Exhibit 99.5
October __, 2004
Exchange Agent Agreement
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JPMorgan Chase Bank
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Ladies and Gentlemen:
Xxxxxx Drilling Company, a Delaware corporation (the
"Company"), proposes to make an offer (the "Exchange Offer") to exchange an
aggregate principal amount of up to $150,000,000 of Senior Floating Rate Notes
Due 2010 (the "Registered Notes"), which have been registered under the
Securities Act of 1933, as amended, for an equal principal amount of the
Company's outstanding Senior Floating Rate Notes Due 2010 (the "Private Notes").
The terms and conditions of the Exchange Offer as currently contemplated are set
forth in a prospectus dated __________, 2004 (the "Prospectus"), proposed to be
distributed to all record holders of the Private Notes as of ________, 2004. The
Private Notes and the Registered Notes are collectively referred to herein as
the "Notes".
The Company hereby appoints JPMorgan Chase Bank to act as
exchange agent (the "Exchange Agent") in connection with the Exchange Offer and
JPMorgan Chase Bank hereby accepts such appointment. References hereinafter to
"you" shall refer to JPMorgan Chase Bank.
The Exchange Offer is expected to be commenced by the Company
on or about _______, 2004. The Letter of Transmittal accompanying the Prospectus
is to be used by the holders of the Private Notes to accept the Exchange Offer,
and contains instructions with respect to the delivery of certificates for
Private Notes tendered.
The Exchange Offer shall expire at 5:00 P.M., New York City
time, on ________, 2004, or on such later date or time to which the Company may
extend the Exchange Offer (the "Expiration Date"). Subject to the terms and
conditions set forth in the Prospectus, the Company expressly reserves the right
to extend the Exchange Offer from time to time and may extend the Exchange Offer
by giving oral (promptly confirmed in writing) or written notice to you before
9:00 A.M., New York City time, on the business day following the previously
scheduled Expiration Date.
The Company expressly reserves the right, in its sole
discretion, to amend or terminate the Exchange Offer, and not to accept for
exchange any Private Notes not theretofore accepted for exchange. The Company
will give oral (promptly confirmed in
writing) or written notice of any amendment, termination or nonacceptance to you
as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act
in accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus entitled "The Exchange
Offer" and as specifically set forth herein and such duties which are
necessarily incidental thereto.
2. You will establish an account with respect to the Private
Notes at The Depository Trust Company (the "Book-Entry Transfer Facility") for
purposes of the Exchange Offer within two business days after the date of the
Prospectus, or, if you already have established an account with the Book-Entry
Transfer Facility suitable for the Exchange Offer, you will identify such
pre-existing account to be used in the Exchange Offer, and any financial
institution that is a participant in the Book-Entry Transfer Facility's systems
may make book-entry delivery of the Private Notes by causing the Book-Entry
Transfer Facility to transfer such Private Notes into your account in accordance
with the Book-Entry Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Private Notes (or confirmation of book-entry transfer into your
account at the Book-Entry Transfer Facility) and any other documents delivered
or mailed to you by or for holders of the Private Notes to ascertain whether:
(i) the Letters of Transmittal and any such other documents are duly executed
and properly completed in accordance with instructions set forth therein and
(ii) the Private Notes have otherwise been properly tendered. In each case where
the Letter of Transmittal or any other document has been improperly completed or
executed or any of the certificates for Private Notes are not in proper form for
transfer or some other irregularity in connection with the acceptance of the
Exchange Offer exists, you will endeavor to inform the presenters of the need
(i) for fulfillment of all requirements and (ii) to take any other action as may
be necessary or advisable to cause such irregularity to be corrected.
4. With the approval of the Chairman of the Board, President
or any Vice President of the Company (such approval, if given orally, to be
promptly confirmed in writing) or any other party designated by such an officer
in writing, you are authorized to waive any defects, irregularities or
conditions of tender in connection with any tender of Private Notes pursuant to
the Exchange Offer.
5. Tenders of Private Notes may be made only as set forth in
the Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer - Procedures for Tendering," and Private Notes shall be
considered properly tendered to you only when tendered in accordance with the
procedures set forth therein.
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Notwithstanding the provisions of this paragraph 5, Private
Notes which the Chairman of the Board, President or any Vice President of the
Company or any other party designated by such officer in writing shall approve
as having been properly tendered shall be considered to be properly tendered
(such approval, if given orally, shall be promptly confirmed in writing).
6. You shall advise the Company with respect to any Private
Notes delivered subsequent to the Expiration Date and accept its instructions
with respect to disposition of such Private Notes.
7. You shall accept tenders:
(a) in case where the Private Notes are registered in two or
more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the
Letter of Transmittal) is acting in a fiduciary or a representative
capacity only when proper evidence of his or her authority so to act is
submitted; and
(c) from persons other than the registered holder of Private
Notes provided that customary transfer requirements, including any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Private Notes where so
indicated and as permitted in the Letter of Transmittal and deliver certificates
for Private Notes to the transfer agent for split-up and return any untendered
Private Notes to the holder (or such other person as may be designated in the
Letter of Transmittal) as promptly as practicable after expiration or
termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Company will notify you (such notice, if given orally, to be
promptly confirmed in writing) of its acceptance, promptly after the Expiration
Date, of all Private Notes properly tendered and you, on behalf of the Company,
will exchange such Private Notes for Registered Notes and cause such Private
Notes to be canceled. Delivery of Registered Notes will be made on behalf of the
Company by you at the rate of $1,000 principal amount of Registered Notes for
each $1,000 principal amount of Private Notes tendered promptly after notice
(such notice, if given orally, to be promptly confirmed in writing) of
acceptance of such Private Notes by the Company; provided, however, that in all
cases, Private Notes tendered pursuant to the Exchange Offer will be exchanged
only after timely receipt by you of certificates for such Private Notes (or
confirmation of book-entry transfer into your account at the Book-Entry Transfer
Facility), a properly completed and duly executed Letter of Transmittal (or
facsimile thereof or an Agent's Message (as defined in the Prospectus) in lieu
thereof) with any required signature guarantees and any other required document.
You shall issue Registered Notes only in denominations of $1,000 or any integral
multiple thereof.
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9. Tenders pursuant to the Exchange Offer are irrevocable,
except that, subject to the terms and upon the conditions set forth in the
Prospectus and the Letter of Transmittal, Private Notes tendered pursuant to the
Exchange Offer may be withdrawn at any time prior to the Expiration Date.
10. The Company shall not be required to exchange any Private
Notes tendered if any of the conditions set forth in the Exchange Offer are not
met. Notice of any decision by the Company not to exchange any Private Notes
tendered shall be given (such notice, if given orally, shall be promptly
confirmed in writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not
accept for exchange all or part of the Private Notes tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus under the caption "The Exchange Offer - Conditions" or otherwise, you
shall as soon as practicable after the expiration or termination of the Exchange
Offer return those certificates for unaccepted Private Notes (or effect
appropriate book-entry transfer), together with any related required documents
and the Letters of Transmittal relating thereto that are in your possession, to
the persons who deposited them.
12. All certificates for reissued Private Notes, unaccepted
Private Notes or for Registered Notes shall be forwarded by (a) first-class
mail, postage prepaid under a blanket surety bond protecting you and the Company
from loss or liability arising out of the nonreceipt or nondelivery of such
certificates or (b) by registered mail insured separately for the replacement
value of each of such certificates.
13. You are not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker, dealer, bank or
other persons or to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and having
no responsibilities as to the validity, sufficiency, value or
genuineness of any of the certificates or the Private Notes represented
thereby deposited with you pursuant to the Exchange Offer, and will not
be required to and will make no representation as to the validity,
value or genuineness of the Exchange Offer;
(b) shall not be obligated to take any action hereunder which
might in your reasonable judgment involve any expense or liability,
unless you shall have been furnished with reasonable indemnity;
(c) shall not be liable to the Company for any action taken or
omitted by you, or any action suffered by you to be taken or omitted,
without negligence, willful misconduct or bad faith on your part, by
reason of or as a result of the
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administration of your duties hereunder in accordance with the terms
and conditions of this Agreement or by reason of your compliance with
the instructions set forth herein or with any written or oral
instructions delivered to you pursuant hereto, and may rely on and
shall be protected in acting in good faith in reliance upon any
certificate, instrument, opinion, notice, letter, facsimile or other
document or security delivered to you and reasonably believed by you to
be genuine and to have been signed by the proper party or parties;
(d) may act upon any tender, statement, request, comment,
agreement or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also as
to the truth and accuracy of any information contained therein, which
you in good faith reasonably believe to be genuine or to have been
signed or represented by a proper person or persons;
(e) may rely on and shall be protected in acting upon written
or oral instructions from any officer of the Company with respect to
the Exchange Offer;
(f) shall not advise any person tendering Private Notes
pursuant to the Exchange Offer as to the wisdom of making such tender
or as to the market value or decline or appreciation in market value of
any Private Notes;
(g) may consult with your counsel and the written opinion of
such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by you hereunder in
good faith and in accordance with such written opinion of such counsel;
and
(h) in no event will you be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not
limited to lost profits) even if you have been advised of the
likelihood of such loss or damage and regardless of the form of action.
15. You shall take such action as may from time to time be
requested by the Company or its counsel (and such other action as you may
reasonably deem necessary) to furnish copies of the Prospectus, the Letter of
Transmittal and the Notice of Guaranteed Delivery, as defined in the Prospectus,
or such other forms as may be approved from time to time by the Company, to all
persons requesting such documents and to accept and comply with telephone
requests for information relating to the Exchange Offer, provided that such
information shall relate only to the procedures for accepting (or withdrawing
from) the Exchange Offer. The Company will furnish you with copies of such
documents as you may request. All other requests for information relating to the
Exchange Offer shall be directed to the Company, Attention: Xxxxx X. Xxxxxx.
16. You shall advise by facsimile transmission, electronic
transmission or telephone, and promptly thereafter confirm in writing to Xxxxx
X. Xxxxxx, Treasurer of the Company,
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Xxxxxxx X. Xxxxxxxx, Xxx. of Xxxxxxxxx & Xxxxxxxxx, L.L.P., counsel for the
Company, and such other person or persons as the Company may request, daily on
each business day, and more frequently if reasonably requested, up to and
including the Expiration Date, as to the number of Private Notes which have been
tendered pursuant to the Exchange Offer and the items received by you pursuant
to this Agreement, separately reporting and giving cumulative totals as to items
properly received and items improperly received; provided, however, that if, on
a particular business day, no additional Private Notes have been tendered, no
additional items have been received by you and such totals have not changed
since you last provided such information as required above, you need not provide
the information referred to above in this paragraph 16 on such day. In addition,
you will also confirm, and cooperate in making available to, the Company or any
such other person or persons as the Company requests from time to time prior to
the Expiration Date of such other information as it or he or she reasonably
requests. Such cooperation shall include, without limitation, the granting by
you to the Company and such person as the Company may request of access to those
persons on your staff who are responsible for receiving tenders, in order to
ensure that immediately prior to the Expiration Date the Company shall have
received information in sufficient detail to enable it to decide whether to
extend the Exchange Offer. You shall prepare a final list of all persons whose
tenders were accepted, the aggregate principal amount of Private Notes tendered
and the aggregate principal amount of Private Notes accepted and deliver said
list to the Company.
17. Letters of Transmittal and Notices of Guaranteed Delivery
shall be stamped by you as to the date and the time of receipt and shall, except
as provided in paragraph 11, be preserved by you for a period of time at least
equal to the period of time you preserve other records pertaining to the
transfer of securities (or, if earlier, until such time as such documents are
delivered to the Company upon termination of this Agreement, pursuant to
paragraph 29).
18. You hereby expressly waive any lien, encumbrance or right
of set-off whatsoever that you may have with respect to funds deposited with you
for the payment of transfer taxes by reason of amounts, if any, borrowed by the
Company, or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder, you
shall be entitled to compensation of $5,000 and you shall be entitled to
reimbursement of your reasonable out-of-pocket expenses (including reasonable
attorneys' fees and expenses of your counsel, which fees are expected under
normal circumstances to be not in excess of $5,000) incurred in connection with
your services hereunder.
20. You hereby acknowledge receipt of the Prospectus, the
Letter of Transmittal and the other documents associated with the Exchange Offer
attached hereto and further acknowledge that you have examined each of them to
the extent necessary to
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perform your duties hereunder. Any inconsistency between this Agreement, on the
one hand, and the Prospectus and the Letter of Transmittal (as they may be
amended from time to time), on the other hand, shall be resolved in favor of the
latter two documents, except with respect to the duties, liabilities and
indemnification of you as Exchange Agent which shall be controlled by this
Agreement.
21. The Company agrees to indemnify and hold harmless you, in
your capacity as Exchange Agent hereunder, and your officers, employees and
agents, against any liability, cost or expense, including reasonable attorneys'
fees, arising out of or in connection with any act, omission, delay or refusal
made by you in reliance upon any signature, endorsement, assignment,
certificate, order, request, notice, instruction or other instrument or document
believed by you in good faith to be valid and genuine and in accepting any
tender or effecting any transfer of Private Notes believed by you in good faith
to be authorized, and in delaying or refusing in good faith to accept any
tenders or effect any transfer of Private Notes or otherwise arising out of or
in connection with your acting as Exchange Agent hereunder; provided, however,
that the Company shall not be liable for indemnification or otherwise for any
loss, liability, cost or expense to the extent arising out of your negligence,
willful misconduct or bad faith. In no case shall the Company be liable under
this indemnity with respect to any claim against you unless the Company shall be
notified by you, by letter or cable or by facsimile confirmed by letter, of the
written assertion of a claim against you or of any other action commenced
against you, promptly after you shall have received any such written assertion
or written notice of the commencement of any such action. The Company shall be
entitled to participate at its own expense in the defense of any such claim or
other action, and, if the Company so elects, the Company shall assume the
defense of any suit brought to enforce any such claim. In the event that the
Company shall assume the defense of any such suit, the Company shall not be
liable for the fees and expenses of any additional counsel thereafter retained
by you so long as the Company shall retain counsel reasonably satisfactory to
you to defend such suit.
22. You shall arrange to comply with all requirements under
the tax laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service.
23. You shall deliver or cause to be delivered, in a timely
manner to each governmental authority to which any transfer taxes are payable in
respect of the exchange of Private Notes, your check in the amount of all
transfer taxes so payable, and the Company shall reimburse you for the amount of
any and all transfer taxes payable in respect of the exchange of Private Notes;
provided, however, that, subject to such reimbursement by the Company, you shall
reimburse the Company for amounts refunded to you in respect of your payment of
any such transfer taxes, at such time as such refund is received by you.
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24. This Agreement and your appointment as Exchange Agent
hereunder shall be construed and enforced in accordance with the laws of the
State of New York applicable to agreements made and to be performed entirely
within such state, and without regard to conflicts of law principles, and shall
inure to the benefit of, and the obligations created hereby shall be binding
upon, the successors and assigns of each of the parties hereto.
25. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
26. In case any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be effected or impaired thereby.
27. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled or waived, in whole or in part, except by
a written instrument signed by a duly authorized representative of the party to
be charged. This Agreement may not be modified orally.
28. Unless otherwise provided herein, all notices, requests
and other communications to any party hereunder shall be in writing (including
facsimile) and shall be given to such party, addressed to it, at its address or
telecopy number set forth below:
If to the Company:
Xxxxxx Drilling Company
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to (which copy shall not constitute notice):
Bracewell & Xxxxxxxxx, L.L.P.
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Exchange Agent:
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JPMorgan Chase Bank
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx Xxxxxx
Telephone: (000)000-0000
Telecopy: (000) 000-0000
29. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date. Notwithstanding
the foregoing, Paragraphs 14(c), 18, 19, 21 and 23 shall survive the termination
of this Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Company any certificates for Notes, funds or property (including,
without limitation, Letters of Transmittal and any other documents relating to
the Exchange Offer) then held by you as Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective as of
the date hereof.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
XXXXXX DRILLING COMPANY
By:
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Name:
Title:
Accepted as of the date
first above written:
JPMORGAN CHASE BANK
By:
-------------------------
Name:
Title:
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