EXCHANGE AGENT AGREEMENT
Exhibit
99.1
_________
__, 2010
Wilmington
Trust FSB
00 Xxxxx
Xxxxx Xxxxxx
Xxxxx
0000
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Ladies
and Gentlemen:
Energy
XXI Gulf Coast, Inc. (the “Company”), an indirect and wholly-owned subsidiary of
Energy XXI (Bermuda) Limited (the “Parent”), proposes to make an offer (the
“Exchange Offer”) to exchange its 16% Second Lien Junior Secured Notes due 2014
(the “New Notes”) for a like principal amount of its outstanding 16% Second Lien
Junior Secured Notes due 2014 (the “Old Notes”). The terms and
conditions of the Exchange Offer as currently contemplated are set forth in a
prospectus (the prospectus included in the Company’s registration statement on
Form S-4 (File No. 333-163968) as amended (the “Registration Statement”) filed
with the Securities and Exchange Commission (the “SEC”) and declared effective
on January ____, 2010) which is proposed to be distributed to all record holders
of the Old Notes. The Old Notes and the New Notes are collectively
referred to in this Exchange Agent Agreement (this “Agreement”) as the “Notes”
or the “Securities.” Capitalized terms used herein and not defined
shall have the respective meanings ascribed to them in the Registration
Statement or the accompanying letter of transmittal (together with the
accompanying Instructions to Registered Holders and DTC Participants, the
“Letter of Transmittal”).
The
Company hereby appoints Wilmington Trust FSB to act as exchange agent (the
“Exchange Agent”) in connection with the Exchange Offer. References
hereinafter to “you” shall refer to Wilmington Trust FSB.
The
Exchange Offer is expected to be commenced by the Company on or about ______ __,
2010. The Letter of Transmittal accompanying the Registration
Statement is to be used by the holders of the Old Notes to tender into the
Exchange Offer, and contains instructions with respect to the delivery of Old
Notes tendered. The Exchange Agent’s obligations with respect to
receipt and inspection of the Letter of Transmittal in connection with the
Exchange Offer shall be satisfied for all purposes hereof by (1) inspection of
the electronic message transmitted to the Exchange Agent by Exchange Offer
participants in accordance with the Automated Tender Offer Program (“ATOP”) of
The Depository Trust Company (“DTC”), and by otherwise observing and complying
with all procedures established by DTC in connection with ATOP, to the extent
that ATOP is utilized by Exchange Offer participants, or (2) by inspection of
the Letter of Transmittal delivered by each respective holder of Old
Notes.
The
Exchange Offer shall expire at 5:00 p.m., New York City time, on _______ __,
2010, or on such later date or time to which the Company may extend the Exchange
Offer (the “Expiration Date”). Subject to the terms and conditions
set forth in the Registration Statement, the Company expressly reserves the
right to extend the Exchange Offer from time to time and may extend the Exchange
Offer by giving oral (confirmed in writing) or written notice to you at any time
before 9:00 a.m., New York City time, on the business day following the
previously scheduled Expiration Date, and in such case the term “Expiration
Date” shall mean the time and date on which the Exchange Offer as so extended
shall expire.
The
Company expressly reserves the right, in its sole discretion, to delay, amend or
terminate the Exchange Offer, and not to accept for exchange any Old Notes not
theretofore accepted for exchange, upon the occurrence of any of the conditions
of the Exchange Offer specified in the Registration Statement under the caption
“The Exchange Offer —Extensions, Delays in Acceptance, Termination or
Amendment,” or in other cases. The Company will give to you as
promptly as practicable oral (confirmed in writing) or written notice of any
delay, amendment, termination or non-acceptance.
In
carrying out your duties as Exchange Agent, you are to act in accordance with
the following instructions:
1. You
will perform such duties and only such duties as are specifically set forth
herein or in the section of the Registration Statement captioned the “The
Exchange Offer,” in the Letter of Transmittal accompanying the Registration
Statement.
2. You
will establish a book-entry account with respect to the Old Notes at DTC for
purposes of the Exchange Offer within two business days after the date of
effectiveness of the Registration Statement, and any financial institution that
is a participant in DTC’s systems may make book-entry delivery of the Old Notes
by causing the DTC to transfer such Old Notes into your account in accordance
with DTC’s procedure (including ATOP) for such transfer.
3. You
are to examine each confirmation of book-entry transfers into your account at
the DTC (or the Letters of Transmittal and certificates for Old Notes) and any
other documents delivered or mailed to you by or for holders of the Old Notes to
ascertain whether: (i) such book-entry confirmations are in due and
proper form and contain the information required to be set forth therein in
accordance with instructions set forth in the Letters of Transmittal and the
Registration Statement, or that the Letters of Transmittal, certificates and any
such other documents are duly executed and properly completed in accordance with
instructions set forth therein and in the Registration Statement, and (ii) the
Old Notes have otherwise been properly tendered. In each case where
book-entry confirmations are not in due and proper form or omit certain
information or where the Letter of Transmittal or any other document has been
improperly completed or executed or any of the certificates for Old Notes are
not in proper form for transfer or some other irregularity in connection with
the acceptance of the Exchange Offer exists, you will endeavor to inform the
presenters of the need for fulfillment of all requirements and you may, but
shall be under no obligation, to take any other action as may be reasonably
necessary or advisable to cause such irregularity to be corrected.
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4. With
the prior approval (such approval, if given orally, to be confirmed promptly in
writing) of the President, Chief Financial Officer, Secretary or any Vice
President of the Company or the Chief Financial Officer or any Vice President of
the Parent or any other party designated in writing by any of the foregoing
officers (each, an “Authorized Officer”), you are authorized to
waive any irregularities in connection with any tender of Old Notes pursuant to
the Exchange Offer. You are not otherwise authorized to waive any
such irregularities.
5. Tenders
of Old Notes may be made only as set forth in the Letter of Transmittal and in
the section of the Registration Statement captioned “The Exchange Offer
—Procedures for Tendering” and Old Notes shall be considered properly tendered
to you only when tendered in accordance with the procedures set forth
therein.
Notwithstanding
the provisions of this paragraph 5, Old Notes which an Authorized Officer shall
approve as having been properly tendered shall be considered to be properly
tendered (such approval, if given orally, shall be promptly confirmed in
writing, and in no event shall you be required to accept as properly tendered
Old Notes until any such oral approval is confirmed in writing).
6. You
shall advise the Company with respect to any Old Notes delivered subsequent to
the Expiration Date and accept its instructions with respect to disposition of
such Old Notes.
7. You
shall accept tenders:
(a) in
cases where the Old Notes are registered in two or more names only if signed by
all named holders;
(b) in
cases where the signing person (as indicated on the Letter of Transmittal) is
acting in a fiduciary or a representative capacity only when proper evidence of
his or her authority so to act is submitted; and
(c) from
persons other than the registered holder of Old Notes provided that customary
transfer requirements, including any payment of applicable transfer
taxes, are fulfilled.
You shall
accept partial tenders of Old Notes where so indicated and as permitted in the
Letter of Transmittal and return any untendered Old Notes to the holder (or such
other person as may be designated in the Letter of Transmittal) as promptly as
practicable after expiration or termination of the Exchange Offer. A
new certificate for the remainder of the principal amount of the Old Notes will
be sent to the holders of Old Notes unless otherwise indicated by partial
tendering holders of Old Notes.
8. Upon
satisfaction or waiver of all of the conditions to the Exchange Offer, the
Company will notify you (such notice, if given orally, promptly to be confirmed
in writing) of its acceptance, promptly after the Expiration Date, of all Old
Notes properly tendered and you, on behalf of the Company, will cause the
exchange of such Old Notes for New Notes and cause such Old Notes to be
cancelled. Delivery of New Notes will be made on behalf of the
Company by the trustee at the rate of a $1.00 principal amount New Note for each
$1.00 principal amount Old Note tendered, and, promptly after notice (such
notice if given orally, promptly to be confirmed in writing) of acceptance of
said Old Notes by the Company; provided, however, that in all
cases, Old Notes tendered pursuant to the Exchange Offer will be exchanged only
after timely receipt by you of confirmation of book-entry transfer of such Old
Notes into your account at DTC (or of certificates for such Old Notes and a
properly completed and duly executed Letter of Transmittal (or facsimile
thereof)) and an “agent’s message” (as such term is used in the Registration
Statement) with any required signature guarantees and any other required
document.
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9. Tenders
pursuant to the Exchange Offer are irrevocable after the Expiration
Date. Subject to the terms and upon the conditions set forth in the
Registration Statement and the Letter of Transmittal, Old Notes tendered
pursuant to the Exchange Offer may be withdrawn at any time on or prior to the
Expiration Date in accordance with the terms of the Exchange Offer.
10. The
Company shall not be required to exchange any Old Notes tendered if any of the
conditions set forth in the Registration Statement and the Letter of Transmittal
are not met. Notice of any decision by the Company not to exchange
any Old Notes tendered shall be given (such notices if given orally, promptly
shall be confirmed in writing) by the Company to you.
11. If,
pursuant to the Registration Statement and the Letter of Transmittal, the
Company does not accept for exchange all or part of the Old Notes tendered
because of an invalid tender, the occurrence of certain other events set forth
in the Registration Statement or otherwise, you shall as soon as practicable
after the expiration or termination of the Exchange Offer return those
certificates for unaccepted Old Notes (or effect appropriate book-entry
transfer), together with any related required documents and the Letters of
Transmittal relating thereto that are in your possession, to the persons who
deposited them (or effected such book-entry transfer).
12. All
certificates for reissued Old Notes, unaccepted Old Notes or New Notes, as the
case may be (other than those effected by book-entry transfer), shall be
forwarded by (a) first-class mail, postage pre-paid under a blanket surety bond
protecting you and the Company from loss or liability arising out of the
non-receipt or non-delivery of such certificates or (b) by registered mail
insured separately for the replacement value of each of such
certificates.
13. You
are not authorized to pay or offer to pay any concessions, commissions or
solicitation fees to any broker, dealer, bank or other persons or to engage or
utilize any persons to solicit tenders.
14. As
Exchange Agent hereunder you:
(a) shall
have no duties or obligations other than those specifically set forth herein or
as may be subsequently agreed to in writing between you and the
Company;
(b) will
be regarded as making no representations and having no responsibilities as to
the validity, sufficiency, value or genuineness of any of the Old Notes
deposited with you pursuant to the Exchange Offer, and will not be required to
and will make no representation as to the validity, value or genuineness of the
Registration Statement;
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(c) shall
not be obligated to take any legal action hereunder which might in your judgment
involve any expense or liability, unless you shall have been furnished with
indemnity satisfactory to you;
(d) shall
not be liable to the Company, a securityholder or any third party for any action
taken or omitted by you, or any action suffered by you to be taken or omitted,
without gross negligence, willful misconduct or bad faith on your part, by
reason of or as a result of the administration of your duties hereunder in
accordance with the terms and conditions of this Agreement or by reason of your
compliance with the instructions set forth herein or with any written or oral
instructions delivered to you pursuant hereto, and may conclusively rely on and
shall be protected in acting in good faith in reliance upon any certificate,
instrument, opinion, notice, letter, facsimile or other document or security
delivered to you and believed by you to be genuine and to have been signed by
the proper party or parties;
(e) shall
in no event be liable to a securityholder, the Company or any third party for
special, indirect or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) arising in connection with this
Agreement irrespective of whether you have been advised of the likelihood of
such loss or damage and regardless of the form of action;
(f) may
act upon any tender, statement, request, comment, agreement or other instrument
whatsoever not only as to its due execution and validity and effectiveness of
its provisions, but also as to the truth and accuracy of any information
contained therein, which you shall in good faith reasonably believe to be
genuine or to have been signed or represented by a proper person or
persons;
(g) may
conclusively rely on and shall be protected in acting upon written notice or
oral instructions from an Authorized Officer;
(h) shall
not advise any person tendering Old Notes pursuant to the Exchange Offer as to
whether to tender or refrain from tendering all or any portion of Old Notes or
as to the market value, decline or appreciation in market value of any Old Notes
that may or may not occur as a result of the Exchange Offer or as to the market
value of the New Notes;
(i) may
consult with counsel of your selection with respect to any questions relating to
your duties and responsibilities, and the written advice or opinion of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by you hereunder in good faith and in
reliance thereon;
(j) shall
act solely as agent of the Company and shall not assume any obligation to, or
relationship of agency or trust for, any of the owners or holders of the Old
Notes; and
(k) shall
in no event be responsible or liable for any failure or delay in the performance
of your obligations under this Agreement arising out of or caused by, directly
or indirectly, forces beyond your reasonable control, including, without
limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil
or military disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer
(software or hardware) services.
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15. You
shall send to all holders of Old Notes a copy of the Registration Statement, the
Letter of Transmittal, and such other documents (collectively, the “Exchange
Offer Documents”) as may be furnished by the Company to commence the Exchange
Offer and take such other action as may from time to time be requested by the
Company or its counsel (and such other action as you may deem appropriate) to
furnish copies of the Exchange Offer Documents or such other forms as may be
approved from time to time by the Company, to all holders of Old Notes and to
all persons requesting such documents and to accept and comply with telephone
requests for information relating to the Exchange Offer, provided that such
information shall relate only to the procedures for accepting (or withdrawing
from) the Exchange Offer. The Company will furnish you with copies of
such documents at your request. All other requests by holders of Old
Notes for information relating to the Exchange Offer shall be directed to the
Company, Attention: Xxxxxxx Xxxxxxxx, at the Company’s offices at 0000 Xxxx
Xxxxxx, Xxxxxxx, Xxxxx 00000, telephone number: (000) 000-0000.
16. You
shall advise by facsimile transmission, email, or telephone, and promptly
thereafter confirm in writing to the Company’s counsel, or, if so requested in
writing by the Company, to the Chief Financial Officer or Secretary of the
Company, and such other person or persons as the Company may request in writing,
daily, and more frequently during the week immediately preceding the Expiration
Date and if otherwise requested, up to and including the Expiration Date, as to
the aggregate principal amount of Old Notes which have been tendered pursuant to
the Registration Statement and the items received by you pursuant to the
Exchange Offer and this Agreement, separately reporting and giving cumulative
totals as to items properly received and items improperly
received. In addition, you will also inform, and cooperate in making
available to, the Company or any such other person or persons as the Company
requests in writing from time to time prior to the Expiration Date of such other
information as it or he or she reasonably requests. Such cooperation
shall include, without limitation, the granting by you to the Company and such
person as the Company may request of access to those persons on your staff who
are responsible for receiving tenders, in order to ensure that immediately prior
to the Expiration Date the Company shall have received information in sufficient
detail to enable it to decide whether to extend the Exchange
Offer. You shall prepare a final list of all persons whose tenders
were accepted, the aggregate principal amount of Old Notes tendered, the
aggregate principal amount of Old Notes accepted and the identity of any
participating broker-dealers and the aggregate principal amount of New Notes
delivered to each, and deliver said list to the Company.
17. Letters
of Transmittal shall be stamped by you as to the date and, after the expiration
of the Exchange Offer, the time of receipt thereof shall be preserved by you for
a period of time at least equal to the period of time you customarily preserve
other records pertaining to the transfer of securities, or one year, whichever
is longer, and thereafter shall be delivered by you to the Company. You shall
dispose of unused Letters of Transmittal and other surplus materials in
accordance with your customary procedures.
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18. For
services rendered as Exchange Agent hereunder you shall be entitled to such
compensation and reimbursement of reasonable out-of-pocket expenses as shall be
agreed in writing between the Company and you. The provisions of this
paragraph shall survive the termination of this Agreement.
19. You
hereby acknowledge receipt of the Registration Statement, the Letter of
Transmittal and the other Exchange Offer Documents attached
hereto. Any inconsistency between this Agreement, on the one hand,
and the Registration Statement, the Letter of Transmittal and such other
Exchange Offer Documents (as they may be amended from time to time), on the
other hand, shall be resolved in favor of the Registration Statement, the Letter
of Transmittal and such other Exchange Offer Documents, except with respect to
the duties, liabilities and indemnification of you as Exchange Agent which shall
be controlled by this Agreement.
20. The
Company agrees to fully indemnify and hold you harmless in your capacity as
Exchange Agent hereunder against any and all liability, cost or expense,
including, without limitation, attorneys’ fees and expenses, arising out of or
in connection with your appointment as Exchange Agent and the performance of
your duties hereunder, including, without limitation, any act, omission, delay
or refusal made by you in reliance upon any signature, endorsement, assignment,
certificate, order, request, notice, instruction or other instrument or document
believed by you to be valid, genuine and sufficient and in accepting any tender
or effecting any transfer of Old Notes believed by you in good faith to be
authorized, and in delaying or refusing in good faith to accept any tenders or
effect any transfer of Old Notes; provided, however, that the
Company shall not be liable for indemnification or otherwise for any loss,
liability, cost or expense to the extent arising out of your gross negligence,
willful misconduct or bad faith. The Company’s obligations under this
paragraph 20 shall survive the termination of this Agreement and the discharge
of your obligations hereunder and any other termination of this Agreement under
any federal or state bankruptcy law.
21. You
shall arrange to comply with all requirements under the tax laws of the United
States, including those relating to missing Tax Identification Numbers, and
shall file any appropriate reports with the Internal Revenue
Service. The Company understands that you are required, in certain
instances, to deduct a specified percentage with respect to interest paid on the
New Notes and proceeds from the sale, exchange, redemption or retirement of the
New Notes from holders who have not supplied their correct Taxpayer
Identification Numbers or required certification. Such funds will be turned over
to the Internal Revenue Service in accordance with applicable
regulations.
22. You
shall notify the Company of the amount of any transfer taxes known to you and
payable in respect of the exchange of Old Notes and shall deliver or cause to be
delivered, in a timely manner, to each governmental authority to which any
transfer taxes are payable in respect of the exchange of Old Notes the Company’s
check in the amount of all transfer taxes so payable; provided, however, that your
obligation to make any such delivery shall be conditioned upon prior receipt
from the Company in immediately available funds of the amount required to be so
paid; and provided, further, that you shall reimburse the Company for amounts
refunded to you in respect of the payment of any such transfer taxes, at such
time as such refund is received by you.
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23. This
Agreement and your appointment as Exchange Agent hereunder shall be construed
and enforced in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such state, and without
regard to conflicts of law principles, and shall inure to the benefit of, and
the obligations created hereby shall be binding upon, the successors and assigns
of each of the parties hereto and nothing in this Agreement, express or implied,
is intended to or shall confer upon any other person any right, benefit or
remedy of any nature whatsoever under or by reason of this
Agreement. Without limitation of the foregoing, the parties hereto
expressly agree that no holder of Old Notes or New Notes shall have any right,
benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
24. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
25. In
case any provision of this Agreement shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
26. This
Agreement shall not be deemed or construed to be modified, amended, rescinded,
canceled or waived, in whole or in part, except by a written instrument signed
by a duly authorized representative of the party to be charged.
27. Unless
otherwise provided herein, all notices, requests and other communications to any
party hereunder shall be in writing (including facsimile) and shall be given to
such party, addressed to it, as its address or telecopy number set forth
below:
If to the
Company:
|
Energy
XXI Gulf Coast, Inc.
0000
Xxxx, Xxxxx 0000
Xxxxxxx,
Xxxxx 00000
|
|||
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Telecopier:
|
(000)
000-0000
|
||
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Attention:
|
X.
Xxxx Xxxxxxx
|
||
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If to the
Exchange Agent:
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Wilmington
Trust FSB
c/o
Wilmington Trust Company
00
Xxxxx Xxxxx Xxxxxx
Xxxxx
0000
Xxxxxxxxxxx,
Xxxxxxxxx 00000
|
|||
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Telecopier:
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(000)
000-0000
|
||
|
Attention:
|
Xxxxxxx
Xxxxx
|
||
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Vice
President
|
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28. Unless
terminated earlier by the parties hereto, this Agreement shall terminate 90 days
following the Expiration Date. Notwithstanding the foregoing,
Paragraphs 14(d), 14(e) 14(i), 18 and 20 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Company any certificates for notes, funds or property (including,
without limitation, Letters of Transmittal and any other Exchange Offer
Documents) then held by you as Exchange Agent under this Agreement.
29. This
Agreement shall be binding and effective as of the date hereof.
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Please acknowledge receipt of this
Agreement and confirm the arrangements herein provided by signing and returning
the enclosed copy.
ENERGY
XXI GULF COAST, INC.
By:________________________________
Name: Xxx
Xxxxxxxx
Title: President
Accepted
as of the date
first
above written:
WILMINGTON
TRUST FSB,
as
Exchange Agent
By:_________________________
Name: Xxxxxxx
Xxxxx
Title: Vice
President
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