.X. Xxxxxx, (y) for any Holder, its directors and officers and any
control Persons of such Holder shall be designated in writing by the Majority Holders and (z) in
all other cases shall be designated in writing by the Company. The Indemnifying Person shall not
be liable for any settlement of any proceeding effected without its written consent, but if settled
with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees
to indemnify each Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable
for any settlement of any proceeding effected without its written consent
if
Exhibit - A-16
(i) such settlement is entered into more than 30 days after receipt by the Indemnifying Person
of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person
in accordance with such request prior to the date of such settlement. No Indemnifying Person
shall, without the written consent of the Indemnified Person, effect any settlement of any pending
or threatened proceeding in respect of which any Indemnified Person is or could have been a party
and indemnification could have been sought hereunder by such Indemnified Person, unless such
settlement (A) includes an unconditional release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability on claims that are the
subject matter of such proceeding and (B) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d) If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company and the
Guarantors from the offering of the Securities and the Exchange Securities, on the one hand, and by
the Holders from receiving Securities or Exchange Securities registered under the Securities Act,
on the other hand, or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Company and the Guarantors on
the one hand and the Holders on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Guarantors on the one hand and the
Holders on the other 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 and the Guarantors or by the Holders and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The Company, the Guarantors and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 5 were determined by pro rata allocation (even if
the Holders were treated as one entity for such purpose) or by any other method of allocation that
does not take account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such Indemnified Person in
connection with any such action or claim. Notwithstanding the provisions of this Section
5, in no event shall a Holder be required to contribute any amount in excess of the amount by
which the total price at which the Securities or Exchange Securities sold by such Holder exceeds
the amount of any damages that such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent misrepresentation. The Holders’
obligations to contribute pursuant to this Section 5 are several and not joint.
Exhibit - A-17
(f) The remedies provided for in this Section 5 are not exclusive and shall not limit
any rights or remedies that may otherwise be available to any Indemnified Person at law or in
equity.
(g) The indemnity and contribution provisions contained in this Section 5 shall remain
operative and in full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of the Initial Purchasers or any Holder or any Person
controlling any Initial Purchaser or any Holder, or by or on behalf of the Company or the
Guarantors or the officers or directors of or any Person controlling the Company or the Guarantors,
(iii) acceptance of any of the Exchange Securities and (iv) any sale of Registrable Securities
pursuant to a Shelf Registration Statement.
20. General.
(a) No Inconsistent Agreements. The Company and the Guarantors represent, warrant and agree
that (i) the rights granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of any other outstanding securities issued or
guaranteed by the Company or any Guarantor under any other agreement and (ii) neither the Company
nor any Guarantor has entered into, or on or after the date of this Agreement will enter into, any
agreement that is inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given unless the Company and the Guarantors have obtained the
written consent of Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement, waiver or consent;
provided that no amendment, modification, supplement, waiver or consent to any departure
from the provisions of Section 5 hereof or any provision that could affect adversely the
rights of any Holder of Registrable Securities to receive liquidated damages in the amount and on
the payment dates as provided in Section 2(d) shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder. Any amendments,
modifications, supplements, waivers or consents pursuant to this Section 6(b) shall be by a
writing executed by each of the parties hereto.
(c) Notices. All notices and other communications provided for or permitted hereunder shall
be made in writing by hand-delivery, registered first-class mail, telex, telecopier, or any courier
guaranteeing overnight delivery (i) if to a Holder, at the most current address given by such
Holder to the Company by means of a notice given in accordance with the provisions of this
Section 6(c), which address initially is, with respect to the Initial Purchasers, the
address set forth in the Purchase Agreement; (ii) if to the Company and the Guarantors, initially
at the Company’s address set forth in the Purchase Agreement and thereafter at such other address,
notice of which is given in accordance with the provisions of this Section 6(c); and (iii)
to such other persons at their respective addresses as provided in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance with the provisions of
this Section 6(c). All such notices and communications shall be deemed to have been duly
Exhibit - A-18
given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged, if telecopied; and
on the next Business Day if timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be concurrently delivered by the
Person giving the same to the Trustee, at the address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors, assigns and transferees of each of the parties, including, without limitation and
without the need for an express assignment, subsequent Holders; provided that nothing
herein shall be deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or the Indenture. If any transferee
of any Holder shall acquire Registrable Securities in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all the terms of this Agreement,
and by taking and holding such Registrable Securities such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of this Agreement and
such Person shall be entitled to receive the benefits hereof. The Initial Purchasers (in their
capacity as Initial Purchasers) shall have no liability or obligation to the Company or the
Guarantors with respect to any failure by a Holder to comply with, or any breach by any Holder of,
any of the obligations of such Holder under this Agreement.
(e) Third Party Beneficiaries. Each Holder shall be a third party beneficiary to the
agreements made hereunder between the Company and the Guarantors, on the one hand, and the Initial
Purchasers, on the other hand, and shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its rights or the rights of
other Holders hereunder.
(f) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of reference only, are not a
part of this Agreement and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. This Agreement, and any claim, controversy or dispute arising under or
related to this Agreement, shall be governed by and construed in accordance with the laws of the
State of New York.
(i) Entire Agreement; Severability. This Agreement contains the entire agreement between the
parties relating to the subject matter hereof and supersedes all oral statements and prior writings
with respect thereto. If any term, provision, covenant or restriction contained in this Agreement
is held by a court of competent jurisdiction to be invalid, void or unenforceable or against public
policy, the remainder of the terms, provisions, covenants and restrictions contained herein shall
remain in full force and effect and shall in no way be affected, impaired or invalidated. The
Company, the Guarantors and the Initial Purchasers shall endeavor in good faith negotiations to
replace the invalid, void or unenforceable provisions with valid
Exhibit - A-19
provisions the economic effect of which comes as close as possible to that of the invalid,
void or unenforceable provisions.
[Signature Page to Follow.]
Exhibit - A-20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| OASIS PETROLEUM INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| OASIS PETROLEUM LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| OASIS PETROLEUM NORTH AMERICA LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Confirmed and accepted as of the date first above written:
X.X. XXXXXX SECURITIES LLC
For itself and on behalf of the several Initial Purchasers
For itself and on behalf of the several Initial Purchasers
| By | ||||
| Authorized Signatory | ||||
[Signature Page to Registration Rights Agreement]
Annex A
Counterpart to Registration Rights Agreement
The undersigned hereby absolutely, unconditionally and irrevocably agrees as a Guarantor (as
defined in the Registration Rights Agreement, dated February 2, 2011 by and among Oasis Petroleum
Inc., a Delaware corporation, the guarantors party thereto and X.X. Xxxxxx Securities LLC, on
behalf of itself and the other Initial Purchasers) to be bound by the terms and provisions of such
Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned has executed this counterpart as of ,
201 .
| [GUARANTOR] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Annex A
Exhibit B
Form of Company Counsel Opinion
The following legal opinion points shall be limited to (a) the General Corporation Law and the
Limited Liability Company Act of the State of Delaware and (b) the laws of (i) the State of New
York, (ii) the State of Texas and (iii) the United States of America.
1. The Company is validly existing as a corporation and in good standing under the laws of the
State of Delaware. Each of the Guarantors is validly existing as a limited liability company and
in good standing under the laws of the State of Delaware.
2. The Company has the corporate power and corporate authority under the laws of the State of
Delaware to (i) execute and deliver, and incur and perform all of its obligations under, the
Purchase Agreement, the Registration Rights Agreement, the Base Indenture, the Supplemental
Indenture and the Securities (collectively the “Transaction Documents”) and (ii) carry on
its business and own its properties as described in the Time of Sale Information and the Offering
Memorandum. Each of the Guarantors has the limited liability company power and authority under the
laws of the State of Delaware to (i) execute and deliver, and to incur and perform all of its
obligations under, the Transaction Documents to which it is a party and (ii) carry on its business
and own its properties as described in the Time of Sale Information and the Offering Memorandum.
3. Each of the Transaction Documents has been duly authorized, executed and delivered by the
Company. The Exchange Securities have been duly authorized by the Company. Each of the Purchase
Agreement, the Registration Rights Agreement and the Supplemental Indenture has been duly
authorized, executed and delivered by each of the Guarantors.
4. None of the execution and delivery of, or the incurrence or performance by the Company and
the Guarantors (collectively, the “Obligors”) of their respective obligations under, each
of the Transaction Documents to which it is a party, each in accordance with its terms, (A)
constituted, constitutes or will constitute a violation under any provision of the Delaware Limited
Liability Company Act, Delaware General Corporation Law, Regulation T, U or X of the Board of
Governors of the Federal Reserve System or the applicable laws of the State of Texas, State of New
York or U. S. federal law, (B) constituted, constitutes or will constitute a violation under the
certificate of incorporation, certificate of formation, bylaws, operating agreement or limited
liability company agreement or any other formation or governing document of the Company or the
Guarantors, (C) constituted, constitutes, or will constitute a breach or violation of, or a default
(or an event which, with notice or lapse of time or both, would constitute such a default) under
any agreement or other instrument binding upon the Company or any of the Subsidiaries filed as an
exhibit to the Company’s Registration Statement on Form S-1 (File No. 333-165212) or any periodic
or current report filed by the Company prior to Closing (the “Applicable Agreements”) ,
(D) resulted, results or will result in the creation of any security interest in, or lien upon, any
of the property or assets of any Obligor pursuant to any of the Applicable Agreements, or (E) to
such counsel’s knowledge, any judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any Subsidiary,
Exhibit B-1
except for any contravention described in clauses (A) or (C) which would not, individually or
in the aggregate, have a Material Adverse Effect.
5. No consent, approval, authorization or order of, or qualification or filing with, any
governmental body or agency is required for the execution and delivery by each of the Company and
the Guarantors of, or the performance or incurrence by the Company or the Guarantors of their
respective obligations under, the Transaction Documents or the consummation of the transactions
thereunder, except (A) as have been or will be obtained or made on or prior to the Closing Date,
(B) registration of the Exchange Offer or resale of the Securities under the Securities Act
pursuant to the Registration Rights Agreement, and qualification of the Indenture under the Trust
Indenture Act of 1939, as amended (the “Trust Indenture Act”), in connection with the
issuance of the Exchange Securities or (C) where the failure to obtain such consent, approval,
authorization, order or qualification would not reasonably be expected to have a Material Adverse
Effect or materially impair the ability of the Company and Guarantors to consummate the
transactions contemplated by the Transaction Documents.
6. The statements under the caption “Description of notes” in the Preliminary Offering
Memorandum as supplemented by the Pricing Term Sheet and in the Offering Memorandum, insofar as
such statements purport to summarize certain provisions of documents referred to therein and
reviewed by us as described above, fairly summarize such provisions in all material respects,
subject to the qualifications and assumptions stated therein.
7. The statements in the Preliminary Offering Memorandum and the Offering Memorandum under the
caption “Certain United States federal income tax considerations,” insofar as they refer to
statements of law or legal conclusions, fairly summarize the matters referred to therein in all
material respects, subject to the qualifications and assumptions stated therein.
8. The Indenture constitutes a valid and binding obligation of each of the Obligors,
enforceable against each of them in accordance with its terms, under the laws of the State of New
York, except as such enforceability may be limited by the Enforceability Exceptions; and the
Indenture conforms in all material respects with the requirements of the Trust Indenture Act and
the rules and regulations of the Commission applicable to an indenture that is qualified
thereunder.
9. When authenticated by the Trustee in the manner provided in the Indenture and delivered to
and paid for by the Initial Purchasers in accordance with the Purchase Agreement, the Securities
will constitute valid and binding obligations of the Company, entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their terms, under the laws of the
State of New York, except as such enforceability may be limited by the Enforceability Exceptions.
10. When the Securities have been authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the Initial Purchasers in accordance with the Purchase
Agreement, the guarantee of the Securities included in the Indenture will constitute a valid and
binding obligation of the Guarantors, enforceable against the Guarantors in accordance with the
terms of the Indenture, under the laws of the State of New York, except as such enforceability may
be limited by the Enforceability Exceptions.
Exhibit B-2
11. When validly executed by the Company and authenticated by the Trustee in the manner
provided in the Indenture and delivered in exchange for Initial Securities pursuant to the Exchange
Offer contemplated by the Registration Rights Agreement, the Exchange Securities will constitute
valid and binding obligations of the Company, entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, under the laws of the State of New
York, except as such enforceability may be limited by the Enforceability Exceptions.
12. When the Exchange Securities have been validly executed by the Company and authenticated
by the Trustee in accordance with the provisions of the Indenture and delivered in exchange for
Initial Securities pursuant to the Exchange Offer contemplated by the Registration Rights
Agreement, the guarantee included in the Indenture of the Exchange Securities will constitute a
valid and binding obligation of the Guarantors, enforceable against the Guarantors in accordance
with the terms of the Indenture, under the laws of the State of New York, except as such
enforceability may be limited by the Enforceability Exceptions.
13. The Registration Rights Agreement constitutes a valid and binding obligation of each of
the Obligors, enforceable against each of them in accordance with its terms, under the laws of the
State of New York, except as such enforceability may be limited by the Enforceability Exceptions.
14. (A) Assuming the accuracy of the representations, warranties and covenants of the
Company, Guarantors and Initial Purchasers set forth in ( ), ( ), ( ) in the Purchase Agreement,
the offer, issue, sale and delivery of the Securities (and the guaranties thereof by the
Guarantors) to the Initial Purchasers and the initial resale of the Securities (and the guaranties
thereof by the Guarantors) by the Initial Purchasers, each in the manner contemplated by the
Purchase Agreement and the Offering Memorandum, do not require registration under the Securities
Act, and (B) prior to the consummation of the Exchange Offer or the effectiveness of the Shelf
Registration Statement (as defined in the Registration Rights Agreement), such offer, issue, sale
and delivery of the Securities (and the guaranties thereof by the Guarantors) and such initial
resale of the Securities (and the guaranties thereof by the Guarantors) do not require
qualification of the Indenture under the Trust Indenture Act, as amended, provided, however, that
we express no opinion as to any subsequent resale of any Security (and the guaranties thereof by
the Guarantors) or any Exchange Security (and the guaranties thereof by the Guarantors).
15. The Company and the Guarantors are not, and immediately after giving effect to the
issuance and sale of the Securities pursuant to the Purchase Agreement and the application of
proceeds therefrom as described in the Preliminary Offering Memorandum as supplemented by the
Pricing Term Sheet and in the Offering Memorandum, will not be, an “investment company” within the
meaning of said term as used in the Investment Company Act of 1940, as amended.
16. In a case properly argued and presented, a Texas court or a United States federal court
sitting in Texas and applying Texas conflict of law principles as set out in Chapter 271 of the
Texas Business and Commerce Code, would give effect to the provisions of the Securities and the
provisions of the Indenture that purport to require that the rights and obligations of the parties
thereto are to be governed by and construed in accordance with the laws of the State of New York.
Exhibit B-3
In addition, we have participated in conferences with officers and other representatives of
the Obligors, the independent registered public accounting firm and the reserve engineer for the
Obligors, your counsel and your representatives at which the contents of the Time of Sale
Information and the Offering Memorandum and related matters were discussed and, although we have
not independently verified and are not passing upon, and do not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the Time of Sale Information and
the Offering Memorandum (except as and to the extent set forth in paragraphs 6 and 7 above), on the
basis of the foregoing (relying as to factual matters to the extent we deem reasonable upon
statements of fact made to us by representatives of the Obligors), no facts have come to our
attention that have led us to believe that (i) the Time of Sale Information, as of 12:15 p.m.
(Eastern Standard Time) on January 28, 2011 contained an untrue statement of a material fact or
omitted to state any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (ii) the Offering Memorandum, as of
its date and as of the date hereof, contained or contains an untrue statement of a material fact or
omitted or omits to state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, it being understood that we express
no statement or belief with respect to (i) the historical financial statements and related
schedules, including the notes and schedules thereto and the auditor’s report thereon (and any
other financial or accounting data derived therefrom) and (ii) oil and natural gas reserve
estimates, in each case included in, or excluded from, the Offering Memorandum or the Time of Sale
Information.
Exhibit B-4
