ENERGY XXI GULF COAST, INC. Series B 16% Second Lien Junior Secured Notes due 2014 Common Stock NOTE AND COMMON STOCK PURCHASE AGREEMENT
ENERGY
XXI GULF COAST, INC.
Series
B 16% Second Lien Junior Secured Notes due 2014
Common
Stock
NOTE AND
COMMON STOCK PURCHASE AGREEMENT (the “Agreement”) by and among Energy XXI Gulf
Coast, Inc., a Delaware corporation (the “Company”), Energy XXI (Bermuda)
Limited, a Bermuda company and the ultimate parent of the Company (“Parent”),
Energy XXI USA, Inc., a Delaware corporation (“Intermediate Holdco”) and the
other guarantors under the indenture referred to below (the “Subsidiary
Guarantors” and, together with Parent and Intermediate Holdco, the “Guarantors”)
and the Purchasers listed on the signature page hereto (the
“Purchasers”). The Company and the Guarantors shall be referred to
herein as the “Company Parties”.
WHEREAS:
(A) The
Company proposes to issue and sell (i) $60,000,000 in aggregate principal amount
of its Series B 16% Second Lien Junior Secured Notes due 2014 (the “Notes”), and
(ii) 13,224,720 shares of common stock of Parent (the “Shares” and, together
with the Notes, the “Securities”). The Securities will be offered and
sold to the Purchasers in a transaction (the “Offering”) exempt from the
registration requirements of the Securities Act of 1933, as amended, and the
rules and regulations of the Securities and Exchange Commission (the
“Commission”) thereunder (collectively, the “Securities Act”) in a private
placement without being registered under the Securities Act in reliance upon
Section 4(2) thereof and/or Regulation D thereunder (“Regulation
D”).
(B) Prior to
or concurrently with the closing of the Offering, (i) the Company Parties will
enter into an amendment to the Amended and Restated First Lien Credit Agreement
with the Lenders party thereto and The Royal Bank of Scotland plc, as
Administrative Agent (the “Agent”) of the Lenders (such credit agreement, such
amendment and all related loan documents, collectively, the “Credit Agreement”)
and (ii) the Agent and the Required Lenders (as defined in the Credit Agreement)
will enter into an Intercreditor Agreement with the Trustee (as defined below)
on mutually satisfactory terms (the “Intercreditor Agreement”).
(C) The Notes
will be issued pursuant to an indenture (the “Indenture”), to be entered into
between the Company, Parent, the other Guarantors and Wilmington Trust Company,
as trustee (the “Trustee”). Pursuant to the Indenture, the
Guarantors, other than Intermediate Holdco. shall fully and unconditionally
guarantee, and Intermediate Holdco will guarantee to the extent provided in the
CIM (as defined below), to each holder of the Notes and the Trustee, the payment
and performance of the Company’s obligations under the Indenture and the Notes
(each such guarantee being referred to herein as a “Guarantee”).
(D) Holders
of the Securities will be entitled to the benefits of a registration rights
agreement (the “Registration Rights Agreement”) to be entered into among the
Company Parties and the Purchasers pursuant to which the Company Parties will
agree, among other things to (i) file a registration statement (the
“Registration Statement”) with the Commission for a registered offer (the
“Exchange Offer”) to exchange any and all of the Notes for a like aggregate
principal amount of notes that are identical in all material respects to the
Notes (the “Exchange Notes”) except that the Exchange Notes will not contain
terms with respect to transfer restrictions or liquidated damages, (ii) use
their reasonable best efforts to cause the Registration Statement to be declared
effective under the Securities Act and (iii) use their reasonable best efforts
to consummate the Exchange Offer, in each case, within the timeframe, and
subject to the provisions contained therein.
(E) This
Agreement, the Credit Agreement, the Intercreditor Agreement, the Indenture, the
security and collateral documents listed on Annex D hereto and the Registration
Rights Agreement are referred to herein collectively as the “Transaction
Documents,” and the transactions contemplated hereby and thereby are referred to
herein collectively as the “Transactions.” This Agreement, the Registration
Rights Agreement and the Indenture are referred herein collectively as the
“Purchase Documents.”
(F) The
Company has prepared a confidential information memorandum relating to the
Offering, dated the date hereof relating to the Offering (including annexes,
exhibits and schedules thereto and documents incorporated by reference therein,
the “CIM”).
NOW,
THEREFORE, each of the Company Parties hereby agrees and, the Purchasers hereby
severally agree as follows:
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1.
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PURCHASE AND SALE OF
SECURITIES.
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(a) Purchase and Sale of
Securities.
(i) Closing. Subject
to the satisfaction (or waiver) of the conditions set forth in Sections 5 and 6, at the closing of
the Offering (the “Closing”), the Company shall issue and sell to the several
Purchasers, and the Purchasers severally agree to purchase from the Company on
the Closing Date (as defined below), the principal amount of Notes and the
Shares (free and clear of all liens and encumbrances) set forth in Schedule I hereto;
provided,
however, that if the number of Shares to be issued to a Purchaser pursuant to
Schedule I
would result in such Purchaser (together with its affiliates) owning 10% or more
of the outstanding shares of common stock of Parent, such Purchaser will instead
receive a reduced number of Shares (such reduction made pro rata with any of its
affiliates also purchasing Notes) such that it will own the greatest number of
shares (rounded down to the nearest whole share) that it (together with its
affiliates) can own at the Closing and still remain below ownership of 10% of
the outstanding common stock of the Parent. The Closing shall occur at the
offices of Xxxxxx & Xxxxxx LLP, First City Tower, 0000 Xxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxx 00000-0000.
(ii) Determination of Closing
Date. The date and time of the Closing (the “Closing Date”) shall be 10:00
a.m., New York City time, on October 2, 2009 (or such later date as is mutually
agreed to by the Company and the Purchasers); provided, however, that if
the Closing has not taken place on such Closing Date because of a failure to
satisfy one or more of the conditions specified in Section 5 or Section 6 hereof,
“Closing Date” shall mean 10:00 a.m., New York City time, on the first day that
is not a Saturday, a Sunday or other day on which commercial banks in New York,
New York are required or authorized by law to remain closed (a “Business Day”)
following the satisfaction (or waiver) of all such conditions after notification
by the Company to the Purchasers of the satisfaction (or waiver) of such
conditions (but in no event later than October 15, 2009 without the consent of
each of the Purchasers).
(iii) Purchase
Price. The purchase price for the Securities to be purchased
by the several Purchasers at the Closing (in the aggregate, the “Purchase
Price”) shall be as set forth on Schedule I hereto and
the payment of the Purchase Price shall be made by the Purchasers by wire
transfer of immediately available funds in accordance with the instructions
provided in Schedule
II hereto
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2.
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PURCHASERS’
REPRESENTATIONS AND
WARRANTIES.
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Each
Purchaser represents and warrants, severally and not jointly, that:
(a) No Public Sale or
Distribution. The Purchaser is acquiring the Securities for
its own account and not with a view towards, or for resale in connection with,
the public sale or distribution thereof in a manner that would violate the
Securities Act; provided, however, that by making the
representations herein, the Purchaser does not agree to hold any of the
Securities for any minimum or other specific term and reserves the right to
dispose of the Securities at any time in accordance with or pursuant to a
registration statement or an exemption under the Securities Act and, with
respect to the Notes, subject to the terms of the Notes and the
Indenture. The Purchaser is acquiring the Securities hereunder in the
ordinary course of its business. The Purchaser does not presently
have any agreement or understanding, directly or indirectly, with any Person to
distribute any of the Securities. As used in this Agreement, “Person”
means an individual, a limited liability company, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization and a government
or any department or agency thereof.
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(b) Purchaser
Status. Each of the Purchasers acknowledges that it is one of
the following:
(i) an
institutional “accredited investor” as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D; or
(ii) a
“qualified institutional buyer” as defined in Rule 144A(a)(1) under the
Securities Act.
Such
Purchaser also acknowledges that it has the knowledge and experience in
financial and business matters as are necessary in order to evaluate the merits
and risks of an investment in the Securities. Such Purchaser
understands that the acquisition of the Securities is a speculative investment
and involves substantial risks and the Purchaser could lose its entire
investment in the Securities.
(c) Reliance on
Exemptions. The Purchaser understands that the Securities are
being offered and sold in reliance on specific exemptions from the registration
requirements of United States federal and state securities laws and that the
Company is relying in part upon the truth and accuracy of, and the Purchasers’
compliance with, the representations, warranties, agreements, acknowledgments
and understandings of the Purchasers set forth herein in order to determine the
availability of such exemptions and the eligibility of the Purchasers to acquire
the Securities.
(d) Information. The
Purchaser and its advisors, if any, have (i) had access to the Company SEC
Documents (as defined below) and (ii) been afforded the opportunity to ask
questions of the Company. The Purchaser understands that its
investment in the Securities involves a high degree of risk and is able to bear
the economic risk of such investment. The Purchaser has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of its investment in the Securities and has
sought such accounting, legal and tax advice as it has considered necessary to
make an informed investment decision with respect to its acquisition of the
Securities.
(e) No Governmental
Review. The Purchaser understands that no United States agency
or any other government or governmental agency has passed on or made any
recommendation or endorsement of the Securities or the fairness or suitability
of the investment in the Securities nor have such authorities passed upon or
endorsed the merits of the offering of the Securities.
(f) Transfer or
Resale. The Purchaser understands that: (i) the Securities
have not been and will not be registered under the Securities Act or any state
securities laws; and (ii) the Purchaser agrees that if it decides to offer, sell
or otherwise transfer any of the Securities, such Securities may be offered,
sold or otherwise transferred only: (A) pursuant to an effective registration
statement under the Securities Act; (B) to the Company; (C) outside the United
States in accordance with Regulation S under the Securities Act and in
compliance with local laws; or (D) within the United States (1) in accordance
with the exemption from registration under the Securities Act and in compliance
with any applicable state securities laws, or (2) in a transaction that does not
require registration under the Securities Act or applicable state securities
laws.
(g) Legends. The
Purchaser understands that upon the original issuance thereof, and until such
time as the same is no longer required under applicable requirements of the
Securities Act or applicable state securities laws, (A) the certificates or
other instruments representing the Notes and all certificates or other
instruments issued in exchange therefor or in substitution thereof, shall bear
the legend(s) set forth in the Indenture, and that the Company will make a
notation on its records and give instructions to the Trustee in order to
implement the restrictions on transfer of the Notes, set forth and described
therein, and (B) the Share certificates shall bear the legend set forth
below:
“THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR ANY STATE OR NON-U.S. SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
UNITED STATES ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.
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THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A
“QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT (“RULE 144A”)), OR (B) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN
THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS
SIX MONTHS (OR SUCH SHORTER PERIOD AS MAY BE PRESCRIBED BY RULE 144 (OR ANY
SUCCESSOR PROVISION THEREOF) UNDER THE SECURITIES ACT) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY, ONLY (A) TO THE COMPANY
OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF
SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT
IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND THE SECURITIES LAWS OF ANY
OTHER JURISDICTION, INCLUDING ANY STATE OF THE UNITED STATES, SUBJECT TO THE
COMPANY'S AND THE TRUSTEE'S, OR TRANSFER AGENT'S, AS APPLICABLE, RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
REASONABLY SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.”;
and that
the Parent will make a notation on its records and give instructions to the
transfer agent for its Shares in order to implement the restrictions on transfer
of the Shares set forth and described herein.
(h) Validity;
Enforcement. The Purchaser has all necessary power and
authority to execute and deliver this Agreement and the Registration Rights
Agreement and to perform its obligations hereunder and thereunder; this
Agreement and the Registration Rights Agreement have been duly authorized by the
Purchaser, and, when executed and delivered by the Purchaser, will constitute a
valid and binding agreement of the Purchaser, enforceable against the Purchaser
in accordance with its terms, except as such enforceability may be limited by
general principles of equity or by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws relating to, or
affecting generally, the enforcement of applicable creditors’ rights and
remedies.
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(i) Residency. For
purposes of U.S. securities laws, the Purchaser is a resident of the
jurisdiction specified with respect to such Purchaser on Annex A
hereto.
(j) Suitability and Reliance on
Own Advisors. The Purchaser has carefully considered, and has,
to the extent the Purchaser deems necessary, discussed with the Purchaser’s own
professional legal, tax and financial advisers the suitability of an investment
in the Securities for the Purchaser’s particular tax and financial situation,
and the Purchaser has determined that the Securities are a suitable investment
for the Purchaser. Such Purchaser has not relied upon the Company
Parties or its advisers for legal or tax advice.
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3.
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REPRESENTATIONS AND
WARRANTIES OF THE COMPANY
PARTIES.
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In
addition to the other representations, warranties and agreements contained in
the Agreement, each of the Company Parties hereby represents, warrants and
agrees with, the Purchasers as follows:
(a) SEC Filings and the
Xxxxxxxx-Xxxxx Act.
(i) The
Company Parties have filed with or furnished to the Commission all reports,
schedules, forms, statements, prospectuses, registration statements and other
documents required to be filed or furnished by the Company Parties since June
30, 2007 (collectively, together with any exhibits and schedules thereto and
other information incorporated therein, the “Company SEC
Documents”).
(ii) As of its
filing date (and as of the date of any amendment), each Company SEC Document
complied, and each Company SEC Document filed subsequent to the date hereof will
comply, in all material respects with the applicable requirements of the
Securities Act and the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission (collectively, the “Exchange Act”), as
the case may be.
(iii) As of its
filing date (or, if amended or superseded by a filing prior to the date hereof,
on the date of such filing), each Company SEC Document filed pursuant to the
Exchange Act, and the CIM (together with the Company SEC Documents, the “Company
Documents”) did not, and each Company SEC Document filed subsequent to the date
hereof will not, contain 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.
(b) The Transaction
Documents. Each of the Company Parties has all necessary power
and authority to execute and deliver the Transaction Documents to which it is a
party and to perform its respective obligations thereunder; each of the
Transaction Documents has been duly authorized by the Company Parties, as the
case may be, and, when executed and delivered by the Company Parties, as the
case may be, will constitute a valid and binding agreement of the Company
Parties, as the case may be, enforceable against the Company Parties, as the
case may be, in accordance with its terms, except as such enforceability may be
limited by general principles of equity or by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws relating to, or
affecting generally, the enforcement of applicable creditors’ rights and
remedies; and the Indenture, when executed and delivered by the Company Parties
will meet the requirements for qualification under the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission thereunder
(collectively, the “Trust Indenture Act”).
(c) The
Securities. The Company has all necessary power and authority
to execute, issue and deliver the Securities; the Securities have been duly
authorized for issuance and sale by the Company, the Notes will be in the form
contemplated by the Indenture and, when the Notes are executed, authenticated
and issued in accordance with the terms of the Indenture and delivered to and
paid for by the Purchasers pursuant to this Agreement, will constitute valid and
binding obligations of the Company, entitled to the benefits of the Indenture,
enforceable against the Company in accordance with their terms, except as such
enforceability may be limited by general principles of equity or by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation and other
similar laws relating to, or affecting generally, the enforcement of applicable
creditors’ rights and remedies; and the Shares, when issued in accordance with
the terms of this Agreement, will be fully paid and non-assessable and will not
have been issued in violation of any pre-emptive or similar rights.
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(d) The
Guarantees. Each of the Guarantors has all necessary power and
authority to execute, issue and deliver its respective Guarantee; the Guarantees
have been duly authorized for issuance and sale by each of the Guarantors, will
be in the form contemplated by the Indenture and, when executed and the
Guarantees issued in accordance with the terms of the Indenture, will constitute
valid and binding obligations of each of the Guarantors, entitled to the
benefits of the Indenture, enforceable against each of the Guarantors in
accordance with their terms, except as such enforceability may be limited by
general principles of equity or by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws relating to, or
affecting generally, the enforcement of applicable creditors’ rights and
remedies.
(e) The Exchange Notes and
Related Guarantees. Each of the Company Parties has all
necessary power and authority to execute, issue and deliver the Exchange Notes
and the related Guarantees to which they are a party; the Exchange Notes and the
related Guarantees have been duly authorized for issuance and sale by the
Company Parties, as the case may be, will be in the form contemplated by the
Indenture and, when executed, authenticated and issued in accordance with the
terms of the Indenture and delivered to and exchanged for the Notes and the
related Guarantees, as the case may be, will constitute valid and binding
obligations of the Company Parties, as the case may be, entitled to the benefits
of the Indenture, enforceable against the Company Parties, as the case may be,
in accordance with their terms.
(f) No Material Adverse
Change. Except as otherwise disclosed in the CIM, and for the
period from and after the date of the CIM through the Closing Date: (i) since
June 30, 2009, there has been no material adverse change, or any development
that could reasonably be expected to result in a material adverse change, in the
condition, financial or otherwise, or in the earnings, business or operations,
whether or not arising from transactions in the ordinary course of business, of
the Company and its subsidiaries, considered as one entity or Parent and its
subsidiaries (any such change is called a “Material Adverse Change”); (ii)
Parent, Intermediate Holdco or the Company and its subsidiaries, considered as
one entity, have not incurred any material liability or obligation (including
any off-balance sheet obligation), indirect, direct or contingent, not in the
ordinary course of business nor entered into any material transaction or
agreement not in the ordinary course of business; and (iii) there has been no
dividend or distribution of any kind declared, paid or made by the Company,
Intermediate Holdco, or Parent, except for dividends paid to the Company or
other subsidiaries, any of the Company’s subsidiaries on any class of capital
stock or repurchase or redemption by the Company or Parent or any of its
subsidiaries of any class of capital stock.
(g) Going Concern of
Company. On the Closing Date, after giving effect to the
offering and sale of the Securities and the application of the proceeds thereof
as described in the CIM, and the other transactions contemplated thereby, (i)
the fair value and present fair saleable value of the assets of the Company and
its subsidiaries on a going concern basis will exceed the sum of its stated
liabilities and identified contingent liabilities; and (ii) each of the Company
and its subsidiaries will not be (a) left with unreasonably small capital with
which to carry on its business as it is proposed to be conducted, (b) unable to
pay its debts (contingent or otherwise) as they mature or (c) otherwise
insolvent. In computing the amount of such contingent liabilities at
any time, such liabilities will be computed at the amount that, in the light of
all the facts and circumstances existing at such time, represent the amount that
can reasonably be expected to become an actual or matured
liability.
(h) Independent
Accountants. UHY, LLP, who have expressed their opinion with
respect to the financial statements of the Parent (which includes the related
notes thereto) included in the Parent’s Form 10-K for the year ended June 30,
2009 are (i) independent public or certified public accountants as required by
the Exchange Act, (ii) in compliance with the applicable requirements relating
to the qualification of accountants under Rule 2-01 of Regulation S-X and (iii)
a registered public accounting firm as defined by the Public Company Accounting
Oversight Board whose registration has not been suspended or revoked and who has
not requested such registration to be withdrawn.
(i) Preparation of the Financial
Statements. The financial statements contained in the CIM,
present fairly in all material respects the consolidated financial position of
the Parent and its subsidiaries as of and at the dates indicated and the results
of each of their respective operations and cash flows for the periods
specified. All such financial statements have been prepared in
conformity in all material respects with generally accepted accounting
principles (“GAAP”) applied on a consistent basis throughout the periods
involved, except as otherwise stated in the CIM. The financial data
set forth in the CIM, and the financial data set forth or to be set forth in the
CIM will as of its date, fairly present the information set forth therein on a
basis consistent with that of the audited and unaudited financial statements
contained in the CIM.
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(j) Incorporation and Good
Standing of the Company Parties. Each of the Company Parties
has been duly incorporated or organized and is validly existing as a
corporation, partnership or limited liability company, as applicable, in good
standing under the laws of the jurisdiction of its incorporation or organization
and has the power and authority (corporate or other) to own, lease and operate
its properties and to conduct its business as described in the CIM as of its
date, and to enter into and perform its obligations under each of the
Transaction Documents to which it is a party. Each of the Company
Parties is duly qualified as a foreign corporation, partnership or limited
liability company, as applicable, to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business, except where
the failure to be so qualified would not, individually or in the aggregate, have
a material adverse effect on the financial position, stockholders’ equity,
results of operations or business of the Company or Parent (a “Material Adverse
Effect”). All of the issued and outstanding capital stock or other
equity or ownership interest of each of the Subsidiary Guarantors has been duly
authorized and validly issued, is fully paid and nonassessable and is owned by
the Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, charge, encumbrance or adverse claim, except
as disclosed in the CIM. Parent does not, directly or indirectly, own
any securities of any entity other than Energy XXI (US Holdings) Limited,
Intermediate Holdco, the Company and each of their subsidiaries. The
Company does not own or control, and as of the Closing Date, the Company will
not own or control, directly or indirectly, any corporation, association or
other entity other than the subsidiaries listed on Annex B hereto, nor
does the Company hold any equity or debt securities or other interests in any
other entity, other than as set forth in Annex B
hereto.
(k) Capitalization and Other
Capital Stock Matters. The capitalization of the Company and
its subsidiaries presented on a consolidated basis in the CIM under the caption
“Capitalization” under the column “Actual” is a fair summary of such
capitalization in all material respects. All the outstanding shares
of capital stock in the Company have been duly authorized and validly issued,
are fully paid and nonassessable and were not issued in violation of any
preemptive or subscription rights. There are no options, calls,
warrants or convertible or exchangeable securities, or conversion, preemptive,
subscription or other rights, or agreements, arrangements or commitments, in any
such case, obligating or which may obligate the Company to issue, sell,
purchase, return or redeem any shares of its capital stock or securities
convertible into or exchangeable for any shares of its capital stock, other than
as described in the CIM. There are no shares of any capital stock of
the Company reserved for issuance, other than as described in the
CIM. There are no capital appreciation rights, phantom stock plans,
securities with participation rights or features, or similar obligations and
commitments of the Company, other than as described in the CIM. There
are no capital contributions with respect to the Company that are owed or that
have been called which have not been capitalized.
(l) Non-Contravention of
Existing Instruments; No Further Authorizations or Approvals
Required. None of the Company Parties (i) is in violation of
its charter or by laws, (ii) is in default (or, with the giving of notice or
lapse of time, would be in default or constitute a default) (“Default”) under
any indenture, mortgage, loan or credit agreement, note, contract, franchise,
lease or other instrument to which any of the Company Parties is a party or by
which it or any of them may be bound, or to which any of the property or assets
of the Company Parties is subject (each, an “Existing Instrument”), or (iii) is
in violation of any law, administrative regulation or administrative or court
decree applicable to any of the Company Parties except with respect to clauses
(ii) and (iii) of this sentence, for such Defaults or violations as would not,
individually or in the aggregate, result in a Material Adverse
Effect. The Company Parties’ execution, delivery and performance of
the Transaction Documents to which they are a party and the consummation of the
Transactions, including the issuance and sale of the Securities, (x) will not
result in any violation of the provisions of the charter or bylaws of any of the
Company Parties, (y) will not conflict with or constitute a breach of, or
Default or a Debt Repayment Triggering Event (as defined below) under, or result
in the creation or imposition of any security interest, mortgage, pledge, lien,
charge, encumbrance or adverse claim upon any property or assets of any of the
Company Parties pursuant to, or require the consent of any other party to any
Existing Instrument or any other third party and (z) will not result in any
violation of any law, administrative regulation or administrative or court
decree applicable to any of the Company Parties except with respect to clauses
(y) and (z) of this sentence, for such conflicts, breaches, Defaults, Debt
Repayment Triggering Events or violations as would not, individually or in the
aggregate, result in a Material Adverse Effect. As used herein, a
“Debt Repayment Triggering Event” means any event or condition that gives, or
with the giving of notice or lapse of time would give, the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company Parties.
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(m) Regulatory
Approval. No consent, approval, authorization or other order
of, or registration or filing with, any court or other governmental or
regulatory authority or agency, is required for each of the Company Parties’
execution, delivery and performance of the Transaction Documents to which it is
a party and consummation of the Transactions, except (i) with respect to the
transactions contemplated by the Registration Rights Agreement or the filing of
a Current Report on Form 8-K with the Commission as may be required under the
Securities Act and the Exchange Act, as the case may be, (ii) as required by the
state securities or “blue sky” laws, and (iii) for such consents, approvals,
authorizations, orders, filings or registrations that have been obtained or made
and are in full force and effect except as would not have a Material Adverse
Effect.
(n) No Material Actions or
Proceedings. Except as otherwise disclosed in the CIM, there
are no legal or governmental actions, suits or proceedings pending or, to the
best of the Company’s knowledge, (i) threatened against or affecting any of the
Company Parties, (ii) which has as the subject thereof any officer or director
of, or property owned or leased by, the Company Parties, or (iii) relating to
environmental or discrimination matters, where in any such case (A) any such
action, suit or proceeding, if so determined adversely, would reasonably be
expected to result in a Material Adverse Effect or adversely affect the
consummation of the Transactions or (B) any such action, suit or proceeding is
or would be material in the context of the offer and sale of
Securities. No material labor dispute with the employees of any of
the Company Parties, or with the employees of any principal supplier of the
Company Parties, exists or, to the best of the Company’s knowledge, is
threatened or imminent.
(o) All Necessary Permits,
etc. Except as otherwise disclosed in the CIM, each of the
Company Parties possesses such valid and current certificates, authorizations or
permits issued by the appropriate state, federal or other applicable regulatory
agencies or bodies and such valid licenses or other rights to use all databases,
geological data, geophysical data, engineering data, seismic data, maps and
other technical information, in each case, necessary to conduct their respective
businesses, and neither the Company nor any Guarantor has received, or has any
reason to believe that it has received or will receive, any notice of
proceedings relating to the revocation or modification of, or non-compliance
with, any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect.
(p) Title to
Properties. Each of the Company Parties has (i) generally
satisfactory title to its oil and gas properties, title investigations having
been carried out by the Company Parties in accordance with the practice in the
oil and gas industry in the areas in which the Company Parties operate except
as, in each case, would not result in a Material Adverse Effect, (ii) good and
marketable title to all other real property owned by it to the extent necessary
to carry on its business and (iii) good and marketable title to all personal
property owned by it, in each case free and clear of all liens, encumbrances and
defects except such as are described in the CIM or such as do not materially
affect the value of the properties of the Company Parties, considered as one
enterprise, and do not interfere with the use made and proposed to be made of
such properties, by the Company Parties, considered as one enterprise; and all
of the leases and subleases material to the business of the Company Parties,
considered as one enterprise, and under which the Company Parties hold
properties described in the CIM, are in full force and effect, and none of the
Company Parties has any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of any of the Company Parties under any
of the leases or subleases mentioned above, or affecting or questioning the
rights of any of the Company Parties to the continued possession of the leased
or subleased premises under any such lease or sublease.
(q) Gas Imbalances;
Prepayments. On a net basis there are no gas imbalances,
take-or-pay or other prepayments that would require the Parent or any of its
subsidiaries to deliver Hydrocarbons produced from the Oil and Gas Properties at
some future time without then or thereafter receiving full payment therefor
exceeding one-half bcf of gas (on an mcf equivalent basis) in the aggregate,
other than as disclosed in the CIM or as would not result in a Material Adverse
Effect.
8
(r) Tax Law
Compliance. Except as disclosed in the CIM, the Company
Parties have duly filed all necessary tax returns and have paid all taxes that
have become due and payable except such taxes that are being contested in good
faith and by appropriate proceedings and for which adequate reserves have been
recorded in accordance with GAAP. The Company has made adequate
charges, accruals and reserves in the applicable financial statements referred
to in Section
3(i) above in respect of all taxes for all periods as to which the tax
liability of the Company or any of its subsidiaries has not been finally
determined, other than as disclosed in the CIM or as would not result in a
Material Adverse Effect. There are no liens for taxes (except for
statutory liens for taxes that have not become due) on the assets of the Company
or any of its subsidiaries
(s) Compliance with
Environmental Laws. Except as described in the CIM or as would
not, singly or in the aggregate, result in a Material Adverse Effect, (i)
neither the Company nor any of its subsidiaries is in violation of any federal,
state or local statute, law, rule, regulation, ordinance, code, policy or rule
of common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or judgment,
relating to pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, “Hazardous Materials”) or to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, “Environmental
Laws”), (ii) the Company Parties have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance with
their requirements, (iii) there are no pending or threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings relating to
any Environmental Law against any of the Company Parties, and (iv) there are no
events or circumstances that might reasonably be expected to form the basis of
an order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting any of the
Company Parties relating to Hazardous Materials or any Environmental
Laws.
(t) Compliance with
Laws. The Company has not been advised, and has no reason to
believe, that it and each of the Guarantors are not conducting business in
compliance with all applicable laws, rules and regulations of the jurisdictions
in which it is conducting business, except where failure to be so in compliance
would not result in a Material Adverse Effect.
(u) Company Parties Not an
“Investment Company”. Neither the Company nor any Guarantor
is, and after receipt of payment for the Securities, will be, an “investment
company” within the meaning of Investment Company Act of 1940, as amended, and
the rules and regulations of the Commission thereunder.
(v) Brokers. Except
for Breakpoint Assets, there is no broker, finder or other party that is
entitled to receive from the Company any brokerage or finder’s fee or other fee
or commission in connection with the negotiations leading to this Agreement or
consummation of the Transactions.
(w) No Registration Required
Under the Securities Act. Assuming the accuracy of the
representations and warranties of the Purchasers contained in this Agreement and
the compliance of such parties with the agreements set forth herein, it is not
necessary, in connection with the issuance and sale of the Securities, in the
manner contemplated by the Transaction Documents and the CIM, to register the
Securities under the Securities Act or to qualify the Indenture under the Trust
Indenture Act.
(x) QIBs and Accredited
Investors. The Company will not offer or sell any of the
Securities to any person whom it reasonably believes is not (i) a “qualified
institutional buyer” as defined in Rule 144A (“QIBs”) or (ii) an institutional
“accredited investor” (as defined in clauses (1), (2), (3) and (7) of Rule
501(a) of Regulation D).
9
(y) Purchasers; Compliance With
Rule 502(d). The Company will exercise reasonable care to
ensure that the Purchasers are not “underwriters” within the meaning of Section
2(a)(11) of the Securities Act and, without limiting the foregoing, that such
purchases will comply with Rule 502(d) under the Securities Act.
(z) No General
Solicitation. None of the Company Parties or, to the knowledge
of the Company, any person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with a
Company Party (an “Affiliate”) have engaged, or will engage, directly or
indirectly in any form of “general solicitation” or “general advertising” in
connection with the offering of the Securities (as those terms are used in
Regulation D) or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act. None of the Company Parties have
entered, or will enter, into any arrangement or agreement with respect to the
distribution of the Securities, except for this Agreement, the Indenture and the
Registration Rights Agreement, and the Company agrees not to enter into any such
arrangement or agreement.
(aa) No Offer and Sale Within Six
Months. None of the Company Parties nor any of their
respective Affiliates have sold or issued any security of the same or similar
class or series as any of the Securities that would be required to be integrated
with any of the Securities in a manner that would require registration under the
Securities Act during the six-month period preceding the earlier of the date of
this Agreement and the Closing Date, including any sales pursuant to Rule 144A,
Regulation D or Regulation S. None of Parent, Intermediate Holdco,
the Company nor any of its Affiliates have any intention of making, and will not
make, an offer or sale of any securities that would be required to be integrated
with the Securities in a manner that would require registration under the
Securities Act, for a period of six months after the date of this Agreement,
except for the offering of Securities as contemplated by this Agreement and the
Registration Rights Agreement. As used in this paragraph, the terms
“offer” and “sale” have the meanings specified in Section 2(a)(3) of the
Securities Act.
(bb) Margin
Regulation. No part of the proceeds from the sale of the
Securities hereunder will be used, directly or indirectly, for the purpose of
buying or carrying any margin stock within the meaning of Regulation U of the
Board of Governors of the Federal Reserve System (12 CFR 221), or for the
purpose of buying or carrying or trading in any securities under such
circumstances as to involve the Company in a violation of Regulation X of said
Board (12 CFR 224) or to involve any broker or dealer in a violation of
Regulation T of said Board (12 CFR 220). The Company is not engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any margin stock. As
used in this Section, the terms “margin stock” and “purpose of buying or
carrying” shall have the meanings assigned to them in said Regulation
U.
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4.
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COVENANTS.
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(a) Reasonable Best
Efforts. Each party shall use its reasonable best efforts to
timely satisfy each of the conditions to be satisfied by it as provided in Sections 5 and 6 of this
Agreement.
(b) Form
D. The Company agrees to file a Form D with respect to the
Securities as required under Regulation D and to comply with any applicable
state securities and “Blue Sky” laws in connection with the sale of the
Securities.
(c) Use of
Proceeds. The net proceeds from the sale of the Securities
will be used by the Company in the manner described in the CIM under the caption
titled “Use of Proceeds.”
(d) Fees and
Expenses. Except as otherwise set forth in the work letter
agreement between the Company and MSD Capital, L.P. dated as of June 30, 2009,
as such may be amended from time to time (the “Work Letter”), each party to this
Agreement shall bear its own expenses in connection with the sale of the
Securities to the Purchasers.
(e) Publicity. The
Purchasers agree that they will not issue any press release or otherwise make
any public statement, filing or other communication regarding the offering or
the business, operations or financial condition of Parent or the Company without
the prior consent of the Company, except to the extent required by law or legal
process, in which case such Purchaser shall provide the Company with prior
notice of such disclosure. Parent and the Company agree that they
will not publicly disclose the names of the Purchasers or include the names of
the Purchasers, without the prior consent of the Purchasers, in any press
release or other public statement, filing or other communication, except (a) in
any registration statement in which such Purchaser is identified as a selling
securityholder, or (b) to the extent required by law or legal process (including
but not limited to by the filing of one or more Form D’s with the Commission
regarding the Offering), in which case the Purchasers shall be given reasonable
advance notice of the anticipated disclosure and a reasonable opportunity to
seek confidential treatment of, or to contest, such anticipated
disclosure.
10
(f) Withholding
Taxes. The Purchasers shall deliver to the Company a properly
completed and duly executed applicable Internal Revenue Service Form W-8 or W-9,
as applicable. The Purchasers will provide replacement forms on the
obsolescence of such forms or inaccuracy of any information
thereon.
(g) Ratings. The
Company will cause the Notes to be rated by one or both of Xxxxx’x Investors
Service, Inc. and/or Standard & Poor’s Rating Services (together, the
“Ratings Agencies”) within six months of the Closing Date; provided, that in the
event at least one of the Ratings Agencies shall not have issued its rating with
respect to the Notes by the end of such period due to a failure by the Company
to use its best efforts to cause such a rating, including by delaying its
response(s) to any request for information or similar requests by one or both of
the Ratings Agencies, then the cash component of the interest on the Notes shall
be increased by 50 basis points during the period commencing on the date that is
six months from the Closing Date until the date on which at least one of the
Ratings Agencies shall have issued its rating with respect to the
Notes.
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5.
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CONDITIONS TO THE
COMPANY’S OBLIGATION TO
SELL.
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The
obligation of the Company hereunder to issue and sell the Securities to the
Purchasers at the Closing is subject to the satisfaction, at or before the
Closing Date, of each of the following conditions, provided that these
conditions are for the Company’s sole benefit and may be waived by the Company
at any time in its sole discretion by providing the Purchasers with prior
written notice thereof.
(a) The
representations and warranties of the Purchaser shall be true and correct in all
material respects as of the date when made and as of the Closing Date as though
made at that time (except for representations and warranties that speak as of a
specific date, which shall be true and correct as of such date), and the
Purchaser shall have performed, satisfied and complied in all material respects
with the covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Purchaser at or prior to the
Closing Date.
(b) No
injunction, restraining order or order of any nature by a governmental authority
shall have been issued as of the Closing Date that would prevent or materially
interfere with the consummation of the Offering or any of the transactions
contemplated thereby; and no stop order suspending the qualification or
exemption from qualification of any of the Securities in any jurisdiction shall
have been issued and no proceeding for that purpose shall have been commenced
or, to the knowledge of the Purchasers after reasonable inquiry, be pending or
contemplated as of the Closing Date.
(c) At least
$50.0 million in aggregate principal amount of Notes shall have been sold by the
Company to the Purchasers.
(d) 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 of competent jurisdiction that would, as of the Closing
Date, render impossible the issuance or sale of the Securities; 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.
(e) The offer
by the Company to exchange a minimum of $312 million principal amount of its
existing Senior Notes for new Series A 16% Second Lien Notes and related
solicitation of consents to amend certain terms of the indenture governing the
Senior Notes (the “Exchange Offer and Consent Solicitation”) shall have been
simultaneously consummated in accordance with the terms described in the
CIM.
11
(f) Any
amendment to the Credit Agreement necessary for the purpose of allowing the
Transactions shall have been duly executed and delivered by all parties thereto
prior to the date of this Agreement and shall be in full force and
effect.
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6.
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CONDITIONS TO THE
PURCHASERS’ OBLIGATION TO
PURCHASE.
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The
several obligations of the Purchasers hereunder to purchase the Securities at
the Closing are subject to the satisfaction, at or before the Closing Date, of
each of the following conditions, provided that these
conditions are for the Purchasers’ sole respective benefit and may be waived by
the Purchasers at any time in their sole discretion (each with respect to itself
only) by providing the Company with prior written notice thereof:
(a) Each of
the Company Parties and the Trustee shall have duly executed and delivered, or
caused to be delivered, to the Purchasers (i) each of the Transaction Documents
to which it is a party and (ii) the Securities being purchased by the Purchasers
at the Closing pursuant to this Agreement, in each case in form and substance
satisfactory to the Purchasers or their agents. The Intercreditor
Agreement shall have been duly executed and delivered by all parties
thereto. Any amendment to the Credit Agreement necessary for the
purpose of allowing the Transactions shall have been duly executed and delivered
by all parties thereto prior to the date of this Agreement and shall be in full
force and effect.
(b) The
Transactions shall have been consummated in accordance with their terms and in
accordance with the applicable Transaction Documents and as described in the
CIM.
(c) The
Exchange Offer and Consent Solicitation shall have been simultaneously
consummated in accordance with the terms described in the CIM.
(d) Parent
shall, concurrently with the Exchange Offer and Consent Solicitation, contribute
and/or cause its subsidiaries to contribute, as equity all of the aggregate
$126.0 million face amount of Senior Notes held by Parent and/or its
subsidiaries to the Company which will immediately upon receipt cancel all of
such Senior Notes.
(e) On the
Closing Date, the Purchasers shall have received the opinions of Xxxxxx &
Xxxxxx LLP, counsel for Parent and the Company, Xxxxxxx Global, Bermuda counsel
for Parent, Xxxxxx, Xxxx & XxXxxx, P.C., counsel for Parent and the Company,
and Xxxxxx Xxxxxx LLP, counsel for Parent and the Company and in each case dated
as of the Closing Date, substantially to the effect set forth on Annexes C-1, C-2, C-3 and C-4,
respectively.
(f) The
Company Parties shall have each delivered to the Purchasers a certificate
evidencing qualification by such entity as a foreign corporation and good
standing issued by the Secretaries of State (or comparable office) of each of
the jurisdictions in which the Company Parties operate as of a date within 30
days prior to the Closing Date.
(g) The
Company Parties shall have delivered to the Purchasers a certificate, executed
by the Secretary of each of the Company Parties, and dated as of the Closing
Date, as to (i) the resolutions consistent with Sections 3(b),
3(c),
3(d) and 3(e) as adopted by
Board of Directors of each such entity in a form reasonably acceptable to the
Purchasers, and (ii) the memorandum of association, the certificate of
incorporation and bylaws, or other organizational documents of each such
entity.
(h) The
representations and warranties of the Company Parties contained herein shall be
true and correct as of the date when made and as of the Closing Date as though
made at that time (except for representations and warranties that speak as of a
specific date), and the Company shall have performed, satisfied and complied in
all material respects with the covenants, agreements and conditions required by
the Purchase Documents to be performed, satisfied or complied with by the
Company Parties, as applicable, at or prior to the Closing Date. The
Purchasers shall have received certificates, executed by an authorized officer
of each of the Parent and the Company, dated as of the Closing Date, to the
foregoing effect. The statements of the Company Parties and their
respective officers made in any certificates delivered pursuant to this
Agreement may be made only in their official, rather than individual capacity,
and shall be true and correct on and as of the Closing Date.
12
(i) 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 of competent jurisdiction that would, as of the Closing
Date, render impossible the issuance or sale of the Securities; 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.
(j) No
Material Adverse Change shall have occurred with respect to Parent, Intermediate
Holdco and/or the Company and its subsidiaries on a consolidated basis since
June 30, 2009.
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7.
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TERMINATION.
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This
Agreement and the obligations of the Company Parties and the Purchasers set out
herein shall terminate upon the date of the earliest to occur of the following
(such earliest date being the “Termination Date”):
(a) In the
event that the Closing shall not have occurred due to the failure of the Company
Parties or the Purchasers to satisfy the conditions set forth in Sections 5 and 6 above (and the
nonbreaching party’s failure to waive such unsatisfied condition(s)), the
nonbreaching party shall have the option to terminate this Agreement with
respect to such breaching party at the close of business on October 15, 2009,
unless extended in writing by mutual consent of the Company and each of the
Purchasers; and
(b) The
commencement of a voluntary or involuntary case or proceeding by or against
Parent or any of its subsidiaries under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the consent by any
of them to the entry of a decree or order for relief in respect of any of them
in an involuntary case or proceeding under any such law or to the commencement
of any bankruptcy or insolvency case or proceeding against any of
them, or the filing by any of them of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or the
consent to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of any of such companies or of any substantial part of their
respective properties, or the making by any of them of an assignment for the
benefit of creditors, or the admission in writing of any of their inability to
pay their debts generally as they become due, or the taking of corporate action
by any of such companies in furtherance of any such action.
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8.
|
INDEMNIFICATION.
|
(a) In
consideration of the Purchasers’ execution and delivery of the Purchase
Documents and the issuance of the Notes under the Indenture and the issuance of
the Shares, and acquiring the Securities hereunder and in addition to all of the
other obligations of the Company Parties under this Agreement, the Company
Parties, jointly and severally, shall defend, protect, indemnify and hold
harmless the Purchasers and the Purchasers’ stockholders, partners, members,
officers, directors, employees and direct or indirect investors and any of the
foregoing Persons’ agents or other representatives, including, without
limitation, those retained in connection with the transactions contemplated by
this Agreement (each, an “Indemnitee” and collectively, the “Indemnitees”), as
incurred, from and against any and all actions, causes of action, suits, claims,
losses, costs, penalties, fees, liabilities and damages, and expenses in
connection therewith (irrespective of whether any such Indemnitee is a party to
the action for which indemnification hereunder is sought), and including
reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”),
incurred by any Indemnitee as a result of, or arising out of, or relating to (i)
any misrepresentation or breach of any representation or warranty made by the
Company in the Purchase Documents or any other certificate, instrument or
document contemplated hereby or thereby, (ii) any untrue statement or alleged
untrue statement of a material fact contained in the CIM (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, or (iii) any
breach of any covenant, agreement or obligation of a Company Party contained in
the Purchase Documents or any other certificate, instrument or document
contemplated hereby or thereby.
13
(b) Promptly
after receipt by an Indemnitee under this Section 8 of notice
of any claim or the commencement of any action or proceeding (including any
governmental investigation), such Indemnitee will, if a claim for
indemnification in respect thereof is to be made against the Company Parties,
notify the Company in writing of the commencement thereof; but the omission to
so notify will not relieve the Company Parties from any liability which they may
have to any Indemnitee to the extent they are not materially prejudiced as a
result thereof. In case any such action or proceeding is brought
against any Indemnitee, and it notifies the Company of the commencement thereof,
the Company will be entitled to participate therein, and to the extent that it
may elect, by written notice delivered to such Indemnitee promptly after
receiving the aforesaid notice from such Indemnitee, to assume the defense
thereof, with counsel reasonably satisfactory to such Indemnitee; provided, however, that if the
defendants (including any impleaded parties) in any such action include both the
Indemnitee and the Company or another Company Party and the Indemnitee shall
have reasonably concluded that there may be legal defenses available to it
and/or other Indemnitees which are different from or additional to those
available to the Company Parties, the Indemnitee or Indemnitees shall have the
right to select separate counsel to defend such action on behalf of such
Indemnitee or Indemnitees. Upon receipt of notice from the Company to
such Indemnitee of its election to so appoint counsel to defend such action and
approval by the Indemnitee of such counsel, the Company Parties will not be
liable to such Indemnitee under this Section 8 for any
legal or other expenses subsequently incurred by such Indemnitee in connection
with the defense thereof unless: (i) the Indemnitee shall have employed separate
counsel in accordance with the proviso to the preceding sentence (it being
understood, however, that the Company Parties shall not be liable for the
expense of more than one separate counsel (in addition to any local counsel),
approved by the Indemnitee representing the Indemnitees who are parties to such
action); (ii) the Company shall not have employed counsel reasonably
satisfactory to the Indemnitee to represent the Indemnitee within a reasonable
time after notice or commencement of the action; (iii) the Company has
authorized the employment of counsel for the Indemnitee at the expense of the
Company; or (iv) the use of counsel chosen by the Company to represent the
Indemnitee would present such counsel with a conflict of interest.
(c) The
Company Parties will not without the prior written consent of the Indemnitees,
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
Indemnitees are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each
Indemnitee from all liability arising out of such claim, action, suit or
proceeding and does not include an admission of guilt of, or failure to act by,
the Indemnitee, or include any injunctive relief against any
Indemnitee. Neither the Company nor any other Company Party shall be
liable for any settlement, compromise or the consent to the entry of judgment in
connection with any such action effected without its written consent, but if
settled with its written consent or if there be a final judgment for the
plaintiff in any such action other than a judgment entered with the consent of
such Indemnitee, then the Company Parties shall indemnify and hold harmless any
Indemnitee from and against any loss or liability by reason of such settlement
or judgment.
(d) Each
Indemnitee shall furnish such information regarding itself or the claim in
question as the Company may reasonably request in writing and as shall be
reasonably required in connection with the defense of such claim and litigation
arising therefrom.
(e) In order
to provide for contribution in circumstances in which the indemnification
provided for in this Section 8 is for any
reason held to be unavailable from the indemnifying Company Party, or is
insufficient to hold harmless an Indemnitee under this Section 8, each
Company Party shall contribute to the amount paid or payable by such Indemnitee
as a result of such aggregate losses (i) in such proportion as is appropriate to
reflect the relative benefits received by each Company Party, on the one hand,
and each Indemnitee, on the other hand, in connection with the Transactions, or
(ii) if such allocation 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 each Indemnitee, on the one
hand, and each Company Party, on the other hand, in connection with the
statements or omissions that resulted in such losses, as well as any other
relevant equitable considerations. The relative fault of the parties 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 Party or such
Purchaser and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission or alleged
statement or omission.
14
(f) Notwithstanding
anything to the contrary herein, the provisions of this Section 8 are
intended solely for the benefit of the Indemnitees and not for the benefit of,
nor may any provision hereby be enforced by, any other Person; provided that
Indemnitees are expressly made third party beneficiaries of this Section
8.
(g) The
obligations of the Company Parties shall survive and continue to be in full
force and effect notwithstanding the termination of this Agreement for a period
of two years from the Termination Date.
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9.
|
MISCELLANEOUS.
|
(a) Notices. Any
notices, consents, waivers or other communications required or permitted to be
given under the terms of this Agreement must be in writing and will be deemed to
have been delivered: (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile (provided confirmation of transmission is
mechanically or electronically generated and kept on file by the sending party);
or (iii) one Business Day after deposit with an overnight courier service, in
each case properly addressed to the party to receive the same. The addresses and
facsimile numbers for such communications shall be:
If to the
Company:
Energy
XXI Gulf Coast, Inc.
Xxxxx
0000
0000
Xxxx
Xxxxxxx,
Xxxxx 00000
Facsimile:
000-000-0000
Attn:
Xxxxx Xxxx Xxxxxxx, Director
Copy
to:
Xxxxxx
& Xxxxxx LLP
First
City Tower
0000
Xxxxxx Xxxxxx
Xxxxx
0000
Xxxxxxx,
Xxxxx 00000-0000
Facsimile:
000-000-0000
Attn: T.
Xxxx Xxxxx, Esq.
and if to
the Purchasers, to the applicable address and facsimile number set forth on
Annex A hereto,
or to such other address and/or facsimile number and/or to the attention of such
other Person as the recipient party has specified by written notice given to
each other party prior to the effectiveness of such change. Written
confirmation of receipt (A) given by the recipient of such notice, consent,
waiver or other communication, (B) mechanically or electronically generated by
the sender’s facsimile machine containing the time, date, recipient facsimile
number and an image of the first page of such transmission or (C) provided by an
overnight courier service shall be rebuttable evidence of personal service,
receipt by facsimile or receipt from an overnight courier service in accordance
with clause
(A), (B)
or (C) above,
respectively.
(b) Governing Law; Jurisdiction;
Jury Trial. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York. Any legal
suit, action or proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby shall be instituted in the federal courts of
the United States of America located in the Borough of Manhattan in the City of
New York or the courts of the State of New York in each case located in the
Borough of Manhattan in the City of New York. Each party hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is brought in an inconvenient forum
or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party at the address for such
notices to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereby irrevocably waives
any right it may have, and agrees not to request, a jury trial for the
adjudication of any dispute hereunder or in connection with or arising out of
this Agreement or any transaction contemplated hereby.
15
(c) Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns; provided that no party shall
assign any of its rights or obligations hereunder to any party other than an
Affiliate without the prior written consent of the other party.
(d) Survival. The
representations and warranties of the parties hereto contained in Sections 2 and 3, respectively, and
the agreements and covenants set forth in Sections 4 and 8
shall survive the Closing. The agreements and covenants set forth in
Section 8 shall
survive for a period of two years from the Closing Date (or, if this Agreement
is terminated prior to Closing, two years from the Termination
Date).
(e) Headings. The
headings of this Agreement are for convenience of reference and shall not form
part of, or affect the interpretation of, this Agreement.
(f) Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention
of the parties that they would have executed the remaining terms, provisions,
covenants and restrictions without including any of such that may be hereafter
declared invalid, illegal, void or unenforceable.
(g) Entire
Agreement. This Agreement constitutes the entire agreement of
the parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof, other than the Work Letter and any commitment letter
between a Purchaser and a Company Party relating to the
Transactions.
(h) Amendment. This
Agreement may not be amended or modified unless in writing by all of the parties
hereto, and no condition herein (express or implied) may be waived unless waived
in writing by each party whom the condition is meant to benefit. The
failure by any party to exercise any right or remedy under this Agreement or
otherwise, or delay by a party in exercising such right or remedy, shall not
operate as a waiver thereof. Any amendment to this Agreement made in
conformity with the provisions of this Section 8(h) shall be
binding on the Purchasers and all holders of the Securities purchased under this
Agreement, as applicable.
(i) Counterparts. This
Agreement may be executed in two or more identical counterparts, all of which
shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party;
provided, that a
facsimile signature shall be considered due execution and shall be binding upon
the signatory thereto with the same force and effect as if the signature were an
original, not a facsimile signature.
(j) Further
Assurances. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
any other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(k) No Third Party
Beneficiaries. Except as otherwise set forth in this
Agreement, this Agreement is intended for the benefit of the parties hereto and
their respective permitted successors and assigns, and is not for the benefit
of, nor may any provision hereof be enforced by, any other Person.
(l) Remedies. Any Person
having any rights under any provision of this Agreement shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
such rights specifically (without posting a bond or other security or proving
actual damages), to recover damages by reason of any breach of any provision of
this Agreement and to exercise all other rights granted by law.
16
[SIGNATURE
PAGE FOLLOWS]
17
IN
WITNESS WHEREOF, the parties hereto have caused their respective signature page
to this Note and Common Stock Purchase Agreement to be duly executed as of
September 18, 2009.
|
ENERGY
XXI GULF COAST, INC.
|
||
|
`
|
||
|
By:
|
/s/ Xxxxx Xxxxxx | |
|
Name: Xxxxx
Xxxxxx
Title: VP
Operations
|
||
|
ENERGY
XXI USA, INC.
|
||
| By: |
/s/
Xxxxx Xxxxxx
|
|
|
Name:
Xxxxx Xxxxxx
Title:
VP Operations
|
||
|
ENERGY
XXI (BERMUDA) LIMITED.
|
||
|
By:
|
/s/ X. Xxxx Xxxxxxx | |
|
Name:
X. Xxxx Xxxxxxx
Title:
Chief Financial Officer
|
||
|
ENERGY
XXI TEXAS ONSHORE, LLC
|
||
|
By:
|
/s/ Xxxxx Xxxxxx | |
|
Name:
Xxxxx Xxxxxx
Title:
VP Operations
|
||
|
ENERGY
XXI ONSHORE, LLC
|
||
|
By:
|
/s/ Xxxxx Xxxxxx | |
|
Name:
Xxxxx
Xxxxxx
Title:
VP Operations
|
||
|
ENERGY
XXI GOM, LLC
|
||
|
By:
|
/s/ Xxxxx Xxxxxx | |
|
Name:
Xxxxx
Xxxxxx
Title:
VP Operations
|
||
|
PURCHASER
|
||
|
LATIGO
PARTNERS, L.P.,
|
||
|
SEG
LATIGO ADVISORS, L.P.,
|
||
|
By:
|
/s/
Xxxxx Xxxx
|
|
|
Name:
Xxxxx Xxxx
Title:
Partner
|
||
|
Address:
|
000
Xxxxxxx Xxxxxx, 0xx Xx.
Xxx
Xxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
MOUNT
XXXXXXX MASTER FUND II, LP
|
||
|
By: Mount
Xxxxxxx Capital Partners GP LLC
|
||
|
By:
|
/s/
Xxxxxx X. Xxxxxxxx
|
|
|
Name: Xxxxxx
X. Xxxxxxxx
Title: Authorized
Signatory
|
||
|
Address:
|
000
0xx Xxxxxx
Xxx
Xxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
MSD
ENERGY INVESTMENTS, L.P.
|
||
|
By:
|
/s/
Xxxx Xxxxxx
|
|
|
Name:
Xxxx Xxxxxx
Title:
General Counsel
|
||
|
Address:
|
000
Xxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
SENATOR
GLOBAL OPPORTUNITY FUND LP
|
||
|
By
Senator GP LLC, its General Partner
|
||
|
By:
|
/s/
Xxxxxx Xxxxxxx
|
|
|
Name:
Xxxxxx Xxxxxxx
Title:
Chief Financial Officer
|
||
|
Address:
|
Senator
Investment Group LP
0000
Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
SENATOR
GLOBAL OPPORTUNITY INTERMEDIATE FUND LP
|
||
|
By
Senator GP LLC, its general partner
|
||
|
By:
|
/s/
Xxxxxx Xxxxxxx
|
|
|
Name:
Xxxxxx Xxxxxxx
Title:
Chief Financial Officer
|
||
|
Address:
|
Senator
Investment Group LP
0000
Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
SOF
INVESTMENTS, L.P.
|
||
|
By:
|
/s/
Xxxx Xxxxxx
|
|
|
Name:
Xxxx Xxxxxx
Title:
General Counsel
|
||
|
Address:
|
000
Xxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
FAIRFAX
COUNTY RETIREMENT SYSTEM
|
||
|
By:
Post Advisory Group as Investment Manager
|
||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxxxxx
Title:
Chief Investment Officer
|
||
|
Address:
|
00000
Xxxxxxxx Xxxx., Xxx. 0000
Xxx
Xxxxxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
VERMONT
STATE EMPLOYEES RETIREMENT
|
||
|
By:
Post Advisory Group as Investment Manager
|
||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxxxxx
Title:
Chief Investment Officer
|
||
|
Address:
|
00000
Xxxxxxxx Xxxx., Xxx. 0000
Xxx
Xxxxxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
VIRGINIA
RETIREMENT SYSTEM
|
||
|
By:
Post Advisory Group as Investment Manager
|
||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxxxxx
Title:
Chief Investment Officer
|
||
|
Address:
|
00000
Xxxxxxxx Xxxx., Xxx. 0000
Xxx
Xxxxxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
UNIVERSITY
OF PENNSYLVANIA
|
||
|
By:
Post Advisory Group as Investment Manager
|
||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxxxxx
Title:
Chief Investment Officer
|
||
|
Address:
|
00000
Xxxxxxxx Xxxx., Xxx. 0000
Xxx
Xxxxxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
UBS
LWC INSTITUTIONAL SICAU ALPHA CHOICE
|
||
|
By:
Post Advisory Group as Investment Manager
|
||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxxxxx
Title:
Chief Investment Officer
|
||
|
Address:
|
00000
Xxxxxxxx Xxxx., Xxx. 0000
Xxx
Xxxxxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
UBS
ALPHA CHOICE FUND LIMITED
|
||
|
By:
Post Advisory Group as Investment Manager
|
||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxxxxx
Title:
Chief Investment Officer
|
||
|
Address:
|
00000
Xxxxxxxx Xxxx., Xxx. 0000
Xxx
Xxxxxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
TEXAS
COUNTY & DISTRICT RETIREMENT
|
||
|
By:
Post Advisory Group as Investment Manager
|
||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxxxxx
Title:
Chief Investment Officer
|
||
|
Address:
|
00000
Xxxxxxxx Xxxx., Xxx. 0000
Xxx
Xxxxxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
POST
TRADITIONAL HIGH YIELD FUND LP
|
||
|
By:
Post Advisory Group as Investment Manager
|
||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxxxxx
Title:
Chief Investment Officer
|
||
|
Address:
|
00000
Xxxxxxxx Xxxx., Xxx. 0000
Xxx
Xxxxxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
TIMKEN
COMPANY COLLECTIVE INVESTMENT TRUST FOR RETIREMENT
|
||
|
By:
Post Advisory Group as Investment Manager
|
||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxxxxx
Title:
Chief Investment Officer
|
||
|
Address:
|
00000
Xxxxxxxx Xxxx., Xxx. 0000
Xxx
Xxxxxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
TACOMA
EMPLOYEES RETIREMENT SYSTEM
|
||
|
By:
Post Advisory Group as Investment Manager
|
||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxxxxx
Title:
Chief Investment Officer
|
||
|
Address:
|
00000
Xxxxxxxx Xxxx., Xxx. 0000
Xxx
Xxxxxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
XXXXXX
BEDRIPENS METALEKTRO
|
||
|
By:
Post Advisory Group as Investment Manager
|
||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxxxxx
Title:
Chief Investment Officer
|
||
|
Address:
|
00000
Xxxxxxxx Xxxx., Xxx. 0000
Xxx
Xxxxxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
STATE
OF NEW JERSEY
|
||
|
By:
Post Advisory Group as Investment Manager
|
||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxxxxx
Title:
Chief Investment Officer
|
||
|
Address:
|
00000
Xxxxxxxx Xxxx., Xxx. 0000
Xxx
Xxxxxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
SMS
ALLIANZGI-FONDS DREDOLE DENTUS US HY
|
||
|
By:
Post Advisory Group as Investment Manager
|
||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxxxxx
Title:
Chief Investment Officer
|
||
|
Address:
|
00000
Xxxxxxxx Xxxx., Xxx. 0000
Xxx
Xxxxxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
QWEST
PENSION TRUST
|
||
|
By:
Post Advisory Group as Investment Manager
|
||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxxxxx
Title:
Chief Investment Officer
|
||
|
Address:
|
00000
Xxxxxxxx Xxxx., Xxx. 0000
Xxx
Xxxxxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
PMT
STICHTING PENSIOENFONDS VOOR DE MET
|
||
|
By:
Post Advisory Group as Investment Manager
|
||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxxxxx
Title:
Chief Investment Officer
|
||
|
Address:
|
00000
Xxxxxxxx Xxxx., Xxx. 0000
Xxx
Xxxxxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
OHIO
PUBLIC EMPLOYEES RETIREMENT SYSTEM
|
||
|
By:
Post Advisory Group as Investment Manager
|
||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxxxxx
Title:
Chief Investment Officer
|
||
|
Address:
|
00000
Xxxxxxxx Xxxx., Xxx. 0000
Xxx
Xxxxxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
NATION
TELECOM COOP ASSN
|
||
|
By:
Post Advisory Group as Investment Manager
|
||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxxxxx
Title:
Chief Investment Officer
|
||
|
Address:
|
00000
Xxxxxxxx Xxxx., Xxx. 0000
Xxx
Xxxxxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
NATIONAL
RAILROAD
|
||
|
By:
Post Advisory Group as Investment Manager
|
||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxxxxx
Title:
Chief Investment Officer
|
||
|
Address:
|
00000
Xxxxxxxx Xxxx., Xxx. 0000
Xxx
Xxxxxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
X.X.
XXXX FOUNDATION
|
||
|
By:
Post Advisory Group as Investment Manager
|
||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxxxxx
Title:
Chief Investment Officer
|
||
|
Address:
|
00000
Xxxxxxxx Xxxx., Xxx. 0000
Xxx
Xxxxxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
IKANO
FUND MANAGEMENT
|
||
|
By:
Post Advisory Group as Investment Manager
|
||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxxxxx
Title:
Chief Investment Officer
|
||
|
Address:
|
00000
Xxxxxxxx Xxxx., Xxx. 0000
Xxx
Xxxxxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
POST
HIGH YIELD PLUS MASTER FUND
|
||
|
By:
Post Advisory Group as Investment Manager
|
||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxxxxx
Title:
Chief Investment Officer
|
||
|
Address:
|
00000
Xxxxxxxx Xxxx., Xxx. 0000
Xxx
Xxxxxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
INVESTERINGSFORENINGEN
GUDME RAASCHOU
|
||
|
By:
Post Advisory Group as Investment Manager
|
||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxxxxx
Title:
Chief Investment Officer
|
||
|
Address:
|
00000
Xxxxxxxx Xxxx., Xxx. 0000
Xxx
Xxxxxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
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Fax:
|
000-000-0000
|
|
|
PURCHASER
|
||
|
XXXXXXX
XXXXX BEROEPSVERVOER
|
||
|
By:
Post Advisory Group as Investment Manager
|
||
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxxxxx
Title:
Chief Investment Officer
|
||
|
Address:
|
00000
Xxxxxxxx Xxxx., Xxx. 0000
Xxx
Xxxxxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
|
Fax:
|
000-000-0000
|
|
Annex
A
Registration
Information
Legal
Name of
Purchaser: __________________________________________________________
Aggregate
principal amount of Notes to be purchased by
you: $______________
(if
special denominations required, please note)
Aggregate
amount of Shares to be acquired by you: [______ Shares per each $1
million principal amount of Notes]
Address
of
Purchaser: _______________________________________________________________
|
Attention:
|
_________________________
|
||
|
Telephone
Number:
|
|||
|
Fax
Number:
|
|||
Purchaser
Status (Check the appropriate box):
¨ “Accredited
Investor” as defined in Rule 501(a)(1)(2)(3) or (7) of Regulation D of the
Securities Act
¨ “Qualified
Institutional Buyer” as defined in Rule 144(a)(1) of the Securities
Act
Nominee
(Name in which the Notes are to be registered, if different than name of
Purchaser): ___________________________
|
Tax
I.D. Number:
|
|
(If
Acquired in the name of a nominee, the taxpayer I.D. number of such
nominee)
Person to
Receive Copies of Purchase Documents:
|
Name:
|
|
|
Telephone
Number:
|
|
|
Email:
|
|
Operations
Contacts
|
Primary:
|
|
|
Telephone
Number:
|
|
|
Email:
|
|
|
Secondary:
|
|
|
Telephone
Number:
|
|
|
Email:
|
|
Mail
Payment Notices (if different than mailing address):
|
__________________________________
|
|
|
Attention:________________________
|
|
|
Telephone
Number:
|
|
|
Fax
Number:
|
|
|
State
of Principal Place of Business:
|
__________________________________
|
|
Custodian
Information:
|
__________________________________
|
|
Name:
|
|
|
DTC
Participant No.:
|
Annex
A-1
|
Physical
Delivery Instructions:
|
|
|
__________________________________
|
|
|
Attention:__________________________
__________________________________
|
|
|
Telephone
Number:
|
|
|
__________________________________
|
|
|
Fax
Number:
|
__________________________________
|
Tax
Withholding Form Attached (indicate
type): _________________________________________________
Annex
A-2
Annex
B
List of Subsidiaries and
other interests of the Parent
Energy
XXI (US Holdings) Limited
Energy
XXI, Inc.
Energy
XXI USA, Inc.
Energy
XXI Gulf Coast, Inc.
Energy
XXI Services, Inc.
Energy
XXI Texas Onshore, LLC
Energy
XXI Onshore, LLC
Energy
XXI GOM, LLC
Annex
B-1
Rider A
Annex
C-1
Xxxxxx
& Xxxxxx LLP
1. Each of
the Company and the Guarantors (other than the Parent, as to which we do not
express an opinion) has been duly incorporated or formed and is validly existing
in good standing as a corporation or limited liability company under the laws of
the state of Delaware with the requisite corporate or limited liability company
power and authority, as the case may be, to own or lease its properties and to
conduct its business as described in the CIM in each case in all material
respects.
2. Each of
the Company and the Guarantors (other than the Parent, as to which we do not
express an opinion) has the requisite corporate or limited liability company
power and authority to issue, sell and deliver the Notes, in accordance with and
upon the terms and conditions set forth in, and to otherwise perform its
respective obligations under, the Purchase Agreement, the Registration Rights
Agreement and the Indenture (collectively the “Purchase
Documents”).
3. Each of
the Purchase Documents has been duly and validly authorized, executed and
delivered by each of the Company and the Guarantors (other than the Parent, as
to which we do not express an opinion).
4. The
Indenture, assuming the due authorization, execution and delivery thereof by the
Parent and the Trustee, is a valid and legally binding agreement of each of the
Company and the Guarantors, enforceable against each of the Company and the
Guarantors in accordance with its terms; provided that the enforceability
thereof may be limited by applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or similar laws from time to time in effect
affecting creditors’ rights and remedies generally and by general principles of
equity (regardless of whether such principles are considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair
dealing.
5. The
Notes, when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Purchasers pursuant to the
Purchase Agreement, will constitute legal, valid, binding and enforceable
obligations of the Company entitled to the benefits of the Indenture; provided
that the enforceability thereof may be limited by applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or similar laws from
time to time in effect affecting creditors’ rights and remedies generally and by
general principles of equity (regardless of whether such principles are
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
6. When the
Indenture has been duly and validly authorized, executed and delivered by each
of the Guarantors (assuming due and valid authorization, execution and delivery
by the Parent under the laws of Bermuda, as to which we do not express an
opinion) and the Notes have been duly and validly issued in
accordance with the provisions of the Indenture and delivered to and paid for by
the Purchasers under the Purchase Agreement, the Guarantees will constitute,
legal, valid, binding and enforceable obligations of the Guarantors entitled to
the benefits of the Indenture; provided that the enforceability thereof may be
limited by applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or similar laws from time to time in effect affecting
creditors’ rights and remedies generally and by general principles of equity
(regardless of whether such principles are considered in a proceeding in equity
or at law) and an implied covenant of good faith and fair dealing.
7. The Notes
and the related Guarantees have been duly authorized by each of the Company and
the Guarantors (other than the Parent, as to which we do not express an
opinion), as the case may be.
8. The
execution and delivery of the Purchase Documents by the Company and the
Guarantors, the performance by the Company and the Guarantors of their
respective obligations thereunder, including the issuance and sale of the
Securities and the Guarantees, (i) will not result in any violation of the
provisions of the charter, by-laws or equivalent constituent documents of the
Company or any Guarantor (other than the Parent, as to which we do not express
an opinion); (ii) will not constitute a breach of, or default or a Debt
Repayment Triggering Event under, or result in the creation or imposition of any
security interest, mortgage, pledge, lien, charge, encumbrance or adverse claim
upon any property or assets of Parent, the Company or any Guarantor, pursuant to
any material Existing Instrument listed or identified on the annexed schedule
furnished to us by the Company, and which the Company has represented lists all
material agreements and instruments 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; (iii) will not result in any violation of any federal
or New York law or, to the best knowledge of such counsel any federal or New
York administrative regulation or administrative or court decree, applicable to
Parent, the Company or any of the subsidiaries of the Company; and (v) will not
require any consent, approval, authorization or other order of, or registration
(provided no opinion is given with respect to federal or state securities laws),
or filing with, any court or other federal or New York governmental or
regulatory authority or agency, except (i) with respect to the transaction
contemplated by the Registration Rights Agreement and may be required under the
Securities Act and the Exchange Act, (ii) as required by federal or state
securities or “blue sky” laws, and (iii) for such consents, approvals,
authorizations, orders, filings or registrations which have been obtained or
made.
Annex
C-1
Rider A
9. Assuming
the accuracy of the representations and warranties of Parent, the Company and
the Purchasers contained in the Purchase Agreement and the compliance of such
parties with the agreements set forth therein, it is not necessary, in
connection with the issuance and sale of the Securities to the Purchasers, in
the manner contemplated by Purchase Documents, to register the initial sale of
the Securities under the Securities Act or to qualify the Indenture under the
Trust Indenture Act, it being understood no opinion is given with respect to
subsequent resales of the Securities.
10. The
Company is not, and after giving effect to the receipt of payment for the Notes
and the application thereof as described in “Use of Proceeds” in the
Confidential Offering Memorandum will not be, an “investment company” as such
term is defined in the Investment Company Act of 1940, as amended.
Annex
C-1
Annex
C-2
Xxxxxxx
Global
1. The
Parent has been duly formed and is validly existing in good standing as an
exempted company (as defined in the Companies Xxx 0000 (Bermuda)) under the laws
of Bermuda with the requisite exempted company power and authority to own or
lease its properties and to conduct its business in all material
respects.
2. The
Parent has the requisite exempted company power and authority to issue, sell and
deliver the Securities, in accordance with and upon the terms and conditions set
forth in Purchase Agreement, the Registration Rights Agreement and the Indenture
(collectively the “Purchase Documents”).
3. Each of
the Purchase Documents have been duly and validly authorized, executed and
delivered by the Parent.
4. The
Guarantee of the Parent has been duly authorized by the Parent.
5. The
Shares have been duly authorized by the Parent and, upon the issuance thereof
and payment therefor in accordance with the terms of the Purchase Agreement,
will be validly issued, fully paid and non-assessable.
6. The
execution and delivery of the Purchase Documents by the Parent, the performance
by the Parent of its obligations thereunder, including the issuance and sale of
the Shares and the Guarantee of the Parent, will not result in any violation of
the provisions of the charter, by-laws or equivalent constituent documents of
the Parent.
Annex
X-0
Xxxxx
X-0
Xxxxxx,
Xxxx & XxXxxx X.X.
[To
come]
Annex
X-0
Xxxxx
X-0
Xxxxxx
Xxxxxx LLP
[To
come]
Annex
D-3
Annex
D
Security and Collateral
Documents
Mortgages:
|
1.
|
Second
Lien Mortgage, Deed of Trust, Assignment, Security agreement, Financing
Statement and Fixture Filing, dated as of August __, 2009, from Energy XXI
Texas Onshore, LLC, a Delaware limited liability company, as mortgagor and
debtor, to [_____________], of [____________________], as trustee, and
Wilmington Trust Company, as collateral
agent
|
|
2.
|
Second
Lien Mortgage, Deed of Trust, Assignment, Security agreement, Financing
Statement and Fixture Filing, dated as of September __, 2009, from Energy
XXI Onshore, LLC, a Delaware limited liability company, as mortgagor and
debtor, to Wilmington Trust Company, as collateral
agent
|
|
3.
|
Second
Lien Mortgage, Deed of Trust, Assignment, Security agreement, Financing
Statement and Fixture Filing, dated as of September __, 2009, from Energy
XXI GOM, LLC, a Delaware limited liability company, as mortgagor and
debtor, to Wilmington Trust Company, as collateral
agent
|
|
4.
|
Second
Lien Mortgage, Deed of Trust, Assignment, Security agreement, Financing
Statement and Fixture Filing, dated as of August __, 2009, from Energy XXI
GOM, LLC, a Delaware limited liability company, as mortgagor and debtor,
to [_____________], of [____________________], as trustee, and Wilmington
Trust Company, as collateral agent
|
Pledges1:
|
1.
|
Second
Lien Pledge and Security Agreement and Irrevocable Proxy, dated as of
September __, 2009, made by Energy XXI GOM, LLC, a Delaware limited
liability company, in favor of Wilmington Trust Company, as Indenture
Trustee for the Secured Parties
|
|
2.
|
Second
Lien Pledge and Security Agreement and Irrevocable Proxy, dated as of
September __, 2009, made by Energy XXI, Inc., a Delaware corporation, in
favor of Wilmington Trust Company, as Indenture Trustee for the Secured
Parties
|
|
3.
|
Second
Lien Pledge and Security Agreement and Irrevocable Proxy, dated as of
September __, 2009, made by Energy XXI USA, Inc., a Delaware corporation,
in favor of Wilmington Trust Company, as Indenture Trustee for the Secured
Parties
|
|
4.
|
Second
Lien Pledge and Security Agreement and Irrevocable Proxy, dated as of
September __, 2009, made by Energy XXI Gulf Coast, Inc., a Delaware
corporation, in favor of Wilmington Trust Company, as Indenture Trustee
for the Secured Parties
|
|
5.
|
Second
Lien Pledge and Security Agreement and Irrevocable Proxy, dated as of
September __, 2009, made by Xxxxxx Energy Offshore, L.L.C., a Delaware
limited liability company, in favor of Wilmington Trust Company, as
Indenture Trustee for the Secured
Parties
|
|
6.
|
Second
Lien Pledge and Security Agreement and Irrevocable Proxy, dated as of
September __, 2009, made by Xxxxxx Texas GP, L.L.C., a Delaware limited
liability company, in favor of Wilmington Trust Company, as Indenture
Trustee for the Secured Parties
|
|
7.
|
Second
Lien Pledge and Security Agreement and Irrevocable Proxy, dated as of
September __, 2009, made by Xxxxxx Texas L.P., a Delaware limited
partnership, in favor of Wilmington Trust Company, as Indenture Trustee
for the Secured Parties
|
Annex
D-4
|
8.
|
Second
Lien Pledge and Security Agreement and Irrevocable Proxy, dated as of
September __, 2009, made by Energy XXI Texas LP, a Delaware limited
partnership, in favor of Wilmington Trust Company, as Indenture Trustee
for the Secured Parties
|
|
9.
|
Second
Lien Pledge and Security Agreement and Irrevocable Proxy, dated as of
September __, 2009, made by Energy XXI Texas GP, LLC, a Delaware limited
liability company, in favor of Wilmington Trust Company, as Indenture
Trustee for the Secured Parties
|
Annex
D-5
Schedule
I
Purchasers
|
Second Lien Notes
Purchased
|
Shares
Purchased
|
|
|
Fairfax
County Retirement System
|
$145,000
|
31,960
|
|
Xxxxxxx
Xxxxx Beroepsvervoer
|
$320,000
|
70,532
|
|
Ikano
Fund Management
|
$290,000
|
63,919
|
|
Investeringsforeningen
Gudme Raaschou
|
$640,000
|
141,064
|
|
Latigo
Partners, LP/SEG Latigo Advisors, LP
|
$6,300,000
|
1,388,596
|
|
Mount
Kallett Master Fund II, LP
|
$10,300,000
|
2,270,244
|
|
MSD
Energy Investments, L.P.
|
$10,000,000
|
2,204,120
|
|
Nation
Telecom Coop Assn
|
$175,000
|
38,572
|
|
National
Railroad
|
$700,000
|
154,288
|
|
Ohio
Public Employees Retirement System
|
$480,000
|
105,798
|
|
PMT
Stichting Pensianfonds Voor De Met
|
$1,230,000
|
271,107
|
|
Post
High Yield Plus Master Fund
|
$130,000
|
28,654
|
|
Post
Traditional High Yield Fund L.P.
|
$560,000
|
123,431
|
|
Qwest
Pension Trust
|
$425,000
|
93,675
|
|
Senator
Global Opportunity Fund LP
|
$2,496,000
|
550,148
|
|
Senator
Global Opportunity Intermediate Fund L.P.
|
$2,304,000
|
507,829
|
|
SMS
Allianzgi-Fonds Dredola Rentus US HY
|
$190,000
|
41,878
|
|
SOF
Investments, L.P.
|
$18,800,000
|
4,143,746
|
|
State
of New Jersey
|
$600,000
|
132,247
|
|
Xxxxxx
Bedripens Metalektro
|
$1,055,000
|
232,535
|
|
Tacoma
Employees Retirement System
|
$190,000
|
41,878
|
|
Texas
County & District Retirement
|
$975,000
|
214,902
|
|
Timken
Company Collective Investment Trust for Retirement
|
$270,000
|
59,511
|
|
UBS
Alpha Choice Fund Limited
|
$105,000
|
23,143
|
|
UBS
LUX Institution/SICAV Alpha Choice
|
$95,000
|
20,939
|
|
University
of Pennsylvania
|
$110,000
|
24,245
|
|
Vermont
State Employees Retirement
|
$320,000
|
70,532
|
|
Virginia
Retirement System
|
$700,000
|
154,288
|
|
X.X.
Xxxx Foundation
|
$95,000
|
20,939
|
|
TOTAL
|
$60,000,000
|
13,224,720
|
Schedule
II
Wire Transfer
Instructions
Guaranty
Bank
1300
Mopac
Xxxxxx,
Xxxxx 00000
ABA: 000000000
Account
Number: 3804623571
