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EXHIBIT 10.1
$1,100,000,000
R&B FALCON CORPORATION
6 1/2% SENIOR NOTES DUE 2003
6 3/4% SENIOR NOTES DUE 2005
6.95% SENIOR NOTES DUE 2008
7 3/8% SENIOR NOTES DUE 2018
PURCHASE AGREEMENT
April 8, 1998
CREDIT SUISSE FIRST BOSTON CORPORATION
CHASE SECURITIES INC.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXX XXXXXXX & CO. INCORPORATED
c/o Credit Suisse First Boston
Corporation
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, X.X. 10010-3629
Dear Sirs:
1. Introductory. R&B Falcon Corporation, a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several initial purchasers named in Schedule A hereto (the
"Purchasers") $250,000,000 aggregate principal amount of its 6 "% Senior Notes
due 2003 (the "5-Year Notes"), $350,000,000 aggregate principal amount of its 6
"% Senior Notes due 2005 (the "7-Year Notes"), $250,000,000 aggregate principal
amount of its 6.95% Senior Notes due 2008 (the "10-Year Notes") and $250,000,000
aggregate principal amount of its 7 "% Senior Notes due 2018 (the "20-Year
Notes" and, collectively with the 5-Year Notes, the 7-Year Notes and the 10-Year
Notes, the "Offered Securities") to be issued under an indenture dated as of
April 14, 1998 (the "Indenture") between the Company and Chase Bank of Texas,
National Association, as Trustee. The United States Securities Act of 1933 is
herein referred to as the "Securities Act."
The Company hereby agrees with the several Purchasers as follows:
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2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with the several Purchasers that:
(1) A preliminary offering circular and an offering circular relating to
the Offered Securities to be offered by the Purchasers have been prepared by the
Company. Such preliminary offering circular and offering circular, as
supplemented as of the date of this Agreement, together with any other document
approved by the Company for use in connection with the contemplated resale of
the Offered Securities are hereinafter collectively referred to as the "Offering
Document." On the date of this Agreement, the Offering Document does not include
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding sentence
does not apply to statements in or omissions from the Offering Document based
upon written information furnished to the Company by any Purchaser through
Credit Suisse First Boston Corporation ("CSFBC") specifically for use therein,
it being understood and agreed that the only such information is that described
as such in Section 7(b) hereto. On the date of this Agreement, the Company"s
Annual Report on Form 10-K most recently filed with the Securities and Exchange
Commission (the "Commission") and all subsequent reports (collectively, the
"Exchange Act Reports") which have been filed by the Company with the Commission
or sent to shareholders pursuant to the Securities Exchange Act of 1934 (the
"Exchange Act") do not include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading. Such
documents, when they were filed with the Commission, conformed in all material
respects to the applicable requirements of the Exchange Act and the applicable
rules and regulations of the Commission thereunder.
(2) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Offering Document; and the Company is duly
qualified to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the condition (financial
or other), business, properties or results of operation of the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect"). (1)
(3) Each of the subsidiaries of the Company listed on Schedule C hereto
(the "Subsidiaries") has been duly incorporated or formed and is an existing
corporation or limited liability entity in good standing under the laws of the
jurisdiction of its incorporation or formation, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Offering Document; and each of the Subsidiaries is duly
qualified to do business as a foreign corporation or limited liability entity in
good standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification, except
where the failure to be so qualified would not have a Material Adverse Effect;
all of the issued and outstanding capital stock or member interests of each
Subsidiary has been duly authorized and validly issued and is fully paid and
nonassessable; and the capital stock or member
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interests of each Subsidiary is owned directly or indirectly by the Company free
from liens, encumbrances and defects.
(4) The Indenture has been duly authorized; the Offered Securities have
been duly authorized; and when the Offered Securities are executed and
authenticated in accordance with the terms thereof and delivered and paid for
pursuant to this Agreement on the Closing Date (as defined below), the Indenture
will have been duly executed and delivered, such Offered Securities will have
been duly executed, issued and delivered and will conform to the description
thereof contained in the Offering Document and the Indenture and such Offered
Securities will constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors" rights
and to general equity principles.
(5) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the consummation of
the transactions contemplated by this Agreement in connection with the issuance
and sale of the Offered Securities by the Company, except such as may be
required under state securities laws and except for such filings with the
Securities and Exchange Commission as are required in connection with the
Registration Rights Agreement.
(6) The execution, delivery and performance of the Indenture, the
Registration Rights Agreement and this Agreement, and the issuance and sale of
the Offered Securities and compliance with the terms and provisions thereof will
not result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary or any of its properties, or any
agreement or instrument to which the Company or any Subsidiary is a party or by
which the Company or any Subsidiary is bound or to which any of the properties
of the Company or any Subsidiary is subject, or the Certificate of Incorporation
or other organizational documents and Bylaws of the Company and each of the
Subsidiaries, and the Company has full power and authority to authorize, issue
and sell the Offered Securities as contemplated by this Agreement.
(7) Each of this Agreement and Registration Rights Agreement has been
duly authorized, executed and delivered by the Company. (1)
(8) Except as disclosed in the Offering Document or as would not have a
Material Adverse Effect, the Company and the Subsidiaries have good and
marketable title to all real properties and all other properties and assets
owned by them, in each case free from liens, encumbrances and defects that would
materially affect the value thereof or materially interfere with the use made or
to be made thereof; and except as disclosed in the Offering Document or as would
not have a Material Adverse Effect, the Company and the Subsidiaries hold any
leased real or personal property under valid and enforceable leases.
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(9) The Company and the Subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by them and have not received any
notice of proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to the Company or
any Subsidiary, would individually or in the aggregate have a Material Adverse
Effect.
(10) No labor dispute with the employees of the Company or any
Subsidiary exists or, to the knowledge of the Company, is imminent that should
reasonably be expected to have a Material Adverse Effect.
(11) None of the Company or any Subsidiary is in violation of any
statute, any rule, regulation, decision or order of any governmental agency or
body or any court, domestic or foreign, relating to the use, disposal or release
of hazardous or toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances
(collectively, "environmental laws"), owns or operates any real property
contaminated with any substance that is subject to any environmental laws, is
liable for any off-site disposal or contamination pursuant to any environmental
laws, or is subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and none of the Company and any
Subsidiary is aware of any pending investigation which might lead to such a
claim.
(12) There are no pending actions, suits or proceedings against or
affecting the Company, the Subsidiaries or any of their respective properties
that, if determined adversely to the Company and the Subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or would
materially and adversely affect the ability of the Company to perform its
obligations under this Agreement, the Indenture or the Registration Rights
Agreement, or which are otherwise material in the context of the sale of the
Offered Securities; and no such actions, suits or proceedings are threatened.
(13) The financial statements included in the Offering Document present
fairly, in all material respects, the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of operations
and cash flows for the periods shown, and such financial statements have been
prepared in conformity with the generally accepted accounting principles in the
United States applied on a consistent basis.
(14) Since the date of the latest audited financial statements included
in the Offering Document there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of operations of
the Company and the Subsidiaries taken as a whole, and there has been no
dividend or distribution of any kind declared, paid or made by the Company. (1)
(15) The Company is not an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to be registered
under Section 8 of the
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United States Investment Company Act of 1940 (the "Investment Company Act"); and
the Company is not and, after giving effect to the offering and sale of the
Offered Securities and the application of the proceeds thereof as described in
the Offering Document, will not be an "investment company" as defined in the
Investment Company Act.
(16) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities are listed on any
national securities exchange registered under Section 6 of the Securities
Exchange Act of 1934 (the "Exchange Act") or quoted in a U.S. automated
inter-dealer quotation system.
(17) Assuming the accuracy of the representation of the Purchasers
contained in Section 4 hereof, the offer and sale of the Offered Securities in
the manner contemplated by this Agreement will be exempt from the registration
requirements of the Securities Act by reason of Section 4(2) thereof, Regulation
D thereunder and Regulation S thereunder; and prior to the effectiveness of a
registration statement as contemplated in the Registration Rights Agreement, it
is not necessary to qualify an indenture in respect of the Offered Securities
under the United States Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act").
(18) None of the Company or any of its affiliates, or any person acting
on its or their behalf (other than the Purchasers, with respect to which the
Company makes no representation) (i) has, within the six-month period prior to
the date hereof, offered or sold in the United States or to any U.S. person (as
such terms are defined in Regulation S under the Securities Act) the Offered
Securities or any security of the same class or series as the Offered Securities
or (ii) has offered or will offer or sell the Offered Securities (A) in the
United States by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act or (B)
with respect to any such securities sold in reliance on Rule 903 of Regulation S
("Regulation S") under the Securities Act, by means of any directed selling
efforts within the meaning of Rule 902(b) of Regulation S. The Company, its
affiliates and any person acting on their behalf (other than the Purchasers,
with respect to which the Company makes no representation) have complied and
will comply with the offering restrictions requirement of Regulation S. The
Company has not entered and will not enter into any contractual arrangement with
respect to the distribution of the Offered Securities except for this Agreement
and the Registration Rights Agreement.
(19) The proceeds to the Company from the offering of the Offered
Securities will not be used to purchase or carry any security other than the
Falcon Notes (as defined in the Offering Document).
(20) The proceeds to the Company from the offering of the Offered
Securities will be used as described in the Offering Document. (1)
(21) None of the Company, the Subsidiaries, any of their respective
affiliates, or any director, officer, agent, employee or other person associated
with or acting on behalf of the Company, the Subsidiaries or any of their
respective affiliates has (i) used any corporate funds
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for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; (ii) made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(22) The Company is subject to Section 13 or 15(d) of the Exchange Act.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Company, at respective purchase prices of (a) 99.617% of the principal
amount of the 5-Year Notes, (b) 99.396% of the principal amount of the 7-Year
Notes, (c) 99.658% of the principal amount of the 10-Year Notes and (d) 99.174%
of the principal amount of the 20-Year Notes, in each case plus accrued interest
from April 14, 1998 to the Closing Date (as hereinafter defined) the respective
principal amounts of Securities set forth opposite the names of the several
Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price the Offered
Securities in the form of one or more permanent global Securities in registered
form without interest coupons (the "Global Securities") which will be deposited
with the Trustee as custodian for The Depository Trust Company ("DTC") and
registered in the name of Cede & Co., as nominee for DTC. Interests in any
permanent global Securities will be held only in book-entry form through DTC,
except in the limited circumstances described in the Offering Document. Payment
for the Offered Securities shall be made by the Purchasers in Federal (same day)
funds by wire transfer to an account at a bank acceptable to CSFBC at 10:00 a.m.
(New York time) on April 14, 1998, or at such other time not later than seven
full business days thereafter as CSFBC and the Company determine, such time
being herein referred to as the "Closing Date", against delivery to the Trustee
as custodian for DTC of the Global Securities representing all of the Offered
Securities. The Global Securities will be made available for checking at the
offices of Xxxxxxx & Xxxxx L.L.P., 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx
00000, at least 24 hours prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers. (a) Each Purchaser
severally represents and warrants to the Company that it is an "accredited
investor" within the meaning of Regulation D under the Securities Act.
(1) Each Purchaser severally acknowledges that the Offered Securities
have not been registered under the Securities Act and may not be offered or sold
within the United States or to, or for the account or benefit of, U.S. persons
except in accordance with Regulation S or pursuant to an exemption from the
registration requirements of the Securities Act. Each Purchaser severally
represents and agrees that it has offered and sold the Offered Securities, and
will offer and sell the Offered Securities as part of its distribution at any
time, only in accordance with Rule 903 or Rule 144A under the Securities Act
("Rule 144A"). Accordingly, neither such Purchaser nor its affiliates, nor any
persons acting on its or their behalf, have engaged or will engage in any
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directed selling efforts with respect to the Offered Securities, and such
Purchaser, its affiliates and all persons acting on its or their behalf have
complied and will comply with the offering restrictions requirement of
Regulation S. Each Purchaser severally agrees that, at or prior to confirmation
of sale of the Offered Securities, other than a sale pursuant to Rule 144A, such
Purchaser will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases the Offered
Securities from it during the restricted period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered or
sold within the United States or to, or for the account or benefit of,
U.S. persons as part of their distribution at any time or except in
accordance with Regulation S (or Rule 144A if available) under the
Securities Act. Terms used above have the meanings given to them by
Regulation S."
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(2) Each Purchaser severally agrees that it and each of its affiliates
has not entered and will not enter into any contractual arrangement with respect
to the distribution of the Offered Securities except for any such arrangements
with the other Purchasers or affiliates of the other Purchasers with the prior
written consent of the Company.
(3) Each Purchaser severally agrees that it and each of its affiliates
will not offer or sell the Offered Securities in the United States by means of
any form of general solicitation or general advertising within the meaning of
Rule 502(c) under the Securities Act, including, but not limited to (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio, or
(ii) any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. Each Purchaser severally agrees, with
respect to resales made in reliance on Rule 144A of any of the Offered
Securities, to deliver either with the confirmation of such resale or otherwise
prior to settlement of such resale a notice to the effect that the resale of
such Offered Securities has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule 144A. (1)
(4) Each of the Purchasers severally represents and agrees that (i) it
has not offered or sold and prior to the date six months after the date of issue
of the Offered Securities will not offer or sell any Offered Securities to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (ii) it has complied and will comply with all
applicable provisions of the Financial Services Act 1986 with respect to
anything done by it in relation to the Offered Securities in, from or otherwise
involving the United Kingdom; and (iii) it
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has only issued or passed on and will only issue or pass on in the United
Kingdom any document received by it in connection with the issue of the Offered
Securities to a person who is of a kind described in Article 11(3) of the
Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996
or is a person to whom such document may otherwise lawfully be issued or passed
on.
5. Certain Agreements of the Company. The Company agrees with the several
Purchasers that:
(1) The Company will advise CSFBC promptly of any proposal to amend or
supplement the Offering Document and will not effect such amendment or
supplementation without CSFBC"s consent, which CSFBC agrees it will not
unreasonably withhold. If, at any time prior to the completion of the resale of
the Offered Securities by the Purchasers, any event occurs as a result of which
the Offering Document as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, the Company promptly will notify CSFBC of
such event and promptly will prepare, at its own expense, an amendment or
supplement which will correct such statement or omission. Neither CSFBC"s
consent to, nor the Purchasers" delivery to offerees or investors of, any such
amendment or supplement shall constitute a waiver of any of the conditions set
forth in Section 6.
(2) The Company will furnish to CSFBC copies of any preliminary
offering circular, the Offering Document and all amendments and supplements to
such documents, in each case as soon as available and in such quantities as
CSFBC requests, and the Company will furnish to CSFBC on the date hereof five
copies of the Offering Document signed by a duly authorized officer of the
Company, one of which will include the independent accountants" reports therein
manually signed by such independent accountants. At any time when the Company is
not subject to Section 13 or 15(d) of the Exchange Act, the Company will
promptly furnish or cause to be furnished to CSFBC (and, upon request, to each
of the other Purchasers) and, upon request of holders and prospective purchasers
of the Offered Securities, to such holders and purchasers, copies of the
information required to be delivered to holders and prospective purchasers of
the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or
any successor provision thereto) in order to permit compliance with Rule 144A in
connection with resales by such holders of the Offered Securities. The Company
will pay the expenses of printing and distributing to the Purchasers all such
documents.
(3) The Company will arrange for the qualification of the Offered
Securities for sale and the determination of their eligibility for investment
under the laws of such jurisdictions in the United States and Canada as CSFBC
designates and will continue such qualifications in effect so long as required
for the resale of the Offered Securities by the Purchasers, provided that the
Company will not be required to qualify as a foreign corporation or to file a
general consent to service of process in any such state.
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(4) During the period of five years hereafter, the Company will furnish
to CSFBC and, upon request, to each of the other Purchasers, as soon as
practicable after the end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Company will furnish to CSFBC and, upon
request, to each of the other Purchasers (i) as soon as available, a copy of
each report or financial statement furnished to or filed with the Commission or
any securities exchange on which any class of securities of either of the
Company is listed, and (ii) from time to time, such other information concerning
the Company as CSFBC may reasonably request.
(5) During the period of two years after the Closing Date, the Company
will, upon request, furnish to CSFBC, each of the other Purchasers and any
holder of Offered Securities a copy of the restrictions on transfer applicable
to the Offered Securities.
(6) During the period of two years after the Closing Date, the Company
will not, and will not permit any of its affiliates (as defined in Rule 144
under the Securities Act) to, resell any of the Offered Securities that have
been reacquired by any of them.
(7) During the period of two years after the Closing Date, the Company
will not be or become, an open-end investment company, unit investment trust or
face-amount certificate company that is or is required to be registered under
Section 8 of the Investment Company Act.
(8) The Company will pay all expenses incidental to the performance of
its obligations under this Agreement, the Indenture and the Registration Rights
Agreement, including (i) the reasonable fees and expenses of the Trustee and its
professional advisers; (ii) all expenses in connection with the execution,
issue, authentication, packaging and initial delivery of the Offered Securities,
the preparation and printing of this Agreement, the Offered Securities, the
Registration Rights Agreement and the Indenture, the Offering Document and
amendments and supplements thereto, and any other document relating to the
issuance, offer, sale and delivery of the Offered Securities; (iii) the cost of
listing the Offered Securities and qualifying the Offered Securities for trading
in The PortalSM Market ("PORTAL") of The Nasdaq Stock Market, Inc. and any
expenses incidental thereto; (iv) the cost of any advertising approved by the
Company in connection with the issue of the Offered Securities; (v) any
reasonable expenses (including fees and disbursements of counsel) incurred in
connection with qualification of the Offered Securities for sale under the laws
of such jurisdictions in the United States and Canada as CSFBC designates and
the printing of memoranda relating thereto; (vi) any fees charged by investment
rating agencies for the rating of the Securities; and (vii) any expenses
incurred in distributing preliminary offering circulars and the Offering
Document (including any amendments and supplements thereto) to the Purchasers.
The Company will also pay or reimburse the Purchasers (to the extent incurred by
them) for all reasonable travel expenses of the Purchasers and the Company"s
officers and employees and any other reasonable expenses of the Purchasers and
the Company in connection with attending or hosting meetings with prospective
purchasers of the Offered Securities from the Purchasers.
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(9) In connection with the offering, until CSFBC shall have notified
the Company and the other Purchasers of the completion of the resale of the
Offered Securities, neither the Company nor any of its affiliates has or will,
either alone or with one or more other persons, bid for or purchase for any
account in which it or any of its affiliates has a beneficial interest any
Offered Securities or attempt to induce any person to purchase any Offered
Securities; and neither the Company nor any of its affiliates will make bids or
purchases for the purpose of creating actual, or apparent, active trading in, or
of raising the price of, the Offered Securities.
6. Conditions of the Obligations of the Purchasers. The obligations of the
several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of officers of the Company
made pursuant to the provisions hereof, to the performance by the Company and
the Subsidiary of their obligations hereunder and to the following additional
conditions precedent:
(1) The Purchasers shall have received a letter, dated the date of this
Agreement, of Xxxxxx Xxxxxxxx LLP confirming that they are independent public
accountants within the meaning of the Securities Act and the applicable
published rules and regulations thereunder ("Rules and Regulations") and to the
effect that:
(i) in their opinion the financial statements examined by them and
included in the Offering Document and in the Exchange Act Reports comply
as to form in all material respects with the applicable accounting
requirements of the Securities Act and the related published Rules and
Regulations; and
(ii) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Offering Document and the Exchange Act Reports (in each
case to the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting records of
the Company and its subsidiaries subject to the internal controls of the
Company"s accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts, percentages
and other financial information to be in agreement with such results,
except as otherwise specified in such letter.
(2) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) a change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange controls
as would, in the judgment of CSFBC, be likely to prejudice materially the
success of the proposed issue, sale or distribution of the Offered Securities,
whether in the primary market or in respect of dealings in the secondary market,
or (ii) (A) any change, or any development or event involving a prospective
change, in the condition (financial or other), business, properties or results
of operations of the Company which, in the
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judgment of a majority in interest of the Purchasers including CSFBC, is
material and adverse and makes it impractical or inadvisable to proceed with
completion of the offering or the sale of and payment for the Offered
Securities; (B) any downgrading in the rating of any debt securities of the
Company by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under surveillance or review its
rating of any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (C) any suspension or limitation of trading in
securities generally on the New York Stock Exchange of the Company; (D) any
banking moratorium declared by U.S. Federal or New York authorities; or (E) any
outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial national
or international calamity or emergency if, in the judgment of a majority in
interest of the Purchasers including CSFBC, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the offering or sale of and payment
for the Offered Securities.
(3) The Purchasers shall have received an opinion, dated the Closing
Date, of Xxxxxxx Xxxxx Xxxxxx & Xxxxx L.L.P., counsel for the Company, and
Xxxxxxxx X. Xxxx, Esq., General Counsel of the Company to the collective effect
that:
(1) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its
business as described in the Offering Document; and the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification;
(2) Each of the Subsidiaries has been duly incorporated or formed
and is an existing corporation or limited liability entity in good standing
under the laws of the jurisdiction of its incorporation or formation, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Offering Document; and each of the
Subsidiaries is duly qualified to do business as a foreign corporation or
entity in good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such
qualification; all of the issued and outstanding capital stock or member
interests of each Subsidiary has been duly authorized and validly issued
and is fully paid and nonassessable; and the capital stock or member
interests of each Subsidiary is owned directly or indirectly by the Company
free from any liens, encumbrances and defects.
(3) The Indenture has been duly authorized; the Offered Securities
have been duly authorized; and when the Offered Securities have been
executed and authenticated in accordance with the terms of the Indenture
and have been delivered and paid for pursuant to this Agreement on the
Closing Date, the Indenture will have been duly executed and delivered,
such Offered Securities will have been duly executed, issued and
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delivered and will conform to the description thereof contained in the
Offering Document and the Indenture and such Offered Securities will
constitute valid and legally binding obligations of the Company, as the
case may be, enforceable against the Company in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors" rights and to general equity
principles.
(4) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the Prospectus will not be, an "investment company" as
defined in the Investment Company Act.
(5) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement and the
Registration Rights Agreement in connection with the issuance or sale of
the Offered Securities by the Company, or for the execution, delivery and
performance of the Indenture, except such as may be required under state
securities laws and except for such filings with the Commission as are
required in connection with the Registration Rights Agreement;
(6) The execution, delivery and performance of the Indenture, this
Agreement and the Registration Rights Agreement and the issuance and sale
of the Offered Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any rule,
regulation or order of any governmental agency or body or any court having
jurisdiction over the Company or any of its properties, or any agreement or
instrument to which the Company is a party or by which the Company is bound
or to which any of the properties of the Company is subject, or the
charter, other organizational documents or by-laws of the Company; and the
Company has full corporate power and authority to authorize, issue and sell
the Offered Securities as contemplated by this Agreement;
(7) Such counsel have no reason to believe that the Offering
Document, or any amendment or supplement thereto, or any Exchange Act
Report, as of the date hereof and as of the Closing Date, contained any
untrue statement of a material fact or omitted to state any material fact
necessary to make the statements therein not misleading; the descriptions
in the Offering Document of statutes, legal and governmental proceedings
and contracts and other documents are accurate and fairly present the
information; it being understood that such counsel need express no opinion
as to the financial statements or other financial data contained in the
Offering Document and the Exchange Act Reports;
(8) Each of this Agreement and the Registration Rights Agreement has
been duly authorized, executed and delivered by the Company; and
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(9) It is not necessary in connection with (A) the offer, sale
and delivery of the Offered Securities by the Company to the several
Purchasers pursuant to this Agreement or (B) the resales of the Offered
Securities by the several Purchasers in the manner contemplated by this
Agreement, to register the Offered Securities under the Securities Act or
to qualify an indenture in respect thereof under the Trust Indenture Act.
(4) The Purchasers shall have received from Xxxxxxx & Xxxxx
L.L.P., counsel for the Purchasers, such opinion, dated the Closing Date,
with respect to the formation of the Company, the validity of the Offered
Securities, the Offering Document, the exemption from registration for the
offer and sale of the Offered Securities by the Company to the several
Purchasers and the resales by the several Purchasers as contemplated hereby
and other related matters as CSFBC may require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(5) The Purchasers shall have received a certificate, dated
the Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that the representations and warranties of the Company in this Agreement
are true and correct, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, and that, subsequent to the date of the
most recent financial statements in the Offering Document there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole, except as set forth in or contemplated by
the Offering Document or as described in such certificate.
(6) The Purchasers shall have received a letter, dated the
Closing Date, of Xxxxxx Xxxxxxxx LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred to
in such subsection will be a date not more than three business days prior
to the Closing Date for the purposes of this subsection.
(7) The Offered Securities shall have been made eligible for
trading in PORTAL.
The Company will furnish the Purchasers with such conformed copies
of such opinions, certificates, letters and documents as the Purchasers
reasonably request. CSFBC may in its sole discretion waive on behalf of the
Purchasers compliance with any conditions to the obligations of the
Purchasers hereunder, whether in respect of the Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Purchaser against any losses, claims,
damages or liabilities, joint
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or several, to which such Purchaser may become subject, under the
Securities Act or the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any breach of any of the representations and warranties
of the Company contained herein or any untrue statement or alleged untrue
statement of any material fact contained in the Offering Document, or any
amendment or supplement thereto, or any related preliminary offering
circular, or arise out of or are based upon the 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, and will reimburse each Purchaser for any legal or
other expenses reasonably incurred by such Purchaser in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Company
will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Purchaser through CSFBC
specifically for use therein, it being understood and agreed that the only
such information consists of the information described as such in
subsection (b) below.
(1) Each Purchaser will severally and not jointly indemnify
and hold harmless the Company against any losses, claims, damages or
liabilities to which the Company may become subject, under the Securities
Act or the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in the Offering Document, or any amendment or supplement
thereto, or any related preliminary offering circular, or arise out of or
are based upon the omission or the alleged omission to state therein a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company by such Purchaser through CSFBC specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by any
Purchaser consists of the following information in the Offering Document
furnished on behalf of each Purchaser: the last paragraph at the bottom of
the cover page concerning the terms of the offering by the Purchasers, the
legend concerning over-allotments and stabilizing on the inside front cover
page, and, under the caption "Plan of Distribution," the third sentence of
paragraph two, the third sentence of paragraph six, and paragraphs seven
and eight.
(2) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in
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respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof,
the indemnifying party will not be liable to such indemnified party under
this Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party (which consent will not be
unreasonably withheld), effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject
matter of such action.
(3) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Purchasers on the
other from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company
on the one hand and the Purchasers on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Purchasers on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total discounts and commissions received by the
Purchasers from the Company under this Agreement. The relative fault shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Purchasers and the parties" relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other
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expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Purchaser shall be required to contribute any amount in excess of the
amount by which the total price at which the Offered Securities purchased
by it were resold exceeds the amount of any damages which such Purchaser
has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. The Purchasers"
obligations in this subsection (d) to contribute are several in proportion
to their respective purchase obligations and not joint. (1)
(4) The obligations of the Company under this Section shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Purchaser within the meaning of the Securities Act or the
Exchange Act; and the obligations of the Purchasers under this Section
shall be in addition to any liability which the respective Purchasers may
otherwise have and shall extend, upon the same terms and conditions, to
each person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default
in their obligations to purchase Offered Securities hereunder and the
aggregate amount of Offered Securities that such defaulting Purchaser or
Purchasers agreed but failed to purchase does not exceed 10% of the total
principal amount of Offered Securities, CSFBC may make arrangements
satisfactory to the Company for the purchase of such Offered Securities by
other persons, including any of the Purchasers, but if no such arrangements
are made by such Closing Date, the non-defaulting Purchasers shall be
obligated severally, in proportion to their respective commitments
hereunder, to purchase the Offered Securities that such defaulting
Purchasers agreed but failed to purchase. If any Purchaser or Purchasers so
default and the aggregate principal amount of Offered Securities with
respect to which such default or defaults occur exceeds 10% of the total
principal amount of Offered Securities and arrangements satisfactory to
CSFBC and the Company for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting
Purchaser or the Company, except as provided in Section 9. As used in this
Agreement, the term "Purchaser" includes any person substituted for a
Purchaser under this Section. Nothing herein will relieve a defaulting
Purchaser from liability for its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Purchasers set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of any Purchaser and the Company or any of
their respective officers or directors or any controlling person, and will
survive delivery of and payment for the Offered Securities. If this
Agreement is terminated pursuant to Section 8
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or if for any reason the purchase of the Offered Securities by the
Purchasers is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the
respective obligations of the Company and the Purchasers pursuant to
Section 7 shall remain in effect. If the purchase of the Offered Securities
by the Purchasers is not consummated for any reason other than solely
because of the termination of this Agreement pursuant to Section 8 or the
occurrence of any event specified in clause (C), (D) or (E) of Section
6(b)(ii), the Company will reimburse the Purchasers for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred
by them in connection with the offering of the Offered Securities. If this
Agreement is terminated as provided in the second and third sentences of
this Section 9 or the purchase of the Offered Securities is not
consummated, the Company"s sole liability shall be as provided for in this
Section 9. 1.
10. Notices. All communications hereunder will be in writing and,
if sent to the Purchasers will be mailed, delivered or telegraphed and
confirmed to the Purchasers c/o Credit Suisse First Boston Corporation,
Xxxxxx Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 10010-3629, Attention: Investment
Banking Department"Transactions Advisory Group, or, if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at R&B Falcon
Corporation, 000 Xxxxxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, Attention:
Xxxxxxxx X. Xxxx, Co-Counsel; provided, however, that any notice to a
Purchaser pursuant to Section 7 will be mailed, delivered or telegraphed
and confirmed to such Purchaser.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7 and no other person will have
any right or obligation hereunder, except that holders of Offered
Securities shall be entitled to enforce the agreements for their benefit
contained in the second and third sentences of Section 5(b) hereof against
the Company as if such holders were parties thereto.
12. Representation of Purchasers. You will act for the several
Purchasers in connection with this purchase, and any action under this
Agreement taken by you jointly or by CSFBC will be binding upon all the
Purchasers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without
regard to principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New
York in any suit or
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proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
If the foregoing is in accordance with the Purchasers" understanding
of our agreement, kindly sign and return to us one of the counterparts
hereof, whereupon it will become a binding agreement among the Company and
the several Purchasers in accordance with its terms.
Very truly yours,
R&B FALCON CORPORATION
By /s/ XXXXXXXX XXXX
---------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
The foregoing Purchase Agreement is hereby
confirmed and accepted as of the date first
above written.
Acting on behalf of itself and as the
Representative of the several Purchasers
CREDIT SUISSE FIRST BOSTON CORPORATION
CHASE SECURITIES INC.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXX XXXXXXX & CO. INCORPORATED
By CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ XXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
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SCHEDULE A
PURCHASER PRINCIPAL PRINCIPAL PRINCIPAL PRINCIPAL
--------------------------------------------- AMOUNT OF AMOUNT OF AMOUNT OF AMOUNT OF
5-YEAR NOTES 7-YEAR NOTES 10-YEAR NOTES 20-YEAR NOTES
------------ ------------ ------------- -------------
Credit Suisse First Boston Corporation ...... $125,000,000 $175,000,000 $125,000,000 $125,000,000
Chase Securities ............................ 41,700,000 58,380,000 41,700,000 41,700,000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation .................. 41,650,000 58,310,000 41,650,000 41,650,000
Xxxxxx Xxxxxxx & Co., Incorporated .......... 41,650,000 58,310,000 41,650,000 41,650,000
------------ ------------ ------------ ------------
Total ................................ $250,000,000 $350,000,000 $250,000,000 $250,000,000
============ ============ ============ ============
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SCHEDULE B
R&B Falcon (International Deepwater) Inc.
R&B Falcon (Drilling U.S.), Inc.
Reading & Xxxxx Drilling Co.
Arcade Drilling A.S.
R&B Falcon Inland, Inc.
Falrig Offshore, Inc.
20
