Exhibit 99.1
_________ __, 2010
EXCHANGE AGENT AGREEMENT
Wilmington Trust FSB
50 South Sixth Street
Suite 1290
Minneapolis, Minnesota 55402
Ladies and Gentlemen:
Energy XXI Gulf Coast, Inc. (the “Company”), an indirect and wholly-owned subsidiary of Energy XXI (Bermuda) Limited (the “Parent”), proposes to make an offer (the “Exchange Offer”) to exchange its 16% Second Lien Junior Secured Notes due 2014 (the “New Notes”) for a like principal amount of its outstanding 16% Second Lien Junior Secured Notes due 2014 (the “Old Notes”). The terms and conditions of the Exchange Offer as currently contemplated are set forth in a prospectus (the prospectus included in the Company’s registration statement on Form S-4 (File No. 333-163968) as amended (the “Registration Statement”) filed with the Securities and Exchange Commission (the “SEC”) and declared effective on January ____, 2010) which is proposed to be distributed to all record holders of the Old Notes. The Old Notes and the New Notes are collectively referred to in this Exchange Agent Agreement (this “Agreement”) as the “Notes” or the “Securities.” Capitalized terms used herein and not defined shall have the respective meanings ascribed to them in the Registration Statement or the accompanying letter of transmittal (together with the accompanying Instructions to Registered Holders and DTC Participants, the “Letter of Transmittal”).
The Company hereby appoints Wilmington Trust FSB to act as exchange agent (the “Exchange Agent”) in connection with the Exchange Offer. References hereinafter to “you” shall refer to Wilmington Trust FSB.
The Exchange Offer is expected to be commenced by the Company on or about ______ __, 2010. The Letter of Transmittal accompanying the Registration Statement is to be used by the holders of the Old Notes to tender into the Exchange Offer, and contains instructions with respect to the delivery of Old Notes tendered. The Exchange Agent’s obligations with respect to receipt and inspection of the Letter of Transmittal in connection with the Exchange Offer shall be satisfied for all purposes hereof by (1) inspection of the electronic message transmitted to the Exchange Agent by Exchange Offer participants in accordance with the Automated Tender Offer Program (“ATOP”) of The Depository Trust Company (“DTC”), and by otherwise observing and complying with all procedures established by DTC in connection with ATOP, to the extent that ATOP is utilized by Exchange Offer participants, or (2) by inspection of the Letter of Transmittal delivered by each respective holder of Old Notes.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on _______ __, 2010, or on such later date or time to which the Company may extend the Exchange Offer (the “Expiration Date”). Subject to the terms and conditions set forth in the Registration Statement, the Company expressly reserves the right to extend the Exchange Offer from time to time and may extend the Exchange Offer by giving oral (confirmed in writing) or written notice to you at any time before 9:00 a.m., New York City time, on the business day following the previously scheduled Expiration Date, and in such case the term “Expiration Date” shall mean the time and date on which the Exchange Offer as so extended shall expire.
The Company expressly reserves the right, in its sole discretion, to delay, amend or terminate the Exchange Offer, and not to accept for exchange any Old Notes not theretofore accepted for exchange, upon the occurrence of any of the conditions of the Exchange Offer specified in the Registration Statement under the caption “The Exchange Offer —Extensions, Delays in Acceptance, Termination or Amendment,” or in other cases. The Company will give to you as promptly as practicable oral (confirmed in writing) or written notice of any delay, amendment, termination or non-acceptance.
In carrying out your duties as Exchange Agent, you are to act in accordance with the following instructions:
1. You will perform such duties and only such duties as are specifically set forth herein or in the section of the Registration Statement captioned the “The Exchange Offer,” in the Letter of Transmittal accompanying the Registration Statement.
2. You will establish a book-entry account with respect to the Old Notes at DTC for purposes of the Exchange Offer within two business days after the date of effectiveness of the Registration Statement, and any financial institution that is a participant in DTC’s systems may make book-entry delivery of the Old Notes by causing the DTC to transfer such Old Notes into your account in accordance with DTC’s procedure (including ATOP) for such transfer.
3. You are to examine each confirmation of book-entry transfers into your account at the DTC (or the Letters of Transmittal and certificates for Old Notes) and any other documents delivered or mailed to you by or for holders of the Old Notes to ascertain whether: (i) such book-entry confirmations are in due and proper form and contain the information required to be set forth therein in accordance with instructions set forth in the Letters of Transmittal and the Registration Statement, or that the Letters of Transmittal, certificates and any such other documents are duly executed and properly completed in accordance with instructions set forth therein and in the Registration Statement, and (ii) the Old Notes have otherwise been properly tendered. In each case where book-entry confirmations are not in due and proper form or omit certain information or where the Letter of Transmittal or any other document has been improperly completed or executed or any of the certificates for Old Notes are not in proper form for transfer or some other irregularity in connection with the acceptance of the Exchange Offer exists, you will endeavor to inform the presenters of the need for fulfillment of all requirements and you may, but shall be under no obligation, to take any other action as may be reasonably necessary or advisable to cause such irregularity to be corrected.
2
4. With the prior approval (such approval, if given orally, to be confirmed promptly in writing) of the President, Chief Financial Officer, Secretary or any Vice President of the Company or the Chief Financial Officer or any Vice President of the Parent or any other party designated in writing by any of the foregoing officers (each, an “Authorized Officer”), you are authorized to waive any irregularities in connection with any tender of Old Notes pursuant to the Exchange Offer. You are not otherwise authorized to waive any such irregularities.
5. Tenders of Old Notes may be made only as set forth in the Letter of Transmittal and in the section of the Registration Statement captioned “The Exchange Offer —Procedures for Tendering” and Old Notes shall be considered properly tendered to you only when tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Old Notes which an Authorized Officer shall approve as having been properly tendered shall be considered to be properly tendered (such approval, if given orally, shall be promptly confirmed in writing, and in no event shall you be required to accept as properly tendered Old Notes until any such oral approval is confirmed in writing).
6. You shall advise the Company with respect to any Old Notes delivered subsequent to the Expiration Date and accept its instructions with respect to disposition of such Old Notes.
7. You shall accept tenders:
(a) in cases where the Old Notes are registered in two or more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of Transmittal) is acting in a fiduciary or a representative capacity only when proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Old Notes provided that customary transfer requirements, including any payment of applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Notes where so indicated and as permitted in the Letter of Transmittal and return any untendered Old Notes to the holder (or such other person as may be designated in the Letter of Transmittal) as promptly as practicable after expiration or termination of the Exchange Offer. A new certificate for the remainder of the principal amount of the Old Notes will be sent to the holders of Old Notes unless otherwise indicated by partial tendering holders of Old Notes.
8. Upon satisfaction or waiver of all of the conditions to the Exchange Offer, the Company will notify you (such notice, if given orally, promptly to be confirmed in writing) of its acceptance, promptly after the Expiration Date, of all Old Notes properly tendered and you, on behalf of the Company, will cause the exchange of such Old Notes for New Notes and cause such Old Notes to be cancelled. Delivery of New Notes will be made on behalf of the Company by the trustee at the rate of a $1.00 principal amount New Note for each $1.00 principal amount Old Note tendered, and, promptly after notice (such notice if given orally, promptly to be confirmed in writing) of acceptance of said Old Notes by the Company; provided, however, that in all cases, Old Notes tendered pursuant to the Exchange Offer will be exchanged only after timely receipt by you of confirmation of book-entry transfer of such Old Notes into your account at DTC (or of certificates for such Old Notes and a properly completed and duly executed Letter of Transmittal (or facsimile thereof)) and an “agent’s message” (as such term is used in the Registration Statement) with any required signature guarantees and any other required document.
3
9. Tenders pursuant to the Exchange Offer are irrevocable after the Expiration Date. Subject to the terms and upon the conditions set forth in the Registration Statement and the Letter of Transmittal, Old Notes tendered pursuant to the Exchange Offer may be withdrawn at any time on or prior to the Expiration Date in accordance with the terms of the Exchange Offer.
10. The Company shall not be required to exchange any Old Notes tendered if any of the conditions set forth in the Registration Statement and the Letter of Transmittal are not met. Notice of any decision by the Company not to exchange any Old Notes tendered shall be given (such notices if given orally, promptly shall be confirmed in writing) by the Company to you.
11. If, pursuant to the Registration Statement and the Letter of Transmittal, the Company does not accept for exchange all or part of the Old Notes tendered because of an invalid tender, the occurrence of certain other events set forth in the Registration Statement or otherwise, you shall as soon as practicable after the expiration or termination of the Exchange Offer return those certificates for unaccepted Old Notes (or effect appropriate book-entry transfer), together with any related required documents and the Letters of Transmittal relating thereto that are in your possession, to the persons who deposited them (or effected such book-entry transfer).
12. All certificates for reissued Old Notes, unaccepted Old Notes or New Notes, as the case may be (other than those effected by book-entry transfer), shall be forwarded by (a) first-class mail, postage pre-paid under a blanket surety bond protecting you and the Company from loss or liability arising out of the non-receipt or non-delivery of such certificates or (b) by registered mail insured separately for the replacement value of each of such certificates.
13. You are not authorized to pay or offer to pay any concessions, commissions or solicitation fees to any broker, dealer, bank or other persons or to engage or utilize any persons to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those specifically set forth herein or as may be subsequently agreed to in writing between you and the Company;
(b) will be regarded as making no representations and having no responsibilities as to the validity, sufficiency, value or genuineness of any of the Old Notes deposited with you pursuant to the Exchange Offer, and will not be required to and will make no representation as to the validity, value or genuineness of the Registration Statement;
4
(c) shall not be obligated to take any legal action hereunder which might in your judgment involve any expense or liability, unless you shall have been furnished with indemnity satisfactory to you;
(d) shall not be liable to the Company, a securityholder or any third party for any action taken or omitted by you, or any action suffered by you to be taken or omitted, without gross negligence, willful misconduct or bad faith on your part, by reason of or as a result of the administration of your duties hereunder in accordance with the terms and conditions of this Agreement or by reason of your compliance with the instructions set forth herein or with any written or oral instructions delivered to you pursuant hereto, and may conclusively rely on and shall be protected in acting in good faith in reliance upon any certificate, instrument, opinion, notice, letter, facsimile or other document or security delivered to you and believed by you to be genuine and to have been signed by the proper party or parties;
(e) shall in no event be liable to a securityholder, the Company or any third party for special, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) arising in connection with this Agreement irrespective of whether you have been advised of the likelihood of such loss or damage and regardless of the form of action;
(f) may act upon any tender, statement, request, comment, agreement or other instrument whatsoever not only as to its due execution and validity and effectiveness of its provisions, but also as to the truth and accuracy of any information contained therein, which you shall in good faith reasonably believe to be genuine or to have been signed or represented by a proper person or persons;
(g) may conclusively rely on and shall be protected in acting upon written notice or oral instructions from an Authorized Officer;
(h) shall not advise any person tendering Old Notes pursuant to the Exchange Offer as to whether to tender or refrain from tendering all or any portion of Old Notes or as to the market value, decline or appreciation in market value of any Old Notes that may or may not occur as a result of the Exchange Offer or as to the market value of the New Notes;
(i) may consult with counsel of your selection with respect to any questions relating to your duties and responsibilities, and the written advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by you hereunder in good faith and in reliance thereon;
(j) shall act solely as agent of the Company and shall not assume any obligation to, or relationship of agency or trust for, any of the owners or holders of the Old Notes; and
(k) shall in no event be responsible or liable for any failure or delay in the performance of your obligations under this Agreement arising out of or caused by, directly or indirectly, forces beyond your reasonable control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services.
5
15. You shall send to all holders of Old Notes a copy of the Registration Statement, the Letter of Transmittal, and such other documents (collectively, the “Exchange Offer Documents”) as may be furnished by the Company to commence the Exchange Offer and take such other action as may from time to time be requested by the Company or its counsel (and such other action as you may deem appropriate) to furnish copies of the Exchange Offer Documents or such other forms as may be approved from time to time by the Company, to all holders of Old Notes and to all persons requesting such documents and to accept and comply with telephone requests for information relating to the Exchange Offer, provided that such information shall relate only to the procedures for accepting (or withdrawing from) the Exchange Offer. The Company will furnish you with copies of such documents at your request. All other requests by holders of Old Notes for information relating to the Exchange Offer shall be directed to the Company, Attention: Stewart Lawrence, at the Company’s offices at 1021 Main Street, Houston, Texas 77002, telephone number: (713) 351-3006.
16. You shall advise by facsimile transmission, email, or telephone, and promptly thereafter confirm in writing to the Company’s counsel, or, if so requested in writing by the Company, to the Chief Financial Officer or Secretary of the Company, and such other person or persons as the Company may request in writing, daily, and more frequently during the week immediately preceding the Expiration Date and if otherwise requested, up to and including the Expiration Date, as to the aggregate principal amount of Old Notes which have been tendered pursuant to the Registration Statement and the items received by you pursuant to the Exchange Offer and this Agreement, separately reporting and giving cumulative totals as to items properly received and items improperly received. In addition, you will also inform, and cooperate in making available to, the Company or any such other person or persons as the Company requests in writing from time to time prior to the Expiration Date of such other information as it or he or she reasonably requests. Such cooperation shall include, without limitation, the granting by you to the Company and such person as the Company may request of access to those persons on your staff who are responsible for receiving tenders, in order to ensure that immediately prior to the Expiration Date the Company shall have received information in sufficient detail to enable it to decide whether to extend the Exchange Offer. You shall prepare a final list of all persons whose tenders were accepted, the aggregate principal amount of Old Notes tendered, the aggregate principal amount of Old Notes accepted and the identity of any participating broker-dealers and the aggregate principal amount of New Notes delivered to each, and deliver said list to the Company.
17. Letters of Transmittal shall be stamped by you as to the date and, after the expiration of the Exchange Offer, the time of receipt thereof shall be preserved by you for a period of time at least equal to the period of time you customarily preserve other records pertaining to the transfer of securities, or one year, whichever is longer, and thereafter shall be delivered by you to the Company. You shall dispose of unused Letters of Transmittal and other surplus materials in accordance with your customary procedures.
6
18. For services rendered as Exchange Agent hereunder you shall be entitled to such compensation and reimbursement of reasonable out-of-pocket expenses as shall be agreed in writing between the Company and you. The provisions of this paragraph shall survive the termination of this Agreement.
19. You hereby acknowledge receipt of the Registration Statement, the Letter of Transmittal and the other Exchange Offer Documents attached hereto. Any inconsistency between this Agreement, on the one hand, and the Registration Statement, the Letter of Transmittal and such other Exchange Offer Documents (as they may be amended from time to time), on the other hand, shall be resolved in favor of the Registration Statement, the Letter of Transmittal and such other Exchange Offer Documents, except with respect to the duties, liabilities and indemnification of you as Exchange Agent which shall be controlled by this Agreement.
20. The Company agrees to fully indemnify and hold you harmless in your capacity as Exchange Agent hereunder against any and all liability, cost or expense, including, without limitation, attorneys’ fees and expenses, arising out of or in connection with your appointment as Exchange Agent and the performance of your duties hereunder, including, without limitation, any act, omission, delay or refusal made by you in reliance upon any signature, endorsement, assignment, certificate, order, request, notice, instruction or other instrument or document believed by you to be valid, genuine and sufficient and in accepting any tender or effecting any transfer of Old Notes believed by you in good faith to be authorized, and in delaying or refusing in good faith to accept any tenders or effect any transfer of Old Notes; provided, however, that the Company shall not be liable for indemnification or otherwise for any loss, liability, cost or expense to the extent arising out of your gross negligence, willful misconduct or bad faith. The Company’s obligations under this paragraph 20 shall survive the termination of this Agreement and the discharge of your obligations hereunder and any other termination of this Agreement under any federal or state bankruptcy law.
21. You shall arrange to comply with all requirements under the tax laws of the United States, including those relating to missing Tax Identification Numbers, and shall file any appropriate reports with the Internal Revenue Service. The Company understands that you are required, in certain instances, to deduct a specified percentage with respect to interest paid on the New Notes and proceeds from the sale, exchange, redemption or retirement of the New Notes from holders who have not supplied their correct Taxpayer Identification Numbers or required certification. Such funds will be turned over to the Internal Revenue Service in accordance with applicable regulations.
22. You shall notify the Company of the amount of any transfer taxes known to you and payable in respect of the exchange of Old Notes and shall deliver or cause to be delivered, in a timely manner, to each governmental authority to which any transfer taxes are payable in respect of the exchange of Old Notes the Company’s check in the amount of all transfer taxes so payable; provided, however, that your obligation to make any such delivery shall be conditioned upon prior receipt from the Company in immediately available funds of the amount required to be so paid; and provided, further, that you shall reimburse the Company for amounts refunded to you in respect of the payment of any such transfer taxes, at such time as such refund is received by you.
7
23. This Agreement and your appointment as Exchange Agent hereunder shall be construed and enforced in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such state, and without regard to conflicts of law principles, and shall inure to the benefit of, and the obligations created hereby shall be binding upon, the successors and assigns of each of the parties hereto and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. Without limitation of the foregoing, the parties hereto expressly agree that no holder of Old Notes or New Notes shall have any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
24. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
25. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
26. This Agreement shall not be deemed or construed to be modified, amended, rescinded, canceled or waived, in whole or in part, except by a written instrument signed by a duly authorized representative of the party to be charged.
27. Unless otherwise provided herein, all notices, requests and other communications to any party hereunder shall be in writing (including facsimile) and shall be given to such party, addressed to it, as its address or telecopy number set forth below:
If to the Company:
Energy XXI Gulf Coast, Inc. 1021 Main, Suite 2626 Houston, Texas 77002 | |||
| Telecopier: | (713) 351-3300 | ||
| Attention: | D. West Griffin | ||
8
If to the Exchange Agent:
Wilmington Trust FSB c/o Wilmington Trust Company 50 South Sixth Street Suite 1290 Minneapolis, Minnesota 55402 | |||
| Telecopier: | (612) 217-5651 | ||
| Attention: | Timothy Mowdy | ||
| Vice President | |||
28. Unless terminated earlier by the parties hereto, this Agreement shall terminate 90 days following the Expiration Date. Notwithstanding the foregoing, Paragraphs 14(d), 14(e) 14(i), 18 and 20 shall survive the termination of this Agreement. Upon any termination of this Agreement, you shall promptly deliver to the Company any certificates for notes, funds or property (including, without limitation, Letters of Transmittal and any other Exchange Offer Documents) then held by you as Exchange Agent under this Agreement.
29. This Agreement shall be binding and effective as of the date hereof.
9
Please acknowledge receipt of this Agreement and confirm the arrangements herein provided by signing and returning the enclosed copy.
ENERGY XXI GULF COAST, INC.
By:________________________________
Name: Ben Marchive
Title: President
Accepted as of the date
first above written:
WILMINGTON TRUST FSB,
as Exchange Agent
By:_________________________
Name: Timothy Mowdy
Title: Vice President
10