OCEAN RIG UDW INC.
|
||
Dated: March 28, 2017
|
By:
/s/George Economou
|
|
George Economou
|
||
Chief Executive Officer
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Clause
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Page
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1.
|
Definitions
|
1
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2.
|
Effective Date
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1
|
3.
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Undertakings
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2
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4.
|
Representations and Warranties
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5
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5.
|
Launch Trigger Date
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5
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6.
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Launch Events
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6
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7.
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Scheme Trigger Date
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6
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8.
|
Restructuring Implementation
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6
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9.
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The Restructuring Effective Date
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7
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10.
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Post-Restructuring Steps
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8
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11.
|
Restructuring Effective Date Waiver and Release
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8
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12.
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Early Consent
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9
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13.
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Accession
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10
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14.
|
Transfer of Claims
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10
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15.
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Publicity and Disclosures
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11
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16.
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Termination
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12
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17.
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Surviving Obligations
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14
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18.
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Reservation of Rights
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15
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19.
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Notices
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15
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20.
|
Specific Performance
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16
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21.
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Severability
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16
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22.
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Several Liability
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16
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23.
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Amendments and Waivers
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16
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24.
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Counterparts
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16
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25.
|
Assignment
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17
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26.
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Governing Law and Submission to Jurisdiction
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17
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27.
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Waiver of Right to Trial by Jury
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17
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28.
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No Third Party Beneficiaries
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17
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(1) |
OCEAN RIG UDW INC.
,
an exempted company duly incorporated under the laws of the Cayman Islands with company registration number 310396 and its principal executive office at c/o Ocean Rig Cayman Management Services SEZC Limited, 3rd Floor Flagship Building Harbour Drive, Grand Cayman, Cayman Islands (the "
Parent
");
|
(2) |
DRILLSHIPS FINANCING HOLDING INC.
,
a Marshall Islands corporation with company registration number 61701 and a foreign office in the Cayman Islands at c/o Ocean Rig Cayman Management Services SEZC Limited, 3rd Floor Flagship Building Harbour Drive, Grand Cayman, Cayman Islands ("
DFH
");
|
(3) |
DRILLSHIPS OCEAN VENTURES INC.
,
a Marshall Islands corporation with company registration number 55652 and a foreign office in the Cayman Islands at c/o Ocean Rig Cayman Management Services SEZC Limited, 3rd Floor Flagship Building Harbour Drive, Grand Cayman, Cayman Islands ("
DOV
");
|
(4) |
DRILL RIGS HOLDINGS INC.
,
a Marshall Islands corporation with company registration number 32563 and a foreign office in the Cayman Islands at c/o Ocean Rig Cayman Management Services SEZC Limited, 3rd Floor Flagship Building Harbour Drive, Grand Cayman, Cayman Islands ("
DRH
", and together with DFH, DOV, the "
Subsidiary Borrowers
");
and
|
(5) |
THE INITIAL SUPPORTING CREDITORS
listed in Schedule 2
(
Initial Supporting Creditors
)
(the "
Initial Supporting Creditors
")
and any other persons that accede to this Agreement in accordance with Clause 13
(
Accession
)
(together, the "
Supporting Creditors
").
|
1. |
DEFINITIONS
|
2. |
EFFECTIVE DATE
|
2.1 |
This Agreement shall become effective and binding on each of the Initial Parties (the "
Effective Date
")
at such time as this Agreement has been duly executed by each of the Initial Parties.
|
2.2 |
This Agreement shall become binding on any other Person, and such Person shall become a Supporting Creditor, when that Person delivers a duly executed Accession Letter in accordance with Clause 13
(
Accession
).
|
3. |
UNDERTAKINGS
|
3.1 |
Each Party undertakes, from the date it becomes a Party to this Agreement, to take all actions reasonably necessary to support, implement, or otherwise give effect to the Restructuring, including, without limitation:
|
(a) |
providing all information reasonably necessary and requested by the Parent or the Majority Supporting Lenders, unless such information cannot be shared pursuant to applicable confidentiality restrictions;
|
(b) |
cooperating in good faith with each other Party to implement the Restructuring, including negotiating those Restructuring Documents to which it is required to be a party, and, once they are in Agreed Form and any necessary court approvals have been obtained, promptly entering into those Restructuring Documents;
|
(c) |
taking actions that are reasonably necessary or desirable to implement or facilitate and ensure the implementation of the Restructuring and the Schemes, including pursuant to Clause 8
(
Restructuring Implementation
);
and
|
(d) |
using reasonable efforts to encourage Parent Scheme Claim Holders to enter into this Agreement or otherwise commit to support the Restructuring.
|
3.2 |
Each Party undertakes, from the date it becomes a Party to this Agreement that it shall not:
|
(a) |
take, or assist or encourage any Person to take, any action reasonably likely to:
|
(i) |
cause a breach of this Agreement; or
|
(ii) |
delay, impede, frustrate or prevent the implementation and consummation of the Restructuring;
|
(b) |
save as is expressly contemplated by this Agreement or any Restructuring Document, petition for, vote for, provide any instruction in favor of, or initiate, support, encourage or take any steps with a view to, an Insolvency Proceeding in any jurisdiction whatsoever relating to any Group Member, nor encourage, assist, support, or procure or facilitate that any other Person do the same;
|
(c) |
transfer any Claim it holds other than in accordance with the transfer provisions of this Agreement set out at Clause 14
(
Transfer
);
|
(d) |
challenge, object to, or interfere with (or support any challenge, objection to or interference with), any Scheme or the Restructuring in any manner whatsoever; or
|
(e) |
propose, pursue, encourage or vote in favor of any other restructuring proposal in relation to the Group or any Group Member.
|
3.3 |
Each Group Member Party undertakes in favor of each other Party that it shall, and, where applicable, shall ensure that each other Group Member shall:
|
(a) |
save as is expressly contemplated by this Agreement or any Restructuring Document, continue to operate the Group and its business in the ordinary course;
|
(b) |
subject to any appropriate confidentiality restrictions, promptly provide the Supporting Creditors and their representatives access to all information reasonably requested with respect to (i) the financial position of the Group and/or (ii) the Restructuring;
|
(c) |
take all actions that are necessary or desirable to implement or facilitate and ensure the implementation of the Restructuring, including the Schemes;
|
(d) |
keep the other Parties informed as to the progress of all aspects of the Restructuring at regular intervals and/or upon reasonable request;
|
(e) |
in consultation with counsel to the Ad Hoc Committee, seek any regulatory approval or clearance required from any Governmental Body in connection with the Restructuring, if any;
|
(f) |
inform the other Parties in writing promptly, and in any case by no later than two (2) Business Days after becoming aware of the same, upon receiving notice of commencement, or any written threat of commencement, of any involuntary Insolvency Proceedings, legal suit for payment of indebtedness for borrowed money or enforcement of security from or by any Person in respect of any Group Member;
|
(g) |
inform the other Parties in writing promptly, and in any case by no later than two (2) Business Days after becoming aware of the same, of any event or circumstance that has occurred, or that is reasonably likely to occur (and if it did so occur), that would permit the Parties to terminate, or would result in the termination of, this Agreement;
|
(h) |
not trigger any Specified Event of Default;
|
(i) |
not authorize or make payment of any dividend or any other payment or distribution on account of any equity interest of any Group Member (other than dividends, payments or distributions from a Subsidiary to the Parent);
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(j) |
not redeem, repurchase or retire any shares or other equity interests in the Parent;
|
(k) |
not enter into any Related Party Transaction other than a Permitted Related Party Transaction;
|
(l) |
not make payment of any kind on or relating to any Debt Instrument (including, without limitation, the payment of regularly scheduled interest, or the redemption, repurchase or repayment of any Debt Instruments);
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(m) |
except as expressly contemplated by this Agreement or the Term Loan Documents or with the prior written consent of the Majority Supporting Lenders, not:
|
(i) |
consummate any transfer, sale or other transaction outside the ordinary course of business involving the sale, transfer or other disposal of all or substantially all of the Group Members or their assets; or
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(ii) |
seek, solicit, encourage or negotiate any restructuring not contemplated by the terms of this Agreement; and
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(n) |
pay the fees, costs and expenses of the professional advisors to the Ad Hoc Committee in accordance with the terms of their respective agreements.
|
3.4 |
Each Supporting Creditor undertakes, severally and not jointly, in favor of each other Party that it shall:
|
(a) |
vote (either in person or by proxy) any and all relevant Claims it holds in favor of each Scheme;
|
(b) |
in addition to any express obligation hereunder, take any action that the Majority Supporting Lenders determine is reasonably necessary or desirable to implement and consummate the Restructuring;
|
(c) |
except with respect to the occurrence of any Specified Event of Default, it shall not take any action, or instruct any facility agent or indenture trustee, to accelerate or enforce any loans or claims against any Group Member;
|
(d) |
not challenge, object to, or interfere with (or support or encourage any challenge, objection to or interference with), any Scheme in any manner whatsoever, including, without limitation, encouraging any party to reject or vote against a Scheme; and
|
(e) |
provide a Supporting Creditor Update Notice to each of the Parent, the Information Agent and legal counsel to the Ad Hoc Committee by the 15
th
day of any calendar month, if it has disposed of or acquired any Debt Instruments (or interests therein) to or from any party that is not a Bound Affiliate which, when combined with all dispossessions or acquisitions of Debt Instruments (or interests therein) to or from any party that is not a Bound Affiliate since the later of (i) the date it became a Supporting Creditor, and (ii) the date of its last Supporting Creditor Update Notice, exceed $1 million in principal face amount.
|
3.5 |
Each member of the Ad Hoc Steering Committee undertakes in favor of each other Party that it shall, upon the reasonable request of the Parent, instruct legal counsel to appear at hearings to express support for the appointment of the Provisional Liquidator and the approval of the Schemes.
|
3.6 |
Nothing in this Agreement shall:
|
(a) |
prevent any Party from taking action which is required by applicable Law, or by any Governmental Body;
|
(b) |
require any Supporting Creditor:
|
(i) |
to incur any out-of-pocket expenses or other financial obligations; or
|
(ii) |
other than as contemplated by this Agreement, to take any action, or ensure that any action is taken, that would result in a variation of any rights under any Debt Instrument Agreement that would apply or continue to apply following the Termination Date in circumstances where the Restructuring is not implemented; or
|
(c) |
prevent the Supporting Creditors (or any of their representatives) from taking any reasonable steps to preserve the validity, existence or priority of their rights and claims in
|
4. |
REPRESENTATIONS AND WARRANTIES
|
4.1 |
Each Party represents and warrants to each of the other Parties, as of the date it becomes a Party, and at all times prior to the Termination Date that:
|
(a) |
it has all requisite power, authority and legal capacity to enter into, and perform its obligations under this Agreement;
|
(b) |
its entry into this Agreement shall not breach any applicable Law, any agreement to which it is party or any of its constitutive documents;
|
(c) |
its obligations under this Agreement constitute legal, valid and binding obligations enforceable against it in accordance with the terms of the Agreement;
|
(d) |
this agreement has been duly executed and delivered by it;
|
(e) |
no action by, in respect of, or filing with any Governmental Body is required for, or in connection with the valid and lawful authorization, execution, delivery and performance by that Party of this Agreement; and
|
(f) |
it (i) is a sophisticated party with respect to the subject matter of this Agreement; (ii) has adequate information concerning the matters that are the subject of this Agreement; and (iii) has independently made its own analysis and decision to enter into this Agreement,
|
4.2 |
Each Supporting Creditor represents and warrants to each of the other Parties, as of the date it becomes a Party, and at all times prior to the Termination Date that:
|
(a) |
it has disclosed in Schedule 2, in an Accession Letter or, if applicable, in a Supporting Creditor Update Notice in accordance with Clause 3.4(e), all Parent Bond Claims or other Parent Scheme Claims, DRH Scheme Claims, DFH Scheme Claims and DOV Scheme Claims with respect to which it is the beneficial holder, and it has all necessary authority to vote, or direct the voting of, such Claims; and
|
(b) |
that its interests in the Debt Instruments are free and clear of any lien, claim, security interest, charge, pledge, equity, option, proxy, voting restriction, right of first refusal or other limitation of any kind that would adversely affect the Supporting Creditor's performance of its obligations contained in this Agreement at the time such obligations are required to be performed.
|
5. |
LAUNCH TRIGGER DATE
|
5.1 |
The "
Launch Trigger Date
" shall occur on the first date on which:
|
(a) |
either of the following has occurred (the "
Parent Scheme Consent Condition
"):
|
(i) |
holders of at least 75% in value of Parent Scheme Claims have become a Party to this Agreement; or
|
(ii) |
holders of at least 90% in value of the Term Loans have become Party to this Agreement; and
|
(b) |
each of the following have been satisfied:
|
(i) |
a majority in number of DFH Lenders holding at least 75% in value of the DFH Loans have become a Party to this Agreement;
|
(ii) |
a majority in number of DOV Lenders holding at least 75% in value of the DOV Loans have become a Party to this Agreement;
|
(iii) |
the Tax Report has been issued; and
|
(iv) |
the Intercompany Settlement has been consummated,
|
5.2
|
provided
that the Launch Trigger Date shall not occur before March 23, 2017.
|
6. |
LAUNCH EVENTS
|
7. |
SCHEME TRIGGER DATE
|
(a) |
if any of the conditions to the Launch Trigger Date have been waived pursuant to Clause 23.1, the date on which such waived conditions have been satisfied; and
|
(b) |
the date on which the Principal Restructuring Documents are in Agreed Form.
|
8. |
RESTRUCTURING IMPLEMENTATION
|
8.1 |
Scheme Events
|
(a) |
Subject to paragraph (b) below, upon the occurrence of the Scheme Trigger Date, the Scheme Implementation Steps shall be implemented, as described in Clause 8.2
(
Scheme Implementation Steps
).
|
(b) |
If DFH Lenders, DOV Lenders or DRH Holders holding 100% of the DFH Loans, DOV Loans or DRH Bonds (as applicable) have become a Party to this Agreement by the
|
8.2 |
Scheme Implementation Steps
|
(a) |
As soon as practicable following the occurrence of the Scheme Trigger Date, the Parent and each Subsidiary Borrower that is not the subject of a Consensual Restructuring shall:
|
(i) |
issue the relevant Practice Direction Notice to the relevant Practice Direction Notice Recipients; and
|
(ii) |
make an application to the Cayman Court for the relevant Convening Hearing to be scheduled.
|
(b) |
As soon as practical thereafter, taking into account, amongst other things, the availability of the Cayman Court, seek the Convening Orders.
|
(c) |
If the Parent Scheme, the DFH Scheme and the DOV Scheme are approved by the requisite majorities at the relevant scheme meetings, as soon as practicable thereafter, taking into account, amongst other things, the availability of the Cayman Court, seek the Parent Sanction Order, the DFH Sanction Order and the DOV Sanction Order.
|
(d) |
If, in addition, the DRH Scheme is approved by the requisite majority at the DRH Scheme meeting, as soon as practicable thereafter, taking into account, amongst other things, the availability of the Cayman Court, seek the DRH Sanction Order.
|
(e) |
As soon as practicable following the relevant sanction hearings, the Parent Sanction Order, the DFH Sanction Order and the DOV Sanction Order (together with the DRH Sanction Order (if made)) shall be filed with the Cayman Registrar of Companies (save where a Consensual Restructuring is implemented as an alternative to a Scheme).
|
9. |
THE RESTRUCTURING EFFECTIVE DATE
|
(a) |
each of the Parent Scheme, the DFH Scheme and the DOV Scheme have become effective (or alternatively, if any of the Parent Scheme, the DFH Scheme or the DOV Scheme have not become effective, a Consensual Restructuring has become effective with respect to the relevant Group Member Parties);
|
(b) |
the authorised share capital of the Parent shall have been increased to an amount sufficient to implement the Restructuring;
|
(c) |
Chapter 15 Orders have been entered with respect to each of the Schemes that has been sanctioned;
|
(d) |
the Restructuring Effective Date Waiver and Release has become effective;
|
(e) |
all of the relevant Restructuring Documents have become fully and unconditionally effective in accordance with their terms;
|
(f) |
the New Parent Articles have been approved;
|
(g) |
all invoiced professional fees, costs and expenses of the professional advisors to the Group and to the Ad Hoc Committee have been paid; and
|
(h) |
unless waived in writing by the Majority Supporting Lenders (i) no Material Breach of this Agreement committed by the Parent or any Subsidiary Borrower is ongoing; (ii) no default or other event specified in Schedule 10
(
Specified Events of Default
)
has occurred which, but for the expiration of applicable cure periods or grace periods, would constitute a Specified Event of Default; and (iii) the Amended and Restated Stockholders Rights Agreement of Parent, dated June 3, 2011, as amended, shall be terminated.
|
10. |
POST-RESTRUCTURING STEPS
|
(a) |
the Parent, and, if applicable, DFH, DOV and DRH shall make an application to the Cayman Court for the discharge of the Provisional Liquidator and the withdrawal of the applicable winding-up petitions; and
|
(b) |
to the extent that it is not possible to take such steps prior to the Restructuring Effective Date, the relevant Group Members shall promptly take all steps necessary to perfect the New Security, including registration, if applicable.
|
11. |
RESTRUCTURING EFFECTIVE DATE WAIVER AND RELEASE
|
(i) |
any matter, act, transaction, event, occurrence, cause or thing whatsoever directly or indirectly relating to the Group (including, but not limited to, the New Loans and the New Security) arising after the Restructuring Effective Date;
|
(ii) |
any fraud, gross negligence or wilful default; and
|
(iii) |
a breach by a party of its express obligations or representations in this Agreement or the Restructuring Documents.
|
12. |
EARLY CONSENT
|
12.1 |
Term Loan Early Consent Fee
|
(a) |
Subject to paragraph (b) below, each holder of DFH Scheme Claims and/or DOV Scheme Claims that has acceded to this Agreement by the Early Consent Date will receive its
pro rata
portion of the Term Loan Early Consent Fee with respect to such Claims on the Restructuring Effective Date.
|
(b) |
Any holder of a DFH Scheme Claim or DOV Scheme Claim that has acceded to this Agreement before the Early Consent Date that (i) fails to vote in favor of the relevant Schemes with respect to any of its Claims or (ii) has committed a Material Breach of its obligations under this Agreement that results in the Parent terminating this Agreement with respect to such breaching holder shall, without limiting any other remedies that a Party may have against it under this Agreement, forfeit its entitlement to any Term Loan Early Consent Fee and any Term Loan Early Consent Fee that it would otherwise have received shall be distributed, on
a
pro rata
basis, to other holders of DFH Scheme Claims and DOV Scheme Claims that remain entitled to receive the Term Loan Early Consent Fee.
|
12.2 |
DRH Early Consent Fee
|
(a) |
Subject to paragraph (b) below, if the DRH Scheme is sanctioned and has become effective, each holder of DRH Scheme Claims that has acceded to this Agreement by the Early Consent Date will receive its
pro rata
portion of the DRH Early Consent Fee with respect to such Claims on the Restructuring Effective Date.
|
(b) |
Any holder of a DRH Scheme Claim that has acceded to this Agreement before the Early Consent Date that (i) fails to vote in favor of the DRH Scheme with respect to any of its Claims or (ii) has committed a Material Breach of its obligations under this Agreement that results in the Parent terminating this Agreement with respect to such breaching holder shall, without limiting any other remedies that a Party may have against it under this Agreement, forfeit its entitlement to any DRH Early Consent Fee and any DRH Early Consent Fee that it would otherwise have received shall be distributed, on
a
pro rata
basis, to other holders of DRH Scheme Claims that remain entitled to receive the DRH Early Consent Fee.
|
12.3 |
Any Supporting Creditor that accedes to this Agreement before the Early Consent Date and acquires further DFH Scheme Claims, DOV Scheme Claims or DRH Scheme Claims after acceding to this Agreement (whether before, on, or after the Early Consent Date) shall only be
|
12.4 |
The Parent shall retain the Information Agent to reconcile entitlements under this Clause
(
Early Consent
),
whose decision with respect to such entitlements shall be final and binding, absent manifest error.
|
13. |
ACCESSION
|
13.1 |
Any holder of a Debt Instrument who wishes to become a Supporting Creditor may accede to this Agreement by delivering a duly completed and executed Accession Letter to the Parent and the legal counsel to the Ad Hoc Committee in accordance with Clause 19
(
Notices
).
|
13.2 |
With effect from the date of the Accession Letter, the signatory to the Accession Letter shall be a Supporting Creditor and be bound by the terms of this Agreement.
|
14. |
TRANSFER OF CLAIMS
|
14.1 |
Without prejudice to the applicable requirements of the Debt Instrument Agreements, each Supporting Creditor agrees that from the Effective Date until this Agreement is terminated in accordance with Clause 16
(
Termination
),
it shall not sell, assign, transfer, or otherwise dispose of to any Person any ownership (including any beneficial ownership) in the Parent Scheme Claims, DRH Scheme Claims, DFH Scheme Claims or DOV Scheme Claims or any option thereon or any right or interest therein (including by granting any proxies or depositing any interests in such Claims into a voting trust or by entering into a voting agreement (other than this Agreement) with respect to such Claims) (a "
Transfer
"
and the proposed transferee a "
Creditor Transferee
")
unless in compliance with the terms of this Clause 14.
|
14.2 |
Before completing any Transfer, the Supporting Creditor transferor shall, unless the Creditor Transferee is already a Party, procure that the Creditor Transferee delivers a duly executed Accession Letter to the Parent and the Ad Hoc Committee. No Transfer shall be effective until notification of such Transfer and a copy of the executed Accession Letter is received by the Parent and the Ad Hoc Committee (such Transfer, a "
Permitted Transfer
"
and such party to such Permitted Transfer, a "
Permitted Transferee
").
Any Transfer made in violation of this Clause 14 shall be void
ab initio.
|
14.3 |
Before completing any Transfer on or after the date falling ten (10) Business Days before the relevant Scheme Meeting, the Supporting Creditor transferor shall, unless the Creditor Transferee is already a Party, vote by proxy all relevant Claims in favor of the relevant Scheme.
|
14.4 |
Notwithstanding anything to the contrary herein, (i) the foregoing provisions shall not preclude any Supporting Creditor from settling or delivering any Claims to settle any confirmed transaction pending as of the date of such Supporting Creditor's entry into this Agreement (subject to compliance with applicable securities laws and it being understood that any such
|
14.5 |
This Agreement shall not preclude the Supporting Creditors from acquiring additional Claims. Any Claims acquired by a Supporting Creditor shall automatically and immediately upon acquisition by a Supporting Creditor be deemed subject to the terms of this Agreement regardless of when or whether notice of such acquisition is given to the Company as set forth above), other than any Claims acquired by such Supporting Creditor in its capacity as a Qualified Marketmaker.
|
14.6 |
For the avoidance of doubt, following a Permitted Transfer by a Supporting Creditor of all of its interests in the Claims, a Supporting Creditor shall immediately cease to be a Supporting Creditor for purposes of this Agreement and such Supporting Creditor shall cease to be bound by this Agreement, provided, however, that the provisions of Clause 17
(
Surviving Obligations
)
and Clause 3
(
Undertakings
)
shall continue to apply to such Person as if such Person had remained a Supporting Creditor.
|
15. |
PUBLICITY AND DISCLOSURES
|
15.1 |
The Parent may issue any public announcement regarding this Agreement and the Restructuring after giving reasonable notice to the Ad Hoc Committee, and such notice shall include a copy of the relevant public announcement. No other Party shall make any public announcement regarding this Agreement or the Restructuring unless such announcement is in Agreed Form. If an announcement is required by applicable Law, regulation or listing rules, the Party proposing to make the disclosure shall, to the extent legally possible, and on reasonable notice in the circumstances, consult with the Parent and counsel to the Ad Hoc Committee as to the form, content, and timing of the proposed announcement.
|
15.2 |
The Parent shall:
|
(a) |
make the Effective Date Announcement as required under applicable law;
|
(b) |
make the Launch Announcement on the Launch Trigger Date;
|
(c) |
make the Scheme Announcement on the Scheme Trigger Date;
|
(d) |
make the Restructuring Effective Date Announcement on the Restructuring Effective Date; and
|
(e) |
make a public announcement in writing if any material term of this Agreement is amended or waived, as determined in good faith by the Parent.
|
16. |
TERMINATION
|
16.1 |
This Agreement shall terminate automatically without any further action being taken by any Party, or any notice being required from any Party upon the earlier of any of the following:
|
(a) |
11.59 p.m. (New York time) on the Long Stop Date; or
|
(b) |
the Restructuring Effective Date.
|
16.2 |
This Agreement may also be terminated:
|
(a) |
by mutual written consent between each of the Parent and the Majority Supporting Lenders;
|
(b) |
by the Parent or the Majority Supporting Lenders giving written notice to the other Parties if the Cayman Court issues a final judgment (i) refusing to convene the Parent Scheme Meeting, the DFH Scheme Meeting or the DOV Scheme Meeting, or (ii) refusing to sanction the Parent Scheme, the DFH Scheme or the DOV Scheme (unless in the case of DFH or DOV, as applicable, such entity is the subject of a Consensual Restructuring);
|
(c) |
by the Majority Supporting Lenders giving written notice to the Parent if any of the following events occur:
|
(i) |
other than for the purpose of implementing the Restructuring in accordance with the terms of this Agreement, any Insolvency Proceeding is opened in respect of the Parent or any other Group Member that is a Significant Subsidiary of the Parent in any jurisdiction; provided however, that, the filing of an involuntary proceeding under section 303 of the Bankruptcy Code or any similar creditor initiated proceeding under any other applicable foreign law with respect to any Group Member that is a Significant Subsidiary of the Parent will not constitute an Insolvency Proceeding for purposes of this provision until an order for relief or similar determination has been entered or rendered with respect to such proceeding;
|
(ii) |
if the Cayman Court, other than with respect to the DRH Scheme Meeting, (a) refuses to convene any of the Scheme Meetings (unless such entity is the subject of a Consensual Restructuring, or such defect is remedied through a modification of the Scheme in accordance with this Agreement), or (b) refuses to sanction either the Parent Scheme, the DFH Scheme or the DOV Scheme (unless such entity is the subject of a Consensual Restructuring);
|
(iii) |
if the Launch Trigger Date has not occurred by April 30, 2017 (or such other date as agreed between the Parent and the Majority Supporting Lenders);
|
(iv) |
if any of the Group Members fails, as determined in good faith by the Majority Supporting Lenders, to use commercially reasonable efforts to ensure that any of the steps described in Clause 8.2
(
Scheme Implementation Steps
)
are satisfied;
|
(v) |
if the Parent Scheme Meeting, DFH Scheme Meeting and DOV Scheme Meeting have been held, and the Requisite Scheme Majorities have not voted in favor of any of the Parent Scheme, the DFH Scheme or the DOV Scheme, respectively;
|
(vi) |
if the Parent or any Group Member is or becomes a Sanctions Target;
|
(vii) |
the Parent or any Subsidiary Borrower commits a Material Breach of this Agreement, and where such breach is capable of being remedied, the Parent or relevant Subsidiary Borrower, after receipt of written notice of such breach from the Majority Supporting Lenders, has failed to remedy such a breach by the earlier of (a) within 14 days of the receipt of written notice from the Majority Supporting Lenders, and (b) the Business Day immediately preceding the Restructuring Effective Date;
|
(viii) |
if within thirty days following an official body of competent jurisdiction (including any court of competent jurisdiction), entering a final non-appealable Order permanently restraining, enjoining or otherwise prohibiting the implementation, consummation or closing of the Restructuring, such Order has not been withdrawn or it is not subject to reconsideration by the issuer of such Order,
provided
that if failure to terminate this Agreement before such date would cause any Party to be in breach of the Order, this Agreement shall be terminated immediately;
|
(ix) |
if the Parent and its Significant Subsidiaries are unable to continue to manage their operations in the ordinary course of business;
|
(x) |
the Parent is in breach of its obligation under any fee arrangement to pay any professional fees, costs and expenses incurred by the Ad Hoc Committee and the Parent has failed to remedy such breach within 14 days of written notice of such breach being provided to the Parent,
provided
that termination under this sub-clause shall not limit the Parent's liability to pay those professional fees, costs and expenses; and
|
(xi) |
if a Specified Event of Default has occurred.
|
(d) |
by any Supporting Creditor giving written notice to the Parent, to terminate with respect to such Supporting Creditor only, if the Parent and the Majority Supporting Lenders amend or waive any term of this Agreement pursuant to Clause 23
(
Amendments and Waivers
)
and the relevant amendment or waiver:
|
(i) |
disproportionately affects the rights in a particular Claims Class of the Supporting Creditor when compared to the rights in such Claims Class of the other Supporting Creditors;
|
(ii) |
imposes any material additional obligations or liabilities on such Supporting Creditor; or
|
(iii) |
affects the rights in a particular Claims Class of such Supporting Creditor in a materially adverse manner and has not otherwise been approved by holders of at least 75% in value of Claims in such Claims Class.
|
(e) |
by the Parent giving written notice to the Supporting Creditors if:
|
(i) |
the Launch Trigger Date has not occurred by April 30, 2017 (or such other date as agreed between the Parent and the Majority Supporting Lenders);
|
(ii) |
if one or more Supporting Creditor commits a Material Breach such that the non-defaulting Supporting Creditors comprise 95% or less of any of the consent thresholds described in Clause 5.1 (in the case of Clause 5.1(a) the relevant value percentages, or, in the case of Clause 5.1(b)(i) or 5.1(b)(ii) either the relevant value percentages or the relevant number of Term Loan Lenders), and such breach has not been remedied and the relevant consent thresholds have not been reached within 14 days of written notice from the Parent of such breach being provided to the Supporting Creditors;
|
(iii) |
the Parent Scheme Meeting, DFH Scheme Meeting and DOV Scheme Meeting have been held, and the Requisite Scheme Majorities have not voted in favor of any of the Parent Scheme, the DFH Scheme or the DOV Scheme;
|
(iv) |
the Parent or any other Group Member that is a material Subsidiary of the Parent (or their respective directors), in consultation with its counsel, has determined that proceeding with the Restructuring would result in a breach of its fiduciary duties.
|
16.3 |
Subject to Clause 17
(
Surviving Obligations
),
from the time that this Agreement is validly terminated in accordance with this Clause 16
(
Termination
),
this Agreement shall cease to have any further effect and the Parties shall be relieved of their duties and obligations arising under this Agreement going forward.
|
16.4 |
Termination of this Agreement shall not relieve any Party of any Liability for a breach of this Agreement which occurred prior to the Termination Date.
|
17. |
SURVIVING OBLIGATIONS
|
17.1 |
The rights and obligations of the Parties in the following provisions of this Agreement shall continue notwithstanding the occurrence of the Termination Date:
|
(a) |
Clauses 15 (
Publicity and Disclosures
), 16 (
Termination
), 17 (
Surviving Obligations
), 18 (
Reservation of Rights
), 19 (Notices), 20 (
Specific Performance
), 21 (
Severability
), 22 (
Several Liability
), 26 (
Governing Law and Submission to Jurisdiction
), 27 (
Waiver of Right to Trial by Jury
); and
|
(b) |
only where this Agreement has terminated as a result of the occurrence of the Restructuring Effective Date, Clause 10 (
Post-Restructuring Steps
).
|
18. |
RESERVATION OF RIGHTS
|
18.1 |
Save as expressly contemplated by this Agreement, nothing in this Agreement effects a modification or waiver of the Parties' respective rights and obligations against any other Party under the terms of any agreements to which they are party (including the Debt Instrument Agreements) and the terms and provisions of any such agreements shall continue in full force and effect.
|
18.2 |
If the transactions contemplated by this Agreement are not consummated, or this Agreement is terminated for any reason other than the occurrence of the Restructuring Effective Date, all of the respective rights of the Parties are fully reserved.
|
19. |
NOTICES
|
19.1 |
All notices or other communications under or in connection with this Agreement shall be in English, be given in writing and, unless otherwise stated, may be given in person or by post or email.
|
19.2 |
The address, email address and contact name for each Party for all notices under or in connection with this Agreement are:
|
(a) |
those set out in the signature block for that party on the signature pages of this Agreement; or
|
(b) |
where a Person accedes to this Agreement in accordance with Clause 13
(Accession)
those set out in the Accession Letter delivered by that Party;
|
(c) |
for any notice to be provided to the Parent or any Subsidiary Borrower, a copy shall be sent to Mr. William Haft, Esq. (address: Orrick, Herrington & Sutcliffe LLP 55 W. 52nd Street, New York, New York 10019;
e-mail:
whaft@orrick.com
)
and Caroline Moran, Esq. (address: Maples & Calder, PO Box 309, Ugland House, South Church Street, George Town, Grand Cayman, KY1-1104 Cayman Islands; email:
caroline.moran@maplesandcalder.com
)
;
|
(d) |
for any notice to be provided to the Ad Hoc Committee, to Brett Goldblatt, Peter Newman and Matthew Czyzyk of Milbank (address: Milbank, Tweed, Hadley & McCloy LLP, 125 Wood Street, London EC2V 7AN, London, England or alternatively Milbank, Tweed, Hadley & McCloy LLP, 2029 Century Park East, 33r
d
floor, Los Angeles, CA 90067-3019;
e-mail
:
orig@milbank.com
)
and to Tony Heaver-Wren and David Bulley of Appleby (address: Appleby (Cayman) Ltd., 71 Fort Street, PO Box 190, Grand Cayman, KY1-1104
email
:
theaverwren@applebyglobal.com
and
dbulley@applebyglobal.com
)
;
|
(e) |
for any note to be provided to the Information Agent, to Howard A. Blaustein (address: Prime Clerk LLC 830 Third Avenue (9th Floor), New York , NY 10022;
e-mail:
oceanrigteam@primeclerk.com
)
;
or
|
(f) |
any substitute address, email address and/ or contact name as a Party may notify to all of the other Parties by not less than five (5) Business Days' notice.
|
20. |
SPECIFIC PERFORMANCE
|
(a) |
money damages may not be a sufficient remedy for the breach by any Party of any term of this Agreement; and
|
(b) |
any Party may seek specific performance and injunctive or other equitable relief as a remedy for any such breach. Such remedies shall, however, be cumulative and not exclusive and shall be in addition to any other remedies which a Party may have under this Agreement (including the right to terminate in accordance with Clause 16
(
Termination
)
or otherwise).
|
21. |
SEVERABILITY
|
22. |
SEVERAL LIABILITY
|
23. |
AMENDMENTS AND WAIVERS
|
23.1 |
The Parent and the Majority Supporting Lenders may agree in writing to amend or waive any term of this Agreement,
provided
that the Definitions of "Agreed Form," "Long Stop Date," and "Majority Supporting Lenders," and Clauses 3.4, 3.6, 16.1, 16.2, 18, 26, 27, 28 and this Clause 23 shall not be amended under any circumstances and
provided further
that no amendment or waiver shall materially limit the ability of a Supporting Creditor to complete a Transfer pursuant to Clause 14.
|
23.2 |
The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy under this Agreement shall operate as a waiver of any provision of this Agreement, nor shall any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise of such right, power or remedy or the exercise of any other right, power or remedy. All remedies under this Agreement are cumulative and are not exclusive of any other remedies provided by Law.
|
24. |
COUNTERPARTS
|
24.1 |
This Agreement may be executed in any number of counterparts and:
|
(a) |
each such counterpart shall be deemed to be an original;
|
(b) |
all such counterparts shall constitute one and the same document; and
|
(c) |
each Person executing a counterpart shall become a Party.
|
24.2 |
Transmission by fax or emailed scanned copy of an executed counterpart of this Agreement or an Accession Letter shall be deemed to constitute due and sufficient delivery of such counterpart or Accession Letter.
|
25. |
ASSIGNMENT
|
25.1 |
Subject to Clause 14
(
Transfer
),
no Party may assign or transfer any of its rights or obligations under this Agreement (by operation of Law or otherwise) without the prior written consent of the other Parties. Any attempted assignment or transfer without the required consents shall be void.
|
25.2 |
This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
|
26. |
GOVERNING LAW AND SUBMISSION TO JURISDICTION
|
26.1 |
This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to any choice of law provisions which would require the application of the law of any other jurisdiction. By its execution and delivery of this Agreement, each Party irrevocably and unconditionally agrees for itself that any legal action, suit, or proceeding against it with respect to any matter arising under or arising out of or in connection with this Agreement or for recognition or enforcement of any judgment rendered in any such action, suit, or proceeding, may be brought in the United States District Court for the Southern District of New York or if such court lacks jurisdiction, the courts of the State of New York located in New York County, and by executing and delivering this Agreement, each of the Parties irrevocably accepts and submits itself to the non-exclusive jurisdiction of such court, generally and unconditionally, with respect to any such action, suit or proceeding.
|
26.2 |
For the purposes of the Schemes and the provisional liquidations contemplated by this Agreement, each Party irrevocably submits itself to the jurisdiction of the Cayman Court.
|
27. |
WAIVER OF RIGHT TO TRIAL BY JURY
|
28. |
NO THIRD PARTY BENEFICIARIES
|
(a) |
if the DRH Scheme is sanctioned, 51.0% of the Cash Consideration (less an amount equal to all interest payments made with respect to interest accrued after September 30, 2016 through to the Effective Date on the DFH Loans) and 52.5% of the New Loans, or otherwise 52.5% of the Cash Consideration (less an amount equal to all interest payments made with respect to interest accrued after September 30, 2016 through to the Effective Date on the DFH Loans) and 52.5% the New Loans; and
|
(b) |
the DFH Scheme Shares.
|
(a) |
if the DRH Scheme is sanctioned, 46.1% of the Cash Consideration (less an amount equal to all interest payments made with respect to interest accrued after September 30, 2016 through to the Effective Date on the DOV Loans) and 47.5% of the New Loans, or otherwise 47.5% of the Cash Consideration (less an amount equal to all interest payments made with respect to interest accrued after September 30, 2016 through to the Effective Date on the DOV Loans) and the 47.5% of the New Loans; and
|
(b) |
the DOV Scheme Shares.
|
(a) |
if the DRH Scheme is sanctioned, 2.9% of the Cash Consideration, or otherwise zero; and
|
(b) |
the DRH Scheme Shares.
|
(a) |
the Parent;
|
(b) |
DOV;
|
(c) |
DFH;
|
(d) |
DRH; and
|
(e) |
the Initial Supporting Creditors.
|
(a) |
Parent Bond Claims;
|
(b) |
DOV Parent Claims;
|
(c) |
DFH Parent Claims; and
|
(d) |
DRH Parent Claims other than any DRH Parent Claims held by any Group Member.
|
(a) |
in the case of the Parent Practice Direction Notice, all Parent Scheme Claim Holders;
|
(b) |
in the case of the DFH Practice Direction Notice, the DFH Administrative Agent for distribution to the DFH Lenders in accordance with the DFH Credit Agreement;
|
(c) |
in the case of the DOV Practice Direction Notice, the DOV Administrative Agent for distribution to the DOV Lenders in accordance with the DOV Credit Agreement; and
|
(d) |
in the case of the DRH Practice Direction Notice, the DRH Trustee for distribution to the DRH Holders in accordance with the DRH Indenture.
|
(a) |
any corporation, limited liability company, association or other business entity (other than a partnership) of which more than 50% of the total voting power of shares entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders' agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, limited liability company, association or other business entity is at the time owned or controlled, directly or indirectly, by that company, or one or more of the other Subsidiaries of that company (or a combination thereof); and
|
(b) |
any partnership of which (i) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general and limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such company or one or more of the other Subsidiaries of that company (or a combination thereof), whether in the form of general, special or limited partnership interests or otherwise, or (ii) such company or any Subsidiary of such company is a controlling general partner or otherwise controls such entity.
|
To:
|
Ocean Rig UDW Inc. (the "
Parent
")
|
Cc:
|
Orrick, Herrington & Sutcliffe LLP
Counsel to the Ad Hoc Committee, Milbank, Tweed, Hadley & McCloy LLP
Prime Clerk LLC (The Information Agent)
|
From:
|
[
Acceding party
]
(the "
Acceding Party
")
|
Date:
|
[
·
]
|
1. |
Capitalized terms defined in, or incorporated by reference into, the Restructuring Agreement have the same meaning in this letter.
|
2. |
This is a Accession Letter for the purposes of [Clause 13
(Accession)
][Clause 14
(Transfer )
]
1
.
|
3. |
The Acceding Party is the [legal and beneficial][beneficial] owner of
[
speck separately the total amount of each Debt Instrument held by the Acceding Party (including any amounts disclosed in paragraph 4 below
].
Acceding Party acquired its Debt Instruments
[
from
]
[
name of transferor(s) if known
]
on
[
date of each acquisition of Debt Instruments that are currently held by such Acceding Party
].
|
4. |
[
if Acceding Party acquired any portion of the Debt Instrument(s) described in paragraph 3 above from a Party that was already a Supporting Creditor, identify the amount and type of Debt Instrument acquired from such Supporting Creditor
.]
|
5. |
The Acceding Party hereby agrees that with effect from the date of this letter, with respect to any Claim that it may now or hereafter hold that will be subject to any of the Schemes, it shall observe, perform and be bound by, and have the benefit of and be entitled to rely on, the provisions of the Restructuring Agreement as a Supporting Creditor to the Restructuring Agreement.
|
6. |
The Acceding Party acknowledges its obligation to update the information contained herein by providing a Supporting Creditor Update Notice to the Parent and counsel to the Ad Hoc
|
1 |
Delete as appropriate.
|
7. |
The Acceding Party represents and warrants that it has the full power to vote (or direct the vote) with respect to all Claims identified herein and is and will at all times remain in full compliance with all representations and warranties and other obligations specified in the Restructuring Agreement.
|
8. |
For the purpose of Clause 19
(
Notices
)
of the Restructuring Agreement, the notice details for the Acceding Party shall be:
|
Address:
|
[
·
]
|
||
Email:
|
[
·
]
|
||
Facsimile:
|
[
·
]
|
||
Attention:
|
[
·
]
|
||
[copy to:
|
[
·
]]
|
9. |
This letter, and any non-contractual obligations arising out of or in connection with this Agreement, shall be governed by and construed in accordance with the laws of the State of New York.
|
10. |
[The Acceding Party submits to the non-exclusive jurisdiction of the United States District Court for the Southern District of New York in connection with this letter.]
|
Shareholders Agreement
|
Under the terms of the Restructuring Agreement, on the Effective Date, all Parent Scheme Claim Holders will be entitled to an amount of the post-Effective Date ordinary shares of Parent (the "
Shares
").
2 3
As part of the Restructuring, the DOV/DFH Lenders and, to the extent they elect to do so, all other Parent Scheme Claim Holders, will have entered into a shareholders agreement (the "
Shareholders Agreement
")
4
governing the rights of the shareholders party thereto in connection with the affairs of the Companies on substantially the terms set forth in this Term Sheet and otherwise in form and substance satisfactory to
|
1. |
In addition to the terms described herein, the parties have agreed: (1) TMS, Parent and each of its subsidiaries and the Lenders will provide mutual releases, which will be included in the Restructuring Agreement, provided that the agreed indemnification obligations of Parent in favor of TMS will be excluded from any release provided for hereunder and (2) with respect to the indemnification of directors and officers prior to the restructuring, (i) indemnification will only be provided for claims covered by Parent's $400 million D&O insurance policy, (ii) Parent will indemnify directors and officers in excess of $400 million, and (iii) no indemnification will be provided if the D&O insurance is not available as a result of a willful failure to disclose to the insurance provider.
|
2. |
Parent Scheme Claims Holders will have the option to be issued a second class of ordinary shares of the Parent that are the same as the Shares except they will be non-marginable and convertible into the Shares.
|
3. |
It is expected that the Shares will be issued pursuant to the exemption from registration under Section 3(a)(10) of the Securities Act, that the transactions will not involve any shell companies (with the meaning of the Securities Act) and is intended that the Shares will be freely tradable by persons who are not affiliates of Parent without Rule 144 holdings period or volume or manner of sale limitations/restrictions.
|
4. |
In order to address potential group concerns under Section 13 of the Securities Exchange Act of 1934, the: (1) Shareholders Agreement may be restyled as a series of identical two-party "governance agreements" between each Shareholder Party and the Companies and (2) provisions in the Shareholders Agreement that relate to voting or disposition of equity would be placed in the Amended and Restated Memorandum and Articles of the Parent, in each case in a manner not expected to materially affect the rights and obligations of the Shareholder Parties and the Companies under the Restructuring Agreement, the Shareholders Agreement or otherwise.
|
the Majority Supporting Lenders and TMS Offshore ("
TMS
"). Existing subsidiaries of Parent will also be required to enter into the Shareholders Agreement (the "
Management Parties
"). The organizational documents of each newly formed subsidiary will provide that such newly formed subsidiary may not take any action in contravention of the Shareholders Agreement.
|
|
References in this Term Sheet to "
Lender Shareholder Parties
" shall be to (i) the Parent Scheme Claim Holders (including any Parent Scheme Claim Holders, that are not DOV/DFH Lenders) initially party to the Shareholders Agreement and (ii) each transferee of Shares from such initial parties other than (A) any Company (in its capacity as a holder of Shares), (B) TMS and each affiliate thereof, and (C) officers or employees of any of the Companies (or such person's relatives, trusts or other related parties).
|
|
References in this Term Sheet to "
Shareholder Parties
" shall be to the persons that are initially party to the Shareholders Agreement and each transferee of Shares from such initial parties.
|
|
Board of Directors Prior
to Termination of Shareholders Agreement |
At all times prior to the Shareholders Agreement Termination Date (as defined below), the following provisions shall apply to the board of directors of Parent(the "
Board
"):
|
Composition
|
Board Composition, Generally
.
The Board shall consist of seven directors, (i) four of whom shall be selected by the Chief Executive Officer ("
CEO
"), and (ii) one of whom shall be selected by each Lender Appointing Person (as defined below) (each, a "
Lender Director
"), for a total of three directors appointed by the Lender Appointing Persons (as defined below).
|
Identification of Lender Appointing Persons
.
Each "
Lender Appointing Person
" will be determined on the date that is two business days after distribution of scheme consideration (the "
Director Appointment Date
") as stated below. Until the Director Appointment Date, the Board will consist of the then-current directors (the "
Interim Board
").
|
|
(1) if there are three or fewer 7.5% Lender Shareholders (as defined below), then each such 7.5% Lender Shareholder will become a Lender Appointing Person for a five year term; and
|
|
(2) if there are more than three 7.5% Lender Shareholders, then three Lender Appointing Persons shall be designated by a majority vote of the Shares of all 7.5% Lender Shareholders, which Lender Appointing Persons determined under this subsection (2) shall be for a five year term;
provided
,
however
,
that if any Lender Shareholder Party, together with its affiliates, holds 17% or more of the outstanding Shares, such Lender Shareholder Party shall automatically be one of such three Lender Appointing Persons.
|
|
Prior to the Director Appointment Date and the appointing of the three Lender Directors, the Companies cannot take any action if such action would otherwise
|
require Lender Director approval under the Shareholders Agreement. For the avoidance of doubt, if three Lender Appointing Persons have not been determined by the Director Appointment Date, the Interim Board cannot take any action after such date, other than to assist in determining the three Lender Appointing Persons and subsequent appointment of the three Lender Directors.
|
|||
"
7.5% Lender Shareholder
" means a Lender Shareholder Party that (taken together with its affiliates) will hold 7.5% or more of the outstanding Shares.
|
|||
Post-Scheme Composition
.
Promptly after the Schemes have become effective and the restructuring has been consummated, the Board will consist of seven directors, constituted as follows:
|
|||
(a)
|
CEO and Management Director
.
The Chief Executive Officer or his designated affiliate (the "
CEO Appointing Person
") will have the right to appoint four directors (including the Chairman of the Board),
provided
,
however
,
that the CEO Appointing Person shall lose the right to appoint any directors if the Management Agreement is terminated in accordance with the terms of the Management Agreement; and
|
||
(b)
|
Lender Directors
.
So long as each Lender Appointing Person (together with the CEO Appointing Person, each an "
Appointing Person
") holds 5% or more of the total outstanding Shares, one person designated by each such Lender Appointing Person;
provided
,
however
,
that if any Lender Appointing Person fails to appoint or no longer has the right to appoint a director, then such director shall be designated by a majority of the Lender Directors. In addition, so long as a Lender Appointing Person has a right to appoint a Lender Director, but does not appoint an officer or employee of such Lender Appointing Person to serve as a Lender Director, such Lender Appointing Person shall have the right, exercisable by delivering notice to Parent, to designate one (1) non-voting observer to attend any meetings of the Board (or any committee thereof).
|
||
(c)
|
Volunt
ary
Removal and Replacements
. Each Appointing Person entitled to nominate a director may remove its nominated director(s) and, upon removal of such director(s), shall be entitled to nominate his or her replacement.
|
||
(d)
|
Involuntary Removal and Replacements
.
The Board (acting by two-thirds vote) may remove any director for "cause" (which shall be defined as the indictment or conviction of, or plea of guilty or no contest to, fraud or a felony). If any director removed for cause was appointed by an Appointing Person that continues to have a right to appoint such director, upon such removal, such Appointing Person shall be entitled to nominate his or her replacement.
|
||
(e)
|
Committees
.
No less than 50% of the members of each committee shall constitute Lender Directors, and in the event of any deadlock on any committee the relevant matter shall be referred to the full board for consideration.
|
||
(c)
|
Nominees for all positions on the Board that are the subject of each annual meeting shall be proposed by the existing Board prior to each such annual meeting of shareholders of Parent in accordance with the provisions of the Articles and Cayman Islands law. Director nominees may also be nominated by shareholders of Parent in accordance with the provisions of the Articles and Cayman Islands law.
|
||
(d)
|
Directors shall be elected to the Board in accordance with the Articles.
|
||
Directors and Officers Insurance
|
Parent shall maintain directors and officers indemnity insurance coverage ("
D&O Insurance
") (or equivalent "tail" insurance policies) with coverage of at least $300 million, subject to insurance market availability.
|
||
Listing
|
To the extent the Shares are delisted from the Nasdaq Global Select Market, at the request of a majority of the Lender Directors, Parent, the Management Parties and the Shareholder Parties will use commercially reasonable efforts to cause the Shares to be listed on a U.S. national securities exchange registered with the SEC and will take such actions as are reasonably necessary to facilitate such listing, including meeting minimum director requirements and incorporating provisions set forth in this term sheet or the Shareholders Agreement in the Memorandum and Articles of the Company, to the extent such actions do not have a materially adverse impact on the rights or obligations of such parties.
|
||
Transferability
|
There will be no restrictions on the transfer of Shares, except as otherwise provided in this Term Sheet on the date hereof or by applicable law.
|
||
Related Party Transactions
|
At all times prior to the Shareholders Agreement Termination Date, except with the approval of the Board, which approval must include a majority of the Lender Directors, Parent shall not, and shall not permit any other Company to:
|
||
(a)
|
enter into any direct or indirect agreement, contract, transaction, payment or other arrangement between any Company, on the one hand, and any director or member of management (or such person's relatives, trusts, or other related parties) or any affiliate of the foregoing, on the other hand (each, a "
Related Party Transaction
") other than a Permitted Related Party Transaction (as defined below); or
|
||
(b)
|
amend, modify, supplement, terminate, waive or extend any provision or remedy related to, or accelerate any payment by any Company under, any Related Party Transaction (including any Permitted Related Party Transaction), other than any amendment, modification or supplement of a Permitted Related Party Transaction described in clause (iii) of the definition thereof if, after giving effect to such amendment, modification or supplement, such Permitted Related Party Transaction would still constitute a Permitted Related Party Transaction.
|
||
"
Permitted Related Party Transaction
" means (i) the Management Agreement,
|
|||
to such Shareholder Party, unaudited financial statements (with notes) quarterly.
|
|||
MD&A
: Each annual and quarterly report shall be accompanied by a reasonably detailed narrative discussion of the changes in Parent's financial condition and results of operations compared with the prior periods presented, which will, with respect to Parent's audited consolidated annual financial statements, be in form and substance similar to the discussion contained in the "Management Discussion & Analysis" section of a report filed in accordance with the Securities Exchange Act of 1934. Quarterly and annual financial statements of Parent will be required to be posted to a freely accessible section of the Parent website.
|
|||
Shareholder Calls
: Promptly after issuing the annual and quarterly reports, Parent will hold a conference call to discuss with the shareholders of parent the information contained in such annual and quarterly reports, including the results of Parent's operations and the financial performance of Parent, and to answer questions of the shareholders of Parent. Such conference calls will be open to all interested parties and parent will provide conference call access information on its website.
|
|||
Articles
|
The Articles shall be modified to reflect (a) the terms and conditions of this Term Sheet and (b) the notification and nomination provisions to be reviewed and mutually agreed among the Parties, as described on
Attachment 2
hereto.
|
||
Amendments
|
Parent will not amend or waive any provision of the Shareholders Agreement without approval of the Board, which approval includes a majority of the Lender Directors, Shareholder Parties holding a majority of the Shares owned by all Shareholder Parties and Lender Shareholder Parties holding 66 2/3% or more of the Shares owned by all Lender Shareholder Parties;
provided
,
that:
|
||
(i)
|
if any such amendment or waiver would have a disproportionate material effect on any Shareholder Party, such Shareholder Party's approval will be required, and
|
||
(ii)
|
if any such amendment or waiver would result in the reduction in the number of directors an Appointing Person has the right to appoint, such Appointing Person's approval will be required.
|
||
Notwithstanding the foregoing, to the extent that the approvals required for the amendment of the provisions of the Shareholders Agreement that will be included in the Articles require a higher threshold of approval under the Articles to comply with the laws of the Cayman Islands, the approvals required for the amendment of those provisions in the Shareholders Agreement will be increased to reflect such required higher threshold.
|
|||
Term
|
The Shareholders Agreement shall remain in effect until the earlier of (a) the date on which the Board (including a majority of the Lender Directors), Parent and Lender Shareholder Parties holding at least 66 2/3% of the outstanding Shares held by all Lender Shareholder Parties agree to terminate the Shareholders
|
Agreement and (b) the later of (x) the fifth anniversary of the Effective Date and (y) the day immediately preceding the fifth annual meeting of shareholders of Parent (such date, the "
Shareholders Agreement Termination Date
");
provided
, that the provisions described above under the headings "Directors and Officers Insurance" and "Registration Rights" shall survive the Shareholders Agreement Termination Date.
|
|
Governing Law
|
The Shareholders Agreement will be governed by New York law.
|
1. |
All issuances and purchases of debt and equity, including:
|
(a) |
Equity Issuances
: Any issuance of shares or other equity interests, any options, rights or warrants to acquire shares or equity interests, or any security convertible into or exercisable or exchangeable for shares or any equity interests, except for issuances of equity interests by a subsidiary of Parent to Parent or a wholly-owned subsidiary of Parent.
|
(b) |
Redemptions of Equity Interests
: Any redemption, repurchase, retirement, combination, split or reclassification of shares or other equity interests.
|
(c) |
Indebtedness
: Any (1) guarantee, assumption or incurrence of, or grant of any security interests to secure, indebtedness, other than (i) trade indebtedness incurred in the ordinary course of business of the Companies; (ii) the indebtedness already existing on the date hereof and set forth on a schedule to the Shareholders Agreement; (iii) refinancing of the Term Loan Facility (on no less favorable terms to the Companies) (the "
Permitted Facility Refinancing
")
;
and $200,000,000 super senior revolver as permitted pursuant to the Term Loan Facility (the "
Permitted Revolver
") and (iv) guarantees associated with drilling contracts or (2) transaction relating to or involving any indebtedness acquired, owned or held by any of the Companies as a result of, or following, the consummation of the Restructuring, including the Prepetition Facilities, DRH Bonds and Parent Bonds, in each case, as amended, modified, replaced or refinanced (the "
Company-Held Debt
"),
including without limitation any sale, assignment, transfer, conveyance, disposal, pledge, swap, repo, sub-participation or refinancing of any Company-Held Debt.
|
(d) |
Liens
: Any creation of, or permitting the creation of or suffering to exist, any mortgage or fixed or floating charge, lien (other than a lien arising by operation of law) or other encumbrance over the whole or any part of the undertaking, property or assets of any Company, other than (i) trade indebtedness incurred in the ordinary course of business of the Companies; (ii) indebtedness already existing on the date hereof and set forth on a schedule to the Shareholders Agreement; (iii) liens securing the Permitted Facility Refinancing to the extent the same as those grant under the Term Loan Facility; and (iv) any liens securing the Permitted Revolver.
|
(e) |
Debt Redemptions and Repurchases
: Any redemption or repurchase of any debt securities, or prepayment of any other indebtedness, not required by the terms of such debt securities or other indebtedness;
|
2. |
All asset sales and purchases, including:
|
(a) |
Any direct or indirect sale, lease, or other conveyance or purchase or other acquisition of assets (including equity interests in any entity and any intellectual property but excluding acquisitions of vessels) in a single transaction or a series of related transactions involving greater than $10,000,000 in value and/or payments.
|
(b) |
New Builds
: Any commitment to construct or the construction of, any new vessel, or any purchase or acquisition of any vessel, which, when taken together with all other commitments,
|
3. |
All merger or acquisition transactions, including:
|
(a) |
Sales of the Business
: Any sale transaction pursuant to which any Person or Persons acquire (i) equity interests in any Company possessing either (x) a majority of the economic rights or (y) voting power to elect a majority of the Board (whether by merger, consolidation or sale or transfer of Parent's equity interests) or (ii) all or substantially all of the assets of any Company;
|
(b) |
Other Corporate Transactions
: Entering into any recapitalization or reorganization with any other Person, whether in a single transaction or a series of related transactions.
|
4. |
All material new contracts and material amendments to contracts, including:
|
(a) |
Material Contracts
: (i) Entering into any Material Contract, (which will be defined in the Shareholders Agreement and will include joint ventures and other investments above agreed thresholds) or (ii) amend, modify, supplement, extend or terminate, or waive or extend any provision or remedy related to, the Management Agreement or any other Material Contract or arrangement, or (iii) accelerate any payment by any Company under any Material Contract or the Management Agreement.
|
(b) |
Investments and Loans
: The making of any investment in or loaning any funds or money, extending credit, or otherwise providing financial accommodations to any Person other than a wholly owned subsidiary of Parent.
|
5. |
All material corporate structure changes, including:
|
(a) |
Organizational Documents
: The amendment to, or waiver of any of the provisions of, the organizational documents (including any articles and memorandum of association, charter, articles of incorporation, by-laws or the like) of any Company, or entering into or approving any merger, consolidation, amalgamation, recapitalization or other form of business combination involving any Company.
|
(b) |
Change in Corporate Entity
: Converting to, or entering into any transaction that has the effect of converting to, another type of business entity or changing the jurisdiction of incorporation.
|
(c) |
Liquidations, etc.
: Commencement of any liquidation, dissolution or voluntary bankruptcy, administration, insolvency proceeding, recapitalization or reorganization in any form of transaction, any arrangement with creditors, or the consent to entry of an order for relief in an involuntary case, or the conversion of an involuntary case to a voluntary case, or the consent to any plan of reorganization in any involuntary or voluntary case, or the consent to the appointment or taking possession by a receiver, trustee or other custodian for all or any portion of its property, or otherwise seek the protection of any applicable bankruptcy or insolvency law.
|
(d) |
Subsidiaries
: The establishment of any subsidiaries outside of the ordinary course of business, and the terms, provisions and conditions of its organizational document (whether at inception or as a result of an amendment thereto) that could reasonably be expected to conflict with the rights, obligations and terms of the Shareholders Agreement.
|
6. |
All related party transactions, including:
|
(a) |
Other Related Party Transactions.
All Related Party Transactions other than Permitted
|
· |
Prior to the Shareholders Agreement Termination Date, the provisions of the Shareholders Agreement as summarized in the Term Sheet shall be incorporated in the Articles and govern the selection and removal of directors.
|
· |
If the Shareholders Agreement Termination Date is to be pursuant to paragraph (b) of the section of the Term Sheet entitled
"Term",
the Company shall issue a standard notice of the Shareholders Agreement Termination Date ("
Standard Termination Notice
"), (which shall be provided not less than 150 calendar days nor more than 180 calendar days prior to the Shareholders Agreement Termination Date) (to be agreed by the parties in the definitive Articles) notifying all shareholders of the Shareholders Agreement Termination Date. Following the issuance by the Company of a Standard Termination Notice and the related provisions of the Articles:
|
- |
the Board shall, within a period of time of not less than 30 days nor more than 60 days prior to the Shareholders Agreement Termination Date (to be agreed by the parties in the definitive Articles), issue a notice to convene an Extraordinary General Meeting (as defined in the Articles) on the Shareholders Agreement Termination Date for the purposes of the appointment or reappointment (as applicable) of the successor Directors, in each case, with effect from the Shareholders Agreement Termination Date. The notice shall include a list of all nominees for the office of director received from: (i) the shareholders; and (ii) the Board, in accordance with procedures discussed below; and
|
- |
the term of each Director in office immediately prior to the commencement of the Extraordinary General Meeting held on the Shareholders Agreement Termination Date shall end on such date, but each such Director will be eligible for renomination and re-election.
|
· |
If the Shareholders Agreement Termination Date is to be pursuant to paragraph (a) of the section of the Term Sheet entitled
"Term"
(which shall require the vote of the Board and the Shareholders of the Parent as set forth in the Term Sheet), the Company shall issue an accelerated notice of the Shareholders Agreement Termination Date ("
Accelerated Termination Notice
") (which shall be provided not less than 30 calendar days nor more than 45 calendar days prior to the Shareholders Agreement Termination Date) (to be agreed by the parties in the definitive Articles) notifying all shareholders of the Shareholders Agreement Termination Date. Following the issuance of an Accelerated Termination Notice:
|
o |
the Board shall not less than 15 calendar days nor more than 30 calendar days prior to the Shareholders Agreement Termination Date (to be agreed by the parties in the definitive Articles) issue a notice to convene an Extraordinary General Meeting on the Shareholders Agreement Termination Date for the purposes of the appointment or reappointment (as applicable) of the successor Directors, in each case, with effect from the Shareholders Agreement Termination Date. The notice shall include a list of all nominees for the
|
o |
the term of each Director in office immediately prior to the commencement of the Extraordinary General Meeting held on the Shareholders Agreement Termination Date shall end on such date, but each such Director will be eligible for renomination and re-election.
|
· |
On and after the Shareholders Agreement Termination Date:
|
- |
the Board shall at all times be comprised of seven (7) directors and shall otherwise be organized and selected in accordance with section of the Term Sheet entitled "
Board of Directors Following Termination of Shareholders Agreement
"
|
- |
to the extent permitted by law, directors shall be elected by a plurality of the votes cast at a meeting of shareholders by the holders entitled to vote in the election and otherwise by an ordinary resolution. Cumulative voting shall not be used to elect directors.
|
- |
Nomination of Directors: On and after issuance of the Standard Termination Notice or the Accelerated Termination Notice, only persons who are nominated in accordance with nomination procedures to be agreed by the parties in the definitive Articles shall be eligible for election as Directors of the Company, which procedures shall require: (i) in the case of an Extraordinary General Meeting following the issuance of an Accelerated Termination Notice, shareholders to provide notice to the Company of any proposed directors within ten (10) calendar days of deemed receipt of the Accelerated Termination Notice; (ii) in the case of an Extraordinary General Meeting following the issuance of a Standard Termination Notice, the shareholders to provide notice of any proposed directors to the Company not less than sixty (60) but no more than one hundred and eighty (180) calendar days prior to the relevant Extraordinary General Meeting; and (iii) in all other circumstances, reasonable advance notice of nominations by shareholders and the Board in accordance with applicable laws and stock exchange regulations.
|
· |
Prior to the Shareholders Agreement Termination Date, a Director may only be removed for Cause in accordance with the provisions described in the Term Sheet, (including the definition of Cause and the requisite two-thirds vote of the board).
|
· |
After the Shareholders Agreement Termination Date, notwithstanding any other provisions of the Articles, any director or the entire Board of Directors of the Company, may be removed at any time, but only for Cause and only by an Enhanced Special Resolution (as defined in the Articles).
|
· |
No proposal by a shareholder to remove a Director shall be voted upon at a meeting of the shareholders unless such shareholder has given timely notice thereof in proper written form to the Company, according to procedures to be agreed by the parties in the definitive Articles.
|
· |
Notwithstanding any other provisions of these Articles, an Enhanced Special Resolution and the vote of two-thirds of the entire Board of Directors shall be required to amend, alter, change or repeal the provisions described in the first five bullet points above.
|
Borrowers
|
Each vessel owning entity listed on
Annex 1
hereto (the "
Borrowers
").
|
||
Guarantors
|
Ocean Rig UDW Inc. (the "
Parent
")
and certain of its direct and indirect subsidiaries, each as listed on
Annex 2
hereto
1
(collectively, the "
Guarantors
"
and together with the Borrowers, the "
Credit Parties
").
|
||
Term Loan Facility
|
Senior secured term loan facility (the "
Term Loan Facility
"
or the "
Financing
"),
the holders thereof referred to as the "
Lenders,
"
comprised of a $450,000,000 term loan (the "
Term Loans
").
|
||
Term Loans that are prepaid may not be re-borrowed.
|
|||
Purpose
|
The Term Loans will form part of the consideration issued to the DFH Lenders and the DOV Lenders pursuant to the DOV Scheme and DFH Scheme.
|
||
Allocation |
Each Lender's allocation of the Term Loan will be determined in accordance with the DOV Scheme and DFH Scheme.
|
||
Closing Date
|
The date on which the Term Loan is deemed to be advanced under the Term Loan Facility which shall be the "Restructuring Effective Date" under the Restructuring Agreement (the "
Closing Date
").
|
||
Maturity
|
The date that is 7 years after the Closing Date.
|
||
Collateral
|
A perfected first priority lien on substantially all existing assets and after-or newly-acquired assets of the Credit Parties including, without limitation:
|
||
(i)
|
ship mortgages with respect to each vessel securing the Prepetition Facilities and Ocean Rig Paros;
|
||
(ii)
|
earnings assignments;
|
||
(iii)
|
insurance assignments; and
|
||
(iv)
|
cash of the Credit Parties,
|
(ii)
|
100% of the net cash proceeds of debt incurrences (other than debt permitted under the Term Loan Documentation such as the Working Capital Facility).
|
||
Conditions to Closing
|
Usual and customary for facilities of this type, including, without limitation, the following:
|
||
(i)
|
The negotiation, execution and delivery of customary definitive documentation in respect of the Financing (including, without limitation, a credit agreement, guarantee agreement(s), pledge and security agreement(s), vessel mortgages, assignments of earnings, assignments of insurance and control agreements) consistent with the terms set forth in this Summary of Principal Terms and Conditions and all other terms shall be reasonably satisfactory to the Majority Supporting Lenders, the Company and the Administrative Agent (the "
Term Loan Documentation
").
|
||
(ii)
|
Immediately after the Closing Date, the Credit Parties and their subsidiaries shall have no outstanding indebtedness other than indebtedness set forth on
Annex 5
hereto and any additional indebtedness on terms and conditions (including as to amount) satisfactory to the Majority Supporting Lenders and, if secured, subject to intercreditor arrangements reasonably satisfactory to the Majority Supporting Lenders.
|
||
(iii)
|
Delivery of evidence that all required insurance has been maintained and that the Administrative Agent has been named as loss payee and additional insured, as applicable.
|
||
(iv)
|
Accuracy of representations and warranties contained in the Term Loan Documentation in all material respects (or, in the case of representations and warranties that are qualified by materiality, in all respects) and absence of default and Event of Default under the Term Loan Documentation (for the avoidance of doubt, excluding any default or event of default under the Prepetition Facilities).
|
||
(v)
|
Delivery of customary legal opinions and closing certificates (including a solvency certificate), good standing certificates and certified organizational documents, in each case, in form and substance reasonably satisfactory to the Majority Supporting Lenders.
|
||
(vi)
|
The Collateral Agent on behalf of the Lenders shall have a first priority perfected senior lien on the Collateral of the Credit Parties or reasonably satisfactory covenants to perfect such liens promptly after the Closing Date.
|
||
(vii)
|
Receipt by the Administrative Agent of reasonably satisfactory customary lien searches.
|
||
(viii)
|
All requisite governmental and third party approvals shall have been obtained, and there shall be no litigation, governmental, administrative or judicial action against the Credit Parties that could reasonably be expected to restrain or prevent the restructuring or the Term Loan Facility (other than (x) as disclosed under the Term Loan Documentation, (y) in connection with the Restructuring Agreement and (z) in connection with the Schemes).
|
||
(ix)
|
Payment by the Borrowers on the Closing Date of all fees and expenses of the Administrative Agent, the Collateral Agent and the Lenders due and payable on or
|
prior to the Closing Date, including, without limitation, all legal and financial advisor fees and expenses.
|
|||
(x)
|
Delivery of all documentation and other information required by bank regulatory authorities under applicable "know-your-customer" and anti-money laundering rules and regulations, including without limitation the Patriot Act.
|
||
(xi)
|
The Prepetition Facilities shall have been amended to require the Parent to be the lender thereunder and such other amendments to be agreed, including without limitation, providing for payment-in-kind interest and the deletion of financial covenants, certain other negative covenants and cross defaults; and the Prepetition Facilities shall be subject to an intercreditor agreement in a form to be reasonably agreed with the Credit Parties and reasonably satisfactory to the Majority Supporting Lenders, which intercreditor agreement may include provisions requiring the subordination of the Working Capital Facility and the Term Loan Facility and prohibitions on certain amendments to the Prepetition Facilities, including without limitation as to interest and fees, covenant protection, events of default and transfer restrictions (other than to Parent), without the consent of the Working Capital Facility and the Term Loan Facility.
|
||
(xii)
|
There shall not have occurred any material adverse effect (excluding pendency of the Schemes) and the transactions set forth in, and in compliance with, the Restructuring Agreement shall have been consummated.
|
||
Representations and Warranties
|
Usual and customary for facilities of this type (including usual and customary materiality qualifiers, thresholds and qualifications), including, without limitation: (i) existence; (ii) power, authorization and enforceable obligations; (iii) no conflicts or consents; (iv) accuracy of information; (v) title to properties; (vi) subsidiaries; (vii) taxes; (viii) compliance with laws; (ix) Collateral/collateral vessels; (x) lien priority; (xi) ERISA/labor matters; (xii) no defaults; (xiii) intellectual property; (xiv) Anti-Corruption Laws/Anti-Terrorism; (xv) insurance; and (xvi) litigation (other than (x) as disclosed as of the Closing Date under the Term Loan Documentation, (y) in connection with the Restructuring Agreement and (z) in connection with the Schemes).
|
||
Affirmative Covenants
|
Usual and customary for facilities of this type, including, without limitation: (i) delivery of financial statements, reports, accountants' letters, certificates and SEC filings; (ii) notices of defaults, material litigation and other material events; (iii) continuation of business and maintenance of existence and material rights and privileges; (iv) compliance with laws, including Sanctions Laws; and (v) maintenance of property and insurance.
|
||
Negative Covenants
|
Usual and customary for facilities of this type, including, without limitation: (i) indebtedness (basket for the Working Capital Facility, Prepetition Facilities and certain other debt, such as workers compensation, checks/drafts, bonds and L/Cs, substantially consistent with the Prepetition Facilities, if applicable, after giving effect to the Schemes (not to include ratio debt or other debt baskets)); (ii) liens (basket for the Working Capital Facility, Prepetition Facilities (on a junior basis), if applicable, and certain customary permitted liens, such as surety bonds, taxes, mechanics liens and easements, substantially consistent with the Prepetition Facilities after giving effect to the Schemes
|
(not to include liens for additional debt baskets)); (iii) mergers, consolidations, liquidations and dissolutions; sales of assets (other than in accordance with the Restructuring Agreement and the Schemes); (iv) dividends and other restricted payments in respect of capital stock (dividend basket [x]); (v) investments, loans and advances (baskets substantially consistent with the Prepetition Facilities after giving effect to the Schemes); (vi) optional payments and modifications of subordinated and other debt instruments; (vii) transactions with affiliates (carve out for management agreement); (viii) sale and leasebacks (limited to transactions for fair market value); (ix) changes in lines of business; (x) designation of restricted/unrestricted subsidiaries; and (xi) rights to earnings.
|
|||
The covenant limiting indebtedness shall permit the Credit Parties to incur additional secured debt, secured by liens ranking senior to the Term Loans, in an amount up to $200 million in the form of a working capital facility (the "
Working Capital Facility
"),
the terms and conditions of the intercreditor arrangement in a form to be reasonably agreed with the Credit Parties and reasonably satisfactory to the Majority Supporting Lenders.
|
|||
Credit Rating
|
The Borrowers shall use commercially reasonable efforts to cause the Term Loans to be continuously rated by each of Standard & Poor's Ratings Services ("
S&P
")
and Moody's Investors Service, Inc. ("
Moody's
"), and will use commercially reasonable efforts to maintain a corporate rating from S&P and Moody's.
|
||
Covenant Suspension
|
During any period of time that the Loans have an investment grade rating by each of S&P and Moody's and no Default or Event of Default has occurred and is continuing, the Credit Parties shall no longer be subject to the following covenants: (i) transactions with affiliates, (ii) dividends and other restricted payments in respect of capital stock, (iii) indebtedness and (iv) sale of assets.
|
||
Financial Covenants
|
None.
|
||
Events of Default
|
Usual and customary for facilities of this type (including usual and customary grace periods, materiality qualifiers, thresholds and qualifications) as provided below:
|
||
(i)
|
default for 30 days in the payment when due of interest or fees on the Term Loans; or
|
||
(ii)
|
default in the payment when due (at maturity or otherwise) of the principal of, or premium, if any, on, the Term Loans; or
|
||
(iii)
|
failure by any Credit Party or any of their respective subsidiaries to perform or comply with (a) certain affirmative covenants (including financial reporting) and all negative covenants shall be an immediate Event of Default and (b) all other covenants and agreements contained in the Term Loan Documentation, and such default shall not have been remedied or waived within 30 days after receipt by the Borrowers of notice from the Administrative Agent or Required Lenders of such default (unless otherwise specified, applicable covenants and agreements for each of (a) and (b) to be mutually agreed); or
|
(iv)
|
(a) failure of any Credit Party or any of their respective subsidiaries to pay when due any material indebtedness (other than indebtedness incurred under the Term Loan Facility) beyond any grace period; or (b) breach or default by any Credit Party or any of their respective subsidiaries with respect to any other material term of material indebtedness beyond any grace period if such breach or default results in the acceleration of that indebtedness prior to its stated maturity, in either case if the principal amount of any such indebtedness, together with the principal amount of any other indebtedness under which there has been a payment default or the maturity of which has been so accelerated, aggregates to $25 million or more; provided, however, that if any such default is cured or waived or any such acceleration of rescinded, or such indebtedness if repaid, within a period of 60 days from the continuation of such default beyond the applicable grace period or the occurrence of such acceleration, as the case may be, such Event of Default and any consequential acceleration of the Term Loans shall be automatically rescinded, so long as such rescission does not conflict with any judgment or decree; or
|
||
(v)
|
any final money judgment in excess of a to be mutually agreed amount shall be entered or filed against any Credit Party or any of their respective subsidiaries or any of their respective assets and shall remain undischarged, unvacated, unbonded or unstayed for a period of 60 days; or
|
||
(vi)
|
at any time after the Closing Date, (a) any Term Loan Facility Documentation ceases to be in full force and effect or shall be declared null and void, or Collateral Agent shall cease to have a valid and perfected Lien in a material portion of Collateral with the required priority, or (b) any Credit Party shall contest the validity or enforceability of any of the Term Loan Documentation, including any lien in any Collateral; or
|
||
(vii)
|
bankruptcy related events with respect to any Credit Party or any of their respective subsidiaries (other than those contemplated in the Restructuring Agreement or pursuant to the Schemes); or
|
||
(viii)
|
any representation, warranty, certification or statement made by or on behalf of any Credit Party or any of their respective subsidiaries in any Term Loan Documentation or in any report, certificate or financial statement provided pursuant to or in connection therewith shall prove to have been untrue in any material respect on the date made or deemed made; or
|
||
(ix)
|
such other Events of Defaults as mutually agreed.
|
||
Upon the occurrence of an Event of Default in clause (viii) above, all obligations shall be automatically due and payable immediately without demand, presentment, notice of demand or action. Upon the occurrence of any other Event of Default, the Required Lenders may elect to direct the Administrative Agent to declare all obligations immediately due and payable.
|
Amendments and Voting
|
Usual and customary for facilities of this type, including, without limitation;
provided
that there shall be no restrictions on voting by Lenders that are affiliates of a Borrower:
|
||
Amendment, modification or supplement without consent of any Lender
:
|
|||
(i)
|
to cure any ambiguity, omission, defect or inconsistency so long as such amendment, modification or supplement does not adversely affect any Lender and the Lenders have received at least five business days' prior written notice thereof and the Administrative Agent shall not have received within five business days of the date of such notice, written notice from the Required Lenders objecting to such amendment, modification or supplement; or
|
||
(ii)
|
additional parties may be added (and annexes may be modified to reflect such additions) to the guarantee agreements and the collateral documents in accordance with the provisions of the Term Loan Facility.
|
||
Amendment, modification, supplement and waiver with consent of the Required Lenders
: the Borrowers and the Administrative Agent may amend, modify or supplement the Term Loan Facility with the written consent of the Required Lenders, and any past default or noncompliance with any provisions may be waived with the consent of the Required Lenders, unless such consent requires the consent of all Lenders or all affected Lenders as described in the next paragraph.
|
|||
Amendment, modification and supplement with consent of each affected Lender
: the Borrowers and the Administrative Agent may not amend, modify or supplement the Term Loan Facility without the written consent of each affected Lender, if such amendment, modification or supplement:
|
|||
(i)
|
extends the scheduled final maturity of the Term Loans;
|
||
(ii)
|
reduces the rate of interest of any Term Loan (other than any waiver of default interest) or any fee or any premium payable under the Term Loan Facility;
|
||
(iii)
|
extends the time for payment of any interest, fees or premium;
|
||
(iv)
|
reduces the principal amount of any Term Loan;
|
||
(v)
|
amends, modifies, terminates or waives any provision of the amendment and waiver section or any other provision of the Term Loan Facility that expressly provides that the consent of all Lenders is required;
|
||
(vi)
|
amends the definition of "Required Lenders";
|
||
(vii)
|
releases all or substantially all of the Collateral or all or substantially all of the Guarantors from the guarantee agreement except as expressly provided in the Term Loan Facility (including in connection with a "credit bid"); or
|
||
(viii)
|
consents to the assignment or transfer by any Credit Party of any of its rights and obligations under the Term Loan Facility;
|
provided
that, for the avoidance of doubt, all Lenders shall be deemed directly affected thereby with respect to any amendment described in clauses (v), (vi), (vii) and (viii).
|
|||
Required Lenders
|
Lenders holding a majority of the Term Loans.
|
||
Expenses and Indemnification
|
Substantially consistent with the Prepetition Facilities.
|
||
Assignments and Participations
|
Provisions relating to assignments and participations shall be substantially the same as the Prepetition Facilities;
provided
that the Borrowers shall be permitted to repurchase the Term Loans in the open market from the Lenders to the extent such Term Loans are purchased by the Borrowers and immediately retired.
|
||
Other Provisions
|
Customary provisions regarding increased costs, illegality and tax indemnities and other similar provisions such as waiver of jury trial, submission to jurisdiction, counterparts, severability, integration, release of guarantees and liens, notices, payment of expenses and agency provisions relating to the Administrative Agent.
|
||
Governing Law
|
State of New York.
|
||
Administrative Agent and Collateral Agent
|
[TBD]
|
5 |
Subject to adjustment to include or exclude certain subsidiaries as the Company shall determine prior to Scheme Trigger Date.
|
6 |
Only if permitted.
|
7 |
ORIG to confirm entity is not part of the group.
|
8 |
Any entities dissolved/liquidated prior to the Closing Date to be removed.
|
9 |
Subject to adjustment to include or exclude certain subsidiaries as the Company, in consultation with the Majority Supporting Lenders, shall determine prior to the Scheme Trigger Date.
|
10 |
Subject to adjustment to include or exclude certain subsidiaries as the Company, in consultation with the Majority Supporting Lenders, shall determine prior to the Scheme Trigger Date.
|
Overview of the MSA
|
Each member of the Group, including the Parent, and TMS will enter into the MSA to agree to the principal terms of the engagement of TMS which, among other things, will also include the following elements (as described in more detail below):
|
||
(a)
|
The engagement of TMS to provide services to the Group being specified in a separate Individual Management Agreement to be entered into by each respective subsidiary and TMS and contain the terms and conditions listed in Appendix 2 hereto.
|
||
(b)
|
In consideration for rendering the services described in the MSA, the Group will pay certain fees to TMS as provided below.
|
||
Individual Management Agreement
|
On the MSA Effective Date, each Rig Owning Entity, as applicable, will enter into a Management Agreement on substantially the terms set out in Appendix 2.
|
||
Duration of MSA and each Individual Management Agreement
|
Each of the MSA and the respective Individual Management Agreements shall have an initial term of ten (10) years, commencing on the MSA Effective Date, each of which shall be subject to annual one
|
||
(ii)
|
100% Bonus Fee for TRIR under 0.3.
|
||||
(c)
|
Maximum Amount of Bonus Fee with respect to the Safety Record metric per year: $2 5 million
|
||||
3.
|
Annual Approved Budget
|
||||
(a)
|
Metric: Performance With Annual Approved Budget
|
||||
(b)
|
Formula: Compare financial performance of the Group with the Annual Approved Budget then in effect. If Group has performed at or better than such Annual Approved Budget, TMS shall receive the entire Maximum Amount of Bonus Fee detailed below. If Group misses the Annual Approved Budget by 10% or less, TMS shall receive 50% of the Maximum Amount of Bonus Fee detailed below. If Group misses the Annual Approved Budget by 19.9% or less, TMS shall receive 25% of the Maximum Amount of Bonus Fee.
|
||||
(c)
|
Maximum Amount of Bonus Fee with respect to the EBITDA Margin metric per year: $2 5 million
|
||||
4.
|
Strategic Priorities
|
||||
(a)
|
Metric: Calculated based on performance of enumerated goals proposed by the Board of Directors of Parent annually (to be determined post-performance by the Board of Directors of Parent).
|
||||
(b)
|
Maximum Amount of Bonus Fee with respect to the Strategic Priorities metric per year: $2 5 million
|
||||
Commercial Fee
|
1.0% commercial fee on all monies earned under any drilling contract entered into after the MSA Effective Date;
provided
that, with respect to any such drilling contracts the commercial fee shall be reduced dollar-for-dollar by any fees paid to third parties (other than local partners and/or agents required by local law) in connection with such new drilling contracts. The fee structure for contracts entered into prior to the MSA Effective Date shall not be affected. Notwithstanding anything to the contrary herein, the commercial fees on all monies earned by a member of the Group under any drilling contract entered into prior to termination or expiration of the MSA shall remain due and payable in full to TMS until the expiration of all such drilling contracts, except solely with respect to any drilling contract with respect to which a felony is proven beyond a reasonable doubt in a court of law in
|
connection with the procuring of such drilling contract which leads to termination for Cause.
|
||||
Manning Fees
|
At the option of Parent or each Rig Owning Entity, as applicable, pursue manning services at the following rates with TMS:
|
|||
(a)
|
A fee of $35 per person per day for offshore personnel provided through TMS;
|
|||
(b)
|
A fee of $50 per person per day for catering services provided through TMS; and
|
|||
(c)
|
A fee of $2,000 per person per day for superintendent attendance offshore provided by TMS.
|
|||
Termination Fee
|
Fee for termination by Parent without Cause (as defined below) of either (x) $150 million, which amount shall be reduced rateably over the term of the Management Agreement or (y) $30 million, whichever is greater (the "
Convenience Termination Fee
").
|
|||
Security Deposit
|
On the MSA Effective Date, the Parent shall place in escrow a refundable security deposit of $5 million (the "
Security Deposit
"). The Security Deposit shall be refundable to Parent at the end of the Term. If, for any reason, any member of Group fails to make payment of any amounts due and owing under the MSA, TMS may draw upon such Security Deposit until paid in full. The Parent shall immediately replenish the Security Deposit so that it remains at $5 million Notwithstanding anything herein to the contrary, if any member of Group owes TMS greater than the amount of the Security Deposit, the Group shall still owe any difference between the amount owed and the Security Deposit, payable within five days of such payment being due.
|
|||
Other Fees
|
Other fees shall be provided under the Management Agreement and the respective Individual Management Agreements to the extent approved by Parent.
|
|||
Shareholders Agreement
|
TMS will acknowledge the Shareholders Agreement and agree to use commercially reasonable efforts not to take any action in contravention of the terms of the Shareholders Agreement.
|
|||
Amendments and waivers
|
Terms of the MSA may be amended with the consent of the Parent as of the date such amendment is proposed.
|
Termination
|
Termination for Convenience
.
The MSA may be terminated by the Parent without Cause (as defined below) at any time, subject to payment of the Convenience Termination Fee within five (5) business days of such termination.
|
||
Termination for Cause
.
The MSA may be terminated by the Parent for Cause upon five (5) business days' notice to TMS (a "
Notice of Termination for Cause
") only after Parent has placed into an escrow account with an independent escrow agent acceptable to the Parent and TMS (the "
Escrow Account
") the lower of (x) $50 million or (y) the Convenience Termination Fee due and owing at that time. If TMS provides a written notice to the Parent within such five-business day period (an "
Objection Notice
") pursuant to which a director of TMS certifies to the Parent that Cause does not exist, then (a) the Parent may rescind such Notice of Termination for Cause or (b) terminate the MSA following the expiration of such five-business day period subject to complying with the procedures described below under "Dispute Procedures." If TMS fails to provide an Objection Notice within such five-business day period, the MSA shall terminate upon the expiration of such period and no further sums shall be due by the Parent under the MSA.
|
|||
Dispute Procedures
.
If, following the delivery by Parent of a Notice of Termination for Cause pursuant only to provisions (i) and (iii) of the definition of Cause herein, TMS timely delivers an Objection Notice and, notwithstanding the delivery of such Objection Notice, the Parent terminates the MSA, then:
|
|||
(a)
|
The Parent and TMS shall refer the dispute to binding arbitration pursuant to the arbitration provisions of the MSA described below under "Governing law and jurisdiction."
|
||
(b)
|
If the arbitrators (acting by majority) rule that Cause did exist, then (I) no further sums shall be due by the Parent under the MSA and (II) all amounts on deposit in the Escrow Account shall be disbursed to the Parent.
|
||
(c)
|
If the arbitrators (acting by majority) rule that Cause did not exist, then (I) the Parent will pay to TMS an amount equal to the Convenience Termination Fee calculated as of the date of termination of the MSA less the amounts on deposit in the Escrow Account and (II) all amounts on deposit in the Escrow Account shall be disbursed to TMS.
|
||
Notwithstanding the foregoing, any conviction of Mr. George Economou or Mr. Anthony Kandylidis (the "
Senior Supervisory Personnel
") for, or a plea of guilty or no contest to, fraud or a felony each solely in connection with the services to be provided under the MSA shall automatically constitute Cause without having to be submitted to arbitration pursuant to the above.
|
|||
Termination by TMS
.
The MSA may be terminated by TMS if Parent is in payment default under the MSA and such default is not cured within 90 days of written notice of such default delivered to the Board of Directors of Parent, except in connection with the Convenience Termination Fee, which shall have no grace period.
|
|||
Terms of the MSA which survive termination to be agreed.
|
|||
Liability
|
TMS shall be under no liability whatsoever to the Group for any loss, damage, delay or expense of whatsoever nature, whether direct or indirect, and howsoever arising in the course of performance of the services under the MSA unless same is proved to have resulted from the willful default of TMS or its employees or agents, or sub-contractors employed by TMS, in which case TMS' liability for each incident or series of incidents giving rise to a claim or claims shall never exceed a total of (a) for the first year of the MSA, $15 5 million, and (b) thereafter, the aggregate fees paid under the MSA during the immediately preceding twelve-month period;
provided
,
however
,
that notwithstanding the foregoing, there shall be no limitation on liability in the case of a loss, damage, delay or expense resulting from fraud or theft of Senior Supervisory Personnel.
|
||
Indemnities
|
The Group shall indemnify TMS pursuant to the terms of the TMS Indemnity which shall be set forth in the MSA.
|
||
Governing law and jurisdiction
|
The MSA will be governed by English law. The Parties to the MSA Agreement will submit any dispute under or arising under the MSA to arbitration in London, England, in accordance with LMAA rules. Arbitrations will be conducted by three arbitrators, one of which will be selected by TMS, one of which will be selected by the Group and one of which will be selected by agreement of the two foregoing arbitrators. Rulings of the arbitrators will be by majority vote of the three arbitrators.
|
||
MEP
|
Parent shall grant to TMS post-Effective Date ordinary shares of Parent in the amount provided in the Restructuring Agreement. Such ordinary shares will vest 25% on each anniversary of such grant.
|
||
If there is a termination of the MSA for Cause that TMS objects to, TMS will forfeit all of its unvested shares, provided that (a) such forfeiture will only occur upon either (x) in the case of a Cause event under subsections (i) or (iii) of the definition of Cause herein, (A) if no
|
|||
Objection Notice is timely delivered, upon the date of termination of the MSA, and (B) otherwise, upon the determination by the arbitrator that Cause exists; or (y) a conviction for, or a plea of guilty or no contest to, fraud or a felony each solely in connection with the services to be provided under the MSA by either of the Senior Supervisory Personnel and (b) the number of unvested shares subject to such forfeiture shall be calculated as of the date of termination.
|
|
Term
|
Description
|
||
Parties
|
Parent, Each Rig Owning Entity and Other Group Members
|
||
TMS Offshore Services Ltd. ("
TMS
")
|
|||
Duration
|
10 years
|
||
Fees
|
As per the MSA
|
||
Form
|
Each Individual Management Agreement shall be based on the latest B1MCO form, with logical amendments.
|
||
Services
|
TMS shall provide the following services to each Rig Owning Entity:
|
||
(a)
|
Other administrative services, as requested by the Rig Owning Entity.
|
||
(b)
|
Insurance arrangements for the drilling units
|
||
(c)
|
Accounting Services
|
||
(d)
|
Financing Services
|
||
(e)
|
Commercial and Marketing Services
|
||
(f)
|
Executive Services
|
||
(g)
|
Legal Support Services
|
||
(h)
|
Manning Services
|
||
(i)
|
Catering Services
|
||
(j)
|
Information Technology ("I.T.") Services
|
||
(k)
|
Superintendancy Services
|
||
(l)
|
Any other services as agreed between Parent and TMS for all drilling units The context of these services shall be agreed by the parties in each separate Individual Management Agreement.
|
||
Amendments and waivers
|
Terms of the Individual Management Agreement can be amended with the consent of Parent and TMS as of the date that such amendment is proposed.
|
||
Termination
|
The Individual Management Agreement shall terminate automatically without any further action being taken by any party, or any notice being required from any party upon the expiry of its Term or upon a termination of the MSA.
|
||
Terms of the Individual Management Agreement to survive termination to be agreed.
|
Governing law and jurisdiction
|
Each Individual Management Agreement will be governed by English law. The Parties to each Individual Management Agreement shall refer any dispute under or arising under the relevant Individual Management Agreement to arbitration in London, UK as per the LMAA rules.
|
To:
|
Ocean Rig UDW Inc. (the "
Parent
")
|
Cc:
|
Orrick, Herrington & Sutcliffe LLP
Counsel to the Ad Hoc Committee, Milbank, Tweed, Hadley & McCloy LLP Prime Clerk LLC (The Information Agent) |
From:
|
[Supporting Creditor] (the "
Supporting Creditor
")
|
Date:
|
[
·
]
|
Date
|
P = Purchase
S= Sale |
Counterparty
|
Debt Instrument
Type |
Amount
|
1. |
Failure by the Parent, DFH, DOV or any of the Restricted Subsidiaries or Guarantors (each as defined in the DOV Credit Agreement and the DFH Credit Agreement) to comply with the following covenants or agreements contained in the DOV Credit Agreement or the DFH Credit Agreement:
|
(a) |
Section 7.01
(
Maintenance of Property; Insurance
);
|
(b) |
Section 7.02
(
Existence; Conduct of Business
);
|
(c) |
Section 7.05(I)
(
Reports
);
|
(d) |
Section 7.10
(
Compliance with Laws
);
|
(e) |
Section 7.12
(
Transaction with Affiliates
);
|
(f) |
Section 7.13
(
Limitation on Liens
);
|
(g) |
Section 7.14
(
Limitation on Merger, Consolidation or Sale of Assets
)
|
(h) |
Section 7.15(I)
(
Limitation on Restricted Payments
);
|
(i) |
Section 7.16
(
Limitation on Indebtedness and Issuance of Preferred Stock
);
|
(j) |
Section 7.19
(
Designation of Restricted and Unrestricted Subsidiaries
);
|
(k) |
Section 7.21
(
Rights to Earnings from Collateral Vessels and Ownership of Collateral Vessels
);
|
(1) |
Section 7.22(I)
(
Limitation on Asset Sales
);
|
(m) |
with respect to the DOV Credit Agreement, Section 3.03 and 10.1
(
Fees; Payment of Expenses
)
and with respect to the DFH Credit Agreement, Section 10.1
(
Payment of Expenses
); or
|
(n) |
Section 4.02
(
Event of Loss
)
.
|
2. |
The Collateral Agreements (as defined in the DOV Credit Agreement and the DFH Credit Agreement) shall for any reason cease to create a valid and perfected first-priority Lien on any portion of the DOV Collateral or the DFH Collateral having a Fair Market Value (as defined in the DOV Credit Agreement and the DFH Credit Agreement) in excess of $25,000,000 (in each case, other than in accordance with the terms of the DOV Credit Agreement and the DFH Credit Agreement, the Intercreditor Agreement (as defined in the DOV Credit Agreement and the DFH Credit Agreement) or the terms of the Collateral Agreements); or the Parent or any Restricted Subsidiary asserts in writing that any Lien created under the Collateral Agreements is invalid or unenforceable.
|
3. |
DOV, DFH, DPI or any Guarantor (i) transfers, assigns, pledges or otherwise disposes of, any of its right, title or interest in whole or in part to any property that constitutes Collateral, except as otherwise may be permitted under the controlling Loan Documents, and (ii) takes or omits to take any action, the taking or omission of which result in a material alteration or impairment of the rights thereby assigned or any of the rights created in any Collateral Document.
|
4. |
Except as permitted by the DOV Credit Agreement or the DFH Credit Agreement or any Loan Guarantee (as defined in the DOV Credit Agreement and the DFH Credit Agreement), any Loan Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor, or any Person duly acting on behalf of any Guarantor, denies or disaffirms its obligations under its Loan Guarantee.
|
5. |
If:
|
(a) |
any representation or warranty made by or on behalf of the Parent or any of its Subsidiaries pursuant to Sections 6.08
(
Tax Returns; Payments; Tax Treatment
),
6.16
(
Environmental Matters
),
6.19
(
Anti-Corruption Laws
)
or 6.23
(
Anti-Terrorism
)
of each of the DFH Credit Agreement and the DOV Credit Agreement; or
|
(b) |
any statement made in any report, certificate or financial statement provided pursuant to or in connection with any DOV Loan Document or DFH Loan Document or any amendment or modification thereof or waiver thereunder,
|
(c) |
shall prove to have been untrue in any material respect on the date made.
|
1. |
WAIVER
|
1.1 |
As of the date hereof, the parties hereto hereby waive:
|
(a) |
the conditions to the Launch Trigger Date set forth in Clauses 5.1(a), 5.1(b)(i), 5.1(b)(ii) and 5.1(b)(iii) of the RSA; and
|
(b) |
the obligation of Parent set forth in Clause 15.2(b) of the RSA.
|
1.2 |
For the avoidance of doubt:
|
(a) |
the conditions to the Launch Trigger Date that are waived pursuant to Clause 1.1(a) shall be satisfied on or before the Scheme Trigger Date, pursuant to Clause 7 of the RSA, subject to further waiver or amendment pursuant to Clause 23.1 subsequent to the date hereof; and
|
(b) |
the obligation of Parent that is waived pursuant to Clause 1.1(b) shall be satisfied concurrently with the making of the Effective Date Announcement, pursuant to Clause 15.2(a) of the RSA.
|
2. |
CONDITIONS TO EFFECTIVENESS
|
3. |
REPRESENTATIONS AND WARRANTIES
|
3.1 |
The Supporting Creditors party hereto represent and warrant that they constitute the Majority Supporting Lenders as of the date hereof.
|
3.2 |
Each party hereto hereby represents and warrants to each of the other parties hereto that the representations and warranties set forth in Clause 4 of the RSA are true and correct in all material respects on and as of the date hereof with the same effect as though made on and as of the date hereof.
|
4. |
REFERENCE TO AND EFFECT ON THE RSA
|
4.1 |
This Waiver shall constitute a Restructuring Document for purposes of the RSA. Except as specifically waived by this Waiver, the RSA shall remain unchanged and unwaived and shall remain in full force and effect and are hereby ratified and confirmed. The waiver set forth herein shall be limited precisely as provided for herein to the provisions expressly waived herein and shall not be deemed to be a waiver of any right, power or remedy of any party hereto under, or a waiver of, consent to or modification of any other term or provision of the RSA or of any transaction or future action on the part of the parties hereto which would require the consent of any other party hereto under the RSA.
|
5. |
HEADINGS
|
6. |
APPLICABLE LAW
|
7. |
COUNTERPARTS
|
7.1 |
This Agreement may be executed in any number of counterparts and:
|
(a) |
each such counterpart shall be deemed to be an original;
|
(b) |
all such counterparts shall constitute one and the same document; and
|
(c) |
each Person executing a counterpart shall become a party hereto.
|
7.2 |
Transmission by fax or emailed scanned copy of an executed counterpart of this Waiver shall be deemed to constitute due and sufficient delivery of such counterpart.
|
· |
Implementation commences with the appointment of joint provisional liquidators in the Cayman Islands
|
· |
Operations to continue unaffected and trade creditors/vendors will continue to be paid in the ordinary course of business
|
· |
Company will emerge with the industry's youngest ultra-deep water fleet and a strong balance sheet, poised to take advantage of ongoing industry opportunities
|
(a) |
In the Company Scheme, the approximately $131 million of claims outstanding in respect of the Company's senior unsecured notes (the "SUNs") and those in respect of the Company's guarantees of the debt facilities of DRH, DFH and DOV (the "Company Guarantees") will be discharged in exchange for New Equity. The New Equity will have a value equal to the asset value of the Company prior to the restructuring of the debt facilities at DRH, DFH and DOV, and will be allocated among the holders of the Company Guarantees and the SUNs pro rata on the basis of the notional amount of the claims of such holders.
|
(b) |
If the DRH Scheme is sanctioned, the approximately $460 million of claims outstanding in respect of DRH's senior secured notes (the "SSNs") will be transferred to the Company in exchange for (i) New Equity and (ii) Cash Consideration. The Cash Consideration will be shared pro rata with the DOV Lenders (defined below) and DFH Lenders (defined below). The value of the New Equity provided to the holders of the SSNs will be equal to the asset value of DRH, less the Cash Consideration received by such holders.
Holders of SSNs who agree to be bound to the terms of RSA in the manner specified therein by no later than 5:00 pm (New York time) on April 11, 2017 shall be entitled to a pro rata share (allocated in accordance with the amount of the SSNs held by each consenting holder) of an early consent fee of $2.5 million.
|
(c) |
In the DOV Scheme and the DFH Scheme, the lenders under DOV's $1.3 billion credit facility (the "DOV Lenders") and the lenders under DFH's $1.9 billion credit facility (the "DFH Lenders") will transfer their loans to the Company in exchange for (i) New Equity, (ii) the New Secured Loans and (iii) Cash Consideration. The Cash Consideration will be shared pro rata among the DOV Lenders, the DFH Lenders and the holders of the SSNs. However, if the DRH Scheme is not sanctioned, the Cash Consideration will be distributed among the holders of the DFH Loans and the DOV Loans only. The New Secured Loans will be shared pro rata among the DOV Lenders and the DFH Lenders. The value of the New Equity provided to the DFH Lenders and the DOV Lenders will be equal to the asset value of DFH and DOV, respectively, less the Cash Consideration and New Secured Loans received by the DFH Lenders and the DOV Lenders.
DOV Lenders and DFH Lenders who agree to be bound to the terms of RSA in the manner specified therein by no later than 5:00 pm (New York time) on April 11, 2017 shall be entitled to a pro rata share (allocated in accordance with the amount of the loans held under the DFH and DOV credit facilities by such each consenting DFH Lender and DOV Lender) of an early consent fee of $30 million.
|
Email: |
oceanrigteam@primeclerk.com
|
Telephone: |
(855) 631-5346 (United States and Canada toll-free)
(917) 460-0913 (international) |
Mailing Address: |
Ocean Rig Processing
c/o Prime Clerk LLC 830 Third Avenue, 3rd Floor New York, NY 10022 |
· |
Eleanor G. Fisher of AlixPartners (Cayman) Limited
|
· |
Simon Appell, of AlixPartners Services UK LLP
|