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XXXXXX PRODUCTION SERVICES, INC.
(A TEXAS CORPORATION)
% SENIOR NOTES DUE 2007
UNDERWRITING AGREEMENT
February ____, 1997
Xxxxxxxxx & Company, Inc.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxxx Production Services, Inc., a Texas corporation (the "Company"),
and the Subsidiaries (as hereinafter defined) listed below (the "Guarantors")
hereby confirms their agreement with you (the "Underwriter") with respect to
the issuance and sale by the Company and the Guarantors and the purchase by the
Underwriter of $130,000,000 aggregate principal amount of the Company's _____%
Senior Notes due February 1, 2007 (the "Notes") and the related Guaranties (as
hereinafter defined). The Notes are being issued pursuant to an indenture (the
"Indenture") among the Company, the Guarantors and U.S. Trust Company of Texas,
N.A., as Trustee (the "Trustee"). The guaranties provided by the Guarantors
pursuant to the Indenture are herein referred to as the "Guaranties". The
Notes and the Guaranties are herein collectively referred to as the
"Securities".
You have advised us that you desire to purchase the Securities and that
you propose to make a public offering of the Securities as soon as you deem
advisable after the Registration Statement referred to below becomes effective
upon the terms set forth in the Prospectus referred to below.
The terms that follow, when used in this Agreement, shall have the
meanings indicated. "Preliminary Prospectus" shall mean any preliminary
prospectus referred to in Section 1(a)(i) below and any preliminary prospectus
related to the Securities included in the Registration Statement on the date
that the Registration Statement becomes effective (the "Effective Date") that
omits Rule 430A Information (as defined below). "Registration Statement" shall
mean the registration statement referred to in Section 1(a)(i) below, including
exhibits, as amended at the Representation Date (as defined below) (or, if not
effective at the Representation Date, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto becomes
effective prior to the Closing Date (as defined in Section 2 hereof), shall
also mean such registration statement as so amended. Such term shall include
Rule 430A Information deemed to be included therein at the Effective Date as
provided by Rule 430A (as defined below). The prospectus related to the
Securities constituting a part of the Registration Statement (including the
Rule 430A Information), as from time to time amended or supplemented, is
hereinafter referred to as the "Prospectus", except that if any revised
prospectus shall be provided to the Underwriter by the Company that differs
from the prospectus on file at the Securities and Exchange Commission (the
"Commission") at the Effective Date (whether or not such revised prospectus is
required to be filed by the Company pursuant to Rule 424 of the Act
Regulations), the term "Prospectus" shall refer to each such revised prospectus
from and after the time it is first provided to the Underwriter for such use.
"Rule 158", "Rule 424" and "Rule 430A" refer to such rules under the Securities
Act of 1933, as
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amended (the "Act"; and the rules and regulations under the Act, the "Act
Regulations"). "Rule 430A Information" means information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A. The
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as amended,
and the "Trust Indenture Act Regulations" shall mean the rules and regulations
under the Trust Indenture Act.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) The Company and the Guarantors represent and warrant to the
Underwriter as of the date hereof (such date being referred to as the
"Representation Date") and as of the Closing Date, as follows:
(i) The Company and the Guarantors have filed with the
Commission a registration statement on Form S-1 (Registration No.
333-19413), including a preliminary prospectus related to the
Securities, and one or more amendments thereto, including the related
preliminary prospectus, each of which has previously been furnished to
the Underwriter, for the registration under the Act of the offering and
sale of the Securities. The Company and the Guarantors will file with
the Commission either (A) prior to effectiveness of such registration
statement, a further amendment to such registration statement (including
the form of final prospectus) or (B) after effectiveness of such
registration statement, a final prospectus in accordance with Rules 430A
and 424(b) or Rule 434 of the Act Regulations. The Company and the
Guarantors have included in such registration statement, as amended at
the Effective Date, all information (other than Rule 430A Information in
the case of clause (B)) required by the Act, the Act Regulations, the
Trust Indenture Act and the Trust Indenture Act Regulations to be
included in the prospectus with respect to the Securities and the
offering thereof. As filed, such amendment and form of final
prospectus, or such final prospectus, shall contain all Rule 430A
Information, together with all other such required information, with
respect to the Securities and the offering thereof and, except to the
extent the Underwriter shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to the Underwriter
prior to the date hereof.
(ii) On the Effective Date, the Representation Date and the
Closing Date, the Registration Statement did and will, and when the
Prospectus is first filed (if required) in accordance with Rule 424(b)
the Prospectus will, comply in all material respects with the applicable
requirements of the Act, the Act Regulations, the Trust Indenture Act
and the Trust Indenture Act Regulations; on the Effective Date, the
Representation Date and the Closing Date, the Registration Statement did
not and will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and, on the
Effective Date, the Representation Date and the Closing Date, and on the
date of any filing pursuant to Rule 424(b), the Prospectus did not and
will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, that the Company
and the Guarantors make no representation or warranty as to the
information provided in writing to the Company and the Guarantors by or
on behalf of the Underwriter, expressly for use in the Registration
Statement or the Prospectus, and the Company and the Guarantors agree
that the only information provided in writing by or on behalf of the
Underwriter to the Company, expressly for use in the Registration
Statement or the Prospectus, is that information contained in the third,
sixth and eighth paragraphs in the section of the Prospectus entitled
"Underwriting" and the last paragraph on the cover page of the
Prospectus.
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(iii) The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Texas, with
full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus, and is duly registered and qualified to
conduct its business and is in good standing in each jurisdiction where
the nature or location of its properties (owned or leased) or the
conduct of its business requires such registration or qualification,
except where the failure so to register or qualify would not have a
Material Adverse Effect. As used herein, the term "Material Adverse
Effect" shall mean an adverse effect on the condition (financial or
other), business, properties, net worth or results of operations of the
Company or any of the Subsidiaries (as hereinafter defined) that would
be, singly or in the aggregate, material to the Company and the
Subsidiaries, taken as a whole, whether or not occurring in the ordinary
course of business.
(iv) The only subsidiaries (as defined in the Act Regulations)
of the Company are the subsidiaries listed on Schedule 1 hereto
(collectively, the "Subsidiaries"). Each of the Subsidiaries is a
corporation duly organized and validly existing in good standing under
the laws of its jurisdiction of its incorporation with full corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and in
the Prospectus, and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction where the nature
or location of its properties (owned or leased) or the conduct of its
business requires such registration or qualification, except where the
failure so to register or qualify would not have a Material Adverse
Effect.
(v) Each of the Company and the Subsidiaries has all necessary
authorizations, approvals, orders, licenses, rights-of-way, operating
rights, easements, certificates and permits of and from, and has made
all declarations and filings with, all regulatory or governmental
officials and bodies, all self-regulatory organizations and all courts
and other tribunals ("Permits"), to own or lease its respective
properties and to conduct its respective businesses described in the
Prospectus and the Registration Statement, except where failure to have
obtained or made the same would not have a Material Adverse Effect, and
neither the Company nor any of the Subsidiaries has received any notice
of proceedings relating to the revocation or modification of any such
Permits, if the failure to be so licensed or approved or if the subject
of an unfavorable decision, ruling or finding, would have a Material
Adverse Effect; the Company and each of the Subsidiaries has fulfilled
and performed all its current material obligations with respect to such
Permits and no event has occurred that allows, or after notice or lapse
of time, or both, would allow, revocation or termination thereof or
result in any other material impairment of the rights of the holder of
any such Permit; and such Permits contain no restrictions that are
materially burdensome to the Company and the Subsidiaries; and the
Company and each of the Subsidiaries is in compliance with all
applicable laws, rules, regulations, orders and consents, the violation
of which could have a Material Adverse Effect. The property and
business of the Company and the Subsidiaries conform in all material
respects to the descriptions thereof contained in the Prospectus and the
Registration Statement.
(vi) All of the Company's authorized and outstanding capital
stock has been duly authorized, validly issued and is fully paid and
nonassessable and the capitalization of the Company conforms to the
descriptions thereof and the statements made with respect thereto in the
Registration Statement and the Prospectus as of the date set forth
therein. There are no outstanding securities convertible into or
exchangeable for, and no outstanding options, warrants or other rights
to purchase, any shares of the capital stock of the Company, nor any
agreements or commitments to issue any of the same, except as described
in the Registration Statement and the
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Prospectus, and there are no preemptive or other rights to subscribe for
or to purchase, and no restrictions upon the voting or transfer of, any
capital stock of the Company pursuant to the Company's articles of
incorporation or by-laws or any agreement or other instrument to which
the Company is a party, except as described in the Registration
Statement and the Prospectus.
(vii) All the outstanding shares of capital stock of each
Subsidiary have been duly authorized and are validly issued, fully paid
and nonassessable and were not issued in violation of or subject to any
preemptive or similar rights. Except as otherwise set forth in the
Registration Statement and the Prospectus, all outstanding shares of
capital stock of the Subsidiaries are owned by the Company, directly or
indirectly through another Subsidiary, free and clear of any security
interests, liens, encumbrances, equities or other claims.
(viii) Each of the Company and the Subsidiaries has good and
indefeasible title to all real property and good and marketable title to
all personal property owned by it, including those properties described
in the Registration Statement and Prospectus, in each case free and
clear of all liens, charges, encumbrances and restrictions, except such
as are described in the Registration Statement and Prospectus or such as
would not have a Material Adverse Effect. Each of the Company and the
Subsidiaries has valid, subsisting and enforceable leases for the
properties described in the Registration Statement and the Prospectus as
leased by it, with such exceptions as are described in the Registration
Statement and the Prospectus or that in the aggregate would not have a
Material Adverse Effect.
(ix) The Company and the Guarantors have all requisite power,
authority, authorizations, approvals, orders, licenses, certificates and
permits to enter into this Agreement and the Indenture and to carry out
the provisions and conditions hereof and thereof, and to issue and
deliver to the Underwriter the Securities that are being sold by the
Company and the Guarantors as provided herein. This Agreement has been
duly authorized, executed and delivered by the Company and the
Guarantors and constitutes a legal, valid and binding agreement of the
Company and the Guarantors, enforceable against them in accordance with
its terms, except to the extent rights to indemnity hereunder may be
limited by federal or state securities laws or public policy underlying
such laws and except to the extent that such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or by
equitable principles. The Indenture has been duly authorized and, when
executed and delivered by the Company, the Guarantors and the Trustee
and qualified under the Trust Indenture Act, will constitute a legal,
valid and binding agreement of the Company and the Guarantors,
enforceable against them in accordance with its terms, except to the
extent rights to indemnity thereunder may be limited by federal or state
securities laws or public policy underlying such laws and except to the
extent that such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to
or affecting creditors' rights generally or by equitable principles.
(x) Each of the Company and the Subsidiaries owns, or
possesses adequate rights to use, all trademarks, service marks and
other rights necessary for the conduct of its business as described in
the Registration Statement and the Prospectus, and neither the Company
nor any of the Subsidiaries has received a notice, or knows of any
basis, of any conflict with the asserted rights of others in any such
respect that could have a Material Adverse Effect.
(xi) The Securities have been duly and validly authorized and,
when issued, delivered and sold, and in the case of the Notes
authenticated by the Trustee, in
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accordance with this Agreement and the Indenture, will have been duly
and validly executed, issued and delivered, and in the case of the Notes
authenticated, and will constitute legal, valid and binding obligations
of the Company and the Guarantors, enforceable against the Company and
the Guarantors in accordance with their respective terms and entitled to
the benefits of the Indenture, except to the extent that such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors'
rights generally or by equitable principles. All corporate action
required to be taken by the Company and the Guarantors for the
authorization, issuance and sale of the Securities has been duly and
validly taken.
(xii) KPMG Peat Marwick LLP, Xxxxxxx, Xxxxxxxx & Co., Xxxxxxx &
Xxxxxxx L.L.P. and Xxxxxx Xxxxxxxx LLP are independent public
accountants with respect to the Company and the Subsidiaries as required
by the Act.
(xiii) The consolidated financial statements and related notes
and schedules included in the Registration Statement or in the
Prospectus present fairly the financial position of the Company and the
Subsidiaries, on the basis stated in the Registration Statement, as of
the respective dates thereof and the consolidated statements of income,
shareholders' equity and cash flows of the Company and the Subsidiaries,
for the respective periods covered thereby; and such financial
statements and the related schedules and notes have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the entire period involved, except as
otherwise disclosed in the Registration Statement and the Prospectus.
The selected financial information included in the Registration
Statement or the Prospectus presents fairly the information shown
therein and has been compiled on a basis consistent with that of the
audited financial statements of the Company included therein. The pro
forma financial information in the Registration Statement or in the
Prospectus complies in all material respects with the applicable
accounting requirements of Article 11 of Regulation S-X promulgated by
the Commission and presents fairly the information shown therein; the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein. No other financial
statements or schedules of the Company and the Subsidiaries are required
by the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder (collectively, the
"Exchange Act"), the Act, the Act Regulations, the Trust Indenture Act
or the Trust Indenture Act Regulations to be included in the
Registration Statement or Prospectus.
(xiv) The Securities and the Indenture conform in all material
respects to the descriptions thereof in the Registration Statement and
Prospectus.
(xv) Since the respective dates as of which information is
provided in the Registration Statement and Prospectus, except as
otherwise specifically stated therein, there has been no change or
development with respect to the condition (financial or otherwise) or
business of the Company and the Subsidiaries, taken as a whole, whether
or not arising in the ordinary course of business, that would have a
Material Adverse Effect.
(xvi) Neither the Company nor any Subsidiary is in violation of
its articles of incorporation or bylaws or other organizational
documents. Neither the Company nor any Subsidiary is, nor with the
passage of time or the giving of notice or both would be, in violation
of any law, ordinance, administrative or governmental rule or regulation
applicable to the Company or any of the Subsidiaries, or of any
judgment, order or decree of any court or governmental agency or body or
of any arbitrator having
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jurisdiction over the Company or any of the Subsidiaries, or in default
in the performance or observance of any obligation, agreement, covenant
or condition contained in any mortgage, loan agreement, note, bond,
debenture, credit agreement or any other evidence of indebtedness or in
any agreement, contract, indenture, lease or other instrument to which
the Company or any of the Subsidiaries is a party or by which it may be
bound, or to which any of the property or assets of the Company or any
of the Subsidiaries is subject, the effect of which violation or default
in performance or observance would have a Material Adverse Effect.
(xvii) There is no action, suit or proceeding pending before or
by any court, arbitrator or governmental agency or body or, to the
Company's knowledge, threatened against the Company or any of the
Subsidiaries or to which any of their respective property is subject (A)
that is required to be described in the Registration Statement or the
Prospectus but is not described as required or (B) that, if adversely
determined, could reasonably be expected to have a Material Adverse
Effect. There is no agreement, contract, indenture, lease or other
document or instrument that is required to be described in the
Registration Statement or Prospectus or to be filed as an exhibit to the
Registration Statement that is not described or filed as required.
(xviii) No person has any right to the registration of any
security of the Company by reason of the filing of the Registration
Statement with the Commission or the consummation of the transactions
contemplated hereby, which right has not been waived or lapsed, except
as described in the Registration Statement or Prospectus.
(xix) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, and is not
subject to registration under the Investment Company Act of 1940.
(xx) As of the date of the Prospectus, and except as described
in the Registration Statement and the Prospectus, neither the Company
nor any of the Subsidiaries is currently planning any probable
acquisitions for which disclosure of pro forma financial information
would be required by the Act.
(xxi) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus (or any amendment
or supplement thereto), except as otherwise stated therein, (A) neither
the Company nor any of the Subsidiaries (1) has issued any securities
other than in connection with the exercise of any outstanding options,
(2) incurred any material liability or obligations, direct or
contingent, for borrowed money, (3) entered into any transaction, not in
the ordinary course of business, that is material to the Company and the
Subsidiaries, taken as a whole, (4) entered into any transaction with an
affiliate of the Company (as the term "affiliate" is defined in Rule 405
of the Act Regulations) that would otherwise be required to be disclosed
in the Prospectus or the Registration Statement, or (5) declared or paid
any dividend on its capital stock, or made any other distribution to its
equity holders, (B) there has not been any material change in the
capital stock or other equity, or material increase in the short-term or
long-term debt, of the Company or any of the Subsidiaries and (C) there
has been no change or development with respect to the condition
(financial or otherwise) or business of the Company and the
Subsidiaries, taken as a whole, whether or not arising in the ordinary
course of business, that would have a Material Adverse Effect.
(xxii) The Company has not distributed and, prior to the later
to occur of (A) the Closing Date and (B) completion of the distribution
of the Securities, will not distribute without your prior written consent
any offering material in connection with
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the offering and sale of the Securities other than the Registration
Statement, the Prospectus or other materials, if any, permitted by the
Act.
(xxiii) The Indenture has been duly qualified under the Trust
Indenture Act and complies with all applicable provisions of the Trust
Indenture Act and the Trust Indenture Act Regulations.
(xxiv) Neither the Company nor any Subsidiary is involved in any
labor dispute and, to the knowledge of the Company, no such dispute is
threatened.
(xxv) Neither the Company nor any Subsidiary nor, to the best
of its knowledge, any employee or agent of the Company or any Subsidiary
has made any payment of funds of the Company or any Subsidiary or
received or retained any funds of a character required to be disclosed
in the Prospectus.
(xxvi) The Company and each of the Subsidiaries have filed (or
have obtained extensions thereto) all federal, state and local tax
returns that are required to be filed, which returns are complete and
correct in all material respects, and have paid all taxes shown on such
returns and all assessments with respect thereto to the extent that the
same have become due.
(xxvii) Except for the shares of capital stock of each of
the Subsidiaries, neither the Company nor any of the Subsidiaries owns
any shares of stock or any other securities of any corporation or has
any equity interest in any firm, partnership, association or other
entity other than as reflected in the consolidated financial statements
included in the Registration Statement and the Prospectus.
(xxviii) Neither the execution, delivery or performance of this
Agreement or the Indenture, the offer, issuance, sale or delivery of the
Securities that are being issued and sold by the Company and the
Guarantors nor the consummation by the Company and the Guarantors of the
terms of this Agreement and the Indenture (A) requires the consent,
approval, authorization or order of any court or governmental agency or
body, except such as have been obtained under the Act, the Trust
Indenture Act and the Trust Indenture Act Regulations and such as may be
required under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the Underwriter or
such as may be required by the National Association of Securities
Dealers, Inc. (the "NASD") and such other approvals as have been
obtained, (B) will conflict with, result in a breach of, or constitute a
default under the terms of any indenture, agreement, lease or other
instrument to which the Company or any of the Subsidiaries is a party or
by which any of them or any of their respective properties may be bound,
or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of the
Subsidiaries pursuant to the terms of any agreement or instrument to
which any of them is a party or by which any of them may be bound or to
which any of the property or assets of any of them is subject, (C) will
conflict with or violate any law, order, statute, regulation, consent or
memorandum of understanding applicable to the Company or any Subsidiary
of any court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over the Company or any of the
Subsidiaries (in the case of (B) or (C) above, where such conflict,
breach, default or violation, individually or in the aggregate, would
have a Material Adverse Effect), or (D) will conflict with or violate
the articles of incorporation or by-laws of the Company or any
Subsidiary.
(xxix) The Company nor the Guarantors has taken, directly or
indirectly, any action designed to cause or result in or that has
constituted or that might be expected
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to constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(xxx) The Company nor the Guarantors is required to comply with
Section 517.075 of the Florida statutes.
(xxxi) The Company and each of the Subsidiaries (A) are in
compliance with any and all applicable federal, state, local and foreign
laws and regulations relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (B) have received all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their business and (C) are in compliance
with all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or approvals or failure to comply
with the terms and conditions of such permits, licenses or approvals
would not have a Material Adverse Effect.
(xxxii) There are no costs or liabilities, to the Company's
knowledge after due inquiry, associated with the effect of Environmental
Laws on the business, operations and properties of the Company and its
Subsidiaries that would have a Material Adverse Effect.
(b) Any certificate signed by any officer of the Company or the
Guarantors delivered to the Underwriter or to counsel for the Underwriter
pursuant to the terms of this Agreement shall be deemed a representation and
warranty by the Company and the Guarantors to the Underwriter as to the matters
covered thereby.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITER; CLOSING
(a) Subject to the terms and conditions set forth herein, the Company
agrees to sell to the Underwriter on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Underwriter agrees to purchase from the Company, at a purchase price
of %____ of the $130,000,000 principal amount of the Securities. The Company
will have no obligation to sell the Underwriter any of the Securities that are
being issued and sold by the Company hereunder unless the Underwriter purchases
all of such Securities hereunder.
(b) Payment of the purchase prices for, and delivery of, the
Securities to be purchased by the Underwriter shall be made at the offices of
Xxxxxxxxx & Company, Inc., 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such
other place as shall be agreed upon by the Underwriter and the Company, at
10:00 A.M., New York City time, on the third (or, if pricing occurs after 4:30
p.m., New York City time, on any given day, on the fourth) business day
following the date hereof, or such other time not later than ten business days
after such date as shall be agreed upon by the Underwriter and the Company
(such time and date of payment and delivery being herein called the "Closing
Date"). Payment shall be made to the Company by certified or official bank
check or checks drawn in New York Clearing House funds (or similar next day
funds) payable to the order of the Company against delivery to the Underwriter
of the Securities.
(c) Certificates representing the Securities shall be in such
denominations and registered in such names as the Underwriter may request in
writing at least two business days before the Closing Date. The certificates
representing the Securities will be made available for examination and
packaging by the Underwriter not later than 1:00 P.M., New York City time, on
the last business day prior to the Closing Date at such place as is designated
by the Underwriter.
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SECTION 3. COVENANTS OF THE COMPANY AND THE GUARANTORS.
The Company and the Guarantors covenant with the Underwriter as follows:
(a) The Company and the Guarantors will use their best efforts to
cause the Registration Statement, if not effective at the Representation Date,
and any amendment thereof, to become effective, as promptly as possible after
the filing thereof. The Company and the Guarantors will not file any amendment
to the Registration Statement or any amendment or supplement to the Prospectus
to which the Underwriter shall reasonably object in writing after a reasonable
opportunity to review such amendment or supplement. Subject to the foregoing
sentences in this clause (a), if the Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the Prospectus or
supplement to the Prospectus is otherwise required under Rule 424(b), the
Company will cause the Prospectus, properly completed, or such supplement
thereto to be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Underwriter of such timely filing. The Company and the
Guarantors will promptly advise the Underwriter (i) when the Registration
Statement, if not effective at the Representation Date, and any amendment
thereto, shall have become effective, (ii) when the Prospectus, and any
supplement thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b), (iii) when any amendment to the Registration Statement
shall have been filed or become effective, (iv) of any request by the
Commission for any amendment of the Registration Statement or supplement to any
Prospectus or for any additional information, (v) of the receipt by the Company
or any Guarantor of any notification of, or if the Company or any Guarantor
otherwise has knowledge of, the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution
or threatening of any proceeding for that purpose and (vi) of the receipt by
the Company or any Guarantor of any notification with respect to the suspension
of the qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company and
the Guarantors will use their best efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the lifting thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act or the Act Regulations, any event occurs
as a result of which the Prospectus as then amended or supplemented would
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
or if it shall be necessary to amend the Registration Statement or amend or
supplement the Prospectus to comply with the Act or the Act Regulations, the
Company and the Guarantors promptly will prepare and file with the Commission,
subject to the second sentence of paragraph (a) of this Section 3, an amendment
or supplement that will correct such statement or omission or effect such
compliance. Neither your consent to, nor your delivery of, any such amendment
or supplement shall constitute a waiver of any of the conditions set forth in
Section 5.
(c) The Company and the Guarantors consent to the use of the
Prospectus in accordance with the provisions of the Act and with the securities
or blue sky laws of the jurisdictions in which the Securities are offered by
the Underwriter and by all dealers to whom Securities may be sold, both in
connection with the offering and sale of the Securities and for such period of
time thereafter as the Prospectus is required by the Act to be delivered in
connection with the sales by the Underwriter or any dealer. The Company and
the Guarantors will comply with all requirements imposed upon them by the Act,
as now and hereafter amended, so far as necessary to permit the continuance of
sales of or dealing in the Securities in accordance with the provisions hereof
and the Prospectus.
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(d) As soon as practicable, the Company will make generally available
to its securityholders and to the Underwriter a consolidated earnings statement
or statements of the Company and the Subsidiaries covering a twelve-month
period beginning after the Effective Date that will satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the Act Regulations.
(e) The Company will furnish to the Underwriter, without charge, two
signed copies of the Registration Statement (including exhibits thereto and all
documents incorporated by reference therein) and, so long as delivery of a
prospectus by the Underwriter or a dealer may be required by the Act or the Act
Regulations, as many copies of the Prospectus and all amendments and
supplements thereto as the Underwriter may reasonably request.
(f) During the period of five years hereafter, the Company will
furnish to you, as soon as practicable after the end of each fiscal year, a
copy of its annual report to shareholders for such year; and the Company will
furnish to you (i) as soon as available, a copy of each report or definitive
proxy statement of the Company filed with the Commission under Exchange Act or
mailed to shareholders, and (ii) from time to time, such other information
concerning the Company as you may reasonably request, provided that prior to
the Company's furnishing any such other information that is nonpublic you shall
enter into such agreement respecting the confidentiality thereof as the Company
may reasonably request.
(g) The Company and the Guarantors will comply with all the
provisions of any undertakings contained in the Registration Statement.
(h) The Company and the Guarantors will not at any time, directly or
indirectly, take any action intended, or that might reasonably be expected, to
cause or result in, or that will cause, stabilization of the price of any
security of the Company to facilitate the sale or resale of any of the
Securities.
(i) The Company will apply the net proceeds from the offering and
sale of the Securities to be sold in accordance with the description set forth
in the "Use of Proceeds" section of the Prospectus.
(j) The Company and the Guarantors will cooperate with the
Underwriter and its counsel in connection with endeavoring to obtain and
maintain the qualification or registration, or exemption from qualification, of
the Securities for offer and sale under the applicable securities laws of such
states and other jurisdictions of the United States as the Underwriter may
designate; provided, that in no event shall the Company or the Guarantors be
obligated to qualify to do business in any jurisdiction where they are not now
so qualified or to take any action that would subject them to taxation or
general service of process in any jurisdiction where they are not now so
subject.
SECTION 4. PAYMENT OF EXPENSES.
The Company will pay, or reimburse if paid by the Underwriter, all
actual and reasonable costs and expenses incident to the performance of the
obligations of the Company and the Guarantors under this Agreement, including
(i) the fees, disbursements and expenses of counsel and accountants for the
Company and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus, the
Prospectus, the Statement of Eligibility and Qualification under the Trust
Indenture Act of the Trustee (the "Form T-1"), and any amendments or
supplements thereto, and the mailing and delivery of copies thereof to the
Underwriter and dealers, (ii) the fees and disbursements of the Trustee and its
counsel; (ii) the cost of printing the Agreement Among Underwriters, this
Agreement, the Indenture, the Form T-1, the Selling Agreement, any Dealer
Agreements, the Underwriter Questionnaire and the Blue Sky Memorandum (in both
preliminary and final
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form); (iii) all expenses in connection with qualification of the Securities
for offering and sale under state securities laws, including filing and
registration fees and the fees, disbursements and expenses of counsel for the
Underwriter in connection with such qualification and in connection with blue
sky surveys; (iv) the filing fees incident to securing any required review by
the NASD; (v) the cost of preparing certificates representing the Securities;
(vi) all fees of the Company's transfer agent and registrar; (vii) all fees and
expenses of nationally recognized statistical rating organizations (as defined
for purposes of Rule 436(g) under the Act); and (viii) all other costs and
expenses incident to the performance of the Company's and the Guarantors'
obligations hereunder that are not otherwise specifically provided for in this
Section.
If this Agreement is terminated by the Underwriter because of any
failure or refusal on the part of the Company or the Guarantors to comply with
the terms or fulfill any of the conditions of this Agreement, the Company shall
reimburse the Underwriter for all of its reasonable out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriter.
The Company shall not in any event be liable to the Underwriter for
consequential damages including loss of anticipated profits from the
transactions covered by this Agreement.
SECTION 5. CONDITIONS OF THE UNDERWRITER'S OBLIGATION.
The obligation of the Underwriter to purchase the Securities hereunder
is subject to the continued accuracy of the representations and warranties of
the Company and the Guarantors herein contained, to the accuracy of the
statements of the Company and the Guarantors made in any certificates pursuant
to the provisions hereof, to the performance by the Company and the Guarantors
of their obligations hereunder and to the following further conditions:
(a) The Registration Statement shall have become effective, and you
shall have received notice thereof, not later than 5:30 p.m., Washington D.C.
time, on the date hereof, or such later time and date as shall be approved by
the Underwriter and the Company and shall remain effective at the Closing Date.
No stop order suspending the effectiveness of the Registration Statement shall
have been issued under the Act or proceedings therefor initiated or threatened
by the Commission. No order suspending the effectiveness of the Registration
Statement or the qualification or registration of the Securities under the
securities or blue sky laws of any jurisdiction shall be in effect or
proceedings therefor initiated or threatened by the Commission or the
authorities of any such jurisdiction. If the Company and the Guarantors have
elected to rely upon Rule 430A, the price of the Securities and any price-
related or other information previously omitted from the effective Registration
Statement pursuant to Rule 430A shall have been transmitted to the Commission
for filing pursuant to Rule 424(b) within the prescribed time period, and,
prior to the Closing Date, the Company and the Guarantors shall have provided
evidence satisfactory to the Underwriter of such timely filing, or a post-
effective amendment providing such information shall have been promptly filed
and declared effective in accordance with the requirements of Rule 430A.
(b) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business, properties,
condition (financial or other) or results of operations of the Company and the
Subsidiaries, taken as a whole, which, in the reasonable judgment of the
Underwriter, materially impairs the investment quality of the Securities and
constitutes a Material Adverse Effect; (ii) any material loss or interference
with the business or properties of the Company or any of the Subsidiaries from
fire, explosion, flood or other casualty, whether or not covered by insurance,
or from any labor dispute or any court or legislative or other governmental
action, order or decree, that is not set forth in the Registration Statement
and the Prospectus, if in the reasonable judgment of the Underwriter any such
development makes it impracticable or inadvisable to proceed with completion of
the sale of and payment for the
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Securities; (iii) any suspension or limitation of trading in securities
generally on the New York Stock Exchange or the Nasdaq National Market System,
or any setting of minimum prices for trading on such exchange or system, or any
suspension of trading of any securities of the Company on any exchange or
system or in the over-the-counter market; (iv) any banking moratorium declared
by federal or New York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by
Congress or any other substantial national or international calamity or
emergency if, in the reasonable judgment of the Underwriter, the effect of any
such outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the sale of and
payment for the Securities.
(c) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there shall have been no
litigation or other proceeding instituted against the Company or any of the
Subsidiaries or any of their respective officers or directors in their
capacities as such, before or by any federal, state or local court, commission,
regulatory body, administrative agency or other governmental body, domestic or
foreign, or arbitrator, in which litigation or proceeding an unfavorable
ruling, decision or finding would have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company and the
Guarantors contained herein shall be true and correct in all material respects
at the Closing Date, as if made at the Closing Date, and all covenants and
agreements contained herein to be performed on the part of the Company and the
Guarantors, and all conditions contained herein to be fulfilled or complied
with by the Company and the Guarantors at or prior to the Closing Date, shall
have been duly performed, fulfilled or complied with.
(e) The Underwriter shall have received an opinion from Xxxxxxx &
Xxxxxxxxx, A Professional Corporation, counsel for the Company and the
Guarantors, satisfactory in form and substance to counsel for the Underwriter,
dated as of the Closing Date, to the effect set forth in Exhibit A.
(f) The Underwriter shall have received a favorable opinion, dated as
of the Closing Date, of Xxxxxxxxx & Xxxxxxxx L.L.P., counsel for the
Underwriter, with respect to such matters as may be reasonably requested by the
Underwriter, and you shall have provided such counsel with such papers and
information as they may reasonably request to enable them to provide such
opinion.
(g) The following conditions contained in clauses (i), (ii) and (iii)
of this Section 5(g) shall have been satisfied on and as of the Closing Date
and the Company shall have furnished to the Underwriter a certificate of the
Company, signed by the President and the principal financial or accounting
officer of the Company, and each of the Guarantors shall have furnished to the
Underwriter a certificate of such Guarantor, signed by the President and the
principal financial or accounting officer of such Guarantor, each dated the
Closing Date to the effect that the signers of such certificates have carefully
examined the Registration Statement, the Prospectus, any supplement or
amendment to the Prospectus, and this Agreement and that:
(i) the representations and warranties of the Company and the
Guarantors, respectively, in this Agreement are true and correct in all
material respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company and the Guarantors,
respectively, have complied with all the agreements and satisfied all
the conditions under this Agreement on their part to be performed or
satisfied at or prior to the Closing Date;
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(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's and the Guarantors'
knowledge, threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus, there has been no change that would have a
Material Adverse Effect.
(h) At the Representation Date and at the Closing Date, KPMG Peat
Marwick LLP, Xxxxxxx, Xxxxxxxx & Co. and Xxxxxxx & Xxxxxxx L.L.P. shall have
furnished to the Underwriter a letter or letters, dated respectively as of the
date of this Agreement and the Closing Date, in form and substance satisfactory
to the Underwriter, containing statements and information of the type
customarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial and statistical
information pertaining to the Company and the Subsidiaries contained in the
Registration Statement and the Prospectus.
(i) As of the Closing Date, the Securities shall have been rated
"B+" by Standard & Poor's and "B1" by Xxxxx'x Investors Service, Inc.,
and such ratings shall not have been rescinded. The Company shall have
delivered to the Underwriter letters from such rating organizations, or other
evidence satisfactory to the Underwriter, confirming that the Securities have
such ratings.
(j) The Indenture shall have been duly executed and delivered by the
parties thereto.
(k) At the Closing Date, counsel for the Underwriter shall have been
furnished with such information, certificates and documents as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as contemplated herein and related proceedings, or
to evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained, or otherwise in
connection with the offering contemplated hereby; and all opinions and
certificates mentioned above or elsewhere in this Agreement shall be reasonably
satisfactory in form and substance to the Underwriter and counsel for the
Underwriter.
(l) At the time of the closing of the offering of the Securities,
simultaneous closings occur with respect to (i) the offering by the Company of
3,500,000 shares of its common stock, $.01 par value, (the "Common Stock
Offering") and (ii) the acquisition by the Company of substantially all of the
U.S. land-based well servicing operations of Pride Petroleum Services, Inc.
("Pride") pursuant to a purchase agreement, dated as of December 23, 1996,
between the Company and Pride (the "Pride Acquisition").
If any condition specified in this Section 5 shall not have been
fulfilled in all material respects when and as required to be fulfilled, this
Agreement may be terminated by the Underwriter by notice to the Company and
such termination shall be without liability of any party to any other party
except as provided in Section 4.
SECTION 6. CONDITIONS OF THE COMPANY'S OBLIGATION.
The obligation of the Company to issue and sell the Securities hereunder
is subject to the conditions that, at the time of the closing of the offering
of the Securities, simultaneous closings occur with respect to (i) the Common
Stock Offering and (ii) the Pride Acquisition.
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SECTION 7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and the Guarantors agree to indemnify, defend and
hold harmless the Underwriter and its officers, shareholders, employees and
directors and any person who controls the Underwriter within the meaning of
Section 15 of the Act from and against any loss, expense, liability or claim
(including the reasonable cost of investigating such claim) that the
Underwriter or any such officer, shareholder, employee, director or controlling
person may incur under the Act, the Exchange Act or otherwise, as such expenses
are incurred, insofar as such loss, expense, liability or claim arises out of
or is based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or in the Registration Statement
as amended by any post-effective amendment thereof) or any omission or alleged
omission to state a material fact required to be stated in such Registration
Statement or necessary to make the statements made therein not misleading or
any untrue statement or alleged untrue statement of a material fact contained
in a Prospectus (the term Prospectus for the purpose of this Section 7 being
deemed to include any Preliminary Prospectus, the Prospectus, the Prospectus as
amended or supplemented and any document filed under the Exchange Act and
incorporated by reference into the Prospectus) or any omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, the Company and the
Guarantors will not be liable in any such case to the extent any such loss,
expense, liability or claim arises out of or is based upon any untrue statement
or omission or alleged untrue statement or omission that has been made therein
or omitted therefrom in reliance upon and in conformity with the information
provided in writing to the Company by or on behalf of the Underwriter,
expressly for use in the Registration Statement or the Prospectus; and
provided, further that with respect to any untrue statement or omission or
alleged untrue statement or omission made in any Preliminary Prospectus, the
indemnity agreement contained in this Section 7(a) shall not inure to the
benefit of the Underwriter or its officers, shareholders, employees and
directors, and the Company and the Guarantors shall not be liable to the
Underwriter or its officers, shareholders, employees and directors, from whom
the person asserting any such losses, claims, damage, or liabilities purchased
the Securities concerned, to the extent that any such loss, claim, damage or
liability of the Underwriter or its officers, shareholders, employees and
directors results from the fact that there was not sent or given to such person
at or prior to the written confirmation of the sale of such shares to such
person, a copy of the Prospectus, as the same may be amended or supplemented,
and the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact in such Preliminary
Prospectus was corrected in such Prospectus and the Company had previously
furnished copies thereof to the Underwriter on a timely basis to permit the
Prospectus (as the same may be amended or supplemented) to be sent or given.
The Company and the Guarantors agree that the only such information provided in
writing by or on behalf of the Underwriter to the Company, expressly for use in
the Registration Statement or the Prospectus, is that information contained in
the third, sixth and eighth paragraphs in the section of the Prospectus
entitled "Underwriting" and the last paragraph on the cover page of the
Prospectus. The foregoing indemnity agreement shall be in addition to any
liability that the Company and the Guarantors may otherwise have.
(b) The Underwriter agrees to indemnify, defend and hold harmless the
Company, the Guarantors and their respective officers, shareholders, employees
and directors and any person who controls the Company or the Guarantors within
the meaning of Section 15 of the Act from and against any loss, expense,
liability or claim (including the reasonable cost of investigating such claim)
that the Company, the Guarantors or any such officer, shareholder, employee,
director or controlling person may incur under the Act, the Exchange Act or
otherwise to the same extent as the provisions of Section 7(a) above, but only
insofar as such loss, expense, liability or claim arises out of or is based
upon any untrue statement or omission or alleged untrue statement or omission
made in reliance or in conformity with information
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relating to the Underwriter furnished in writing to the Company by or on behalf
of the Underwriter, expressly for use in the Registration Statement or the
Prospectus. The Company and the Guarantors agree that the only information
provided in writing by or on behalf of the Underwriter to the Company,
expressly for use in the Registration Statement or the Prospectus, is that
information contained in the third, sixth and eighth paragraphs in the section
of the Prospectus entitled "Underwriting" and the last paragraph on the cover
page of the Prospectus.
(c) If any action is brought against an indemnified party under this
Section 7, the indemnified party or parties shall promptly notify the
indemnifying party in writing of the institution of such action (provided that
the failure to give such notice shall not relieve the indemnifying party of any
liability that it may have pursuant to this Agreement, unless and to the extent
the indemnifying party did not otherwise learn of such action and such failure
has resulted in the forfeiture of substantive rights or defenses by the
indemnifying party) and the indemnifying party shall assume the defense of such
action, including the employment of counsel and payment of reasonable expenses.
The indemnified party or parties shall have the right to employ its or their
own counsel in any such case, but the fees and expenses of such counsel shall
be at the expense of the indemnified party or parties unless (i) the employment
of such counsel shall have been authorized in writing by the indemnifying party
in connection with the defense of such action, (ii) the indemnifying party
shall not have employed counsel reasonably satisfactory to the indemnified
party to take charge of the defense of such action within a reasonable time
after notice of the institution of such action, (iii) such indemnified party or
parties shall have reasonably concluded that there may be defenses available to
it or them that are different from or additional to those available to the
indemnifying party or (iv) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict
of interest (in which case the indemnifying party shall not have the right to
direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
indemnifying party and paid as incurred; provided that the indemnifying party
shall only be responsible for the fees and expenses of one counsel for the
indemnified party or parties hereunder. Anything in this paragraph to the
contrary notwithstanding, the indemnifying party shall not be liable for any
settlement of any such claim or action effected without its written consent,
which consent shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under subsection (a) or (b) of this Section
7 in respect of any losses, damages, expenses, liabilities or claims referred
to therein, then each applicable indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
expenses, liabilities or claims (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Guarantors on the
one hand and the Underwriter on the other hand from the offering of the
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 and the Guarantors on the one hand and the
Underwriter on the other hand in connection with the statements or omissions
that resulted in such losses, expenses, liabilities or claims, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Guarantors on the one hand and the Underwriter on the other
hand shall be deemed to be in the same proportion as the total proceeds from
the offering of the Securities (net of underwriting discounts and commissions
but before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriter. The
relative fault of the Company and the Guarantors on the one hand and of the
Underwriter on the other hand shall be determined by reference to, among other
things, whether the untrue statement or alleged untrue statement of a material
fact or omission or alleged omission relates to information supplied by the
Company, the Guarantors or by the Underwriter and the parties' relative
-15-
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intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a result
of the losses, expenses, liabilities and claims referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any claim or action.
(e) The Company, the Guarantors and the Underwriter agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to in Section
7(d) above. Notwithstanding the provisions of this Section 7, the Underwriter
shall not be required to contribute any amount in excess of the underwriting
discount received by it by reason of such untrue statement or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
The respective indemnity and contribution agreements contained in
Section 7, and the covenants, representations and warranties of the Company and
the Guarantors contained in this Agreement or contained in certificates of
officers of the Company or the Guarantors submitted pursuant hereto, shall
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of the Underwriter or any of
its officers, employees, directors, shareholders or any person who controls the
Underwriter, or by or on behalf of the Company or the Guarantors or any of
their respective officers or directors or any controlling person of the Company
or the Guarantors, and will survive delivery of and payment for the Securities.
SECTION 9. NOTICES.
All notices and other communications hereunder will be in writing and
shall be deemed to have been duly given if mailed or transmitted by standard
form of telecommunication. Notices to the Underwriter shall be directed to
Xxxxxxxxx & Company, Inc. at 00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, attn: Xxxxx Xxxxx, Esq., with a copy to Xxxxxxx X. Xxxxxxx,
Xxxxxxxxx & Xxxxxxxx L.L.P., 0000 XxXxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000-
0000; and if sent to the Company or the Guarantors, directed to Xxxxxx
Production Services, Inc., 000 X.X. Loop 000, Xxxxx 000, Xxx Xxxxxxx, Xxxxx
00000, attn: Xxxxxxx X. Xxxxxx, with a copy to X. Xxxxxxx Xxxx, Xxxxxxx &
Xxxxxxxxx, A Professional Corporation, 000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxx 00000.
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SECTION 10. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Underwriter, the Company and the Guarantors and their respective successors and
legal representatives. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to provide any person, firm or corporation,
other than the Underwriter, the Company and the Guarantors and their respective
successors and legal representatives and the controlling persons, officers,
employees, directors and shareholders referred to in Sections 7 and 8 and their
respective heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
or therein contained. This Agreement and all conditions and provisions hereof
are intended to be for the sole and exclusive benefit of the Underwriter, the
Company and the Guarantors and their respective successors and legal
representatives, and such controlling persons, shareholders, officers and
directors and their respective heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities
from the Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 11. GOVERNING LAW AND TIME.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
in such State. Specified times of day refer to New York time, unless otherwise
specified.
SECTION 12. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Company, the Guarantors and the Underwriter in accordance
with its terms.
Very truly yours,
XXXXXX PRODUCTION SERVICES, INC.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
XXXXXX COMPANIES, INC.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
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XXXXXX PRODUCTION SERVICE DE MEXICO, S.A.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
XXXXXXXXX & COMPANY, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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SCHEDULE 1
SUBSIDIARIES
Name Jurisdiction Ownership (%)
---- ------------ -------------
Xxxxxx Companies, Inc. Texas 100%
Xxxxxx Production Service
de Mexico, S.A. Mexico 100%
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EXHIBIT A
(i) the Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Texas, with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus;
(ii) each Subsidiary has been duly organized and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has full corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus;
(iii) each of the Company and the Subsidiaries is duly
registered and qualified to conduct its business and is in good standing
in each jurisdiction where the nature or location of its properties
(owned or leased) or the conduct of its business requires such
registration or qualification, except where the failure so to register
or qualify would not have a Material Adverse Effect;
(iv) all the outstanding shares of capital stock of each
Subsidiary have been duly authorized and validly issued and are fully
paid and nonassessable, and, except as otherwise set forth in the
Prospectus, all outstanding shares of capital stock of each such
Subsidiary are owned of record and, to such counsel's knowledge,
beneficially by the Company, either directly or through a wholly-owned
subsidiary of the Company, free and clear of any perfected security
interests and, to such counsel's knowledge, any other security
interests, liens, encumbrances, equities, other rights to purchase or
other claims;
(v) except as described in the Registration Statement and the
Prospectus, there are no preemptive or other rights to subscribe for or
to purchase shares of capital stock of the Company pursuant to any
statute, the articles of incorporation or bylaws of the Company or, to
such counsel's knowledge, any agreement or other instrument to which the
Company is a party as to which any person can successfully maintain an
action, suit or proceeding against the Company for violation of his or
her preemptive rights with respect to the issuance of any shares of
capital stock of the Company;
(vi) to such counsel's knowledge, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or any
of the Subsidiaries required to be disclosed in the Prospectus that is
not adequately disclosed in the Prospectus;
(vii) to such counsel's knowledge, there is no contract or other
document required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit, that is not described or filed
as required;
(viii) all of the Company's issued and outstanding capital stock
has been duly authorized and validly issued and is fully paid and non-
assessable as of the date hereof and the authorized capital stock of the
Company conforms in all material respects to the descriptions thereof
under the caption "Description of Capital Stock" in the Prospectus;
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(ix) the Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); to such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been instituted or
threatened, and the Registration Statement and the Prospectus (other
than the financial statements and supporting schedules contained therein
as to which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Act and the
applicable Act Regulations; and such counsel has no reason to believe
that at the Effective Date the Registration Statement contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus includes any untrue
statement of a material fact or omits to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(x) the statements in the Registration Statement and
Prospectus, insofar as they are descriptions of contracts, agreements or
other legal documents, are accurate in all material respects and present
fairly the information required to be shown;
(xi) this Agreement has been duly authorized, executed and
delivered by the Company and the Guarantors and the Company and the
Guarantors have full corporate power and authority to enter into this
Agreement;
(xii) no consent, approval, authorization or order of any court
or governmental agency or body is required in connection with the
consummation of the transactions contemplated hereby, except such as
have been obtained under the Act and the Trust Indenture Act and such as
may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriter and such other approvals (specified in such opinion) as have
been obtained;
(xiii) neither the execution and delivery of this Agreement or
the Indenture, nor the consummation of any other of the transactions
herein or therein contemplated, nor the fulfillment of the terms hereof
or thereof, will result in a breach of, or constitute a default under,
(a) the terms of any indenture or other agreement or instrument (i) to
which the Company or any of the Subsidiaries is a party or by which it
is bound and (ii) that is either filed as an exhibit to the Registration
Statement or is identified to such counsel as being material to the
Company and the Subsidiaries, taken as a whole, and listed on a schedule
to such counsel's opinion, (b) any law, statute, rule, order, regulation
or decree of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company or
any of the Subsidiaries of which such counsel is aware and that is known
by such counsel to be applicable to the Company or any of the
Subsidiaries (where such conflict, breach or default would have a
Material Adverse Effect) or (c) the articles of incorporation or by-laws
of the Company or any Guarantor;
(xiv) the Securities have been duly and validly authorized by
the Company and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriter
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pursuant to this Agreement, will constitute legal, valid and binding
obligations of the Company, entitled to the benefits of the Indenture;
(xv) the Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act and constitutes a legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its
terms, except to the extent that such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by equitable
principles;
(xvi) the Indenture has been duly authorized, executed and
delivered by the Guarantors, and each Subsidiary Guarantee constitutes a
legal, valid and binding obligation of the respective Guarantors,
enforceable against the respective Guarantors in accordance with its
terms, except to the extent that such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by equitable
principles;
(xvii) each of the Guarantors has the corporate or partnership
power and authority to execute and deliver and issue its Subsidiary
Guarantee;
(xviii) the certificates for the Securities are in due and
proper form under Texas law and the by-laws of the Company and conform
with the form of certificates duly authorized by the Board of Directors
of the Company;
(xix) the Securities, when issued, and the Indenture conform in
all material respects to the description thereof contained in the
Prospectus and the Registration Statement under the caption "Description
of Notes";
(xx) the Purchase Agreement, dated as of December 23, 1996 (the
"Purchase Agreement"), between the Company and Pride Petroleum Services,
Inc. has been duly authorized, executed and delivered by the Company;
(xxi) the execution, delivery and performance of the Purchase
Agreement and the consummation of the transactions contemplated thereby
have not and will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body or any
court having jurisdiction over the Company or any Subsidiary or any of
their properties, or any agreement or instrument known to such counsel
to which the Company or any Subsidiary is a party or by which the
Company or any Subsidiary is bound or to which any of the properties of
the Company or any Subsidiary is subject, or the charter or bylaws of
the Company or any Subsidiary, which breach, violation or default would
have a Material Adverse Effect;
(xxii) to such counsel's knowledge, no holder of any securities
of the Company or any other person has the right, contractual or
otherwise, to cause the Company to sell or otherwise issue to such
person, or to permit such person to underwrite the sale of, any of the
Securities or the right to have any securities of the Company included
in the Registration Statement or the right, as a result of the filing of
the Registration Statement, to require registration under the Act of any
securities of the Company that has not been waived or lapsed, except as
described in the Registration Statement or Prospectus; and
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(xxiii) the Company is not an "investment company" as
defined under the Investment Company Act of 1940 or subject to
registration under the Investment Company Act of 1940.
In addition, such counsel shall also state that such counsel has
participated in conferences with representatives of the Underwriter, officers
and other representatives of the Company and representatives of the independent
certified public accountants of the Company and the Subsidiaries at which
conferences the contents of the Registration Statement and the Prospectus and
related matters were discussed and that, although such counsel is not passing
upon and does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and the
Prospectus (except as set forth in clauses (viii), (x) and (xix) of this
Exhibit A), on the basis of the foregoing (relying as to materiality upon
officers and other representatives of the Company), no facts have come to the
attention of such counsel that lead such counsel to believe that the
Registration Statement at the time it became effective or at the Representation
Date and the Closing Date contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading or that the Prospectus, at the Representation Date (unless the term
"Prospectus" refers to a prospectus that has been provided to the Underwriter
by the Company for use in connection with the offering of the Securities that
differs from the Prospectus on file at the Commission at the Representation
Date, in which case at the time it is first provided to the Underwriter for
such use) or at the Closing Date, contained or contains an untrue statement of
a material fact or omitted or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, that such counsel need not express any comment with respect to the
financial statements and schedules contained therein, including the notes
thereto, the auditors' report thereon and the related summary of accounting
policies.
The opinions of such counsel relate solely to, are based solely upon and
are limited exclusively to the laws of the State of Texas and the federal laws
of the United States of America, to the extent applicable.
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