GulfMark Offshore, Inc. PURCHASE AGREEMENT
EXECUTION COPY
Exhibit 1.1
$300,000,000
GulfMark Offshore, Inc.
6.375% Senior Notes due 2022
March 1, 2012
CREDIT SUISSE SECURITIES (USA) LLC
As Representative of the Several Purchasers (“Representative”),
c/o Credit Suisse Securities (USA) LLC (“Credit Suisse”),
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. GulfMark Offshore, Inc., a Delaware corporation (the “Company”), agrees, subject to the terms and conditions stated herein, to issue and sell to the several initial purchasers named in Schedule A hereto (the “Purchasers”) U.S. $300,000,000 principal amount of its 6.375% Senior Notes due 2022 (“Offered Securities”) to be issued under an indenture, dated as of the Closing Date (the “Indenture”), between the Company and U.S. Bank National Association, as trustee (the “Trustee”).
The holders of the Offered Securities will be entitled to the benefits of a Registration Rights Agreement dated as of the Closing Date between the Company and the Representative (the “Registration Rights Agreement”), pursuant to which the Company will agree to file a registration statement with the Commission (as defined below) registering (a) the exchange (the “Exchange Offer”) of the Offered Securities for debt securities with substantially identical terms as the Offered Securities (the “Exchange Securities”) and (b) under certain circumstances, the resale of the Offered Securities under the Securities Act.
The Offered Securities will be sold to the Purchasers without being registered under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to Section 4(2) of the Securities Act, for resale by the Purchasers in compliance with Regulation S under the Securities Act (“Regulation S”) or to “qualified institutional buyers” as defined in Rule 144A under the Securities Act (“Rule 144A”) in compliance with Rule 144A.
The Company hereby agrees with the several Purchasers as follows:
2. Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, the several Purchasers that:
(a) Offering Circulars; Certain Defined Terms. The Company has prepared or will prepare a Preliminary Offering Circular and a Final Offering Circular.
For purposes of this Agreement:
“Applicable Time” means 12:00 pm (New York time) on the date of this Agreement.
“Closing Date” has the meaning set forth in Section 3 hereof.
“Commission” means the Securities and Exchange Commission.
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended.
“Final Offering Circular” means the final offering circular relating to the Offered Securities to be offered by the Purchasers that discloses the offering price and other final terms of the Offered Securities and is dated as of the date of this Agreement (even if finalized and issued subsequent to the date of this Agreement), including information incorporated therein by reference to filings under the Exchange Act.
“Free Writing Communication” means a written communication (as such term is defined in Rule 405) that constitutes an offer to sell or a solicitation of an offer to buy the Offered Securities and is made by means other than the Preliminary Offering Circular or the Final Offering Circular.
“General Disclosure Package” means the Preliminary Offering Circular together with any Issuer Free Writing Communication existing at the Applicable Time and the information in which is intended for general distribution to prospective investors, in each case as evidenced by its being specified in Schedule D hereto.
“Issuer Free Writing Communication” means a Free Writing Communication prepared by or on behalf of the Company, used or referred to by the Company or containing a description of the final terms of the Offered Securities or of their offering, in the form retained in the Company’s records.
“Preliminary Offering Circular” means the preliminary offering circular, dated February 27, 2012, relating to the Offered Securities to be offered by the Purchasers, including information incorporated therein by reference to filings under the Exchange Act.
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“Rules and Regulations” means the rules and regulations of the Commission.
“Securities Laws” means, collectively, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (“▇▇▇▇▇▇▇▇-▇▇▇▇▇”), the Securities Act, the Exchange Act, the Rules and Regulations, the auditing principles, rules, standards and practices applicable to auditors of “issuers” (as defined in ▇▇▇▇▇▇▇▇-▇▇▇▇▇) promulgated or approved by the Public Company Accounting Oversight Board and, as applicable, the rules of the New York Stock Exchange (“Exchange Rules”).
“Supplemental Marketing Material” means any Issuer Free Writing Communication other than any Issuer Free Writing Communication specified in Schedule D hereto. Supplemental Marketing Materials include, but are not limited to, the electronic Bloomberg roadshow slides and the accompanying audio recording.
Unless otherwise specified, a reference to a “rule” is to the indicated rule under the Securities Act.
(b) Disclosure. As of the date of this Agreement, the Final Offering Circular does not, and as of the Closing Date, the Final Offering Circular will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. At the Applicable Time, and as of the Closing Date, neither (i) the General Disclosure Package, nor (ii) any individual Supplemental Marketing Material, when considered together with the General Disclosure Package, included, or will include, any untrue statement of a material fact or omitted, or will omit, to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding two sentences do not apply to statements in or omissions from the Preliminary or Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material based upon written information furnished to the Company by any Purchaser through Credit Suisse specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 8(b) hereof. Except as disclosed in the General Disclosure Package, on the date of this Agreement, the Company’s Annual Report on Form 10-K most recently filed with the Commission and all subsequent reports which have been filed by the Company with the Commission or sent to stockholders pursuant to the Exchange Act and incorporated by reference in the Preliminary or Final Offering Circular (collectively, the “Exchange Act Reports”) do not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such documents, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the Rules and Regulations.
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(c) Good Standing of the Company. The Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the General Disclosure Package; and the Company is duly qualified to do business as a foreign corporation and in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except for such jurisdictions where the failure to so qualify or to be in good standing would not, individually or in the aggregate, result in a material adverse effect on the condition (financial or otherwise), business, properties, results of operations or prospects of the Company and its subsidiaries taken as a whole (a “Material Adverse Effect”).
(d) Subsidiaries. Each subsidiary of the Company has been duly incorporated and is existing and in good standing under the laws of the jurisdiction of its incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the General Disclosure Package; and each subsidiary of the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except for such jurisdictions where the failure to so qualify or to be in good standing would not, individually or in the aggregate, result in a Material Adverse Effect; all of the issued and outstanding capital stock of each subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of each subsidiary owned by the Company, directly or through subsidiaries, is owned free from liens, encumbrances and defects, except as such as arise under the Company’s $200 million facility agreement (the “Facility Agreement”) or the Company’s $175 million Secured Reducing Revolving Loan Facilities (the “Revolving Loan Facilities”) (each as defined in the General Disclosure Package).
(e) Corporate Structure. The entities listed on Schedule B hereto are the only subsidiaries, direct or indirect, of the Company.
(f) Indenture; Offered Securities. The Indenture has been duly authorized by the Company, and, when duly executed and delivered by the Company, assuming due authorization, execution and delivery thereof by the Trustee, the Indenture will constitute a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles. The Offered Securities will be in the form contemplated by the Indenture, and have been authorized for issuance and sale pursuant to this Agreement and the Indenture, and, when executed by the Company and authenticated by the Trustee in accordance with the terms of the Indenture and delivered against payment of
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the purchase price therefore, the Offered Securities will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles and will be entitled to the benefits provided by the Indenture.
(g) Trust Indenture Act. 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 “Trust Indenture Act”), and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder.
(h) No Finder’s Fee. Except as disclosed in the General Disclosure Package, there are no contracts, agreements or understandings between the Company and any person that would give rise to a valid claim against the Company or any Purchaser for a brokerage commission, finder’s fee or other like payment with respect to the issuance, purchase and sale of the Offered Securities.
(i) Registration Rights Agreement. The Registration Rights Agreement has been duly authorized by the Company; and, when the Offered Securities are delivered and paid for pursuant to this Agreement on the Closing Date, the Registration Rights Agreement will have been duly executed and delivered and will be the valid and legally binding obligations of the Company, enforceable in accordance with its terms, except that the enforcement thereof may be limited by (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles and (ii) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations. .
(j) Exchange Securities. On the Closing Date, the Exchange Securities will have been duly authorized by the Company; and when the Exchange Securities are issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Securities by the Trustee in accordance with the Indenture), the Exchange Securities will be entitled to the benefits of the Indenture and will be the valid and legally binding obligations of the Company, enforceable in accordance with their terms, except that the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(k) No Registration Rights. Except as disclosed in the General Disclosure Package and the Final Offering Circular, there are no contracts,
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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 Securities Act with respect to any securities of the Company or to require the Company to include such securities with the Offered Securities registered pursuant to any registration statement.
(l) Absence of Further Requirements. No consent, approval, authorization, or order of, or filing or registration with, any person (including any governmental agency or body or any court) is required for the consummation of the transactions contemplated by this Agreement, the Indenture and the Registration Rights Agreement in connection with the offering, issuance and sale of the Offered Securities by the Company except for (i) if required, the order of the Commission declaring effective the Exchange Offer Registration Statement or, if required, the Shelf Registration Statement (each as will be defined in the Registration Rights Agreement), (ii) if required, the qualification of the Indenture under the Trust Indenture Act in connection with the issuance of the Exchange Securities, and (iii) such as have previously been obtained.
(m) Title to Property. Except as disclosed in the General Disclosure Package, the Company and its subsidiaries have good and marketable title to all real properties and all other properties and assets owned by them, in each case free from liens, charges, encumbrances and defects, except as such as arise under the Facility Agreement or the Revolving Loan Facilities, that would materially affect the value thereof or materially interfere with the use made or to be made thereof by them; and except as disclosed in the General Disclosure Package, the Company and its subsidiaries hold any leased real or personal property under valid and enforceable leases with no terms or provisions that would materially interfere with the use made or to be made thereof by them.
(n) Vessels. Each of the vessels listed on Schedule C (the “Owned Vessels”) hereto has been duly registered as a vessel under the laws and regulations and flag of the jurisdiction set forth opposite its name on Schedule C in the sole ownership of the Company or the subsidiary (each a “Vessel Owner”) set forth opposite its name on Schedule C, and no other action is necessary to establish and perfect the Vessel Owner’s title to and interest in such Owned Vessel as against any charterer or third party; each Vessel Owner has good and marketable title to its vessel(s), free and clear of all mortgages, pledges, liens, security interests, claims, and all defects of the title of record except for those liens securing vessel financing agreements described in the General Disclosure Package; each Owned Vessel is in good standing with respect to the payment of past or current taxes, fees and other amounts payable under the laws of the jurisdiction where it is registered as would affect its registration with the ship registry of such jurisdiction. Each Owned Vessel is operated in compliance with the rules, codes of practice, conventions, protocols, guidelines or similar requirements or restrictions imposed, published or promulgated by any Governmental Authority, classification society or insurer applicable to the
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respective vessel (collectively, “Maritime Guidelines”) and all applicable international, national, state and local conventions, laws, regulations, orders, licenses and other requirements (including, without limitation, all Environmental Laws (as defined below)); each Vessel Owner is qualified to own such Owned Vessels under all applicable international, national, state and local conventions, laws, regulations, orders, licenses and other requirements (including, without limitation, all Environmental Laws) and Maritime Guidelines, including the laws, regulations and orders of each such vessel’s flag state. Each Owned Vessel is classed by any of Germanischer ▇▇▇▇▇, Lloyd’s Register of Shipping, American Bureau of Shipping or another classification society which is a full member of the International Association of Classification Societies and each such Owned Vessel is in class with valid class and trading certificates, without overdue recommendations.
(o) Absence of Defaults and Conflicts Resulting from Transaction. The execution, delivery and performance of the Indenture, this Agreement and the Registration Rights Agreement, and the issuance and sale of the Offered Securities and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default or a Debt Repayment Triggering Event (as defined below) under, or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, (i) the charter, by-laws or other organizational documents of the Company or any of its subsidiaries, (ii) any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their properties, or (iii) any agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the properties of the Company or any of its subsidiaries is subject, except with respect to clauses (ii) and (iii) for such breaches, violations, defaults, Debt Repayment Triggering Events, liens, charges or encumbrances, as applicable, that would not have, individually or in the aggregate, a Material Adverse Effect; a “Debt Repayment Triggering Event” means any event or condition that gives, or with the giving of notice or lapse of time would give, the holder of any note, debenture, or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company and its subsidiaries.
(p) Absence of Existing Defaults and Conflicts. Neither the Company nor any of its subsidiaries is in violation of its respective charter, by-laws or other organizational documents, or in default (or with the giving of notice or lapse of time would be in default) under any existing obligation agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument to which any of them is a party or by which any of them is bound or to which any of the properties of any of them is subject, except such defaults that would not, individually or in the aggregate, result in a Material Adverse Effect.
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(q) Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(r) Possession of Licenses and Permits. The Company and its subsidiaries (i) possess, and are in compliance with the terms of, all adequate certificates, authorizations, franchises, licenses and permits (“Licenses”) necessary or material to the conduct of the business now conducted or proposed in the General Disclosure Package and the Final Offering Circular to be conducted by them, except for such Licenses the absence of which would not, individually or in the aggregate, have a Material Adverse Effect and (ii) have not received any notice of proceedings relating to the revocation or modification of any Licenses that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect.
(s) Absence of Labor Dispute. No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent that could reasonably be expected to have a Material Adverse Effect.
(t) Possession of Intellectual Property. The Company and its subsidiaries (i) own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions, know how, patents, copyrights, confidential information and other intellectual property (collectively, “Intellectual Property Rights”) necessary or material to conduct the business now operated by them, or presently employed by them, and (ii) have not received any notice of infringement of or conflict with asserted rights of others with respect to any Intellectual Property Rights that, if determined adversely to the Company or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect.
(u) Environmental Laws. Except as disclosed in the General Disclosure Package, (a)(i) neither the Company nor any of its subsidiaries is in violation of, or has any liability under, any federal, state, local or non-U.S. statute, law, rule, regulation, ordinance, code, other requirement or rule of law (including common law), or decision or order of any domestic or foreign governmental agency, governmental body or court, relating to pollution, to the use, handling, transportation, treatment, storage, discharge, disposal or release of Hazardous Substances, to the protection or restoration of the environment (including the marine environment) or natural resources (including biota), to health and safety (to the extent relating to exposure to Hazardous Substances), and to natural resource damages (collectively, “Environmental Laws”), (ii) neither the Company nor any of its subsidiaries is conducting or funding any investigation, remediation, remedial action or monitoring of actual or suspected Hazardous Substances in the environment, (iii) neither the Company nor any of its
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subsidiaries is liable or alleged to be liable for any release or threatened release of Hazardous Substances, including at any off-site treatment, storage or disposal site, (iv) neither the Company nor any of its subsidiaries is subject to any legal claim or action by any governmental agency or governmental body or person pursuant to Environmental Laws or relating to Hazardous Substances, and (v) the Company and its subsidiaries have received and are in compliance with all, and have no current unfulfilled liability under any, permits, licenses, authorizations, identification numbers, financial assurances or other approvals required under applicable Environmental Laws to conduct their respective businesses, except in each case covered by clauses (i) – (v) such as would not individually or in the aggregate have a Material Adverse Effect; (b) there are no other facts or circumstances that would reasonably be expected to result in a violation of, liability under, or claim pursuant to any Environmental Law that would have a Material Adverse Effect; and (c) to the knowledge of the Company there are no requirements proposed for adoption or implementation under any Environmental Law that would reasonably be expected to have a Material Adverse Effect. For purposes of this subsection “Hazardous Substances” means (A) petroleum and petroleum products, by-products or breakdown products, radioactive materials, asbestos-containing materials and polychlorinated biphenyls, and (B) any other chemical, material or substance defined or regulated as toxic or hazardous or as a pollutant, contaminant or waste under Environmental Laws.
(v) Accurate Disclosure. The statements in the General Disclosure Package and the Final Offering Circular under the headings “Tax Matters” and “Description of the Notes” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings and present the information required to be shown.
(w) Absence of Manipulation. Neither the Company nor any of its affiliates has, either alone or with one or more other persons, taken any action that is designed or would reasonably be expected to cause or result in, or that has constituted, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Offered Securities.
(x) Statistical and Market-Related Data. Any third-party statistical and market-related data included in a Preliminary Offering Circular, a Final Offering Circular, or any Issuer Free Writing Communication are based on or derived from sources that the Company believes to be reliable and accurate.
(y) Internal Controls and Compliance with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Except as set forth in the General Disclosure Package, the Company, its subsidiaries and its Board of Directors (the “Board”) are in compliance with the applicable provisions of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ and all applicable Exchange Rules. The Company maintains a system of internal controls, including, but not limited to, disclosure controls and procedures, internal controls over accounting matters and
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financial reporting, an internal audit function, and legal and regulatory compliance controls (collectively, “Internal Controls”), that comply with the Securities Laws and are sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with U.S. Generally Accepted Accounting Principles and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Internal Controls are overseen by the Audit Committee (the “Audit Committee”) of the Board in accordance with Exchange Rules. Since December 31, 2011, the Company has not publicly disclosed or reported to the Audit Committee or the Board, and within the next 90 days the Company does not expect to publicly disclose or report to the Audit Committee or the Board, a significant deficiency, material weakness, change in Internal Controls or fraud involving management or other employees who have a significant role in Internal Controls (each, an “Internal Control Event”), any violation of, or failure to comply with, the Securities Laws, or any matter which, if determined adversely, would have a Material Adverse Effect.
(z) Litigation. Except as disclosed in the General Disclosure Package, there are no pending actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign known to the Company) against or affecting the Company, any of its subsidiaries or any of their respective properties that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Company to perform its obligations under the Indenture, this Agreement, or the Registration Rights Agreement, or which are otherwise material in the context of the sale of the Offered Securities; and, to the Company’s knowledge, no such actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) are threatened or contemplated.
(aa) Financial Statements. The financial statements included in the General Disclosure Package present fairly the financial position of the Company and its consolidated subsidiaries as of the dates shown and their results of operations and cash flows for the periods shown, and such financial statements have been prepared in conformity with U.S. Generally Accepted Accounting Principles applied on a consistent basis.
(bb) No Material Adverse Change in Business. Except as disclosed in the General Disclosure Package, since the end of the period covered by the latest audited financial statements included in the General Disclosure Package (i) there has been no change, nor any development or event involving a prospective
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change, that has had or would be reasonably expected to have a Material Adverse Effect; (ii) except as disclosed in or contemplated by the General Disclosure Package, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock and (iii) except as disclosed in or contemplated by the General Disclosure Package, there has been no material adverse change in the capital stock, short-term indebtedness, long-term indebtedness, net current assets or net assets of the Company and its subsidiaries.
(cc) Investment Company Act. The Company is not an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the United States Investment Company Act of 1940 (the “Investment Company Act”); and the Company is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” as defined in the Investment Company Act.
(dd) Regulations T, U, X. Neither the Company nor any of its subsidiaries nor any agent thereof acting on their behalf has taken, and none of them will take, any action that might cause this Agreement or the issuance or sale of the Offered Securities to violate Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System.
(ee) Ratings. No “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange 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 any of the actions described in Section 7(b)(ii) hereof.
(ff) Class of Securities Not Listed. No securities of the same class (within the meaning of Rule 144A(d)(3)) as the Offered Securities are listed on any national securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system.
(gg) No Registration. The offer and sale of the Offered Securities in the manner contemplated by this Agreement will be exempt from the registration requirements of the Securities Act by reason of Section 4(2) thereof and by Rule 144A or by Regulation S thereunder; and it is not necessary to qualify an indenture in respect of the Offered Securities under the United States Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).
(hh) No General Solicitation; No Directed Selling Efforts. Neither the Company nor any of its affiliates, nor any person acting on its or their behalf (other than the Purchasers and any of their affiliates, as to whom the Company
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makes no representation or warranty) (i) has, within the six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act) the Offered Securities or any security of the same class or series as the Offered Securities or (ii) has offered or will offer or sell the Offered Securities (A) in the United States by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) or (B) with respect to any such securities sold in reliance on Rule 903 of Regulation S, by means of any directed selling efforts within the meaning of Rule 902(c) of Regulation S. The Company, its affiliates and any person acting on its or their behalf have complied and will comply with the offering restrictions requirement of Regulation S. The Company has not entered and the Company will not enter into any contractual arrangement with respect to the distribution of the Offered Securities except for this Agreement.
(ii) Reporting Status. The Company is subject to Section 13 or 15(d) of the Exchange Act.
(jj) Compliance with Anti-Corruption Measures. None of the Company, its subsidiaries, and, to the Company’s knowledge, its affiliates or any of their respective officers, directors, supervisors, managers, agents, or employees, have violated, and the Company’s participation in the offering will not violate, and the Company has instituted and maintains policies and procedures designed to ensure continued compliance with each of, the following laws: (a) anti-bribery laws, including but not limited to, any applicable law, rule, or regulation of any locality, including but not limited to any law, rule, or regulation promulgated to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, signed December 17, 1997, including the U.S. Foreign Corrupt Practices Act of 1977 or any other law, rule or regulation of similar purpose and scope, (b) anti-money laundering laws, including but not limited to, applicable federal, state, international, foreign or other laws, regulations or government guidance regarding anti-money laundering, including, without limitation, Title 18 U.S. Code section 1956 and 1957, the Patriot Act, the Bank Secrecy Act, and international anti-money laundering principles or procedures by an intergovernmental group or organization, such as the Financial Action Task Force on Money Laundering, of which the United States is a member and with which designation the United States representative to the group or organization continues to concur, all as amended, and any Executive order, directive, or regulation pursuant to the authority of any of the foregoing, or any orders or licenses issued thereunder or (c) laws and regulations imposing U.S. economic sanctions measures, including, but not limited to, the International Emergency Economic Powers Act, the Trading with the Enemy Act, the United Nations Participation Act, and the Syria Accountability and Lebanese Sovereignty Act, all as amended, and any Executive Order, directive, or regulation pursuant to the authority of any of the foregoing, including the regulations of the United States Treasury Department set forth under 31 CFR, Subtitle B, Chapter V, as amended, or any orders or licenses issued thereunder; and the Company will not
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directly or indirectly use the proceeds from the offering of the Offered Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person for the purpose of financing the activities of any person currently subject to any sanctions administered by the Office of Foreign Assets Control of the U.S. Department of Treasury.
(kk) Taxes. The Company and its subsidiaries have filed all federal, state, local and non-U.S. tax returns that are required to be filed or have requested extensions thereof (except in any case in which the failure so to file would not have a Material Adverse Effect); and, except as set forth in the General Disclosure Package, the Company and its subsidiaries have paid all taxes shown on such returns (including any assessments, fines or penalties) required to be paid by them, except for any such taxes, assessments, fines or penalties currently being contested in good faith or as would not, individually or in the aggregate, have a Material Adverse Effect.
(ll) Insurance. The Company and its subsidiaries are insured by insurers with appropriately rated claims paying abilities against such losses and risks and in such amounts as are prudent and customary for the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Company or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; the Company and its subsidiaries are in compliance with the terms of such policies and instruments in all material respects; and there are no claims by the Company or any of its subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; neither the Company nor any such subsidiary has been refused any insurance coverage sought or applied for; and neither the Company nor any such subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein, the Company agrees to sell to the several Purchasers, and each of the Purchasers agrees, severally and not jointly, to purchase from the Company, at a purchase price of 98% of the principal amount thereof plus accrued interest from March 12, 2012 to the Closing Date (as hereinafter defined), the respective principal amounts of Offered Securities set forth opposite the names of the several Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price the Offered Securities to be offered and sold by the Purchasers in reliance on Regulation S (the “Regulation S Securities”) in the form of one or more permanent global securities in registered form without interest coupons (the “Offered Regulation S Global Securities”) which will be deposited with the Trustee as custodian for The Depository
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Trust Company (“DTC”) for the respective accounts of the DTC participants for ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels office, as operator of the Euroclear System (“Euroclear”), and Clearstream Banking, société anonyme (“Clearstream, Luxembourg”) and registered in the name of Cede & Co., as nominee for DTC. The Company will deliver against payment of the purchase price the Offered Securities to be purchased by each Purchaser hereunder and to be offered and sold by each Purchaser in reliance on Rule 144A (the “144A Securities”) in the form of one permanent global security in definitive form without interest coupons (the “Restricted Global Securities”) deposited with the Trustee as custodian for DTC and registered in the name of Cede & Co., as nominee for DTC. The Regulation S Global Securities and the Restricted Global Securities shall be assigned separate CUSIP numbers. The Restricted Global Securities shall include the legend regarding restrictions on transfer set forth under “Transfer Restrictions” in the Final Offering Circular. Until the termination of the distribution compliance period (as defined in Regulation S) with respect to the offering of the Offered Securities, interests in the Regulation S Global Securities may only be held by the DTC participants for Euroclear and Clearstream, Luxembourg. Interests in any permanent global securities will be held only in book-entry form through Euroclear, Clearstream, Luxembourg or DTC, as the case may be, except in the limited circumstances described in the Final Offering Circular.
Payment for the Regulation S Securities and the 144A Securities shall be made by the Purchasers in Federal (same day) funds by wire transfer to an account at a bank acceptable to Credit Suisse drawn to the order of the Company at the office of Cravath, Swaine & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ at 10:00 a.m., (New York time), on March 12, 2012, or at such other time not later than seven full business days thereafter as the Representative and the Company determine, such time being herein referred to as the “Closing Date”, against delivery to the Trustee as custodian for DTC of (i) the Regulation S Global Securities representing all of the Regulation S Securities for the respective accounts of the DTC participants for Euroclear and Clearstream, Luxembourg and (ii) the Restricted Global Securities representing all of the 144A Securities. The Regulation S Global Securities and the Restricted Global Securities will be made available for checking at the above office of Cravath, Swaine & ▇▇▇▇▇ LLP at least 24 hours prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers. (a) Each Purchaser severally represents and warrants to the Company that it is an “accredited investor” within the meaning of Regulation D under the Securities Act.
(b) Each Purchaser severally acknowledges that the Offered Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Regulation S or pursuant to an exemption from the registration requirements of the Securities Act. Each Purchaser severally represents and agrees that it has offered and sold the Offered Securities, and will offer and sell the Offered Securities (i) as part of its distribution at any time and (ii) otherwise
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until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 or Rule 144A. Accordingly, neither such Purchaser nor its affiliates, nor any persons acting on its or their behalf, have engaged or will engage in any directed selling efforts with respect to the Offered Securities, and such Purchaser, its affiliates and all persons acting on its or their behalf have complied and will comply with the offering restrictions requirement of Regulation S. Each Purchaser severally agrees that, at or prior to confirmation of sale of the Offered Securities, other than a sale pursuant to Rule 144A, such Purchaser will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases the Offered Securities from it during the restricted period a confirmation or notice to substantially the following effect:
“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the “Securities Act”) and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the date of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meanings given to them by Regulation S.”
Terms used in this subsection (b) have the meanings given to them by Regulation S.
(c) Each Purchaser severally agrees that it and each of its affiliates has not entered and will not enter into any contractual arrangement with respect to the distribution of the Offered Securities except for any such arrangements with the other Purchasers or affiliates of the other Purchasers or with the prior written consent of the Company.
(d) Each Purchaser severally agrees that it and each of its affiliates will not offer or sell the Offered Securities in the United States by means of any form of general solicitation or general advertising within the meaning of Rule 502(c), including, but not limited to (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser severally agrees, with respect to resales made in reliance on Rule 144A of any of the Offered Securities, to deliver either with the confirmation of such resale or otherwise prior to settlement of such resale a notice to the effect that the resale of such Offered Securities has been made in reliance upon the exemption from the registration requirements of the Securities Act provided by Rule 144A.
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(e) In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each of the Purchasers severally represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of Offered Securities to the public in that Relevant Member State prior to the publication of a prospectus in relation to the Offered Securities which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of Offered Securities to the public in that Relevant Member State at any time:
(i) to any legal entity which is qualified investor as defined in the Prospectus Directive;
(ii) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons other than qualified investors as defined in the Prospectus Directive, as permitted under the Prospectus Directive, subject to obtaining the prior consent of the joint book-running managers for any such offer; or
(iii) in any other circumstances which do not require the publication by the Company or any guarantor of a prospectus pursuant to Article 3(2) of the Prospectus Directive.
For the purposes of this provision, the expression “an offer of Offered Securities to the public” in relation to any Offered Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Offered Securities to be offered so as to enable an investor to decide to purchase or subscribe the Offered Securities, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State and the expression “Prospectus Directive” means Directive 2003/7 1/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in each Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU.
(f) Each of the Purchasers severally represents and agrees that
(i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of
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Section 21 of the FSMA) received by it in connection with the issue or sale of the Offered Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Offered Securities in, from or otherwise involving the United Kingdom.
(g) Each Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Purchasers pursuant to Sections 7(d) and (e), counsel for the Company and counsel for the Purchasers, may rely upon the accuracy of the representations and warranties of the Purchasers, and compliance by the Purchasers with their agreements, contained herein, and each Purchaser hereby consents to such reliance.
5. Certain Agreements of the Company. The Company agrees with the several Purchasers that:
(a) Amendments and Supplements to Offering Circulars. The Company will promptly advise the Representative of any proposal to amend or supplement the Preliminary or Final Offering Circular and will not effect such amendment or supplementation without the Representative’s consent. If, at any time prior to the completion of the resale of the Offered Securities by the Purchasers, there occurs an event or development as a result of which any document included in the Preliminary or Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material, if republished immediately following such event or development, included or would include an untrue statement of a material fact or omitted or would omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Company promptly will notify the Representative of such event and promptly will prepare and furnish, at its own expense, to the Purchasers and the dealers and to any other dealers at the request of the Representative, an amendment or supplement which will correct such statement or omission. Neither the Representative’s consent to, nor its delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 7.
(b) Furnishing of Offering Circulars. The Company will furnish to the Representative copies of the Preliminary Offering Circular, each other document comprising a part of the General Disclosure Package, the Final Offering Circular, all amendments and supplements to such documents and each item of Supplemental Marketing Material, in each case as soon as available and in such quantities as the Representative requests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly
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furnish or cause to be furnished to the Representative (and, upon request, to each of the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(c) Blue Sky Qualifications. The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Representative designates and will continue such qualifications in effect so long as required for the resale of the Offered Securities by the Purchasers, provided that the Company will not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction or subject itself to taxation in any such jurisdiction where it is not then so subject.
(d) Reporting Requirements. For so long as the Offered Securities remain outstanding, the Company will furnish to the Representative and, upon request, to each of the other Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representative and, upon request, to each of the other Purchasers (i) as soon as available, a copy of each report and any definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to stockholders and (ii) from time to time, such other information concerning the Company as the Representative may reasonably request. However, so long as the Company is subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act and is timely filing reports with the Commission on its Electronic Data Gathering, Analysis and Retrieval system (“▇▇▇▇▇”), it is not required to furnish such reports or statements to the Purchasers.
(e) Transfer Restrictions. During the period of one year after the Closing Date, the Company will, upon request, furnish to the Representative, each of the other Purchasers and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Offered Securities.
(f) No Resales by Affiliates. During the period of one year after the Closing Date, the Company will not, and will not permit any of its affiliates (as defined in Rule 144) to, resell any of the Offered Securities that have been reacquired by any of them.
(g) Investment Company. During the period of two years after the Closing Date, the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
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(h) Payment of Expenses. The Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture and the Registration Rights Agreement, including but not limited to (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities, the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Preliminary Offering Circular, any other documents comprising any part of the General Disclosure Package, the Final Offering Circular, all amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable, the Exchange Securities; (iii) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (iv) any expenses (including fees and disbursements of counsel to the Purchasers) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as the Representative designates and the preparation and printing of memoranda relating thereto, (v) any fees charged by investment rating agencies for the rating of the Offered Securities or the Exchange Securities, and (vi) expenses incurred in distributing the Preliminary Offering Circular, any other documents comprising any part of the General Disclosure Package, the Final Offering Circular (including any amendments and supplements thereto) and any Supplemental Marketing Material to the Purchasers. The Company will also pay or reimburse the Purchasers (to the extent incurred by them) for costs and expenses of the Purchasers and the Company’s officers and employees and any other expenses of the Purchasers, the Company relating to investor presentations on any “road show” in connection with the offering and sale of the Offered Securities including, without limitation, any travel expenses of the Company’s officers and employees and any other expenses of the Company. It is understood, however that the Purchasers will pay 50% of the cost of any aircraft chartered in connection with the road show and the Purchasers will pay all of their own costs and expenses, including the fees of their counsel (except as provided in clause (iv), above).
(i) Use of Proceeds. The Company will use the net proceeds received in connection with this offering in the manner described in the “Use of Proceeds” section of the General Disclosure Package and, except as disclosed in the General Disclosure Package, the Company does not intend to use any of the proceeds from the sale of the Offered Securities hereunder to repay any outstanding debt owed to any affiliate of any Purchaser.
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(j) Absence of Manipulation. In connection with the offering, until Credit Suisse shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates will, either alone or with one or more other persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of its affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.
(k) Restriction on Sale of Securities. For a period of 60 days after the date hereof, the Company will not, directly or indirectly, take any of the following actions with respect to any United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue or any securities convertible into or exchangeable or exercisable for any of its securities (“Lock-Up Securities”): (i) offer, sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to sell, contract to purchase or grant any option, right or warrant to purchase Lock-Up Securities, (iii) enter into any swap, hedge or any other agreement that transfers, in whole or in part, the economic consequences of ownership of Lock-Up Securities, (iv) establish or increase a put equivalent position or liquidate or decrease a call equivalent position in Lock-Up Securities within the meaning of Section 16 of the Exchange Act or (v) file with the Commission a registration statement under the Securities Act relating to Lock-Up Securities or publicly disclose the intention to take any such action, without the prior written consent of Credit Suisse, except the filing of one or more registration statements under the Securities Act pursuant to the Registration Rights Agreement. The Company will not, at any time directly or indirectly, take any action referred to in clauses (i) through (v) above with respect to any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the Offered Securities.
6. Free Writing Communications. (a) Issuer Free Writing Communications. The Company each represents and agrees that, unless it obtains the prior consent of Credit Suisse, and each Purchaser represents and agrees that, unless it obtains the prior consent of the Company and Credit Suisse, it has not made and will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Communication.
(b) Term Sheets. The Company consents to the use by any Purchaser of a Free Writing Communication that (i) contains only (A) information describing the preliminary terms of the Offered Securities or their offering or (B) information that describes the final terms of the Offered Securities or their offering and that is included in or is subsequently included in the Final Offering Circular, including by means of a pricing term sheet in the form of Annex A hereto, or (ii) does not contain any material information about the Company or its securities that was
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provided by or on behalf of the Company, it being understood and agreed that the Company shall not be responsible to any Purchaser for liability arising from any inaccuracy in such Free Writing Communications referred to in clause (i) or (ii) as compared with the information in the Preliminary Offering Circular, the Final Offering Circular or the General Disclosure Package.
7. Conditions of the Obligations of the Purchasers. The obligations of the several Purchasers to purchase and pay for the Offered Securities will be subject to the accuracy of the representations and warranties of the Company herein (as though made on the Closing Date), to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions precedent:
(a) Accountants’ Comfort Letter. The Purchasers shall have received letters, dated, respectively, the date hereof on the General Disclosure Package and the Closing Date on the Final Offering Circular, from each of UHY LLP and KPMG LLP confirming that they are a registered public accounting firm and independent public accountants within the meaning of the Securities Laws and substantially in the form of Schedules E and F hereto (except that, in any letter dated on the Closing Date, the specified date referred to in Schedules E and F hereto shall be a date no more than three days prior to such Closing Date).
(b) No Material Adverse Change. Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole which, in the judgment of the Representative, is material and adverse and makes it impractical or inadvisable to market the Offered Securities; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as such term is defined under Section 3(a)(62) of the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls the effect of which is such as to make it, in the judgment of the Representative, impractical to market or to enforce contracts for the sale of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, (iv) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum or maximum prices for trading on such exchange; (v) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by any U.S. federal or New York authorities; (vii) any major disruption of settlements of securities, payment,
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or clearance services in the United States or any other country where such securities are listed or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Representative, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as to make it in the judgment of the Representative impractical or inadvisable to market the Offered Securities or to enforce contracts for the sale of the Offered Securities.
(c) Opinion of General Counsel for Company. The Purchasers shall have received an opinion, dated as of the Closing Date, of general counsel for the Company in form and substance satisfactory to the Purchasers and substantially in the form of Exhibit B hereto.
(d) Opinion of Counsel for Company. The Purchasers shall have received an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company in form and substance satisfactory to the Purchasers and substantially in the form of Exhibit C hereto.
(e) Opinion of Counsel for Purchasers. The Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Purchasers, such opinion or opinions, dated the Closing Date, with respect to such matters as the Representative may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) Officers’ Certificate. The Purchasers shall have received a certificate, dated as of the Closing Date, of an executive officer of the Company and a principal financial or accounting officer of the Company in which such officers shall state that the representations and warranties of the Company in Section 2 of this Agreement are true and correct, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, and that, subsequent to the date of the most recent financial statements in the General Disclosure Package there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole except as set forth in the General Disclosure Package.
Documents described as being “in the agreed form” are documents which are in the forms which have been initialed for the purpose of identification by Cravath, Swaine & ▇▇▇▇▇ LLP, copies of which are held by the Company and the Representative, with such changes as the Representative may approve.
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The Company will furnish the Purchasers with such conformed copies of such opinions, certificates, letters and documents as the Purchasers reasonably request. Credit Suisse may in its sole discretion waive on behalf of the Purchasers compliance with any conditions to the obligations of the Purchasers hereunder, whether in respect of an Closing Date or otherwise.
8. Indemnification and Contribution. (a) Indemnification of Purchasers. The Company will indemnify and hold harmless each Purchaser, its officers, employees, agents, partners, members, directors and its affiliates and each person, if any, who controls such Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Party”), against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Preliminary Offering Circular or the Final Offering Circular, in each case as amended or supplemented, or any Issuer Free Writing Communication (including with limitation, any Supplemental Marketing Material), or arise out of or are based upon the omission or alleged omission of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating, preparing or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto) whether threatened or commenced and in connection with the enforcement of this provision with respect to any of the above as such expenses are incurred; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Purchaser through the Representative specifically for use therein, it being understood and agreed that the only such information consists of the information described as such in subsection (b) below.
(b) Indemnification of Company. Each Purchaser will severally and not jointly indemnify and hold harmless the Company, each of its directors, each of its officers and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Purchaser Indemnified Party”), against any losses, claims, damages or liabilities to which such Purchaser Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Preliminary Offering Circular or the Final Offering Circular, in each case as amended or supplemented, or any Issuer Free Writing Communication or arise out of or are based
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upon the omission or the alleged omission of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such Purchaser through the Representative specifically for use therein, and will reimburse any legal or other expenses reasonably incurred by such Purchaser Indemnified Party in connection with investigating, preparing or defending against any such loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Purchaser Indemnified Party is a party thereto) whether threatened or commenced based upon any such untrue statement or omission, or any such alleged untrue statement or omission, as such expenses are incurred, it being understood and agreed that the only such information furnished by any Purchaser consists of the following information in the Preliminary and Final Offering Circular furnished on behalf of each Purchaser: the third paragraph, the second sentence of the eleventh paragraph, the thirteenth paragraph and the fourteenth paragraph, in each case under the caption “Plan of Distribution”; provided, however, that the Purchasers shall not be liable for any losses, claims, damages or liabilities arising out of or based upon the Company’s failure to perform its obligations under Section 5(a) of this Agreement.
(c) Actions against Parties; Notification. Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b) above, notify the indemnifying party of the commencement thereof; but the failure to notify the indemnifying party shall not relieve it from any liability that it may have under subsection (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under subsection (a) or (b) above. In case any such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section 8 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement includes (i) an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action and (ii) does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of any indemnified party.
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(d) Contribution. If the indemnification provided for in this Section 8 is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Purchasers on the other from the offering of the Offered Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and the Purchasers on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Purchasers on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total discounts and commissions received by the Purchasers from the Company under this Agreement. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Purchaser shall be required to contribute any amount in excess of the amount by which the total price at which the Offered Securities purchased by it were resold exceeds the amount of any damages which such Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. The Purchasers’ obligations in this subsection (d) to contribute are several in proportion to their respective purchase obligations and not joint. The Company and the Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Purchasers were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 8(d).
9. Default of Purchasers. If any Purchaser or Purchasers default in their obligations to purchase Offered Securities hereunder and the aggregate principal amount of Offered Securities that such defaulting Purchaser or Purchasers agreed but failed to purchase does not exceed 10% of the total principal amount of Offered Securities, the Representative may make arrangements satisfactory to the Company for the purchase of such Offered Securities by other persons, including any of the Purchasers, but if no such arrangements are made by the Closing Date, the non-defaulting Purchasers shall be
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obligated severally, in proportion to their respective commitments hereunder, to purchase the Offered Securities that such defaulting Purchasers agreed but failed to purchase. If any Purchaser or Purchasers so default and the aggregate principal amount of Offered Securities with respect to which such default or defaults occur exceeds 10% of the total principal amount of Offered Securities and arrangements satisfactory to the Representative and the Company for the purchase of such Offered Securities by other persons are not made within 36 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Purchaser or the Company, except as provided in Section 10. As used in this Agreement, the term “Purchaser” includes any person substituted for a Purchaser under this Section. Nothing herein will relieve a defaulting Purchaser from liability for its default.
10. Survival of Certain Representations and Obligations. The respective indemnities, agreements, representations, warranties and other statements of the Company or its officers and of the several Purchasers set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of any Purchaser, the Company or any of their respective representatives, officers or directors or any controlling person, and will survive delivery of and payment for the Offered Securities. If this Agreement is terminated pursuant to Section 9 or if for any reason the purchase of the Offered Securities by the Purchasers is not consummated, the Company shall remain responsible for the expenses to be paid or reimbursed by it pursuant to Section 5 and the respective obligations of the Company and the Purchasers pursuant to Section 8 shall remain in effect. If the purchase of the Offered Securities by the Purchasers is not consummated for any reason other than solely because of the termination of this Agreement pursuant to Section 9 or the occurrence of any event specified in clause (iii), (iv), (vi), (vii) or (viii) of Section 7(b), the Company will reimburse the Purchasers for all out-of-pocket expenses (including fees and disbursements of counsel) reasonably incurred by them in connection with the offering of the Offered Securities.
11. Notices. All communications hereunder will be in writing and, if sent to the Purchasers will be mailed, delivered or telegraphed and confirmed to the Purchasers, c/o Credit Suisse Securities (USA) LLC, Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: LCD-IBD, or, if sent to the Company, will be mailed, delivered or telegraphed and confirmed to it at GulfMark Offshore, Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: General Counsel; provided, however, that any notice to a Purchaser pursuant to Section 8 will be mailed, delivered or telegraphed and confirmed to such Purchaser.
12. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the controlling persons referred to in Section 8, and no other person will have any right or obligation hereunder, except that holders of Offered Securities shall be entitled to enforce the agreements for their benefit contained in the second and third sentences of Section 5(b) hereof against the Company as if such holders were parties thereto.
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13. Representation of Purchasers. You will act for the several Purchasers in connection with this purchase, and any action under this Agreement taken by you will be binding upon all the Purchasers.
14. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement.
15. Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) No Other Relationship. The Representative has been retained solely to act as an initial purchaser in connection with the initial purchase, offering and resale of the Offered Securities and that no fiduciary, advisory or agency relationship between the Company and the Representative has been created in respect of any of the transactions contemplated by this Agreement or the Preliminary or Final Offering Circular, irrespective of whether the Representative has advised or is advising the Company on other matters;
(b) Arm’s-Length Negotiations. The purchase price of the Offered Securities set forth in this Agreement was established by the Company following discussions and arms-length negotiations with the Representative and the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) Absence of Obligation to Disclose. The Company has been advised that the Representative and its affiliates are engaged in a broad range of transactions which may involve interests that differ from those of the Company and that the Representative has no obligation to disclose such interests and transactions to Company by virtue of any fiduciary, advisory or agency relationship; and
(d) Waiver. The Company waives, to the fullest extent permitted by law, any claims it may have against the Representative for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that the Representative shall have no liability (whether direct or indirect) to the Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including stockholders, employees or creditors of the Company.
16. Applicable Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
The Company hereby submits to the non-exclusive jurisdiction of the Federal and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. The Company irrevocably and unconditionally waives any objection to the laying of venue of any suit or proceeding arising out of or relating to this Agreement or
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the transactions contemplated hereby in Federal and state courts in the Borough of Manhattan in The City of New York and irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such suit or proceeding in any such court has been brought in an inconvenient forum.
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If the foregoing is in accordance with the Purchasers’ understanding of our agreement, kindly sign and return to us one of the counterparts hereof, whereupon it will become a binding agreement between the Company and the several Purchasers in accordance with its terms.
| Very truly yours, | ||
| GulfMark Offshore, Inc. | ||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: Executive Vice President & Chief Financial Officer | ||
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
| CREDIT SUISSE SECURITIES (USA) LLC | ||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Managing Director | ||
Acting on behalf of itself
and as the Representative
of the several Purchasers
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SCHEDULE A
| Manager |
Aggregate Principal Amount of Offered Securities to be purchased | |
| Credit Suisse Securities (USA) LLC |
$210,000,000 | |
| ▇▇▇▇▇ Fargo Securities, LLC |
$75,000,000 | |
| RBS Securities Inc |
$15,000,000 | |
|
| ||
| Total |
$300,000,000 |
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SCHEDULE B
Subsidiaries of the Company
Gulf Offshore N.S. Limited
GulfMark North Sea Limited
S.E.A. Personnel Services Limited
Gulf Offshore Guernsey, Ltd.
Gulf Offshore Guernsey International Limited
Gulf Marine Far East PTE, Ltd.
Gulf Offshore Marine International, S. de ▇.▇.
Gulf Marine (Servicos Maritimos) do Brasil Limitada
Semaring Logistics (M) Sdn. Bhd.
Gulf Marine Malaysia Inc.
Chalvoyage (M) Sdn. Bhd.
GulfMark Offshore Marine Malta, Ltd.
GulfMark Servicios de Mexico, S. de ▇.▇. de C.V.
GulfMark de Mexico, S. de ▇.▇. de C.V.
Gulf Channel Offshore Servicos LDA
GulfMark Norge AS
Gulf Offshore Norge AS
GulfMark Rederi AS
Gulf Offshore Marine International B.V.
GulfMark Oceans, L.P.
GOMI Holdings, Inc.
GM Offshore, Inc.
GulfMark Capital, LLC
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GulfMark Management, Inc.
GulfMark Resources, LLC
GulfMark Shipping, LLC
GulfMark Americas, Inc.
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SCHEDULE C
Owned Vessel Fleet
| Owned Vessel Fleet | ||||||||||||||||||||||||||||||
| Vessel |
Region | Type | Year Built |
Length (feet) |
BHP | DWT | Flag | Vessel Owner | ||||||||||||||||||||||
| Clywd Supporter |
N. Sea | SpV | 1984 | 266 | 10,700 | 1,350 | UK | Gulf Offshore N.S. Limited | ||||||||||||||||||||||
| Highland Bugler |
N. Sea | LgPSV | 2002 | 221 | 5,450 | 3,115 | UK | Gulf Offshore N.S. Limited | ||||||||||||||||||||||
| Highland Champion |
N. Sea | LgPSV | 1979 | 265 | 4,800 | 3,910 | UK | Gulf Offshore N.S. Limited | ||||||||||||||||||||||
| Highland Citadel |
N. Sea | LgPSV | 2003 | 236 | 5,450 | 3,200 | UK | Gulf Offshore N.S. Limited | ||||||||||||||||||||||
| Highland Eagle |
N. Sea | LgPSV | 2003 | 236 | 5,450 | 3,200 | UK | Gulf Offshore N.S. Limited | ||||||||||||||||||||||
| Highland Fortress |
N. Sea | LgPSV | 2001 | 236 | 5,450 | 3,200 | UK | Gulf Offshore N.S. Limited | ||||||||||||||||||||||
| Highland Monarch |
N. Sea | LgPSV | 2003 | 221 | 5,450 | 3,115 | UK | Gulf Offshore N.S. Limited | ||||||||||||||||||||||
| Highland Navigator |
N. Sea | LgPSV | 2002 | 275 | 9,600 | 4,250 | Malta | GulfMark Offshore Marine Malta, Ltd. | ||||||||||||||||||||||
| Highland Prestige |
N. Sea | LgPSV | 2007 | 284 | 10,767 | 4,993 | UK | Gulf Offshore N.S. Limited | ||||||||||||||||||||||
| Highland Pride |
N. Sea | LgPSV | 1992 | 265 | 6,600 | 3,080 | UK | Gulf Offshore N.S. Limited | ||||||||||||||||||||||
| Highland Rover |
N. Sea | LgPSV | 1998 | 236 | 5,450 | 3,200 | Malta | GulfMark Offshore Marine Malta, Ltd. | ||||||||||||||||||||||
| Highland Star |
N. Sea | LgPSV | 1991 | 265 | 6,600 | 3,075 | UK | Gulf Offshore N.S. Limited | ||||||||||||||||||||||
| North Challenger |
N. Sea | LgPSV | 1997 | 221 | 5,450 | 3,115 | Norway | GulfMark Rederi AS | ||||||||||||||||||||||
| North Mariner |
N. Sea | LgPSV | 2002 | 275 | 9,600 | 4,400 | Norway | GulfMark Rederi AS | ||||||||||||||||||||||
| North Promise |
N. Sea | LgPSV | 2007 | 284 | 10,767 | 4,993 | Norway | GulfMark Rederi AS | ||||||||||||||||||||||
| North Stream |
N. Sea | LgPSV | 1998 | 276 | 9,600 | 4,585 | Norway | GulfMark Rederi AS | ||||||||||||||||||||||
| North Truck |
N. Sea | LgPSV | 1983 | 265 | 6,120 | 3,370 | Norway | GulfMark Rederi AS | ||||||||||||||||||||||
| North Vanguard |
N. Sea | LgPSV | 1990 | 265 | 6,600 | 4,000 | Norway | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ | ||||||||||||||||||||||
| ▇▇▇▇▇ ▇▇▇▇▇▇▇ |
▇. ▇▇▇ | ▇▇▇ | ▇▇▇▇ | 284 | 10,738 | 4,850 | Norway | GulfMark Rederi AS | ||||||||||||||||||||||
| Highland Trader |
N. Sea | LgPSV | 1996 | 221 | 5,450 | 3,115 | UK | Gulf Offshore N.S. Limited | ||||||||||||||||||||||
| Highland Courage |
N. Sea | AHTS | 2002 | 260 | 16,320 | 2,750 | UK | Gulf Offshore N.S. Limited | ||||||||||||||||||||||
| Highland Valour |
N. Sea | AHTS | 2003 | 260 | 16,320 | 2,750 | UK | Gulf Offshore N.S. Limited | ||||||||||||||||||||||
| Highland Endurance |
N. Sea | AHTS | 2003 | 260 | 16,320 | 2,750 | UK | Gulf Offshore N.S. Limited | ||||||||||||||||||||||
| Highland Prince |
N. Sea | PSV | 2009 | 284 | 10,738 | 4,850 | UK | Gulf Offshore N.S. Limited | ||||||||||||||||||||||
| Highland Spirit |
N. Sea | SpV | 1998 | 202 | 6,000 | 1,800 | UK | Gulf Offshore N.S. Limited | ||||||||||||||||||||||
| Highland Guide |
SEA | LgPSV | 1999 | 218 | 4,640 | 2,800 | Panama | GulfMark Offshore, Inc. | ||||||||||||||||||||||
| Highland Legend |
SEA | PSV | 1986 | 194 | 3,600 | 1,442 | Panama | Gulf Marine Far East PTE, Ltd. | ||||||||||||||||||||||
| Highland Drummer |
SEA | LgPSV | 1997 | 221 | 5,450 | 3,115 | Panama | Gulf Marine Far East PTE, Ltd. | ||||||||||||||||||||||
| Sea Apache |
SEA | AHTS | 2008 | 250 | 10,700 | 2,700 | Panama | Gulf Marine Far East PTE, Ltd. | ||||||||||||||||||||||
| Sea Cheyenne |
SEA | AHTS | 2007 | 250 | 10,700 | 2,700 | Panama | Gulf Marine Far East PTE, Ltd. | ||||||||||||||||||||||
| Sea Guardian |
SEA | SmAHTS | 2006 | 191 | 5,150 | 1,500 | Panama | Gulf Marine Far East PTE, Ltd. | ||||||||||||||||||||||
| Sea Intrepid |
SEA | SmAHTS | 2005 | 191 | 5,150 | 1,500 | Panama | Gulf Marine Far East PTE, Ltd. | ||||||||||||||||||||||
| Sea Sovereign |
SEA | SmAHTS | 2006 | 230 | 5,500 | 1,800 | Panama | Gulf Marine Far East PTE, Ltd. | ||||||||||||||||||||||
| Sea Supporter |
SEA | AHTS | 2007 | 225 | 7,954 | 2,360 | Panama | Gulf Marine Far East PTE, Ltd. | ||||||||||||||||||||||
| Sea Choctaw |
SEA | AHTS | 2008 | 250 | 10,700 | 2,700 | Panama | Gulf Marine Far East PTE, Ltd. | ||||||||||||||||||||||
| Sea Cherokee |
SEA | AHTS | 2009 | 250 | 10,700 | 2,700 | Panama | Gulf Marine Far East PTE, Ltd. | ||||||||||||||||||||||
| Sea Comanche |
SEA | AHTS | 2009 | 250 | 10,700 | 2,700 | Panama | Gulf Marine Far East PTE, Ltd. | ||||||||||||||||||||||
| Sea Valiant |
SEA | AHTS | 2010 | 213 | 10,188 | 2,301 | Panama | Gulf Marine Far East PTE, Ltd. | ||||||||||||||||||||||
| Sea ▇▇▇▇▇▇ |
SEA | AHTS | 2010 | 213 | 10,188 | 2,301 | Panama | Gulf Marine Far East PTE, Ltd. | ||||||||||||||||||||||
| Austral Abrolhos |
Americas | SpV | 2004 | 215 | 7,100 | 2,000 | Brazil | Gulf Marine (Servicos Maritimos) do Brasil Limitada | ||||||||||||||||||||||
| Highland Scout |
Americas | LgPSV | 1999 | 218 | 4,640 | 2,800 | Panama | GulfMark Offshore, Inc. | ||||||||||||||||||||||
| Highland Piper |
Americas | LgPSV | 1996 | 221 | 5,450 | 2,700 | Panama | Gulf Offshore Marine International, S. de ▇.▇. | ||||||||||||||||||||||
| Highland Warrior |
Americas | LgPSV | 1981 | 265 | 5,300 | 2,450 | Panama | Gulf Offshore Marine International, S. de ▇.▇. | ||||||||||||||||||||||
| Sea Kiowa |
Americas | AHTS | 2008 | 250 | 10,700 | 2,700 | Panama | Gulf Marine Far East PTE, Ltd. | ||||||||||||||||||||||
| Coloso |
Americas | AHTS | 2005 | 199 | 5,916 | 1,674 | Mexico | GulfMark de Mexico, S. de ▇.▇. de C.V. | ||||||||||||||||||||||
| Titan |
Americas | AHTS | 2005 | 199 | 5,916 | 1,674 | Mexico | GulfMark de Mexico, S. de ▇.▇. de C.V. | ||||||||||||||||||||||
| Orleans |
Americas | PSV | 2004 | 210 | 6,342 | 2,586 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| Bourbon |
Americas | PSV | 2004 | 210 | 6,342 | 2,586 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| Royal |
Americas | PSV | 2004 | 210 | 6,342 | 2,586 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| Chartres |
Americas | PSV | 2004 | 210 | 6,342 | 2,586 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| Iberville |
Americas | PSV | 2004 | 210 | 6,342 | 2,586 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| Bienville |
Americas | PSV | 2005 | 210 | 6,342 | 2,586 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| ▇▇▇▇▇ |
Americas | PSV | 2005 | 210 | 6,342 | 2,586 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| ▇▇. ▇▇▇▇▇ |
▇▇▇▇▇▇▇▇ | ▇▇▇ | ▇▇▇▇ | ▇▇▇ | 6,342 | 2,586 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| Toulouse |
Americas | PSV | 2005 | 210 | 6,342 | 2,586 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| Esplanade |
Americas | PSV | 2005 | 210 | 6,342 | 2,586 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| First and Ten |
Americas | PSV | 2007 | 190 | 3,894 | 1,860 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| Double Eagle |
Americas | PSV | 2007 | 190 | 3,894 | 1,860 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| Triple Play |
Americas | PSV | 2007 | 190 | 3,894 | 1,860 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| Grand Slam |
Americas | PSV | 2007 | 190 | 3,894 | 1,860 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| Sailfish |
Americas | Crew | 2007 | 176 | 7,200 | 307 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| Slam Dunk |
Americas | PSV | 2008 | 190 | 3,894 | 1,860 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| Touchdown |
Americas | PSV | 2008 | 190 | 3,894 | 1,860 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| Hat Trick |
Americas | PSV | 2008 | 190 | 3,894 | 1,860 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
Americas | PSV | 2008 | 190 | 3,894 | 1,860 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| Homerun |
Americas | PSV | 2008 | 225 | 3,894 | 2,371 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| Knockout |
Americas | PSV | 2008 | 225 | 3,894 | 2,371 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| Hammerhead |
Americas | FSV | 2008 | 181 | 7,200 | 543 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| Albacore |
Americas | Crew | 2008 | 165 | 7,200 | 337 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| Mako |
Americas | FSV | 2008 | 181 | 7,200 | 543 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| Swordfish |
Americas | Crew | 2009 | 176 | 7,200 | 307 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| Blacktip |
Americas | FSV | 2009 | 181 | 7,200 | 543 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| Tiger |
Americas | FSV | 2009 | 181 | 7,200 | 543 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ |
Americas | PSV | 2010 | 242 | 4,200 | 2,700 | USA | GulfMark Americas, Inc. | ||||||||||||||||||||||
SCHEDULE D
Issuer Free Writing Communications (included in the General Disclosure Package)
1. Final term sheet, dated March 1, 2012, a copy of which is attached hereto as Exhibit A.
SCHEDULE E
Form of UHY LLP Comfort Letter
SCHEDULE F
Form of KPMG LLP Comfort Letter
Exhibit A
GULFMARK OFFSHORE, INC.
| Senior Notes Due 2022 March 1, 2012 | ||
| This term sheet to the Preliminary Confidential Offering Circular dated February 27, 2012 (the “Preliminary Offering Circular”) related to the offering of the notes described above should be read together with the Preliminary Offering Circular, and the information incorporated by reference therein, before making an investment decision with regard to the notes. | ||
| Issuer: | GulfMark Offshore, Inc. | |
| Security Description: | Senior Notes | |
| Face: | $300,000,000 | |
| Gross Proceeds: | $300,000,000 | |
| Coupon: | 6.375% | |
| Maturity: | March 15, 2022 | |
| Distribution: | Rule 144A and Regulation S (with Registration Rights) | |
| Offering Price: | 100.000% plus accrued interest, if any, from March 12, 2012 | |
| Yield to Maturity: | 6.375% | |
| Spread to Treasury (UST): | 433 basis points | |
| Benchmark (UST): | 2.000% UST due February 15, 2022 | |
| Ratings: | B1 / BB- (1) | |
| Interest Payment Dates: | March 15 and September 15 | |
| Record Dates: | March 1 and September 1 | |
| Commencing: | September 15, 2012 | |
| Optional Redemption: | Callable, on or after the following dates, and at the following prices: Date Price March 15, 2017 103.188% March 15, 2018 102.125% March 15, 2019 101.063% March 15, 2020 and thereafter 100.000% | |
| Make-Whole: | Callable prior to first call date at a redemption price of 100% plus the greater of (i) 1.00% and (ii) a make-whole call of T+50 basis points | |
| Equity Clawback: | Redeem until March 15, 2015 at 106.375% for up to 35.0% | |
| Trade Date: | ▇▇▇▇▇ ▇, ▇▇▇▇ | |
| ▇▇▇▇▇▇▇▇▇▇ Date: | March 12, 2012 (T+7)(2) | |
| CUSIP Numbers: | 144 A CUSIP: 402629 AF6 Reg S CUSIP: U40302 AC2 144 A ISIN: US402629AF69 Reg S ISIN: USU40302AC26 | |
| Min. Allocation: | $2,000 | |
| Increments: | $1,000 | |
| Joint Book Running Managers: | Credit Suisse Securities (USA) LLC, ▇▇▇▇▇ Fargo Securities, LLC and RBS Securities Inc. | |
| (1) | These securities ratings have been provided by ▇▇▇▇▇’▇ and S&P. Neither of these ratings is a recommendation to buy, sell or hold these securities. Each rating may be subject to revision or withdrawal at any time, and should be evaluated independently of any other rating. |
1 of 2
| (2) | We expect that delivery of the notes will be made against payment thereof on or about the closing date specified in this communication, which will be the seventh business day following the date of pricing of the notes (this settlement cycle being referred to as “T+7”). Under Rule 15c6-1 of the Securities Exchange Act of 1934, as amended, trades in the secondary market generally are required to settle in three business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade notes on the date of pricing will be required, by virtue of the fact that the notes initially will settle in T+7, to specify an alternate settlement cycle at the time of any such trade to prevent a failed settlement. Purchasers of notes who wish to trade notes on the date of pricing or on any of the three business days thereafter should consult their own advisor. |
This communication is for informational purposes only and does not constitute an offer to sell, or a solicitation of an offer to buy any security. No offer to buy securities described herein can be accepted, and no part of the purchase price thereof can be received, unless the person making such investment decision has received and reviewed the information contained in the relevant offering circular in making their investment decisions. This communication is not intended to be a confirmation as required under Rule 10b-10 of the Securities Exchange Act of 1934, as amended. A formal confirmation will be delivered to you separately. This notice shall not constitute an offer to sell or a solicitation of an offer to buy, nor shall there be any sale of the notes in any state or jurisdiction in which such offer, solicitation or sale would be unlawful. The notes will be offered and sold to qualified institutional buyers in the United States in reliance on Rule 144A under the Securities Act of 1933, as amended (the “Act”), and to persons in offshore transactions in reliance on Regulation S under the Act. The notes have not been registered under the Act or any state securities laws, and may not be offered or sold in the United States or to U.S. persons absent registration or an applicable exemption from the registration requirements.
2 of 2
Exhibit B
Opinion of General Counsel for the Company
(i) Litigation. There are no pending actions, suits or proceedings against or affecting the Company or any of its subsidiaries or any of their respective properties that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Company to perform its obligations under the Indenture, this Agreement or the Registration Rights Agreement, or which are otherwise material in the context of the sale of the Offered Securities; and no such actions, suits or proceedings are threatened or, to such counsel’s knowledge, contemplated.
(ii) Title to Property. Except as disclosed in the General Disclosure Package, the Company and its subsidiaries have good and marketable title to all real properties and all other properties and assets owned by them, in each case free from liens, charges, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by them and, except as disclosed in the General Disclosure Package, the Company and its subsidiaries hold any leased real or personal property under valid and enforceable leases with no terms or provisions that would materially interfere with the use made or to be made thereof by them.
(iii) Absence of Defaults and Conflicts. Neither the Company nor any of its subsidiaries is in violation of its charter or by-laws and, to the best of such counsel’s knowledge, no default (or event which, with the giving of notice or lapse of time would be a default) has occurred in the due performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument that is described or referred to in a Preliminary Offering Circular, the Final Offering Circular or the General Disclosure Package.
Exhibit C
Opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
(i) Good Standing of the Company. The Company is existing and in good standing under the laws of the State of Delaware, with corporate power and authority necessary to own its properties and conduct its business in all material respects as described in the General Disclosure Package. The Company is duly registered or qualified to do business as a foreign corporation in good standing under the laws of each jurisdiction set forth on Exhibit A of such opinion.
(ii) Subsidiaries. Each subsidiary of the Company set forth on Exhibit B of such opinion (the “Significant Subsidiaries”) is existing and in good standing under the laws of the jurisdiction of its incorporation, organization or formation, as the case may be. Each of the Significant Subsidiaries incorporated, organized or formed under the laws of Delaware has the power and authority (corporate and other) to own its properties and to conduct its business, in all material respects as described in the General Disclosure Package; and each Significant Subsidiary is duly qualified to do business as a foreign corporation in good standing under the laws of each jurisdiction set forth on Exhibit B of such opinion.
(iii) Indenture. The Indenture has been duly authorized, executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof by the Trustee, constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except that (A) the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and by an implied covenant of good faith and fair dealing (the “Enforceability Exceptions”) and (B) the rights to indemnity and contribution may be limited by applicable law, rule, regulation or judicial determination or interpretation of the Commission.
(iv) Offered Securities. The Offered Securities have been duly authorized by the Company and, when executed and duly authenticated in accordance with the terms of the Indenture and delivered to and paid for by the Purchasers in accordance with the terms of this Agreement on the Closing Date (assuming the due authorization, execution and delivery of the Indenture by the Trustee and the due authentication and delivery of the Offered Securities by the Trustee in accordance with the Indenture), such
Offered Securities will constitute the valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their terms except that (A) the enforcement thereof may be limited by the Enforceability Exceptions and (B) the rights to indemnity and contribution may be limited by applicable law, rule, regulation or judicial determination or interpretation of the Commission.
(v) Exchange Securities. The Exchange Securities have been duly authorized by the Company and, when the Exchange Securities are issued, executed and duly authenticated in accordance with the terms of the Exchange Offer and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and the due authentication and delivery of the Exchange Securities by the Trustee in accordance with the Indenture), such Exchange Securities will be constitute the valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their terms, except that (A) the enforcement thereof may be limited by the Enforceability Exceptions and (B) the rights to indemnity and contribution may be limited by applicable law, rule, regulation or judicial determination or interpretation of the Commission.
(vi) Authorization of Registration Rights Agreement. The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by the Purchasers, constitutes the valid and legally binding obligation of the Company enforceable in accordance with its terms, except that (A) the enforcement thereof may be limited by the Enforceability Exceptions and (B) the rights to indemnity and contribution may be limited by applicable law, rule, regulation or judicial determination or interpretation of the Commission.
(vii) Absence of Further Requirements. No consent, approval, authorization or order of, or filing with, any person (including any governmental agency or body or any court) is required for the consummation of the transactions contemplated by this Agreement and the Registration Rights Agreement in connection with the offering, issuance and sale of the Offered Securities by the Company, except for (i) if required, the order of the Commission declaring effective the Exchange Offer Registration Statement or, if required, the Shelf Registration Statement (each as defined in the Registration Rights Agreement), (ii) if required, the qualification of the Indenture under the Trust Indenture Act in connection with the issuance of the Exchange Notes, (iii) such as have been previously obtained and (iv) applicable federal, state or foreign securities laws in connection with the purchase and sale of the Offered Securities by the Purchasers as to which such counsel need not express an opinion.
(viii) Absence of Defaults and Conflicts Resulting from Transaction. The execution, delivery and performance of the Indenture, this Agreement and the Registration Rights Agreement by the Company, the issuance and sale of the Offered Securities by the Company and compliance with the terms and provisions thereof will not (i) result in a breach or violation of any of the terms and provisions of, or constitute a default under, or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to the any agreement or instrument to which the Company or any of its subsidiaries is a party and which is filed as an exhibit and set forth on the exhibit list to the Company’s Annual Report on Form 10-K for the year ended December 31, 2011 or any other report filed by the Company with the Commission under Section 13(a) of the Exchange Act after the date of such Annual Report on Form 10-K and through the dates of the General Disclosure Package, which reports are incorporated by reference in the General Disclosure Package, (ii) result in any violation of the provisions of the charter or by-laws of the Company, or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, except in the case of clauses (i) and (iii) above, for such conflicts, breaches, defaults or violations that, in the aggregate, would not reasonably be expected to have a Material Adverse Effect, and except that, with respect to clause (iii) above, such counsel need not express an opinion as to any state or federal securities or Blue Sky laws or other antifraud laws.
(ix) Authority; Authorization of Agreement. The Company has full power and authority to authorize, issue and sell the Offered Securities and contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(x) No Registration. Assuming the accuracy of the representations, warranties and agreements of the Company and the Purchasers contained in the Purchase Agreement, (A) it is not necessary to register the Offered Securities under the Securities Act in connection with (1) the offer, sale and delivery of the Offered Securities by the Company to the several Purchasers pursuant to this Agreement or (2) the initial resale of the Offered Securities by the several Purchasers, in each case as contemplated by this Agreement and the General Disclosure Package, and (B) prior to the commencement of the Exchange Offer or the effectiveness of any registration statement prepared in connection with the Company’s obligations under the Registration Rights Agreement, it is not necessary to qualify the Indenture under the Trust Indenture Act.
In addition, such counsel shall state that it has participated in conferences with officers and other representatives of the Company, representatives of the independent registered public accounting firm of the Company and representatives of and counsel for the Purchasers, at which the contents of the General Disclosure Package and the Final Offering Circular and related matters were discussed, and although such counsel has not independently verified, are not passing upon, and are not assuming any responsibility for the accuracy, completeness or fairness of the statements contained in the General Disclosure Package and the Final Offering Circular, based on the foregoing participation, no facts have come to such counsel’s attention that lead such counsel to believe that:
(1) the General Disclosure Package, as of the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(2) the Final Offering Circular, as of its date and as of the date hereof, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
it being understood that such counsel need not express any statement or belief with respect to (a) the financial statements and related schedules, including the notes thereto and the auditors’ reports thereon, contained therein or omitted therefrom and (b) the other financial or accounting information contained therein or omitted therefrom.