1
EXHIBIT 10.1
PURCHASE AGREEMENT
------------------------
R&B FALCON CORPORATION
$200,000,000 PRINCIPAL AMOUNT OF
12 1/4% SENIOR NOTES DUE 2006
MARCH 19, 1999
------------------------
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
2
$200,000,000 12 1/4% SENIOR NOTES DUE 2006
R&B FALCON CORPORATION
PURCHASE AGREEMENT
March 19, 1999
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
AS INITIAL PURCHASER
000 XXXX XXXXXX
XXX XXXX, XXX XXXX 00000
Dear Sirs:
R&B Falcon Corporation, a Delaware corporation (the "COMPANY"), proposes to
issue and sell to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation (the
"INITIAL PURCHASER") an aggregate of $200,000,000 in principal amount of its 12
1/4% Senior Notes due 2006 (the "RESTRICTED NOTES"), subject to the terms and
conditions set forth herein. The Restricted Notes are to be issued pursuant to
the provisions of an indenture (the "INDENTURE"), to be dated as of the Closing
Date (as defined below), among the Company and United States Trust Company of
Texas, National Association, as trustee (the "TRUSTEE"). The Restricted Notes
and the Exchange Notes (as defined below), issuable in exchange therefor, are
collectively referred to herein as the "NOTES." Capitalized terms used but not
defined herein shall have the meanings given to such terms in the Indenture.
1. OFFERING MEMORANDUM. The Restricted Notes will be offered and sold
to the Initial Purchaser pursuant to one or more exemptions from the
registration requirements under the Securities Act of 1933, as amended (the
"ACT"). The Company has prepared a preliminary offering memorandum, dated March
15, 1999 (the "PRELIMINARY OFFERING MEMORANDUM"), and a final offering
memorandum, dated March 19, 1999 (the "OFFERING MEMORANDUM"), relating to the
Restricted Notes.
Upon original issuance thereof, and until such time as the same is no
longer required pursuant to the Indenture, the Restricted Notes (and all
securities issued in exchange therefor, in substitution thereof or upon
conversion thereof) shall bear the following legend:
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS. ACCORDINGLY, THIS NOTE
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S.
1
3
PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE. BY ITS
ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A
"QIB"), (B) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER
REGULATION D UNDER THE SECURITIES ACT (AN "IAI")),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B)
TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
904 OF THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) TO AN
AIA THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE WITH A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF
WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER
IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS
THAN $250,000, AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO
THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE
COMPANY) OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION, AND
2
4
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," U.S. PERSON"
AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE
902 OF REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE
FOREGOING.
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions contained herein, the Company agrees to
issue and sell to the Initial Purchaser, and the Initial Purchaser agrees to
purchase from the Company, the aggregate principal amount of Restricted Notes at
a purchase price equal to 97.25% of the principal amount thereof (the "PURCHASE
Price").
3. TERMS OF OFFERING. The Initial Purchaser has advised, and represents
and warrants to, the Company that the Initial Purchaser will make offers and
sales (the "EXEMPT RESALES") of the Restricted Notes purchased hereunder on the
terms set forth in the Offering Memorandum, as amended or supplemented, solely
to (i) persons whom the Initial Purchaser reasonably believes to be "qualified
institutional buyers" (as defined in Rule 144A promulgated under the Act)
("QIBS"), and (ii) to persons permitted to purchase the Restricted Notes in
offshore transactions in reliance upon Regulation S under the Act (each a
"REGULATION S PURCHASER") (QIBs and Regulation S Purchasers being referred to
herein as the "ELIGIBLE PURCHASERS"). The Initial Purchaser will offer the
Restricted Notes to Eligible Purchasers initially at a price equal to the
percentage of the principal amount thereof set forth on the cover page of the
Offering Memorandum.
Holders (including subsequent transferees) of the Restricted Notes will
have the registration rights set forth in the registration rights agreement (the
"REGISTRATION RIGHTS AGREEMENT"), to be dated the Closing Date, in substantially
the form of Exhibit A hereto, for so long as such Restricted Notes constitute
"TRANSFER RESTRICTED SECURITIES" (as defined in the Registration Rights
Agreement). Pursuant to the Registration Rights Agreement, the Company will
agree to file (i) with the Securities and Exchange Commission (the "Commission")
under the circumstances set forth therein (A) a registration statement under the
Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") relating to two new series of
the Company's Senior Notes of like amounts having identical terms (the "EXCHANGE
NOTES") to be offered in exchange for the Restricted Notes (such offer to
exchange being referred to as the "EXCHANGE OFFER") and/or (B) a shelf
registration statement pursuant to Rule 415 under the Act (the "SHELF
REGISTRATION STATEMENT" and, together with the Exchange Offer Registration
Statement, the "REGISTRATION STATEMENTS") relating to the resale by certain
holders of the Restricted Notes and (ii) to use its reasonable best efforts to
cause such Registration Statements to be declared and remain effective and
usable for the periods specified in the Registration Rights Agreement and to
consummate the Exchange Offer. This Agreement, the Indenture, the Restricted
Notes, and the Registration Rights Agreement are referred to herein as the
"OPERATIVE Documents."
4. DELIVERY AND PAYMENT.
3
5
(a) Delivery of, and payment of the Purchase Price for, the Notes
shall be made at the offices of Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., in
Houston, Texas, or such other location as may be mutually acceptable. Such
delivery and payment shall be made at 9:00 a.m. New York City time, on March 26,
1999 or at such other time or date as shall be agreed upon by the Initial
Purchaser and the Company in writing. The time and date of such delivery and the
payment for the Notes are herein called the "CLOSING DATE."
(b) One or more of the Restricted Notes in definitive global form,
registered in the name of Cede & Co., as nominee of The Depository Trust Company
("DTC"), having an aggregate principal amount corresponding to the aggregate
principal amount of the Restricted Notes (collectively, the "GLOBAL NOTES"),
shall be delivered by the Company to the Initial Purchaser (or as the Initial
Purchaser direct) in each case with any transfer taxes thereon duly paid by the
Company against payment by the Initial Purchaser of the Purchase Price thereof
by wire transfer in same day funds to the order of the Company. The Global Notes
shall be made available to the Initial Purchaser for inspection not later than
9:30 a.m., New York City time, on the business day immediately preceding the
Closing Date.
5. AGREEMENTS OF THE COMPANY. The Company hereby agrees with the
Initial Purchaser as follows:
(a) To advise the Initial Purchaser promptly and, if requested by
the Initial Purchaser, confirm such advice in writing, (i) of the issuance by
any state securities commission of any stop order suspending the qualification
or exemption from qualification of any Restricted Notes for offering or sale in
any jurisdiction designated by the Initial Purchaser pursuant to Section 5(e)
hereof, or the initiation of any proceeding by any state securities commission
or any other federal or state regulatory authority for such purpose and (ii) of
the happening of any event during the period referred to in Section 5(c) below
that makes any statement of a material fact made in the Preliminary Offering
Memorandum or the Offering Memorandum untrue or that requires any additions to
or changes in the Preliminary Offering Memorandum or the Offering Memorandum in
order to make the statements therein not misleading. The Company shall use its
best efforts to prevent the issuance of any stop order or order suspending the
qualification or exemption of any Restricted Notes under any state securities or
Blue Sky laws and, if at any time any state securities commission or other
federal or state regulatory authority shall issue an order suspending the
qualification or exemption of any Restricted Notes under any state securities or
Blue Sky laws, the Company shall use its best efforts to obtain the withdrawal
or lifting of such order at the earliest possible time.
(b) To furnish the Initial Purchaser and those persons identified
by the Initial Purchaser to the Company as many copies of the Preliminary
Offering Memorandum and the Offering Memorandum, and any amendments or
supplements thereto, as the Initial Purchaser may reasonably request for the
time period specified in Section 5(c). Subject to the Initial Purchaser's
compliance with their representations and warranties and agreements set forth in
Section 7 hereof, the Company consents to the use of the Preliminary Offering
Memorandum and the Offering Memorandum, and any amendments and supplements
thereto required pursuant hereto, by the Initial Purchaser in connection with
Exempt Resales.
(c) During such period as in the opinion of counsel for the
Initial Purchaser an Offering Memorandum is required by law to be delivered in
connection with Exempt Resales by the Initial Purchaser and in connection with
market-making activities of the Initial Purchaser for so long as any
4
6
Restricted Notes are outstanding, (i) not to make any amendment or supplement to
the Offering Memorandum of which the Initial Purchaser shall not previously have
been advised or to which the Initial Purchaser shall reasonably object after
being so advised and (ii) to prepare promptly upon the Initial Purchaser's
reasonable request based on the opinion of its counsel, any amendment or
supplement to the Offering Memorandum which may be necessary or advisable in
connection with such Exempt Resales or such market-making activities.
(d) If, during the period referred to in Section 5(c) above, any
event shall occur or condition shall exist as a result of which, in the opinion
of counsel to the Initial Purchaser, it becomes necessary to amend or supplement
the Offering Memorandum in order to make the statements therein, in the light of
the circumstances when such Offering Memorandum is delivered to an Eligible
Purchaser, not misleading, or if, in the opinion of counsel to the Initial
Purchaser, it is necessary to amend or supplement the Offering Memorandum to
comply with any applicable law, forthwith to prepare an appropriate amendment or
supplement to such Offering Memorandum so that the statements therein, as so
amended or supplemented, will not, in the light of the circumstances when it is
so delivered, be misleading, or so that such Offering Memorandum will comply
with applicable law, and to furnish to the Initial Purchaser and such other
persons as the Initial Purchaser may designate such number of copies thereof as
the Initial Purchaser may reasonably request.
(e) Prior to the sale of all Restricted Notes pursuant to Exempt
Resales as contemplated hereby, to cooperate with the Initial Purchaser and
counsel to the Initial Purchaser in connection with the registration or
qualification of the Restricted Notes for offer and sale to the Initial
Purchaser and pursuant to Exempt Resales under the securities or Blue Sky laws
of such jurisdictions as the Initial Purchaser may reasonably request and to
continue such registration or qualification in effect so long as required for
Exempt Resales and to file such consents to service of process or other
documents as may be necessary in order to effect such registration or
qualification; provided, however, that neither the Company shall be required in
connection therewith to qualify as a foreign corporation in any jurisdiction in
which it is not now so qualified or to take any action that would subject it to
general consent to service of process or taxation other than as to matters and
transactions relating to the Preliminary Offering Memorandum, the Offering
Memorandum or Exempt Resales, in any jurisdiction in which it is not now so
subject.
(f) So long as the Notes are outstanding, (i) to mail and make
generally available as soon as practicable after the end of each fiscal year to
the record holders of the Notes a financial report of the Company and its
subsidiaries on a consolidated basis if such report is required to be made
available pursuant to Section 4.13 of the Indenture (and a similar financial
report of all unconsolidated subsidiaries, if any), all such financial reports
to include a consolidated balance sheet, a consolidated statement of operations,
a consolidated statement of cash flows and a consolidated statement of
stockholders' equity as of the end of and for such fiscal year, together with
comparable information as of the end of and for the preceding year, certified by
the independent public accountants of the Company, as applicable, and (ii) to
mail or make generally available as soon as practicable after the end of each
quarterly period (except for the last quarterly period of each fiscal year) to
such holders, a consolidated balance sheet, a consolidated statement of
operations and a consolidated statement of cash flows (and similar financial
reports of all unconsolidated subsidiaries, if any) as of the end of and for
such period, and for the period from the beginning of such year to the close of
such quarterly period, together with comparable information for the
corresponding periods of the preceding year of the Company, as applicable.
(g) So long as the Notes are outstanding, to furnish upon request
to the Initial
5
7
Purchaser as soon as available copies of all reports or other communications
furnished by the Company to its security holders or furnished to or filed with
the Commission or any national securities exchange on which any class of
securities of the Company is listed and such other publicly available
information concerning the Company as the Initial Purchaser may reasonably
request.
(h) So long as any of the Restricted Notes remain outstanding and
during any period in which the Company is not subject to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), to make
available to any holder of Restricted Notes in connection with any sale thereof
and any prospective purchaser of such Restricted Notes from such holder, the
information ("RULE 144A INFORMATION") required by Rule 144A(d)(4) under the Act.
(i) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of the obligations of the Company under
this Agreement, including: (i) the fees, disbursements and expenses of counsel
to the Company and accountants of the Company in connection with the sale and
delivery of the Restricted Notes to the Initial Purchaser and pursuant to Exempt
Resales, and all other fees and expenses in connection with the preparation,
printing, filing and distribution of the Preliminary Offering Memorandum, the
Offering Memorandum and all amendments and supplements to any of the foregoing
(including financial statements), including the mailing and delivering of copies
thereof to the Initial Purchaser and persons designated by it in the quantities
specified herein, (ii) all costs and expenses related to the transfer and
delivery of the Restricted Notes to the Initial Purchaser and pursuant to Exempt
Resales, including any transfer or other taxes payable thereon, (iii) all costs
of printing or producing this Agreement, the other Operative Documents and any
other agreements or documents in connection with the offering, purchase, sale or
delivery of the Restricted Notes, (iv) all expenses in connection with the
registration or qualification of the Restricted Notes for offer and sale under
the securities or Blue Sky laws of the several states and all costs of printing
or producing any preliminary and supplemental Blue Sky memoranda in connection
therewith (including the filing fees and fees and disbursements of counsel for
the Initial Purchaser in connection with such registration or qualification and
memoranda relating thereto), (v) the cost of printing certificates representing
the Restricted Notes, (vi) all expenses and listing fees in connection with the
application for quotation of the Restricted Notes in The PORTAL Market
("PORTAL") of The Nasdaq Stock Market, Inc. ("Nasdaq"), (vii) the fees and
expenses of the Trustee and the Trustee's counsel in connection with the
Indenture and the Notes, (viii) the costs and charges of any transfer agent,
registrar and/or depositary (including DTC), (ix) any fees charged by rating
agencies for the rating of the Notes, (x) all costs and expenses of the Exchange
Offer and any Registration Statement, as set forth in the Registration Rights
Agreement, and (xi) and all other costs and expenses incident to the performance
of the obligations of the Company hereunder for which provision is not otherwise
made in this Section.
(j) To use its best efforts, with the cooperation of the Initial
Purchaser, to effect the inclusion of the Restricted Notes in PORTAL and to
maintain the listing of the Restricted Notes on PORTAL for so long as any
Restricted Notes are outstanding.
(k) To obtain, with the cooperation of the Initial Purchaser, the
approval of DTC for "book-entry" transfer of the Notes, and to comply with all
of its agreements set forth in the representation letters of the Company to DTC
relating to the approval of the Notes by DTC for "book-entry" transfer.
6
8
(l) Except as described in the Offering Memorandum, during the
period beginning on the date hereof and continuing to and including the Closing
Date, not to offer, sell, contract to sell or otherwise transfer or dispose of
any debt securities of the Company or any warrants, rights or options to
purchase or otherwise acquire debt securities of the Company substantially
similar to the Notes (other than (i) the Notes and (ii) commercial paper issued
in the ordinary course of business), without the prior written consent of the
Initial Purchaser.
(m) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act) that
would be integrated with the sale of the Restricted Notes to the Initial
Purchaser or pursuant to Exempt Resales in a manner that would require the
registration of any such sale of the Restricted Notes under the Act.
(n) Not to voluntarily claim, and to actively resist any attempts
to claim, the benefit of any usury laws against the holders of any Notes.
(o) To comply with all of its agreements set forth in the
Registration Rights Agreement.
(p) To use its best efforts to do and perform all things required
or necessary to be done and performed under this Agreement by it prior to the
Closing Date and to satisfy all conditions precedent to the delivery of the
Restricted Notes.
6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. As of the
date hereof, the Company represents and warrants to, and agrees with, the
Initial Purchaser that:
(a) The Preliminary Offering Memorandum and the Offering
Memorandum do not, and any supplement or amendment to them will not, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except that the
representations and warranties contained in this paragraph (a) shall not apply
to statements in or omissions from the Preliminary Offering Memorandum or the
Offering Memorandum (or any supplement or amendment thereto) based upon
information relating to the Initial Purchaser furnished to the Company in
writing by the Initial Purchaser expressly for use therein. No stop order
preventing the use of the Preliminary Offering Memorandum or the Offering
Memorandum, or any amendment or supplement thereto, or any order asserting that
any of the transactions contemplated by this Agreement are subject to the
registration requirements of the Act, has been issued.
(b) The Company and its subsidiaries has been duly incorporated,
is validly existing as a corporation or limited liability company in good
standing under the laws of its jurisdiction of incorporation or formation and
has the corporate or limited liability company power and authority to carry on
its business as described in the Preliminary Offering Memorandum and the
Offering Memorandum and to own, lease and operate its properties, and each is
duly qualified and is in good standing as a foreign corporation or entity
authorized to do business in each jurisdiction in which the nature of its
business or its ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a material adverse
effect on the business, prospects, financial condition or results of operations
of the Company and its subsidiaries, taken as a whole (a "MATERIAL ADVERSE
Effect"), as the case may be. Each of the subsidiaries of the Company listed on
Schedule B hereto (the "SUBSIDIARIES"), which
7
9
Subsidiaries in the aggregate directly own substantially all of the assets held
by the Company and all of its subsidiaries on a consolidated basis and which
constitute all of the Company's "significant subsidiaries" (as such term is
defined in Regulation S-X under the Act), has been duly incorporated, is validly
existing as a corporation or limited liability company in good standing under
the laws of its jurisdiction of incorporation or formation and has the corporate
or limited liability company power and authority to carry on its business and to
own, lease and operate its properties, and each is duly qualified and is in good
standing as a foreign corporation or entity authorized to do business in each
jurisdiction in which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect.
(c) All outstanding shares of capital stock of the Company and its
subsidiaries have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
(e) The Indenture has been duly authorized by the Company and, on
the Closing Date, will have been validly executed and delivered by the Company.
When the Indenture has been duly executed and delivered by the Company, the
Indenture will be a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
transfer or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability. On the Closing Date, the
Indenture will conform in all material respects to the requirements of the Trust
Indenture Act of 1939, as amended (the "TIA" or "TRUST INDENTURE ACT"), and the
rules and regulations of the Commission applicable to an indenture which is
qualified thereunder.
(f) The Restricted Notes have been duly authorized and, on the
Closing Date, will have been validly executed and delivered by the Company. When
the Restricted Notes have been issued, executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid for by the
Initial Purchaser in accordance with the terms of this Agreement, the Restricted
Notes will be entitled to the benefits of the Indenture and will be valid and
binding obligations of the Company, enforceable in accordance with their terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent transfer or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability. On the
Closing Date, the Restricted Notes will conform as to legal matters to the
description thereof contained in the Offering Memorandum.
(g) On the Closing Date, the Exchange Notes will have been duly
authorized by the Company. When the Exchange Notes are issued, executed and
authenticated in accordance with the terms of the Exchange Offer and the
Indenture, the Exchange Notes will be entitled to the benefits of the Indenture
and will be the valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
transfer or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
8
10
(h) The Registration Rights Agreement has been duly authorized by
the Company and, on the Closing Date, will have been duly executed and delivered
by the Company. When the Registration Rights Agreement has been duly executed
and delivered, the Registration Rights Agreement will be a valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent transfer or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability. On the
Closing Date, the Registration Rights Agreement will conform as to legal matters
to the description thereof in the Offering Memorandum.
(i) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or in default in the performance
of any obligation, agreement, covenant or condition contained in any indenture,
loan agreement, mortgage, lease or other agreement or instrument that is
material to the Company and its subsidiaries to which the Company or its
subsidiaries is a party or by which the Company or its subsidiaries, or their
respective property, is bound.
(j) The execution, delivery and performance of this Agreement and
the other Operative Documents by the Company, compliance by the Company with all
provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not (i) require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the securities
or Blue Sky laws of the various states), (ii) conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the charter or
by-laws of the Company or its subsidiaries or any indenture, loan agreement,
mortgage, lease or other agreement or instrument that is material to the Company
and its subsidiaries, taken as a whole, to which the Company or its subsidiaries
is a party or by which the Company or its subsidiaries, or their respective
property is bound, (iii) violate or conflict with any applicable law or any
rule, regulation, judgment, order or decree of any court or any governmental
body or agency having jurisdiction over the Company or its subsidiaries or their
respective property, (iv) result in the imposition or creation of (or the
obligation to create or impose) a Lien under, any agreement or instrument to
which the Company or its subsidiaries is a party or by which the their
respective property is bound (other than Liens granted under or contemplated by
the Operative Documents), or (v) result in the termination, suspension or
revocation of any Authorization (as defined below) of the Company or result in
any other impairment of the rights of the holder of any such Authorization.
(k) There are no legal or governmental proceedings pending or, to
the knowledge of the Company or any of its subsidiaries, threatened, to which
the Company or its subsidiaries are a party or to which any of their respective
property is subject, which, if determined adversely against the Company or its
subsidiaries, would, singly or in the aggregate, have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum, neither the
Company nor any of its subsidiaries has violated any foreign, federal, state or
local law or regulation relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), any provisions of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or any provisions of the
Foreign Corrupt Practices Act or the rules and regulations promulgated
thereunder, except for such violations which, singly or in the aggregate, would
not have a Material Adverse Effect.
9
11
(m) Except as disclosed in the Offering Memorandum, neither the
Company nor any of its subsidiaries are obligated for costs or liabilities
associated with Environmental Laws (including, without limitation, any capital
or operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any Authorization, any related constraints
on operating activities and any potential liabilities to third parties) which
would, singly or in the aggregate, have a Material Adverse Effect.
(n) Each of the Company and the Company's subsidiaries has such
permits, licenses, consents, exemptions, franchises, authorizations and other
approvals (each, an "Authorization") of, and has made all filings with and
notices to, all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including without limitation,
under any applicable Environmental Laws, as are necessary to own, lease, license
and operate its respective properties and to conduct its business, except where
the failure to have any such Authorization or to make any such filing or notice
would not, singly or in the aggregate, have a Material Adverse Effect. Each such
Authorization is valid and in full force and effect and each of the Company and
the Company's subsidiaries is in compliance with all the terms and conditions
thereof and with the rules and regulations of the authorities and governing
bodies having jurisdiction with respect thereto; and no event has occurred
(including, without limitation, the receipt of any notice from any authority or
governing body) which allows or, after notice or lapse of time or both, would
allow, revocation, suspension or termination of any such Authorization or
results or, after notice or lapse of time or both, would result in any other
impairment of the rights of the holder of any such Authorization; except where
such burden or failure to be valid and in full force and effect or to be in
compliance, the occurrence of any such event or the presence of any such
restriction would not, singly or in the aggregate, have a Material Adverse
Effect.
(o) The accountants, Xxxxxx Xxxxxxxx LLP and Ernst & Young LLP,
that have and/or as of the Closing will have certified the financial statements
and supporting schedules of the Company or, one or more of the Company's
subsidiaries, are independent public accountants with respect to the Company and
its subsidiaries, as required by the Act and the Exchange Act. The summary and
selected historical consolidated financial data of the Company and the
historical financial statements, together with related schedules and notes, in
the Preliminary Offering Memorandum and the Offering Memorandum or incorporated
by reference complied as to form in all material respects with the requirements
applicable to (i) registration statements under the Act or (ii) with respect to
financial information incorporated therein by reference, reports required to be
filed under the Exchange Act, except that the historical financial statements
incorporated therein have not been adjusted to reflect the previously discounted
oil and gas exploration and production operations as continuing operations for
accounting purposes and that an unqualified audit report with respect to such
financial statements will not be delivered until Closing.
(p) The historical financial statements, together with related
schedules and notes incorporated by reference in the Offering Memorandum (and
any amendment or supplement thereto), present fairly the consolidated financial
position, results of operations and changes in financial position of the Company
and its subsidiaries on the basis stated in the Offering Memorandum at the
respective dates or for the respective periods to which they apply, except that
the historical financial statements incorporated therein have not been adjusted
to reflect the previously discounted oil and gas exploration and production
operations as continuing operations for accounting purposes and that an
unqualified audit report with respect to such financial statements will not be
delivered until Closing; such statements and related schedules and notes have
been prepared in accordance with generally accepted accounting principles
10
12
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data set forth
in the Offering Memorandum (and any amendment or supplement thereto) are, in all
material respects, accurately presented and prepared on a basis consistent with
such financial statements and the books and records of the Company.
(q) The pro forma financial statements included in the Preliminary
Offering Memorandum and the Offering Memorandum have been prepared on a basis
consistent with the historical financial statements of the Company and its
subsidiaries, as adjusted to reflect the previously discontinued oil and gas
exploration and production operations as continuing operations for accounting
purposes only, and give effect to assumptions used in the preparation thereof on
a reasonable basis and in good faith and such pro forma financial statements
comply as to form in all material respects with the requirements applicable to
pro forma financial statements included in a registration statement under the
Act. The other pro forma financial and statistical information and data included
in the Offering Memorandum are, in all material respects, accurately presented
and prepared on a basis consistent with the pro forma financial statements.
(r) The Company is not and, after giving effect to the offering
and sale of the Restricted Notes and the application of the net proceeds thereof
as described in the Offering Memorandum, will not be, an "investment company,"
as such term is defined in the Investment Company Act of 1940, as amended.
(s) Except as disclosed in the Offering Memorandum and required
under the terms of the Company's $400 million senior note offering in December
1998, there are no contracts, agreements or understandings between the Company
and any person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of the
Company or to require the Company to include such securities with the Notes
registered pursuant to any Registration Statement.
(t) Neither the Company or its subsidiaries nor any agent thereof
acting on the behalf of them has taken, and none of them will take, any action
that might cause this Agreement or the issuance or sale of the Restricted Notes
to violate Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221)
or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal
Reserve System.
(u) No "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Act (i) has
imposed (or has informed the Company that it is considering imposing) any
condition (financial or otherwise) on the Company's retaining any rating
assigned to the Company or any securities of the Company or (ii) has indicated
to the Company that it is considering (a) the downgrading, suspension, or
withdrawal of, or any review for a possible change that does not indicate the
direction of the possible change in, any rating so assigned or (b) any change in
the outlook for any rating of the Company or any securities of the Company,
except in the case of (i) and (ii) as publicly announced by such nationally
recognized statistical rating organization.
(v) Since the respective dates as of which information is given in
the Offering Memorandum other than as set forth in the Offering Memorandum
(exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement), (i) there has not occurred any material adverse change or, to
the Company's or its subsidiaries' knowledge, any development involving a
11
13
prospective material adverse change in the condition, financial or otherwise, or
the earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there has not been any adverse change or,
to the Company's or its subsidiaries' knowledge, any development involving a
prospective adverse change in the capital stock or in the long-term debt of the
Company or its subsidiaries and (iii) neither the Company nor its subsidiaries
has incurred any material liability or obligation, direct or contingent.
(w) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its date, contains or incorporates by reference all the
information specified in, and meeting the requirements of, Rule 144A(d)(4) under
the Act.
(x) When the Restricted Notes are issued and delivered pursuant to
this Agreement, the Restricted Notes will not be of the same class (within the
meaning of Rule 144A under the Act) as any security of the Company that is
listed on a national securities exchange registered under Section 6 of the
Exchange Act or that is quoted in a United States automated inter-dealer
quotation system.
(y) No form of general solicitation or general advertising (as
defined in Regulation D under the Act) was used by the Company or any of its
respective representatives (other than the Initial Purchaser, as to whom the
Company makes no representation) in connection with the offer and sale of the
Restricted Notes contemplated hereby, including, but not limited to, articles,
notices or other communications published in any newspaper, magazine, or similar
medium or broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any general solicitation or general advertising.
No securities of the same class as the Restricted Notes have been issued and
sold by the Company within the six-month period immediately prior to the date
hereof.
(z) Prior to the effectiveness of any Registration Statement, the
Indenture is not required to be qualified under the TIA.
(aa) None of the Company nor any of its affiliates or any person
acting on its or their behalf (other than the Initial Purchaser, as to whom the
Company makes no representation) has engaged or will engage in any directed
selling efforts within the meaning of Regulation S under the Act ("REGULATION
S") with respect to the Restricted Notes.
(bb) The sale of the Restricted Notes pursuant to Regulation S is
not part of a plan or scheme to evade the registration provisions of the Act.
(cc) No registration under the Act of the Restricted Notes is
required for the sale of the Restricted Notes to the Initial Purchaser as
contemplated hereby or for the Exempt Resales assuming the accuracy of the
Initial Purchaser's representations and warranties and agreements set forth in
Section 7 hereof.
(dd) Each certificate signed by any officer of the Company or its
subsidiaries and delivered to the Initial Purchaser or counsel for the Initial
Purchaser shall be deemed to be a representation and warranty by the Company to
the Initial Purchaser as to the matters covered thereby.
(ee) The Company and its subsidiaries have good and marketable
title to all real property and to all personal property owned by them which is
material to the business of the Company
12
14
in each case free and clear of all Liens, except such as are described in the
Offering Memorandum or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries. Except as otherwise described in
the Offering Memorandum or incorporate reference, the Company and its
subsidiaries do not own any real property or buildings with such exceptions, and
any real property and buildings held under lease by the Company or its
subsidiaries are held by them under valid, subsisting and enforceable leases
that do not have such exceptions, unless in any case such exceptions are not
material and do not interfere with the use made and proposed to be made of such
property and buildings by the Company or its subsidiaries.
(ff) All indebtedness of the Company that will be repaid with the
proceeds of the issuance and sale of the Restricted Notes was incurred, and the
indebtedness represented by the Restricted Notes is being incurred, for proper
purposes and in good faith and the Company was, at the time of the incurrence of
such indebtedness that will be repaid with the proceeds of the issuance and sale
of the Restricted Notes, and the Company will be on the Closing Date (after
giving effect to the application of the proceeds from the issuance of the
Restricted Notes) solvent, and the Company had at the time of the incurrence of
such indebtedness that will be repaid with the proceeds of the issuance and sale
of the Restricted Notes and will have on the Closing Date (after giving effect
to the application of the proceeds from the issuance of the Restricted Notes)
sufficient capital for carrying on its respective business and was, at the time
of the incurrence of such indebtedness that will be repaid with the proceeds of
the issuance and sale of the Restricted Notes, and the Company will be on the
Closing Date (after giving effect to the application of the proceeds from the
issuance of the Restricted Notes), able to pay its debts as they mature.
(gg) The Company and its respective affiliates and all persons
acting on their behalf (other than the Initial Purchaser, as to whom the Company
makes no representation) have complied with and will comply with the offering
restrictions requirements of Regulation S in connection with the offering of the
Restricted Notes outside the United States and, in connection therewith, the
Offering Memorandum will contain the disclosure required by Regulation S.
The Company acknowledges that the Initial Purchaser and, for purposes
of the opinions to be delivered to the Initial Purchaser pursuant to Section 9
hereof, counsel to the Company and counsel to the Initial Purchaser will rely
upon the accuracy and truth of the foregoing representations and hereby consents
to such reliance.
7. INITIAL PURCHASER'S REPRESENTATIONS AND WARRANTIES. The Initial
Purchaser represents and warrants to, and agrees with, the Company:
(a) Such Initial Purchaser is either a QIB or an Accredited
Institution, in either case, with such knowledge and experience in financial and
business matters as is necessary in order to evaluate the merits and risks of an
investment in the Restricted Notes.
(b) Such Initial Purchaser (A) is not acquiring the Restricted
Notes with a view to any distribution thereof or with any present intention of
offering or selling any of the Restricted Notes in a transaction that would
violate the Act or the securities laws of any state of the United States or any
other applicable jurisdiction and (B) will be reoffering and reselling the
Restricted Notes only to (x) QIBs in reliance on the exemption from the
registration requirements of the Act provided by Rule 144A and (y) in offshore
transactions in reliance upon Regulation S under the Act.
13
15
(c) Such Initial Purchaser agrees that no form of general
solicitation or general advertising (within the meaning of Regulation D under
the Act) has been or will be used by the Initial Purchaser or any of its
representatives in connection with the offer and sale of the Restricted Notes
pursuant hereto, including, but not limited to, articles, notices or other
communications published in any newspaper, magazine or similar medium or
broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising.
(d) Such Initial Purchaser agrees that, in connection with Exempt
Resales, the Initial Purchaser will solicit offers to buy the Restricted Notes
only from, and will offer to sell the Restricted Notes only to, Eligible
Purchasers. Each Initial Purchaser further agrees that it will offer to sell the
Restricted Notes only to, and will solicit offers to buy the Restricted Notes
only from (A) Eligible Purchasers that the Initial Purchaser reasonably believes
are QIBs and (B) Regulation S Purchasers, in each case, that agree that (x) the
Restricted Notes purchased by them may be resold, pledged or otherwise
transferred within the time period referred to under Rule 144(k) (taking into
account the provisions of Rule 144(d) under the Act, if applicable) under the
Act, as in effect on the date of the transfer of such Restricted Notes, only (I)
to the Company or any of its subsidiaries, (II) to a person whom the seller
reasonably believes is a QIB purchasing for its own account or for the account
of a QIB in a transaction meeting the requirements of Rule 144A under the Act,
(III) in an offshore transaction (as defined in Rule 902 under the Act) meeting
the requirements of Rule 904 of the Act, (IV) in a transaction meeting the
requirements of Rule 144 under the Act, (V) to an Accredited Institution that,
prior to such transfer, furnishes the Trustee a signed letter containing certain
representations and agreements relating to the registration of transfer of such
Restricted Note and, if such transfer is in respect of an aggregate principal
amount of Restricted Notes less than $250,000, an opinion of counsel acceptable
to the Company that such transfer is in compliance with the Act, (VI) in
accordance with another exemption from the registration requirements of the Act
(and based upon an opinion of counsel acceptable to the Company) or (VII)
pursuant to an effective registration statement and, in each case, in accordance
with the applicable securities laws of any state of the United States or any
other applicable jurisdiction and (y) they will deliver to each person to whom
such Restricted Notes or an interest therein is transferred a notice
substantially to the effect of the foregoing.
(e) Such Initial Purchaser and its affiliates or any person acting
on its or their behalf have not engaged or will not engage in any directed
selling efforts within the meaning of Regulation S with respect to the
Restricted Notes or the Guarantee.
(f) The Restricted Notes, if any, offered and sold by the Initial
Purchaser pursuant hereto in reliance on Regulation S have been and will be
offered and sold only in offshore transactions.
(g) The sale of the Restricted Notes offered and sold by the
Initial Purchaser pursuant hereto in reliance on Regulation S is not part of a
plan or scheme to evade the registration provisions of the Act.
(h) The Initial Purchaser agrees that it has not offered or sold
and will not offer or sell the Restricted Notes in the United States or to, or
for the benefit or account of, a U.S. Person (other than a distributor), in each
case, as defined in Rule 902 under the Act (i) as part of its distribution at
any time and (ii) otherwise until 40 days after the later of the commencement of
the offering of the Restricted Notes pursuant hereto and the Closing Date, other
than in accordance with Regulation S of the Act or another exemption from the
registration requirements of the Act. Such Initial Purchaser agrees that,
14
16
during such 40-day restricted period, it will not cause any advertisement with
respect to the Restricted Notes (including any "tombstone" advertisement) to be
published in any newspaper or periodical or posted in any public place and will
not issue any circular relating to the Restricted Notes, except such
advertisements as are permitted by and include the statements required by
Regulation S.
(i) The Initial Purchaser agrees that, at or prior to confirmation
of a sale of Restricted Notes by it to any distributor, dealer or person
receiving a selling concession, fee or other remuneration during the 40-day
restricted period referred to in Rule 903(c)(2) under the Act, it will send to
such distributor, dealer or person receiving a selling concession, fee or other
remuneration a confirmation or notice to substantially the following effect:
"THE RESTRICTED NOTES COVERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY
NOT BE OFFERED AND SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS (I) AS PART OF YOUR DISTRIBUTION AT
ANY TIME OR (II) OTHERWISE UNTIL 40 DAYS AFTER THE LATER OF THE
COMMENCEMENT OF THE OFFERING AND THE CLOSING DATE, EXCEPT IN EITHER
CASE IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (OR RULE
144A OR TO ACCREDITED INSTITUTIONS IN TRANSACTIONS THAT ARE EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT), AND IN CONNECTION
WITH ANY SUBSEQUENT SALE BY YOU OF THE RESTRICTED NOTES COVERED HEREBY
IN RELIANCE ON REGULATION S DURING THE PERIOD REFERRED TO ABOVE TO ANY
DISTRIBUTOR, DEALER OR PERSON RECEIVING A SELLING CONCESSION, FEE OR
OTHER REMUNERATION, YOU MUST DELIVER A NOTICE TO SUBSTANTIALLY THE
FOREGOING EFFECT. TERMS USED ABOVE HAVE THE MEANINGS ASSIGNED TO THEM
IN REGULATION S."
The Initial Purchaser acknowledges that the Company and, for
purposes of the opinions to be delivered to the Initial Purchaser pursuant to
Section 9 hereof, counsel to the Company and counsel to the Initial Purchaser
will rely upon the accuracy and truth of the foregoing representations and the
Initial Purchaser hereby consents to such reliance.
8. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless the Initial
Purchaser, their directors, their officers and each person, if any, who controls
the Initial Purchaser within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, from and against any and all losses, claims, damages,
liabilities and judgments (including, without limitation, any legal or other
expenses reasonably incurred in connection with investigating or defending any
matter, including any action, that could give rise to any such losses, claims,
damages, liabilities or judgments) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Offering Memorandum (or any
amendment or supplement thereto), the Preliminary Offering Memorandum or any
Rule 144A Information provided by the Company to any holder or prospective
purchaser of Restricted Notes pursuant to Section 5(h) or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or
15
17
judgments are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to the Initial Purchaser
furnished in writing to the Company by the Initial Purchaser; provided, however,
that the foregoing indemnity agreement with respect to any Preliminary Offering
Memorandum shall not inure to the benefit of any Initial Purchaser who failed to
deliver a Final Offering Memorandum (as then amended or supplemented, provided
by the Company to the several Initial Purchaser in the requisite quantity and on
a timely basis to permit proper delivery on or prior to the Closing Date) to the
person asserting any losses, claims, damages and liabilities and judgements
caused by any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Offering Memorandum, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, if such material
misstatement or omission or alleged material misstatement or omission was cured
in the Final Offering Memorandum.
(b) The Initial Purchaser agrees to indemnify and hold harmless
the Company and its respective directors and officers and each person, if any,
who controls (within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) the Company, to the same extent as the foregoing indemnity from
the Company to the Initial Purchaser, but only with reference to information
relating to the Initial Purchaser furnished in writing to the Company by the
Initial Purchaser expressly for use in the Preliminary Offering Memorandum or
the Offering Memorandum.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), the Initial Purchaser shall not be required to
assume the defense of such action pursuant to this Section 8(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
the Initial Purchaser). Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by the Initial Purchaser, in the case of the parties indemnified
pursuant to Section 8(a), and by the Company, in the case of parties indemnified
pursuant to Section 8(b). The indemnifying party shall indemnify and hold
harmless the indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any action (i)
effected with its written consent or (ii) effected without its written consent
if the settlement is entered into more than twenty business days after the
16
18
indemnifying party shall have received a request from the indemnified party for
reimbursement for the fees and expenses of counsel (in any case where such fees
and expenses are at the expense of the indemnifying party) and, prior to the
date of such settlement, the indemnifying party shall have failed to comply with
such reimbursement request. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement or compromise
of, or consent to the entry of judgment with respect to, any pending or
threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section
8 is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Initial Purchaser on the other hand from the
offering of the Restricted Notes or (ii) if the allocation provided by clause
8(d)(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
8(d)(i) above but also the relative fault of the Company, on the one hand, and
the Initial Purchaser, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The relative
benefits received by the Company, on the one hand and the Initial Purchaser, on
the other hand, shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Restricted Notes (after underwriting discounts
and commissions, but before deducting expenses) received by the Company, and the
total discounts and commissions received by the Initial Purchaser bear to the
total price to investors of the Restricted Notes, in each case as set forth in
the table on the cover page of the Offering Memorandum. The relative fault of
the Company, on the one hand, and the Initial Purchaser, on the other hand,
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, on the
one hand, or the Initial Purchaser, on the other hand, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company, on the one hand, and the Initial Purchaser, on the
other hand, agree that it would not be just and equitable if contribution
pursuant to this Section 8(d) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 8, the Initial
Purchaser shall not be required to contribute any amount in excess of the amount
by which the total discounts and commissions received by the Initial Purchaser
exceeds the amount of any damages which the Initial Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act)
17
19
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The remedies provided for in this Section 8 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
9. CONDITIONS OF INITIAL PURCHASER'S OBLIGATIONS. The obligations of
the Initial Purchaser to purchase the Restricted Notes under this Agreement are
subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and its
subsidiaries contained in this Agreement shall be true and correct on the
Closing Date with the same force and effect as if made on and as of the Closing
Date.
(b) On or after the date hereof, (i) there shall not have occurred
any downgrading, suspension or withdrawal of, nor shall any notice have been
given of any potential or intended downgrading, suspension or withdrawal of, or
of any review (or of any potential or intended review) for a possible change
that does not indicate the direction of the possible change in, any rating of
the Company or any securities of the Company (including, without limitation, the
placing of any of the foregoing ratings on credit watch with negative or
developing implications or under review with an uncertain direction) by any
"nationally recognized statistical rating organization" as such term is defined
for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred
any change, nor shall any notice have been given of any potential or intended
change, in the outlook for any rating of the Company or any securities of the
Company by any such rating organization and (iii) no such rating organization
shall have given notice that it has assigned (or is considering assigning) a
lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in
the Offering Memorandum other than as set forth in the Offering Memorandum
(exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement), (i) there shall not have occurred any adverse change or any
development involving a prospective change in the condition, financial or
otherwise, or the earnings, business, management or operations of the Company
and its subsidiaries, taken as a whole, (ii) there shall not have been any
material adverse change or any development involving a prospective material
adverse change in the capital stock or in the long-term debt of the Company and
(iii) the Company shall not have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause 9(c)(i),
9(c)(ii) or 9(c)(iii), in your judgment, is material and adverse and, in your
judgment, makes it impracticable to market the Restricted Notes on the terms and
in the manner contemplated in the Offering Memorandum.
(d) The Initial Purchaser shall have received on the Closing Date
a certificate dated the Closing Date, signed by the Chief Executive Officer and
the Secretary of the Company, confirming the matters set forth in Sections 6(x),
9(a) and 9(c) and stating that the Company has complied with all the agreements
and satisfied all of the conditions herein contained and required to be complied
with or satisfied on or prior to the Closing Date.
(e) The Initial Purchaser shall have received on the Closing Date
an opinion (satisfactory to you and counsel for the Initial Purchaser), dated
the Closing Date, of Gardere Xxxxx Xxxxxx & Xxxxx, L.L.P., counsel for the
Company, to the effect that:
18
20
(i) the Company has been duly incorporated or formed,
is validly existing as a corporation in good standing under the
laws of Delaware and has the corporate power and authority to
carry on its business as described in the Offering Memorandum and
to own, lease and operate its properties;
(ii) the Restricted Notes have been duly authorized
and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Initial Purchaser in accordance with the terms of this Agreement,
will be entitled to the benefits of the Indenture and will be
valid and binding obligations of the Company, enforceable in
accordance with their terms except as (x) the enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent
transfer or similar laws affecting creditors' rights generally
and (y) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability;
(iii) the Indenture has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms except as (x) the enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent
transfer or similar laws affecting creditors' rights generally
and (y) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability;
(iv) this Agreement has been duly authorized,
executed and delivered by the Company;
(v) the Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and is a valid
and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent transfer or similar laws affecting creditors' rights
generally, (y) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of
general applicability and (z) the enforceability of the
indemnification provisions thereof may be limited by federal and
state securities laws;
(vi) the Exchange Notes have been duly authorized;
(vii) the statements under the captions "Risk
Factors," "Description of the Secured Notes, " "Description of
the New Senior Notes," "Description of Certain Indebtedness,"
"United States Federal Income Tax Considerations for Non-U.S.
Holders," "Description of Security for the Secured Notes," "Plan
of Distribution," "Notice to Investors in the Secured Notes" and
"Notice to Investors in the New Senior Notes," in the Offering
Memorandum, insofar as such statements constitute a summary of
legal matters, fairly present in all material respects such legal
matters;
19
21
(viii) the execution, delivery and performance of
this Agreement and the other Operative Documents by the Company,
and the issuance and sale of the Restricted Notes and compliance
with the terms and provisions thereof and of the other Operative
Documents will not (i) violate its charter or bylaws, (ii)
require any consent, approval, authorization or other order of,
or qualification with, any court or governmental body or agency
of the United States or the States of Texas or New York (except
such as may be required under the securities or Blue Sky laws of
the various states), (iii) conflict with or constitute a breach
of any of the terms or provisions of, or a default under the
indentures executed, or senior notes issued, by the Company in
connection with debt offerings by the Company of $1.1 billion in
April 1998 and $400 million in December 1998 or, to such
counsel's actual knowledge, any other indenture, loan agreement,
mortgage, lease or other agreement or instrument to which the
Company or the Significant Subsidiaries is a party or by which
the Company or the Significant Subsidiaries or their respective
property is bound, which conflict, breach or default is likely to
have, either individually or in the aggregate, a Material Adverse
Effect, or (iv) violate or conflict with any applicable law or
any rule or regulation, or to such counsel's actual knowledge,
any judgment, order or decree, in each case of any court or any
governmental body or agency of the United States or the States of
Texas or New York having jurisdiction over the Company or the
Significant Subsidiaries or their respective property;
(ix) the Company is not and, after giving effect to
the offering and sale of the Restricted Notes and the application
of the net proceeds thereof as described in the Offering
Memorandum, will not be, an "investment company" as such term is
defined in the Investment Issuer Act of 1940, as amended;
(x) the Indenture complies as to form in all material
respects with the requirements of the TIA, and the rules and
regulations of the Commission applicable to an indenture which is
qualified thereunder; it is not necessary in connection with the
offer, sale and delivery of the Restricted Notes to the Initial
Purchaser in the manner contemplated by this Agreement or in
connection with the Exempt Resales to qualify the Indenture under
the TIA;
(xi) no registration under the Act of the Restricted
Notes is required for the sale of the Restricted Notes to the
Initial Purchaser as contemplated by this Agreement or for the
Exempt Resales assuming that (i) the Initial Purchaser is a QIB
or a Regulation S Purchaser, (ii) the accuracy of, and compliance
with, the Initial Purchaser's representations and agreements
contained in Section 7 of this Agreement and (iii) the accuracy
of the representations of the Company set forth in Sections 5(f)
and 6(dd), (ee) and (ff) of this Agreement; and
(xii) such counsel has participated in conferences
with officers and other representatives of the Company,
representatives of the Company's accountants, the Initial
Purchaser's representatives and counsel for the Initial
Purchaser, at which conferences the contents of the Offering
Memorandum and
20
22
related matters were discussed and, although such counsel is not
passing upon and does not assume any responsibility for and shall
not be deemed to have independently verified the accuracy,
completeness or fairness of the statements contained in the
Offering Memorandum no facts have come to the attention of such
counsel that lead such counsel to believe that the Offering
Memorandum contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements contained therein not misleading
or that the Offering Memorandum on the date thereof or on the
date hereof (other than the financial statements and notes
thereto and the other financial information, including the
information referred to under the caption "Experts" as to which
such counsel does not comment) contained any untrue statement of
a material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading.
The opinion of Gardere Xxxxx Xxxxxx & Xxxxx, L.L.P. described in
Section 9(e) above shall be rendered to you at the request of the Company and
shall so state therein. In giving such opinion with respect to the matters
covered by Section 9(e)(xii), Gardere Xxxxx Xxxxxx & Xxxxx, L.L.P. may state
that their opinion and belief are based upon their participation in the
preparation of the Offering Memorandum and any amendments or supplements thereto
and review and discussion of the contents thereof, but are without independent
check or verification except as specified.
(f) The Initial Purchaser shall have received on the Closing Date
an opinion (satisfactory to you and counsel for the Initial Purchaser), dated
the Closing Date, of Xxxxxxxx X. Xxxx, Senior Vice President and Co-Counsel for
the Company, to the effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws
of Delaware and has the corporate power and authority to carry on
its business as described in the Offering Memorandum and to own,
lease and operate its properties;
(ii) the Company is duly qualified and is in good
standing as a foreign corporation authorized to do business in
each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, or
application has been made and is pending except where the failure
to be so qualified would not have a Material Adverse Effect;
(iii) R&B Falcon Holdings, Inc. ("HOLDINGS") has been
duly incorporated, is validly existing as a corporation and in
good standing under the laws of its jurisdiction of
incorporation, has the corporate authority to carry on its
business and to own, lease and operate its properties; is duly
qualified and is in good standing as a foreign corporation or
entity authorized to do business in each state of the United
States in which the nature of its business or its ownership or
leasing of property requires such qualification, or application
has been made and is pending except where the failure to be so
qualified would not have a Material Adverse Effect;
21
23
(iv) R&B Falcon Drilling (International & Deepwater)
("DEEPWATER") Inc. has been duly incorporated, is validly
existing as a corporation and in good standing under the laws of
its jurisdiction of incorporation, has the corporate and
authority to carry on its business and to own, lease and operate
its properties; is duly qualified and is in good standing as a
foreign corporation or entity authorized to do business in each
state of the United States in which the nature of its business or
its ownership or leasing of property requires such qualification,
or application has been made and is pending except where the
failure to be so qualified would not have a Material Adverse
Effect;
(v) Cliffs Drilling Company ("CLIFFS") has been duly
incorporated, is validly existing as a corporation and in good
standing under the laws of its jurisdiction of incorporation, has
the corporate and authority to carry on its business and to own,
lease and operate its properties; is duly qualified and is in
good standing as a foreign corporation or entity authorized to do
business in each state of the United States in which the nature
of its business or its ownership or leasing of property requires
such qualification, or application has been made and is pending
except where the failure to be so qualified would not have a
Material Adverse Effect;
(vi) R&B Falcon Drilling USA, Inc. ("DRILLING USA")
has been duly incorporated, is validly existing as a corporation
and in good standing under the laws of its jurisdiction of
incorporation, has the corporate and authority to carry on its
business and to own, lease and operate its properties; is duly
qualified and is in good standing as a foreign corporation or
entity authorized to do business in each state of the United
States in which the nature of its business or its ownership or
leasing of property requires such qualification, or application
has been made and is pending except where the failure to be so
qualified would not have a Material Adverse Effect;
(vii) R&B Falcon Drilling Co. ("DRILLING CO.") has
been duly incorporated, is validly existing as a corporation and
in good standing under the laws of its jurisdiction of
incorporation, has the corporate and authority to carry on its
business and to own, lease and operate its properties; is duly
qualified and is in good standing as a foreign corporation or
entity authorized to do business in each state of the United
States in which the nature of its business or its ownership or
leasing of property requires such qualification, or application
has been made and is pending except where the failure to be so
qualified would not have a Material Adverse Effect;
(viii) all the outstanding shares of capital stock of
the Company, Deepwater, Holdings and Cliffs have been duly
authorized and validly issued and are fully paid, non-assessable
and not subject to any preemptive or similar rights;
(ix) the Company has the corporate power and
authority to perform
22
24
its obligations under the Operative Documents;
(x) the Restricted Notes have been duly authorized,
executed and delivered by the Company;
(xi) the Indenture has been duly authorized, executed
and delivered by the Company;
(xii) this Agreement has been duly authorized,
executed and delivered by the Company;
(xiii) the Registration Rights Agreement has been
duly authorized, executed and delivered by the Company;
(xiv) the execution and delivery of Exchange Notes
have been duly authorized by the Company;
(xv) to such counsel's knowledge, (a) none of the
Company or the Significant Subsidiaries is in violation of its
respective charter or bylaws and, (b) neither the Company nor the
Significant Subsidiaries is in default in the performance of any
obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company and the Significant
Subsidiaries, taken as a whole, to which the Company or the
Significant Subsidiaries is a party or by which the Company or
the Significant Subsidiaries or their respective property is
bound, which default could reasonably be expected to result in a
Material Adverse Effect;
(xvi) the execution, delivery and performance of this
Agreement and the other Operative Documents by the Company and
the issuance and sale of the Restricted Notes and compliance with
the terms and provisions thereof and the other Operative
Documents will not (i) violate its charter or bylaws, (ii)
require any consent, approval, authorization or other order of,
or qualification with, any court or governmental body or agency
of the United States or the States of Texas or New York (except
such as may be required under the securities or Blue Sky laws of
the various states), (iii) conflict with or constitute a breach
of any of the terms or provisions of, or a default under the
indenture executed, or senior notes issued, by the Company in
connection with debt offerings by the Company of $1.1 billion in
April 1998 and $40.0 million in December 1998 or, to such
counsel's actual knowledge, any indenture, loan agreement,
mortgage, lease or other agreement or instrument to which the
Company or the Significant Subsidiaries is a party or by which
the Company or the Significant Subsidiaries or their respective
property is bound, which conflict, breach or default is likely to
have, either individually or in the aggregate, a Material Adverse
Effect, or (iv) violate or conflict with any applicable law or
any rule or regulation, or to such counsel's actual knowledge,
any judgment, order or decree, in each case of any court or any
governmental body or agency having jurisdiction over the Company
23
25
or the Significant Subsidiaries or their respective property.
(xvii) such counsel has no knowledge of any legal or
governmental proceedings pending or threatened to which the
Company or the Significant Subsidiaries is or could be a party or
to which any of their respective property is or could be subject,
which could reasonably be expected to result, singly or in the
aggregate, in a Material Adverse Effect.
(xviii) to such counsel's knowledge, the Company and
the Significant Subsidiaries has such Authorizations of, and has
made all filings with and notices to, all governmental or
regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including without limitation, under
any applicable Environmental Laws, as are necessary to own,
lease, license and operate its respective properties and to
conduct its business, except where the failure to have any such
Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a Material Adverse Effect. To
such counsel's knowledge, (a) each such Authorization is valid
and in full force and effect and each the Company and the
Significant Subsidiaries is in compliance with all the terms and
conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with respect
thereto; and (b) no event has occurred (including the receipt of
any notice from any authority or governing body) which allows or,
after notice or lapse of time or both, would allow, revocation,
suspension or termination of any such Authorization or results
or, after notice or lapse of time or both, would result in any
other impairment of the rights of the holder of any such
Authorization; and (c) such Authorizations contain no
restrictions that are burdensome to the Company or the
Significant Subsidiaries; except where such failure to be valid
and in full force and effect or to be in compliance, the
occurrence of any such event or the presence of any such
restriction would not, singly or in the aggregate, have a
Material Adverse Effect;
(xix) to such counsel's knowledge, neither the
Company nor its subsidiaries has violated any Environmental Law
or any provisions of ERISA, any provisions of the Foreign Corrupt
Practices Act of the rules and regulations promulgated
thereunder, except for such violations which, singly or in the
aggregate, would not have a Material Adverse Effect;
(xx) to such counsel's knowledge, except as disclosed
in the Offering Memorandum, there are no contracts, agreements or
understandings (other than the Registration Rights Agreement)
between the Company and any person granting such person the right
to require such Company to include such securities with the New
Senior Notes registered pursuant to any Registration Statement;
and
(xxi) such counsel has participated in conferences
with officers and other representatives of the Company,
representatives of the Company's accountants, the Initial
Purchaser's representatives and counsel for the Initial
24
26
Purchaser, at which conferences the contents of the Offering
Memorandum and related matters were discussed and, although such
counsel is not passing upon and do not assume any responsibility
for and shall not be deemed to have independently verified the
accuracy, completeness or fairness of the statements contained in
the Offering Memorandum, no facts have come to the attention of
such counsel that lead such counsel to believe (a) that the
Offering Memorandum contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements contained therein not
misleading or (b) that the Offering Memorandum on the date
thereof or on the date hereof contained any untrue statement of a
material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading.
(g) The Initial Purchaser shall have received on the Closing Date
an opinion, dated the Closing Date, of Akin, Gump, Strauss, Xxxxx & Xxxx,
L.L.P., counsel for the Initial Purchaser, in form and substance reasonably
satisfactory to the Initial Purchaser.
(h) The Initial Purchaser shall have received, at the Closing
Date, a letter dated the Closing Date, as the case may be, in the form attached
hereto as Annex I, from Ernst & Young LLP, independent public accountants.
(i) The Initial Purchaser shall have received, at the Closing
Date, a letter dated the Closing Date, in the form attached hereto as Annex II,
from Xxxxxx Xxxxxxxx LLP, independent public accountants.
(j) The Initial Purchaser shall have received a copy of the
Company's audit report for the three years ended December 31, 1998 and as of
December 1998 and 1997 from Xxxxxx Xxxxxxxx LLP on or before the Closing Date
and such report shall not contain any qualification relating to the financial
condition of the Company and its subsidiaries. Such audited financial statements
shall reflect historical consolidated financial results and position of the
Company identical to those contained in the Preliminary Offering Memorandum and
the Offering Memorandum and the notes thereto shall not contain information
different from that included in the Preliminary Offering Memorandum or the
Offering Memorandum or material information in addition thereto.
(k) The Restricted Notes shall have been approved by Nasdaq for
trading and duly listed in PORTAL.
(l) The closing of the Secured Notes offering (as defined in the
Offering Memorandum) shall have occurred.
(m) The Initial Purchaser shall have received a counterpart,
conformed as executed, of the Indenture which shall have been entered into by
the Company and the Trustee.
(n) The Company shall have executed the Registration Rights
Agreement and the Initial Purchaser shall have received an original copy
thereof, duly executed by the Company.
(o) The Company shall not have failed at or prior to the Closing
Date to perform or comply with any of the agreements herein contained and
required to be performed or complied with by the Company at or prior to the
Closing Date.
25
27
10. EFFECTIVENESS OF AGREEMENT AND TERMINATION. This Agreement shall
become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by the Initial Purchaser by written notice to the Company if any of the
following has occurred: (i) any outbreak or escalation of hostilities or other
national or international calamity or crisis or change in economic conditions or
in the financial markets of the United States or elsewhere that, in the Initial
Purchaser's judgment, is material and adverse and, in the Initial Purchaser's
judgment, makes it impracticable to market the Restricted Notes on the terms and
in the manner contemplated in the Offering Memorandum, (ii) the suspension or
material limitation of trading in securities or other instruments on the New
York Stock Exchange, the American Stock Exchange, the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade or the
Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company on any exchange or in the
over-the-counter market, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the business,
prospects, financial condition or results of operations of the Company, (v) the
declaration of a banking moratorium by either federal or New York State
authorities or (vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in your
opinion has a material adverse effect on the financial markets in the United
States.
11. MISCELLANEOUS. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (i) if to the Company, to R&B Falcon
Corporation, 000 Xxxxxxxxxxxx, Xxxxxxx, XX 00000 (telephone number:
000-000-0000) and (ii) if to the Initial Purchaser, Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Syndicate Department, or in any case to such other address as the person to be
notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and its subsidiaries and the
Initial Purchaser set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and payment
for the Restricted Notes, regardless of (i) any investigation, or statement as
to the results thereof, made by or on behalf of the Initial Purchaser, the
officers or directors of the Initial Purchaser, any person controlling the
Initial Purchaser, the Company, the officers or directors of the Company, or any
person controlling the Company, (ii) acceptance of the Restricted Notes and
payment for them hereunder and (iii) termination of this Agreement.
If for any reason the Restricted Notes are not delivered by or on
behalf of the Company as provided herein (other than as a result of any
termination of this Agreement pursuant to Section 10), the Company agrees to
reimburse the Initial Purchaser for all out-of-pocket expenses (including the
fees and disbursements of counsel) incurred by them. Notwithstanding any
termination of this Agreement, the Company shall be liable for all expenses
which it has agreed to pay pursuant to Section 5(i) hereof. The Company also
agrees to reimburse the Initial Purchaser and their officers, directors and each
person, if any, who controls the Initial Purchaser within the meaning of Section
15 of the Act or Section 20 of the Exchange Act for any and all fees and
expenses (including without limitation the fees and expenses of counsel)
incurred by them in connection with enforcing their rights under this Agreement
(including without limitation its rights under Section 8).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Initial
Purchaser, the Initial Purchaser's directors and
26
28
officers, any controlling persons referred to herein, the directors and officers
of the Company and its respective successors and assigns, all as and to the
extent provided in this Agreement, and no other person shall acquire or have any
right under or by virtue of this Agreement. The term "successors and assigns"
shall not include a purchaser of any of the Restricted Notes from the Initial
Purchaser merely because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York, without regard to the conflict of law rules
thereof.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
27
29
Please confirm that the foregoing correctly sets forth the agreement
among the Company and the Initial Purchaser.
Very truly yours,
R&B FALCON CORPORATION
By: /s/ XXXXXX X. XXXXXXX
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: CEO
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By: /s/ XXXXX XXXXXXXXXX
-------------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Senior Vice President
30
EXHIBIT A
FORM OF REGISTRATION RIGHTS AGREEMENT
31
SCHEDULE B
SIGNIFICANT SUBSIDIARIES
R&B Falcon Holdings Inc.
R&B Falcon Drilling (International & Deepwater) Inc.
Cliffs Drilling Company
R&B Falcon Drilling USA, Inc.
R&B Falcon Drilling Co.
R&B Falcon Exploration Co.
Double Eagle Marine, Inc.
Arcade Drilling AS
