☐
|
REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934
|
☒
|
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
☐
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
☐
|
SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
Title of class
|
Name of exchange on which registered
|
|
Class A Common shares, $0.01 par value
|
The NASDAQ Stock Market LLC
|
Large accelerated filer
☐
|
Accelerated filer
☒
|
Non-accelerated filer
☐
|
US GAAP
☒
|
International Financial Reporting Standards as issued by the International Accounting Standards Board
☐
|
Other
☐
|
FORWARD-LOOKING STATEMENTS
|
||
PART I
|
||
ITEM 1.
|
IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS
|
1
|
ITEM 2.
|
OFFER STATISTICS AND EXPECTED TIMETABLE
|
1
|
ITEM 3.
|
KEY INFORMATION
|
1
|
ITEM 4.
|
INFORMATION ON THE COMPANY
|
31
|
ITEM 4A.
|
UNRESOLVED STAFF COMMENTS
|
40
|
ITEM 5.
|
OPERATING AND FINANCIAL REVIEW AND PROSPECTS
|
40
|
ITEM 7.
|
MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS
|
60
|
ITEM 8.
|
FINANCIAL INFORMATION
|
64
|
ITEM 9.
|
THE OFFER AND LISTING
|
66
|
ITEM 10.
|
ADDITIONAL INFORMATION
|
67
|
ITEM 11.
|
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
|
81
|
ITEM 12.
|
DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES
|
82
|
PART II
|
||
ITEM 13.
|
DEFAULTS, DIVIDEND ARREARAGES AND DELINQUENCIES
|
83
|
ITEM 14.
|
MATERIAL MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS
|
83
|
ITEM 15.
|
CONTROLS AND PROCEDURES
|
83
|
ITEM 16A.
|
AUDIT COMMITTEE FINANCIAL EXPERT
|
84
|
ITEM 16B.
|
CODE OF ETHICS
|
84
|
ITEM 16C.
|
PRINCIPAL ACCOUNTANT FEES AND SERVICES
|
84
|
ITEM 16D.
|
EXEMPTIONS FROM THE LISTING STANDARDS FOR AUDIT COMMITTEES
|
85
|
ITEM 16E.
|
PURCHASES OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PURCHASERS
|
85
|
ITEM 16F.
|
CHANGE IN REGISTRANT'S CERTIFYING ACCOUNTANT
|
85
|
ITEM 16G.
|
CORPORATE GOVERNANCE
|
85
|
ITEM 16H.
|
MINE SAFETY DISCLOSURE
|
85
|
PART III
|
||
ITEM 17.
|
FINANCIAL STATEMENTS
|
86
|
ITEM 18.
|
FINANCIAL STATEMENTS
|
86
|
ITEM 19.
|
EXHIBITS
|
86
|
● |
the offshore drilling market, including supply and demand, utilization rates, dayrates, customer drilling programs, commodity prices, effects of new rigs and drillships on the market and effects of declines in commodity prices and downturn in global economy on market outlook for our various geographical operating sectors and classes of drilling units;
|
● |
hazards inherent in the offshore drilling industry and marine operations causing personal injury or loss of life, severe damage to or destruction of property and equipment, pollution or environmental damage, claims by third parties or customers and suspension of operations;
|
● |
customer contracts, including contract backlog, contract commencements, contract amendments or terminations, contract option exercises, contract revenues, contract awards and drilling unit and drillship mobilizations, performance provisions, newbuildings, upgrades, shipyard and other capital projects, including completion, delivery and commencement of operations dates, expected downtime and lost revenue;
|
● |
political and other uncertainties, including political unrest, risks of terrorist acts, war and civil disturbances, piracy, significant governmental influence over many aspects of local economies, seizure, nationalization or expropriation of property or equipment;
|
● |
repudiation, nullification, termination, modification or renegotiation of contracts;
|
● |
limitations on insurance coverage, such as war risk coverage, in certain areas;
|
● |
foreign and U.S. monetary policy and foreign currency fluctuations and devaluations;
|
● |
the inability to repatriate income or capital;
|
● |
complications associated with repairing and replacing equipment in remote locations;
|
● |
import-export quotas, wage and price controls imposition of trade barriers;
|
● |
regulatory or financial requirements to comply with foreign bureaucratic actions, including potential limitations on drilling activity;
|
● |
changing taxation policies and other forms of government regulation and economic conditions that are beyond our control;
|
● |
the level of expected capital expenditures and the timing and cost of completion of capital projects; our ability to successfully employ both our existing and newbuilding drilling units, procure or have access to financing, ability to comply with loan covenants, liquidity and adequacy of cash flow for our obligations;
|
● |
our new capital structure;
|
● |
continued borrowing availability under our debt agreements and compliance with the covenants contained therein;
|
● |
our ability to generate sufficient cash flow to service our existing debt and the incurrence of indebtedness in the future;
|
● |
factors affecting our results of operations and cash flow from operations, including revenues and expenses, uses of excess cash, including debt retirement, dividends, timing and proceeds of asset sales, tax matters, changes in tax laws, treaties and regulations, tax assessments and liabilities for tax issues, legal and regulatory matters, including results and effects of legal proceedings, customs and environmental matters, insurance matters, debt levels, including impacts of the financial and credit crisis;
|
● |
the effects of accounting changes and adoption of accounting policies;
|
● |
recruitment and retention of personnel; and
|
● |
other important factors described in "Item 3. Key Information—D. Risk factors" and our other reports filed or furnished with the U.S. Securities and Exchange Commission.
|
Ocean Rig UDW Inc.
|
||||||||||||||||||||
(U.S. Dollars in
|
As of December 31,
|
|||||||||||||||||||
thousands except for share and per share data)
|
2013
|
2014
|
2015
|
2016
|
2017
|
|||||||||||||||
Balance sheet data:
|
||||||||||||||||||||
Cash and cash equivalents
|
605,467
|
528,933
|
734,747
|
718,684
|
736,114
|
|||||||||||||||
Other current assets
|
404,250
|
449,259
|
503,355
|
361,257
|
254,604
|
|||||||||||||||
Total current assets
|
1,009,717
|
978,192
|
1,238,102
|
1,079,941
|
990,718
|
|||||||||||||||
Drilling units, machinery and equipment, net
|
5,777,025
|
6,207,633
|
6,336,892
|
2,438,292
|
1,852,167
|
|||||||||||||||
Intangible assets, net
|
6,175
|
4,732
|
3,289
|
1,845
|
-
|
|||||||||||||||
Other non-current assets
|
165,220
|
228,557
|
47,085
|
25,997
|
9,080
|
|||||||||||||||
Advances for drilling units under construction and related costs
|
662,313
|
622,507
|
394,852
|
545,469
|
-
|
|||||||||||||||
Total assets
|
7,620,450
|
8,041,621
|
8,020,220
|
4,091,544
|
2,851,965
|
|||||||||||||||
Current liabilities, including current portion of long term debt, net of deferred financing costs
|
543,654
|
417,693
|
401,464
|
812,011
|
184,043
|
|||||||||||||||
Long term debt, net of current portion and deferred financing costs
|
3,907,835
|
4,352,592
|
4,271,743
|
3,247,216
|
450,000
|
|||||||||||||||
Other non-current liabilities
|
189,118
|
105,060
|
72,248
|
21,567
|
14,702
|
|||||||||||||||
Total liabilities
|
4,640,607
|
4,875,345
|
4,745,455
|
4,080,794
|
648,745
|
|||||||||||||||
Number of shares issued
|
14,334
|
14,350
|
17,486
|
17,486
|
91,567,982
|
|||||||||||||||
Stockholders' equity
|
2,979,843
|
3,166,276
|
3,274,765
|
10,750
|
2,203,220
|
|||||||||||||||
Common Stock
|
-
|
-
|
-
|
-
|
916
|
|||||||||||||||
Dividends declared, per share
|
-
|
5,244.00
|
3,496.00
|
-
|
-
|
|||||||||||||||
Total liabilities and stockholders' equity
|
$
|
7,620,450
|
$
|
8,041,621
|
$
|
8,020,220
|
$
|
4,091,544
|
$
|
2,851,965
|
Ocean Rig UDW Inc.
|
|||||||||||||||||||
(U.S. Dollars in
|
Year Ended December 31,
|
||||||||||||||||||
thousands, except for operating data)
|
|||||||||||||||||||
2013
|
2014
|
2015
|
2016
|
2017
|
|||||||||||||||
Cash flow data:
|
|||||||||||||||||||
Net cash provided by / (used in):
|
|||||||||||||||||||
Operating activities
|
$
|
333,008
|
$
|
469,817
|
$
|
593,012
|
$
|
763,129
|
543,368
|
||||||||||
Investing activities
|
(1,144,230
|
)
|
(814,984
|
)
|
(643,717
|
)
|
(392,547
|
)
|
(29,481
|
)
|
|||||||||
Financing activities
|
1,099,323
|
268,633
|
263,267
|
(386,645
|
)
|
(496,457
|
)
|
||||||||||||
Other financial data
|
|||||||||||||||||||
EBITDA (2)
|
554,356
|
949,832
|
812,954
|
(2,577,516
|
)
|
420,186
|
|||||||||||||
Cash paid for interest
|
113,337
|
212,014
|
256,056
|
254,207
|
60,862
|
||||||||||||||
Capital expenditures
|
(1,283,364
|
)
|
(748,981
|
)
|
(633,843
|
)
|
(340,153
|
)
|
(36,994
|
)
|
|||||||||
Operating data, when on hire
|
|||||||||||||||||||
Total Fleet
|
8
|
9
|
10
|
11
|
11
|
(1) |
All previously reported share and per share amounts have been adjusted to account for the 1-for-9,200 reverse stock split on September 21, 2017.
|
(2) |
EBITDA represents net income/loss before interest, taxes, depreciation and amortization. EBITDA is a non-U.S. generally accepted accounting principles, or U.S. GAAP, measure and does not represent and should not be considered as an alternative to net income /loss or cash flow from operations, as determined by GAAP or other GAAP measures, and our calculation of EBITDA may not be comparable to that reported by other companies. EBITDA is included herein because it is a basis upon which we measure our operations.
|
Ocean Rig UDW Inc.
|
||||||||||||||||||||
(U.S. Dollars in
|
Year Ended December 31,
|
|||||||||||||||||||
thousands)
|
2013
|
2014
|
2015
|
2016
|
2017
|
|||||||||||||||
EBITDA reconciliation
|
||||||||||||||||||||
Net income / (loss)
|
$
|
63,323
|
$
|
259,803
|
$
|
80,014
|
(3,241,518
|
)
|
$
|
(5,402
|
)
|
|||||||||
Add: Depreciation and amortization
|
235,473
|
324,302
|
362,587
|
334,155
|
121,193
|
|||||||||||||||
Add: Net interest expense
|
210,969
|
287,904
|
270,537
|
223,532
|
240,900
|
|||||||||||||||
Add: Income taxes
|
44,591
|
77,823
|
99,816
|
106,315
|
63,495
|
|||||||||||||||
EBITDA
|
$
|
554,356
|
$
|
949,832
|
$
|
812,954
|
$
|
(2,577,516
|
)
|
$
|
420,186
|
● |
worldwide production and demand for oil and gas and any geographical dislocations in supply and demand;
|
● |
the cost of exploring for, developing, producing and delivering oil and gas;
|
● |
expectations regarding future energy prices;
|
● |
advances in exploration, development and production technology;
|
● |
the ability of the Organization of Petroleum Exporting Countries, or OPEC, to set and maintain levels and pricing;
|
● |
the level of production in non-OPEC countries;
|
● |
government regulations;
|
● |
local and international political, economic and weather conditions;
|
● |
domestic and foreign tax policies;
|
● |
development and exploitation of alternative fuels;
|
● |
the policies of various governments regarding exploration and development of their oil and gas reserves; and
|
● |
the worldwide military and political environment, including uncertainty or instability resulting from an escalation or additional outbreak of armed hostilities, insurrection or other crises in the Middle East or other geographic areas or further acts of terrorism in the United States, or elsewhere.
|
● |
the availability of competing offshore drilling vessels and the level of newbuilding activity for drilling vessels;
|
● |
the level of costs for associated offshore oilfield and construction services;
|
● |
oil and gas transportation costs;
|
● |
the discovery of new oil and gas reserves;
|
● |
the cost of non-conventional hydrocarbons, such as the exploitation of oil sands; and
|
● |
regulatory restrictions on offshore drilling.
|
● |
terrorist and environmental activist acts, armed hostilities, war and civil disturbances;
|
● |
acts of piracy, which have historically affected ocean-going vessels trading in regions of the world such as the South China Sea and in the Gulf of Aden off the coast of Somalia and which have generally increased significantly in frequency since 2008, particularly in the Gulf of Aden and off the west coast of Africa;
|
● |
significant governmental influence over many aspects of local economies;
|
● |
seizure, nationalization or expropriation of property or equipment;
|
● |
repudiation, nullification, modification or renegotiation of contracts;
|
● |
limitations on insurance coverage, such as war risk coverage, in certain areas;
|
● |
political unrest;
|
● |
political corruption;
|
● |
foreign and U.S. monetary policy, foreign exchange controls, potential repatriation of foreign currency, government debt downgrades and potential defaults and foreign currency fluctuations and devaluations;
|
● |
the inability to repatriate income or capital;
|
● |
complications associated with repairing and replacing equipment in remote locations;
|
● |
import-export quotas, wage and price controls, imposition of trade barriers;
|
● |
regulatory or financial requirements to comply with foreign bureaucratic actions;
|
● |
changing taxation policies, including confiscatory taxation and uncertainty in application of tax regulations;
|
● |
other forms of government regulation and economic conditions that are beyond our control; and
|
● |
governmental corruption.
|
● |
the equipping and operation of drilling units;
|
● |
repatriation of foreign earnings;
|
● |
oil and gas exploration and development;
|
● |
taxation of offshore earnings and earnings of expatriate personnel; and
|
● |
use and compensation of local employees and suppliers by foreign contractors.
|
● |
we may not be able to satisfy our financial obligations under our indebtedness and our contractual and commercial commitments, which may result in possible defaults on and acceleration of such indebtedness;
|
● |
we may not be able to obtain financing in the future for working capital, capital expenditures, acquisitions, debt service requirements or other purposes;
|
● |
we may not be able to use operating cash flow in other areas of our business because we must dedicate a substantial portion of these funds to service the debt;
|
● |
we could become more vulnerable to general adverse economic and industry conditions, including increases in interest rates, particularly given our substantial indebtedness, some of which bears interest at variable rates;
|
● |
our ability to refinance indebtedness may be limited or the associated costs may increase;
|
● |
less leveraged competitors could have a competitive advantage because they have lower debt service requirements and, as a result, we may not be better positioned to withstand economic downturns;
|
● |
we may be less able to take advantage of significant business opportunities and to react to changes in market or industry conditions than our competitors and our management's discretion in operating our business may be limited; and
|
● |
enter into other financing arrangements;
|
● |
incur or guarantee additional indebtedness;
|
● |
create or permit liens on our assets;
|
● |
consummate a merger, consolidation or sale of our drilling units or the shares of our subsidiaries;
|
● |
make investments;
|
● |
change the general nature of our business;
|
● |
pay dividends, redeem capital shares or subordinated indebtedness or make other restricted payments;
|
● |
incur dividend or other payment restrictions affecting our restricted subsidiaries;
|
● |
change the management and/or ownership of our drilling units;
|
● |
enter into transactions with affiliates;
|
● |
transfer or sell assets;
|
● |
amend, modify or change our organizational documents;
|
● |
make capital expenditures; and
|
● |
compete effectively to the extent our competitors are subject to less onerous restrictions.
|
● |
shipyard unavailability;
|
● |
shortages of equipment, materials or skilled labor for completion of repairs or upgrades to our equipment;
|
● |
unscheduled delays in the delivery of ordered materials and equipment or shipyard construction;
|
● |
financial or operating difficulties experienced by equipment vendors or the shipyard;
|
● |
unanticipated actual or purported change orders;
|
● |
local customs strikes or related work slowdowns that could delay importation of equipment or materials;
|
● |
engineering problems, including those relating to the commissioning of newly designed equipment;
|
● |
design or engineering changes;
|
● |
latent damages or deterioration to the hull, equipment and machinery in excess of engineering estimates and assumptions;
|
● |
work stoppages;
|
● |
client acceptance delays;
|
● |
weather interference, storm damage or other events of force majeure;
|
● |
disputes with shipyards and suppliers;
|
● |
shipyard failures and difficulties;
|
● |
failure or delay of third-party equipment vendors or service providers;
|
● |
unanticipated cost increases; and
|
● |
difficulty in obtaining necessary permits or approvals or in meeting permit or approval conditions.
|
● |
locate and acquire suitable drilling units;
|
● |
identify and consummate acquisitions or joint ventures;
|
● |
enhance our customer base;
|
● |
locate and retain suitable personnel for our fleet;
|
● |
manage our expansion; and
|
● |
obtain required financing on acceptable terms.
|
● |
prevailing level of drilling services contract dayrates;
|
● |
general economic and market conditions affecting the offshore contract drilling industry, including competition from other offshore contract drilling companies;
|
● |
types, sizes and ages of drilling units;
|
● |
supply and demand for drilling units;
|
● |
costs of newbuildings;
|
● |
governmental or other regulations; and
|
● |
technological advances.
|
● |
the final terms of any comprehensive deleveraging plan that we seek to implement;
|
● |
actual or anticipated variations in our operating results;
|
● |
changes in our cash flow, EBITDA or earnings estimates;
|
● |
changes in the price of oil;
|
● |
publication of research reports about us or the industry in which we operate;
|
● |
increases in market interest rates that may lead purchasers of common shares to demand a higher expected yield which, would mean our share price would fall;
|
● |
changes in applicable laws or regulations, court rulings and enforcement and legal actions;
|
● |
changes in market valuations of similar companies;
|
● |
announcements by us or our competitors of significant contracts, acquisitions or capital commitments;
|
● |
increased indebtedness we incur in the future;
|
● |
additions or departures of key personnel;
|
● |
actions by institutional shareholders or other key stakeholders;
|
● |
speculation in the press or investment community;
|
● |
terrorist attacks;
|
● |
economic and regulatory trends; and
|
● |
general market conditions.
|
· |
the issuance of our common shares or other securities, or the redemption of any equity interests;
|
· |
the payment of dividends, if any, on our common shares;
|
· |
the incurrence or modification of debt;
|
· |
amendments to the Second Amended and Restated Memorandum and Articles of Association;
|
· |
the entering into of certain extraordinary transactions;
|
· |
commitments to construct or the construction of, any new vessel, or any purchase or acquisition of any vessel;
|
· |
the adoption of, amendment or modification to, termination of, or waiver of any provision under, any equity incentive plan, bonus incentive plan, severance plan, or employee benefit plan;
|
· |
the grant or award of any severance, equity or non-cash bonus entitlement to any director, officer or employee of the Company or any of its subsidiaries, or any amendment to or waiver of any term of any such grant or award;
|
· |
the entering into of any Related Party Transaction other than a Permitted Related Party Transaction (as defined below), or the amendment, modification or termination of any Related Party Transaction (as defined below) (including any Permitted Related Party Transaction); and
|
· |
the exercise of any termination rights and remedies under, the amendment, modification or supplement of, or the waiver of any provision under, the Management Services Agreement.
|
● |
authorizing our board of directors to issue "blank check" preferred shares without shareholder approval;
|
● |
limiting the persons who may call special meetings of shareholders; and
|
● |
establishing advance notice requirements for nominations for election to our board of directors or for proposing matters that can be acted on by shareholders at shareholder meetings.
|
Drilling Unit
|
Year Built or
Scheduled
Delivery/
Generation
|
Water
Depth to the
Wellhead
(ft)
|
Drilling
Depth to the
Oil Field
(ft)
|
Customer
|
Expected Contract Expiration(1)
|
Dayrate (4)
|
Drilling
Location
|
||||||||
Operating Drilling Units
|
|||||||||||||||
Leiv Eiriksson
|
2001/5th
|
10,000
|
30,000
|
Lundin Norway AS
|
Q3 2018
|
$149,525
|
Norway
|
||||||||
Ocean Rig Corcovado
|
2011/6th
|
10,000
|
40,000
|
Petroleo Brasileiro S.A.
|
Q2 2018
|
$495,000
|
(3)
|
Brazil
|
|||||||
Ocean Rig Mykonos
(5)
|
2011/6th
|
10,000
|
40,000
|
Petroleo Brasileiro S.A.
|
Q1 2018
|
$495,000
|
(3)
|
Brazil
|
|||||||
Ocean Rig Skyros
|
2013/7th
|
12,000
|
40,000
|
Total E&P Angola
|
Q3 2021
|
$580,755
|
Angola
|
||||||||
Ocean Rig Poseidon (6)
|
2011/6th
|
10,000
|
40,000
|
Tullow Namibia Ltd.
|
Q3/Q4 2018
|
$138,889
|
Namibia
|
||||||||
Available for employment
|
|||||||||||||||
Ocean Rig Mylos
(2)
|
2013/7th
|
12,000
|
40,000
|
||||||||||||
Eirik Raude
(2)
|
2002/5th
|
10,000
|
30,000
|
||||||||||||
Ocean Rig Paros
(2)
|
2011/6th
|
10,000
|
40,000
|
||||||||||||
Ocean Rig Olympia
(2)
|
2011/6th
|
10,000
|
40,000
|
||||||||||||
Ocean Rig Apollo
(2)
|
2015/7th
|
12,000
|
40,000
|
||||||||||||
Ocean Rig Athena
(2)
|
2014/7th
|
12,000
|
40,000
|
(1) |
Not including the exercise of any applicable options to extend the term of the contract and any notification received for the termination of contracts.
|
(2) |
These drilling units are cold stacked in Greece and are available for charter.
|
(3) |
Approximately 20% of the dayrates are service fees paid to us in Brazilian Real (R$). The day rate disclosed in this table is based on the March 12, 2018 exchange rate of
R$3.25:$1.00
. During the first and second quarter of 2015, the
Ocean Rig Mykonos
and the
Ocean Rig Corcovado
, respectively, commenced drilling operations under the new awarded contracts, which are extensions of the previous contracts from Petrobras, for drilling offshore Brazil. The term of each extension was for 1,095 excluding reimbursement by Petrobras for contract related equipment upgrades.
|
(4) |
These rates represent the current operating rates applicable under each contract. Depending on the contract, these rates may be escalated.
|
(5) |
The
Ocean Rig Mykonos
contract with Petrobras expires in March 2018 and is scheduled to transit to Las Palmas where it will remain in "ready-to-drill" state.
|
(6) |
On February 23, 2018, the Company signed a new drilling contract with Tullow Namibia Ltd., for a one-well drilling program plus options for drilling offshore Namibia. The contract is expected to commence in the third quarter of 2018.
|
Year ended December 31,
|
||||||||||||
2015
|
2016
|
2017
|
||||||||||
Customer A
|
14
|
%
|
11
|
%
|
-
|
|||||||
Customer B
|
19
|
%
|
20
|
%
|
33
|
%
|
||||||
Customer C
|
13
|
%
|
-
|
-
|
||||||||
Customer D
|
15
|
%
|
31
|
%
|
40
|
%
|
||||||
Customer E
|
13
|
%
|
14
|
%
|
-
|
|||||||
Customer F
|
15
|
%
|
18
|
%
|
-
|
● |
Employment Days
:
We define employment days as the total number of days the drilling units are employed on a drilling contract.
|
● |
Dayrates or maximum dayrates
:
We define drilling dayrates as the maximum rate in U.S. Dollars possible to earn for drilling services for one 24 hour day at 100% efficiency under the drilling contract. Such dayrate may be measured by quarter-hour, half-hour or hourly basis and may be reduced depending on the activity performed according to the drilling contract.
|
● |
Earnings efficiency
:
We measure our revenue earning performance over a period as a percentage of the maximum revenues that we could earn under our drilling contracts in such period. More specifically, all drilling contracts provide for an operating or base rate that applies for the period during which the drilling unit is operational and at the client's drilling location. Furthermore, drilling contracts generally provide for a general repair allowance for preventive maintenance or repair of equipment; such allowance varies from contract to contract, and we may be compensated at the full operating dayrate or at a reduced operating day rate for such general repair allowance. In addition, drilling contracts typically provide for situations where the drilling units would operate at reduced operating dayrates, such as, among other things: a standby rate, where the drilling unit is prevented from commencing operations for reasons such as bad weather, waiting for customer orders, waiting on other contractors; a moving rate, where the drilling unit is in transit between locations; a reduced performance rate in the event of major equipment failure; or a force majeure rate in the event of a force majeure that causes the suspension of operations. At these instances we are compensated with a portion of the base rate. In addition there are circumstances that due to equipment failure or other events defined in our drilling contracts, we do not earn the base rate.
|
● |
Utilization
: We define utilization as the employment days divided by the total number of the drilling unit calendar days i.e. the percentage of the period that the drilling unit was under contract.
|
● |
Mobilization / demobilization fees
:
In connection with drilling contracts, we may receive revenues for preparation and mobilization of equipment and personnel or for capital improvements to the drilling units, dayrate or fixed price mobilization and demobilization fees.
|
● |
Revenue
:
For each contract, we determine whether the contract, for accounting purposes, is a multiple element arrangement, meaning it contains both a lease element and a drilling services element, and, if so, identify all deliverables (elements). For each element we determine how and when to recognize revenue.
|
● |
Term contracts
:
These are contracts pursuant to which we agree to operate the unit for a specified period of time. For these types of contracts, we determine whether the arrangement is a multiple element arrangement. For revenues derived from contracts that contain a lease, the lease elements are recognized as "Leasing revenues" in the statement of operations on a basis approximating straight line over the lease period. The drilling services element is recognized as "Service revenues" in the period in which the services are rendered at fair value rates. Revenues related to the drilling element of mobilization and direct incremental expenses of drilling services are deferred and recognized over the estimated duration of the drilling period.
|
● |
Well contracts
:
These are contracts pursuant to which we agree to drill a certain number of wells. Revenue from dayrate based compensation for drilling operations is recognized in the period during which the services are rendered at the rates established in the contracts. All mobilization revenues, direct incremental expenses of mobilization and contributions from customers for capital improvements are initially deferred and recognized as revenues over the estimated duration of the drilling period.
|
Year Ended December 31, 2016
|
Year Ended December 31, 2017
|
Change
|
Percentage Change
|
|||||||||||||
REVENUES:
|
||||||||||||||||
Revenues
|
1,653,667
|
1,007,520
|
(646,147
|
)
|
(39.1
|
)%
|
||||||||||
EXPENSES:
|
||||||||||||||||
Drilling units operating expenses
|
454,329
|
295,135
|
(159,194
|
)
|
(35.0
|
)%
|
||||||||||
Depreciation and amortization
|
334,155
|
121,193
|
(212,962
|
)
|
(63.7
|
)%
|
||||||||||
Impairment loss
|
3,776,338
|
1,048,828
|
(2,727,510
|
)
|
(72.2
|
)%
|
||||||||||
General and administrative expenses
|
103,961
|
73,360
|
(30,601
|
)
|
(29.4
|
)%
|
||||||||||
Loss on sale of fixed assets
|
25,274
|
238
|
(25,036
|
)
|
(99.1
|
)%
|
||||||||||
Legal settlements and other, net
|
(8,720
|
)
|
(1,519
|
)
|
7,201
|
(82,6
|
)%
|
|||||||||
Operating income/ (loss)
|
(3,031,670
|
)
|
(529,715
|
)
|
2,501,955
|
(82.5
|
)%
|
|||||||||
OTHER INCOME/(EXPENSES):
|
||||||||||||||||
Interest and finance costs
|
(226,981
|
)
|
(248,342
|
)
|
(21,361
|
)
|
9.4
|
%
|
||||||||
Interest income
|
3,449
|
7,442
|
3,993
|
115.8
|
%
|
|||||||||||
Loss on interest rate swaps
|
(4,388
|
)
|
-
|
4,388
|
(100.0
|
)%
|
||||||||||
Reorganization gain, net
|
-
|
1,029,982
|
1,029,982
|
100.0
|
%
|
|||||||||||
Loss from issuance of shares upon restructuring
|
-
|
(204,595
|
)
|
(204,595
|
)
|
100.0
|
%
|
|||||||||
Gain from repurchase of Senior Notes
|
125,001
|
-
|
(125,001
|
)
|
(100.0
|
)%
|
||||||||||
Other, net
|
(614
|
)
|
3,321
|
3,935
|
(640.9
|
)%
|
||||||||||
Total other expenses (income), net
|
(103,533
|
)
|
587,808
|
691,341
|
(667.7
|
)%
|
||||||||||
Income / (loss) before income taxes
|
(3,135,203
|
)
|
58,093
|
3,193,296
|
(101.9
|
)%
|
||||||||||
Income taxes
|
(106,315
|
)
|
(63,495
|
)
|
42,820
|
(40.3
|
)%
|
|||||||||
Net Income / (loss)
|
(3,241,518
|
)
|
(5,402
|
)
|
3,236,116
|
(99.8
|
)%
|
Year Ended December 31, 2015
|
Year Ended December 31, 2016
|
Change
|
Percentage Change
|
|||||||||||||
REVENUES:
|
||||||||||||||||
Total revenues
|
1,748,200
|
1,653,667
|
(94,533
|
)
|
(5.4
|
)%
|
||||||||||
EXPENSES:
|
||||||||||||||||
Drilling units operating expenses
|
582,122
|
454,329
|
(127,793
|
)
|
(22.0
|
)%
|
||||||||||
Depreciation and amortization
|
362,587
|
334,155
|
(28,432
|
)
|
(7.8
|
)%
|
||||||||||
Impairment loss
|
414,986
|
3,776,338
|
3,361,352
|
810.0
|
%
|
|||||||||||
General and administrative expenses
|
100,314
|
103,961
|
3,647
|
3.7
|
%
|
|||||||||||
Loss on sale of fixed assets
|
5,177
|
25,274
|
20,097
|
388.2
|
%
|
|||||||||||
Legal settlements and other, net
|
(2,591
|
)
|
(8,720
|
)
|
(6,129
|
)
|
236.5
|
%
|
||||||||
Operating income/ (loss)
|
285,605
|
(3,031,670
|
)
|
(3,317,275
|
)
|
(1,161.5
|
)%
|
|||||||||
OTHER INCOME/(EXPENSES):
|
||||||||||||||||
Interest and finance costs
|
(280,348
|
)
|
(226,981
|
)
|
53,367
|
(19.0
|
)%
|
|||||||||
Interest income
|
9,811
|
3,449
|
(6,362
|
)
|
(64.8
|
)%
|
||||||||||
Loss on interest rate swaps
|
(11,513
|
)
|
(4,388
|
)
|
7,125
|
(61.9
|
)%
|
|||||||||
Gain from repurchase of Senior Notes
|
189,174
|
125,001
|
(64,173
|
)
|
(33.9
|
)%
|
||||||||||
Other, net
|
(12,899
|
)
|
(614
|
)
|
12,285
|
(95.2
|
)%
|
|||||||||
Total other expenses, net
|
(105,775
|
)
|
(103,533
|
)
|
2,242
|
(2.1
|
)%
|
|||||||||
Income / (loss) before income taxes
|
179,830
|
(3,135,203
|
)
|
(3,315,033
|
)
|
(1,843.4
|
)%
|
|||||||||
Income taxes
|
(99,816
|
)
|
(106,315
|
)
|
(6,499
|
)
|
6.5
|
%
|
||||||||
Net Income / (loss)
|
80,014
|
(3,241,518
|
)
|
(3,321,532
|
)
|
(4,151.2
|
)%
|
Obligations
|
Total
|
Less than 1 year
|
1-3 years
|
3-5 years
|
More than 5 years
|
|||||||||||||||
(U.S. Dollars in thousands)
|
||||||||||||||||||||
Drilling units under construction (1)
|
938,096
|
417,931
|
520,165
|
-
|
-
|
|||||||||||||||
Loan payments
|
531,632
|
81,632
|
-
|
-
|
450,000
|
|||||||||||||||
Interest payments (2)
|
245,400
|
36,500
|
73,100
|
73,000
|
62,800
|
|||||||||||||||
Total
|
1,715,128
|
536,063
|
593,265
|
73,000
|
512,800
|
(1) |
The figure includes contracted purchase obligations only.
|
(2) |
The figures relate to interest payments under the fixed rate $450 million Senior Secured Term Loan Facility.
|
(1) |
Ms. Chrysoula Kandylidis, Mr. Michael Pearson, Mr. Vassilis Karamitsanis and Mr. George Kokkodis resigned from the position of Director effective November 7, 2017.
|
● |
each person or entity that we know beneficially owns 5% or more of our common shares;
|
● |
each of our executive officers and directors; and
|
● |
all our executive officers and directors as a group.
|
Name
|
Number of shares
owned
|
Percent
of Class (1) |
||||||
5% Shareholders:
|
||||||||
Certain funds managed by Avenue Capital Group(2)
|
6,954,132
|
7.6
|
%
|
|||||
BlueMountain Capital Management, LLC(3)
|
9,846,060
|
10.8
|
%
|
|||||
Elliott Funds(4)
|
18,494,587
|
20.2
|
%
|
|||||
Canyon Capital Advisors LLC(5)
|
7,073,321
|
7.7
|
%
|
|||||
Pacific Investment Management Company LLC(6)
|
4,992,068
|
5.5
|
%
|
|||||
Certain funds managed by Oz Management LP(7)
|
4,708,910
|
5.1
|
%
|
|||||
Total
|
52,069,078
|
56.9
|
%
|
|||||
Directors and Executive Officers(8)
|
||||||||
George Economou(9)
|
8,525,596
|
9.3
|
%
|
|||||
John Simon (10)
|
4,000
|
*
|
||||||
Karl Blanchard (11)
|
4,000
|
*
|
||||||
Jim Devine (12)
|
4,000
|
*
|
||||||
Anthony Kandylidis(13)
|
182
|
*
|
||||||
Executive Officers and Directors as a Group (5 persons)
|
8,537,778
|
9.3
|
%
|
(1) |
Based on 91,567,982 common shares outstanding as of March 12, 2018, which includes 90,911,849 Class A common shares and 656,133 class B common shares both classes of which have voting rights.
|
(2) |
Avenue Capital Management II, L.P. is the investment manager of each of Avenue Energy Opportunities Fund, L.P., Avenue PPF Opportunities Fund, L.P., Avenue Special Opportunities Fund II, L.P. and Avenue Investments, L.P. and may be deemed to have voting and dispositive power over the shares owned by such entities. Avenue Energy Opportunities Partners LLC is the general partner of Avenue Energy Opportunities Fund, L.P. Avenue PPF Opportunities Fund GenPar, LLC is the general partner of Avenue PPF Opportunities Fund, L.P. Avenue SO Capital Partners II, LLC is the general partner of Avenue Special Opportunities Fund II, L.P. Avenue Partners, LLC is the general partner of Avenue Investments, L.P. Avenue Europe International Management, L.P. is the investment manager of each of Avenue ASRS Europe Opportunities Fund, L.P., Avenue Europe Opportunities Master Fund, L.P., Avenue Europe Special Situations Fund III (Euro), L.P., and Avenue Europe Special Situations Fund III (U.S.), L.P. and may be deemed to have voting and dispositive power over the shares owned by such entities. Avenue Europe Opportunities Master Fund, L.P. owns its interest through GL Europe Luxembourg S.a.r.l. Avenue Europe Special Situations Fund III (Euro), L.P. owns its interest through GL Europe Luxembourg III (Euro) Investments S.a.r.l. Avenue Europe Special Situations Fund III (US), L.P. owns its interest through GL Europe Luxembourg III (US) Investments S.a.r.l. Avenue ASRS Europe Opportunities Fund, L.P. owns its interest through GL Europe ASRS Investments S.a.r.l. Avenue-ASRS Europe Opportunities Fund GenPar, LLC is the general partner of Avenue ASRS Europe Opportunities Fund, L.P. Avenue Europe Opportunities Fund GenPar, LLC is the general partner of Avenue Europe Opportunities Master Fund, L.P. Avenue Europe Capital Partners III, LLC is the general partner of Avenue Europe Special Situations Fund III (Euro), L.P. and Avenue Europe Special Situations Fund III (U.S.), L.P. The mailing address of each of the entities identified in this paragraph is c/o Avenue Capital Group, 399 Park Avenue, 6th floor, New York, NY 10022.
|
(3) |
BlueMountain Capital Management, LLC is the investment manager of each of Blue Mountain Credit Alternatives Master Fund L.P., BlueMountain Foinaven Master Fund L.P., BlueMountain Guadalupe Peak Fund L.P., BlueMountain Logan Opportunities Master Fund L.P., BlueMountain Montenvers Master Fund SCA SICAV-SIF, BlueMountain Summit Trading L.P., BlueMountain Fursan Fund L.P., BlueMountain Kicking Horse Fund L.P. and BlueMountain Timberline Ltd. and may be deemed to have shared voting power and/or shared investment power with respect to the securities described herein. The executive partners of BlueMountain Capital Management, LLC, which are Andrew Feldstein, Stephen Siderow and Michael Liberman, may also be deemed to have shared voting power and/or shared investment power over the securities described herein. Each of the foregoing entities and persons disclaims beneficial ownership of the securities described herein other than each BlueMountain fund to the extent of its direct holdings. The mailing address of each of the entities and persons identified in this paragraph is c/o BlueMountain Capital Management, LLC, 280 Park Ave., 12th Floor, New York, New York 10017. As reported on Schedule 13D/A filed with the SEC on October 16, 2017.
|
(4) |
"Elliott Funds" shall be collectively Elliott International, L.P., which owns 12,124,085 shares, Elliott Associates, L.P., which owns 1,900,728 shares, Greenwich (Japan) Limited, which owns 452,244 shares, Gateshead (Japan) LLC, which owns 212,826 shares, and The Liverpool Limited Partnership, which owns 3,804,704 shares. Elliott Advisors GP LLC, Elliott Capital Advisors, L.P., and Elliott Special GP, LLC, are the general partners of Elliott Associates, L.P. Each has the power to vote and dispose of the shares owned by Elliott Associates, L.P. and are each regulated by the U.S. Securities and Exchange Commission as an investment advisor. Hambledon, Inc., the sole general partner of Elliott International, L.P., and Elliott International Capital Advisors Inc., the sole investment manager of Elliott International, L.P., each has the power to vote and dispose of the shares owned by Elliott International, L.P. and are each regulated by the U.S. Securities and Exchange Commission as an investment advisor. Elliott Associates, L.P. is the sole member and managing member of Gateshead (Japan) LLC. Elliott Associates, L.P. is also the sole limited partner of The Liverpool Limited Partnership and is the sole shareholder of Liverpool Associates, Ltd., which is the sole general partner of The Liverpool Limited Partnership. The registered address of Elliott Associates, L.P., and Gateshead (Japan) LLC is c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington DE 19801, United States. The registered address of The Liverpool Limited Partnership is c/o Appleby Services (Bermuda) Ltd., Canon's Court, 22 Victoria Street, Hamilton, HM 12 Bermuda. Elliott International, L.P. is the sole shareholder of Greenwich (Japan) Limited. The registered address of Elliott International, L.P. and Greenwich (Japan) Limited is c/o Maples & Calder, PO Box 309, Ugland House, South Church Street, George Town, Cayman Islands. As reported on Schedule 13D/A filed with the SEC on October 16, 2017.
|
(5) |
As reported on Schedule 13G filed with the SEC on February 14, 2018.
|
(6) |
As reported on Schedule 13G filed with the SEC on February 15, 2018.
|
(7) |
As reported on Schedule 13G filed with the SEC on February 16, 2018.
|
(8) |
Unless otherwise indicated, the business address of each beneficial owner identified is c/o Ocean Rig Cayman Management Services SEZC Limited, Po Box 309, Ugland House, South Church Street George Town, Grand Cayman, KYI -1104 Cayman Islands.
|
(9) |
George Economou, our Chairman, may be deemed to beneficially own 8,524,793 of these shares through Prime Cap Shipping Inc., a Cayman Islands corporation that may be deemed to be beneficially owned by Mr. Economou. Mr. Economou may be deemed to beneficially own 704 of these shares through Sphinx Investment Corp., a Marshall Islands corporation that may be deemed to be beneficially owned by Mr. Economou. Mr. Economou may be deemed to beneficially own 65 of these shares through Azara Services S.A., a Marshall Islands corporation that may be deemed to be beneficially owned by Mr. Economou. Mr. Economou may be deemed to beneficially own 8 of these shares through Elios Investments Inc., a wholly owned subsidiary of the Entrepreneurial Spirit Foundation, a Lichtenstein foundation, or the Foundation, the beneficiaries of which are Mr. Economou and members of Mr. Economou's family. Mr. Economou may be deemed to beneficially own 15 of these shares through Entrepreneurial Spirit Holdings Inc., a Liberian corporation that is wholly owned by the Foundation. Mr. Economou may be deemed to beneficially own 11 of these shares through Fabiana Services S.A., a Marshall Islands corporation, of which Mr. Economou may be deemed to beneficially own. Upon issuance of the Class B common shares (as described elsewhere in this annual report), the 8,524,793 common shares held by Prime Cap would represent 9.31% of the post-Restructuring equity of the Company.
|
(10) |
In connection with his service on the Company's board of directors, Mr. Simon was issued 4,000 Class A Common Shares of the Company on December 29, 2017.
|
(11) |
In connection with his service on the Company's board of directors, Mr. Blanchard was issued 4,000 Class A Common Shares of the Company on December 29, 2017.
|
(12) |
In connection with his service on the Company's board of directors, Mr. Devine was issued 4,000 Class A Common Shares of the Company on December 29, 2017.
|
(13) |
Anthony Kandylidis, our Executive Vice Chairman may be deemed to beneficially own 170 of these shares through Steel Wheel Investments Limited, a Marshall Islands corporation that may be deemed to be beneficially owned by Mr. Kandylidis. Mr. Kandylidis, may be deemed to beneficially own 12 of these shares through Basset Holdings Inc., a Marshall Islands corporation that may be deemed to be beneficially owned by Mr. Kandylidis.
|
For the Year Ended
(3)
|
Low
(NASDAQ)
|
High
(NASDAQ)
|
Low(1)
(OTC)
|
High(1)
(OTC)
|
||||||||||||
December 31, 2013
|
$
|
123,740
|
192,924
|
819,076
|
1,140,800
|
|||||||||||
December 31, 2014
|
76,360
|
183,724
|
1,140,800
|
1,140,800
|
||||||||||||
December 31, 2015
|
12,696
|
87,584
|
(2
|
)
|
(2)
|
|||||||||||
December 31, 2016
|
6,072
|
31,096
|
(2
|
)
|
(2)
|
|||||||||||
December 31, 2017
|
20.22
|
17,479.94
|
(2
|
)
|
(2)
|
|||||||||||
For the Quarter Ended
|
||||||||||||||||
March 31, 2016
|
6,072.00
|
15,548.00
|
(2
|
)
|
(2)
|
|||||||||||
June 30, 2016
|
6,900.00
|
31,096.00
|
(2
|
)
|
(2)
|
|||||||||||
September 30, 2016
|
6,164.00
|
25,852.00
|
(2
|
)
|
(2)
|
|||||||||||
December 31, 2016
|
7,452.00
|
26,588.00
|
(2
|
)
|
(2)
|
|||||||||||
March 31, 2017
|
1,563.99
|
17,479.94
|
(2
|
)
|
(2)
|
|||||||||||
June 30, 2017
|
1,472.00
|
3,219.99
|
(2
|
)
|
(2)
|
|||||||||||
September 30, 2017
|
20.22
|
2,391.99
|
(2
|
)
|
(2)
|
|||||||||||
December 31, 2017
|
22.02
|
29.18
|
(2
|
)
|
(2)
|
|||||||||||
For the Month Ended
|
||||||||||||||||
August 2017
|
1,104.00
|
2,207.99
|
(2
|
)
|
(2)
|
|||||||||||
September 2017
|
20.22
|
1,839.99
|
(2
|
)
|
(2)
|
|||||||||||
October 2017
|
22.02
|
27.48
|
(2
|
)
|
(2)
|
|||||||||||
November 2017
|
23.08
|
29.18
|
(2
|
)
|
(2)
|
|||||||||||
December 2017
|
23.28
|
26.91
|
(2
|
)
|
(2)
|
|||||||||||
January 2018
|
26.36
|
29.17
|
(2
|
)
|
(2)
|
|||||||||||
February 2018
|
23.46
|
28.50
|
(2
|
)
|
(2)
|
|||||||||||
March 2018 (through March 12, 2018)
|
24.27
|
27.03
|
(2
|
)
|
(2)
|
(1) |
As reported in Norwegian Kroner. As of March 12, 2018, the U.S. Dollar/Norwegian Kroner exchange rate was $1.00/NOK 7.80.
|
(2) |
There were no trades during this period.
|
(3) |
All share prices have been adjusted to account for the 1-for-9,200 reverse stock split on September 21, 2017.
|
· |
TMS and the Group Companies shall deliver such Acquisition Proposal (or, in the case of an Acquisition Proposal provided orally, a written summary thereof) to the Lender Directors, and all amendments, modifications and supplements thereto, in each case promptly, and in no event later than two business days, following its receipt thereof;
|
· |
the Majority Lender Directors shall have the power and authority to direct the Company and the board to, as promptly as practicable, bring such Acquisition Proposal to a vote of the shareholders, without any recommendation to reject such proposal from the Company, the board or any other person unless approved by Majority Lender Directors; and
|
· |
if such Acquisition Proposal is approved by the affirmative vote of holders of a majority of the then-outstanding shares, the Company shall use commercially reasonable efforts to pursue and consummate such Acquisition Proposal, such Acquisition Proposal shall constitute a "Drag-Along Sale" for purposes of the Second Amended and Restated Memorandum and Articles of Association, not less than two Lender Directors shall constitute the "Drag-Along Sellers" with respect to such Drag-Along Sale and such Drag-Along Sellers shall have the right to require each shareholder of the Company to transfer their shares in such Drag-Along Sale in accordance with the Second Amended and Restated Memorandum and Articles of Association.
|
· |
four directors, including the Chairman of the Board, shall be appointed by
our Chairman, Mr. George Economou
or his affiliate so long as the Management Agreement has not been terminated;
|
· |
three directors (the Lender Directors) shall be appointed as follows: (i) if there are three or fewer holders, together with each of their Affiliates, each with at least 7.5% of the total outstanding shares, then each will be a Lender Appointing Person and be entitled to appoint a director to the board of directors; and (ii) if there are more than three holders, together with each of their Affiliates, each with at least 7.5% of the total outstanding shares, then three Lender Appointing Persons entitled to appoint a director to the board of directors shall be designated by the majority vote of the shares of all the 7.5% holders; if any Lender Appointing Person, together with its Affiliates, holds 17% or more of the total outstanding shares, such Lender Appointing person shall automatically be one of such three Lender Appointing Persons and the Lender Appointing Persons shall retain their appointment right as long as they hold 5% or more of the total outstanding shares;
|
· |
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 then in place; and
|
· |
to the extent the number of directors designated is fewer than seven, the remaining directors shall be designated by the shareholders representing a majority of the then-outstanding shares held by all shareholders.
|
· |
the issuance of our common shares or other securities, or the redemption of any equity interests;
|
· |
the payment of dividends, if any, on our common shares;
|
· |
the incurrence or modification of debt;
|
· |
amendments to the Second Amended and Restated Memorandum and Articles of Association;
|
· |
the entering into of certain extraordinary transactions;
|
· |
commitments to construct or the construction of, any new vessel, or any purchase or acquisition of any vessel;
|
· |
the adoption of, amendment or modification to, termination of, or waiver of any provision under, any equity incentive plan, bonus incentive plan, severance plan, or employee benefit plan;
|
· |
the grant or award of any severance, equity or non-cash bonus entitlement to any director, officer or employee of the Company or any of its subsidiaries, or any amendment to or waiver of any term of any such grant or award;
|
· |
the entering into of any Related Party Transaction other than a Permitted Related Party Transaction, or the amendment, modification or termination of any Related Party Transaction (including any Permitted Related Party Transaction); and
|
· |
the exercise of any termination rights and remedies under, the amendment, modification or supplement of, or the waiver of any provision under, the Management Services Agreement.
|
· |
we are not proposing to act illegally or beyond the scope of our corporate authority and the statutory provisions as to majority vote have been complied with;
|
· |
the shareholders have been fairly represented at the meeting in question;
|
· |
the arrangement is such as a businessman would reasonably approve; and
|
· |
the arrangement is not one that would more properly be sanctioned under some other provision of the Companies Law or that would amount to a "fraud on the minority."
|
· |
a company is acting, or proposing to act, illegally or beyond the scope of its authority;
|
· |
the act complained of, although not beyond the scope of the authority, could be effected if duly authorized by more than the number of votes which have actually been obtained; or
|
· |
those who control the company are perpetrating a "fraud on the minority."
|
● |
at least 75% of the corporation's gross income for such taxable year consists of passive income (e.g., dividends, interest, capital gains and rents derived other than in the active conduct of a rental business); or
|
● |
at least 50% of the average value of the assets held by the corporation during such taxable year produce, or are held for the production of, passive income.
|
● |
the excess distribution or gain would be allocated ratably over the Non-Electing Holders' aggregate holding period for the common shares;
|
● |
the amount allocated to the current taxable year and any taxable year before we became a PFIC would be taxed as ordinary income; and
|
● |
the amount allocated to each of the other taxable years would be subject to tax at the highest rate of tax in effect for the applicable class of taxpayer for that year, and an interest charge for the deemed deferral benefit would be imposed with respect to the resulting tax attributable to each such other taxable year.
|
● |
the gain is effectively connected with the Non-U.S. Holder's conduct of a trade or business in the United States. If the Non-U.S. Holder is entitled to the benefits of an income tax treaty with respect to that gain, that gain is taxable only if it is attributable to a permanent establishment maintained by the Non-U.S. Holder in the United States; or
|
● |
the Non-U.S. Holder is an individual who is present in the United States for 183 days or more during the taxable year of disposition and other conditions are met.
|
● |
fails to provide an accurate taxpayer identification number;
|
● |
is notified by the Internal Revenue Service that he has failed to report all interest or dividends required to be shown on his federal income tax returns; or
|
● |
in certain circumstances, fails to comply with applicable certification requirements.
|
1. |
Pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company;
|
2. |
Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company; and
|
3. |
Provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company's assets that could have a material effect on the financial statements.
|
2016
|
2017
|
|||||||
(U.S. Dollars in thousands)
|
||||||||
Audit and audit-related fees
|
$
|
645
|
$
|
491
|
||||
Tax fees
|
27
|
19
|
||||||
Total fees
|
$
|
672
|
$
|
510
|
● |
In lieu of obtaining shareholder approval prior to the issuance of designated securities or the adoption of equity compensation plans or material amendments to such equity compensation plans, we will comply with provisions of Caymans law, providing that the board of directors approves share issuances and adoptions of and material amendments to equity compensation plans.
|
● |
In lieu of having a compensation committee comprised of at least two members each of which is independent, our compensation, nominating and corporate governance committee is comprised of four directors, two of which are considered independent.
|
● |
Our board of directors will not hold regularly scheduled meetings at which only independent directors are present.
|
● |
As a foreign private issuer, we are not required to solicit proxies or provide proxy statements to NASDAQ pursuant to NASDAQ corporate governance rules or Cayman Islands law. Consistent with Cayman Islands law and as provided in our amended and restated memorandum and articles of association, we will notify our shareholders of meetings between 15 and 60 days before the meeting. This notification will contain, among other things, information regarding business to be transacted at the meeting. In addition, our bylaws provide that shareholders must give us between 150 and 180 days advance notice to properly introduce any business at a meeting of shareholders.
|
Exhibit Number
|
Description
|
1.1
|
|
2.1*
|
Form of Stock Certificate for Class A Common Shares
|
2.2*
|
Form of Stock Certificate for Class B Common Shares
|
4.1
|
|
4.2
|
|
|
|
4.3
|
|
|
|
4.4
|
|
|
|
4.5
|
|
|
|
4.6
|
|
|
|
4.7
|
|
|
|
4.8
|
|
|
4.9
|
|
|
|
4.10
|
|
|
|
4.11
|
|
|
|
4.12
|
|
|
|
4.13
|
|
|
|
4.14
|
|
|
|
4.15
|
|
|
|
4.16
|
|
|
|
4.17
|
|
|
|
4.18
|
|
|
|
4.19
|
|
|
|
4.20
|
|
|
4.21
|
|
|
|
4.22
|
|
|
|
4.23
|
|
|
|
4.24
|
|
|
|
4.25
|
|
|
|
4.26
|
|
|
|
4.27
|
|
|
|
4.28
|
|
|
|
4.29
|
|
|
|
4.30
|
|
|
4.31
|
|
4.32
|
|
4.33
|
|
4.34
|
|
4.35
|
|
4.36
|
|
4.37
|
|
4.38
|
|
4.39
|
|
4.40
|
|
4.41
|
|
4.42
|
|
4.43
|
|
4.44
|
|
4.45
|
|
4.46
|
|
4.47
|
|
4.48
|
|
4.49
|
|
4.50
|
|
4.51
|
|
8.1
|
|
12.1
|
|
12.2
|
|
13.1
|
|
13.2
|
|
101
|
The following financial information from Ocean Rig UDW Inc.'s Annual Report on Form 20-F for the fiscal year ended December 31, 2017, formatted in Extensible Business Reporting Language (XBRL):
(1) Consolidated Balance Sheets as of December 31, 2016 and 2017;
(2) Consolidated Statements of Operations for the years ended December 31, 2015, 2016 and 2017;
(3) Consolidated Statements of Comprehensive Income for the years ended December 31, 2015, 2016 and 2017;
(4) Consolidated Statements of Stockholders' Equity for the years ended December 31, 2015, 2016 and 2017;
(5) Consolidated Statements of Cash Flows for the years ended December 31, 2015, 2016 and 2017; and
(6) Notes to Consolidated Financial Statements.
|
OCEAN RIG UDW INC.
|
|||
By:
|
/s/ Iraklis Sbarounis
|
||
Name:
|
Iraklis Sbarounis | ||
Title:
|
Chief Financial Officer, Secretary and Director | ||
Page
|
|
Report of Independent Registered Public Accounting Firm
|
F-1
|
Report of Independent Registered Public Accounting Firm
|
F-2
|
Consolidated Balance Sheets as of December 31, 2016 and 2017
|
F-3
|
Consolidated Statements of Operations for the years ended December 31, 2015, 2016 and 2017
|
F-4
|
Consolidated Statements of Comprehensive Income / (loss) for the years ended December 31, 2015, 2016 and 2017
|
F-5
|
Consolidated Statements of Stockholders' Equity for the years ended December 31, 2015, 2016 and 2017
|
F-6
|
Consolidated Statements of Cash Flows for the years ended December 31, 2015, 2016 and 2017
|
F-7
|
Notes to Consolidated Financial Statements
|
F-8
|
Year Ended December 31,
|
||||||||||||
2015
|
2016
|
2017
|
||||||||||
REVENUES:
|
||||||||||||
Revenues
|
$
|
1,748,200
|
$
|
1,653,667
|
$
|
1,007,520
|
||||||
EXPENSES:
|
||||||||||||
Drilling units operating expenses
|
582,122
|
454,329
|
295,135
|
|||||||||
Depreciation and amortization
|
362,587
|
334,155
|
121,193
|
|||||||||
Impairment loss (Note 6 and Note 7)
|
414,986
|
3,776,338
|
1,048,828
|
|||||||||
General and administrative expenses
|
100,314
|
103,961
|
73,360
|
|||||||||
Loss on sale of fixed assets
|
5,177
|
25,274
|
238
|
|||||||||
Legal settlements and other, net (Note 17)
|
(2,591
|
)
|
(8,720
|
)
|
(1,519
|
)
|
||||||
Operating income/ (expenses)
|
285,605
|
(3,031,670
|
)
|
(529,715
|
)
|
|||||||
OTHER INCOME/ (EXPENSES):
|
||||||||||||
Interest and finance costs (Note 13)
|
(280,348
|
)
|
(226,981
|
)
|
(248,342
|
)
|
||||||
Interest income
|
9,811
|
3,449
|
7,442
|
|||||||||
Loss on interest rate swaps (Note 10)
|
(11,513
|
)
|
(4,388
|
)
|
-
|
|||||||
Reorganization gain, net (Note 2 and Note 9)
|
-
|
-
|
1,029,982
|
|||||||||
Loss from issuance of shares upon restructuring (Note 4 and Note 11)
|
-
|
-
|
(204,595
|
)
|
||||||||
Gain from repurchase of senior notes (Note 9)
|
189,174
|
125,001
|
-
|
|||||||||
Other, net
|
(12,899
|
)
|
(614
|
)
|
3,321
|
|||||||
Total other (expenses)/ income, net
|
(105,775
|
)
|
(103,533
|
)
|
587,808
|
|||||||
INCOME / (LOSS) BEFORE INCOME TAXES
|
179,830
|
(3,135,203
|
)
|
58,093
|
||||||||
Income taxes (Note 14)
|
(99,816
|
)
|
(106,315
|
)
|
(63,495
|
)
|
||||||
NET INCOME / (LOSS) ATTRIBUTABLE TO OCEAN RIG UDW INC.
|
$
|
80,014
|
$
|
(3,241,518
|
)
|
$
|
(5,402
|
)
|
||||
NET INCOME / (LOSS) ATTRIBUTABLE TO OCEAN RIG UDW INC. CLASS A AND CLASS B COMMON STOCKHOLDERS
(Note 15)
|
$
|
78,839
|
$
|
(3,241,518
|
)
|
$
|
(5,402
|
)
|
||||
EARNINGS / (LOSS) PER COMMON SHARE OF CLASS A AND CLASS B ATTRIBUTABLE TO COMMON STOCKHOLDERS, BASIC AND DILUTED
(Note 15)
|
$
|
5,227.36
|
$
|
(307,602.77
|
)
|
$
|
(0.21
|
)
|
||||
WEIGHTED AVERAGE NUMBER OF CLASS A COMMON SHARES, BASIC AND DILUTED
(Note 15)
|
15,082
|
10,538
|
25,070,978
|
|||||||||
WEIGHTED AVERAGE NUMBER OF CLASS B COMMON SHARES, BASIC AND DILUTED
(Note 15)
|
-
|
-
|
167,314
|
|||||||||
WEIGHTED AVERAGE NUMBER OF CLASS A AND CLASS B COMMON SHARES, BASIC AND DILUTED
(Note 15)
|
15,082
|
10,538
|
25,238,292
|
|||||||||
Dividend declared per Class A and Class B common shares
|
3,496.00
|
-
|
-
|
Year Ended December 31,
|
||||||||||||
2015
|
2016
|
2017
|
||||||||||
Net income / (loss)
|
$
|
80,014
|
$
|
(3,241,518
|
)
|
$
|
(5,402
|
)
|
||||
Other Comprehensive income :
|
||||||||||||
Reclassification of realized losses associated with capitalized interest to the Consolidated Statement of Operations (Note 10)
|
1,035
|
26,187
|
-
|
|||||||||
Actuarial gains
|
62
|
-
|
130
|
|||||||||
Total Other Comprehensive income
|
1,097
|
26,187
|
130
|
|||||||||
Total Comprehensive income / (loss)
|
$
|
81,111
|
$
|
(3,215,331
|
)
|
$
|
(5,272
|
)
|
Class A Common Shares
|
Class B Common Shares
|
Treasury Shares
|
||||||||||||||||||||||||||||||||||||||
Shares
|
Par Value
|
Shares
|
Par Value
|
Shares
|
Par Value
|
Additional
Paid-in Capital
|
Accumulated
Other Comprehensive Income/Loss
|
Accumulated
Deficit
|
Total Stockholders' Equity
|
|||||||||||||||||||||||||||||||
BALANCE, January 1, 2015
|
14,347
|
$
|
-
|
-
|
$
|
-
|
-
|
$
|
-
|
$
|
3,496,277
|
$
|
(23,938
|
)
|
$
|
(306,063
|
)
|
$
|
3,166,276
|
|||||||||||||||||||||
Net income
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
80,014
|
80.014
|
||||||||||||||||||||||||||||||
Issuance of non-vested shares
|
33
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
||||||||||||||||||||||||||||||
Issuance of common stock
|
3,106
|
-
|
-
|
-
|
-
|
-
|
193,983
|
-
|
-
|
193,983
|
||||||||||||||||||||||||||||||
Treasury stock
|
-
|
-
|
-
|
-
|
(2,415
|
)
|
-
|
(120,000
|
)
|
-
|
-
|
(120,000
|
)
|
|||||||||||||||||||||||||||
Amortization of stock based compensation
|
-
|
-
|
-
|
-
|
-
|
-
|
3,676
|
-
|
-
|
3,676
|
||||||||||||||||||||||||||||||
Dividends declared and paid
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
(50,281
|
)
|
(50,281
|
)
|
||||||||||||||||||||||||||||
Other comprehensive income
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
1,097
|
-
|
1,097
|
||||||||||||||||||||||||||||||
BALANCE, December 31, 2015
|
17,486
|
$
|
-
|
-
|
$
|
-
|
(2,415
|
)
|
$
|
-
|
$
|
3,573,936
|
$
|
(22,841
|
)
|
$
|
(276,330
|
)
|
$
|
3,274,765
|
||||||||||||||||||||
Net loss
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
(3,241,518
|
)
|
(3,241,518
|
)
|
||||||||||||||||||||||||||||
Treasury stock
|
-
|
-
|
-
|
-
|
(6,096
|
)
|
-
|
(49,911
|
)
|
-
|
-
|
(49,911
|
)
|
|||||||||||||||||||||||||||
Amortization of stock based compensation
|
-
|
-
|
-
|
-
|
-
|
-
|
1,227
|
-
|
-
|
1,227
|
||||||||||||||||||||||||||||||
Other comprehensive income
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
26,187
|
-
|
26,187
|
||||||||||||||||||||||||||||||
BALANCE, December 31, 2016
|
17,486
|
$
|
-
|
-
|
-
|
(8,511
|
)
|
$
|
-
|
$
|
3,525,252
|
$
|
3,346
|
$
|
(3,517,848
|
)
|
$
|
10,750
|
||||||||||||||||||||||
Net loss
|
-
|
-
|
-
|
-
|
- |
-
|
-
|
-
|
(5,402
|
)
|
(5,402
|
)
|
||||||||||||||||||||||||||||
Issuance of common stock
|
90,663,603
|
907
|
895,404
|
9
|
- |
-
|
2,196,212
|
-
|
-
|
2,197,128
|
||||||||||||||||||||||||||||||
Conversion of Class A to Class B shares (Note 11)
|
(337,533
|
)
|
(3
|
)
|
337,533
|
3
|
- |
-
|
-
|
-
|
-
|
-
|
||||||||||||||||||||||||||||
Conversion of Class B to Class A shares (Note 11)
|
227,093
|
2
|
(227,093
|
) |
(2
|
)
|
-
|
-
|
-
|
-
|
-
|
-
|
||||||||||||||||||||||||||||
Cancellation of treasury stock
|
(8,511
|
)
|
-
|
-
|
-
|
8,511
|
-
|
-
|
-
|
-
|
-
|
|||||||||||||||||||||||||||||
Amortization of stock based compensation
|
-
|
-
|
-
|
-
|
- |
-
|
614
|
-
|
-
|
614
|
||||||||||||||||||||||||||||||
Other comprehensive income
|
-
|
-
|
-
|
-
|
- |
-
|
-
|
130
|
-
|
130
|
||||||||||||||||||||||||||||||
BALANCE, December 31, 2017
|
90,562,138
|
$
|
906
|
1,005,844
|
$
|
10
|
-
|
$
|
-
|
$
|
5,722,078
|
$
|
3,476
|
$
|
(3,523,250
|
)
|
$
|
2,203,220
|
Years Ended December 31,
|
||||||||||||
2015
|
2016
|
2017
|
||||||||||
Cash Flows from Operating Activities:
|
||||||||||||
Net income/ (loss)
|
$
|
80,014
|
$
|
(3,241,518
|
)
|
$
|
(5,402
|
)
|
||||
Adjustments to reconcile net income/ (loss) to net cash provided by operating activities:
|
||||||||||||
Depreciation and amortization
|
362,587
|
334,155
|
121,193
|
|||||||||
Amortization and write-off of financing fees
|
24,033
|
21,040
|
61,212
|
|||||||||
Amortization income of deferred financing fees
|
(2,781
|
)
|
-
|
-
|
||||||||
Change in fair value of derivatives
|
(8,217
|
)
|
(8,180
|
)
|
-
|
|||||||
Loss on sale of fixed assets
|
5,177
|
25,274
|
238
|
|||||||||
Allowance for doubtful receivables
|
114,613
|
-
|
-
|
|||||||||
Gain from repurchase of senior notes
|
(189,174
|
)
|
(125,001
|
)
|
-
|
|||||||
Effect of exchange rate changes on cash
|
6,748
|
-
|
-
|
|||||||||
Impairment loss
|
414,986
|
3,776,338
|
1,048,828
|
|||||||||
Reorganization gain – principal debt discharged
|
-
|
-
|
(1,129,125
|
)
|
||||||||
Loss from issuance of shares upon restructuring
|
-
|
-
|
204,595
|
|||||||||
Amortization of stock based compensation
|
3,676
|
1,227
|
614
|
|||||||||
Changes in operating assets and liabilities:
|
||||||||||||
Trade accounts receivable
|
(188,330
|
)
|
119,045
|
127,408
|
||||||||
Other current and non-current assets
|
36,027
|
73,038
|
(11,176
|
)
|
||||||||
Due to/ (from) related parties
|
(11,287
|
)
|
7,231
|
(6,505
|
)
|
|||||||
Accounts payable and other current and non-current liabilities
|
19,837
|
(51,048
|
)
|
(14,058
|
)
|
|||||||
Accrued liabilities
|
(56,502
|
)
|
(31,478
|
)
|
159,029
|
|||||||
Deferred revenue
|
(18,395
|
)
|
(136,994
|
)
|
(13,483
|
)
|
||||||
Net Cash Provided by Operating Activities
|
593,012
|
763,129
|
543,368
|
|||||||||
Cash Flows from Investing Activities:
|
||||||||||||
Advances for drilling units under construction and related costs
|
(89,867
|
)
|
(242,990
|
)
|
(27,693
|
)
|
||||||
Drilling units, machinery, equipment and other improvements/ upgrades
|
(543,976
|
)
|
(97,163
|
)
|
(9,301
|
)
|
||||||
Proceeds/ (loss) from sale of fixed assets
|
300
|
(10,850
|
)
|
198
|
||||||||
(Increase)/ decrease in restricted cash
|
(10,174
|
)
|
(41,544
|
)
|
7,315
|
|||||||
Net Cash Used in Investing Activities
|
(643,717
|
)
|
(392,547
|
)
|
(29,481
|
)
|
||||||
Cash Flows from Financing Activities:
|
||||||||||||
Proceeds from senior secured credit facility
|
462,000
|
-
|
-
|
|||||||||
Principal payments and repayments of long-term debt and senior notes
|
(61,179
|
)
|
(215,279
|
)
|
(496,457
|
)
|
||||||
Senior notes repurchase
|
(273,673
|
)
|
(121,455
|
)
|
-
|
|||||||
Net proceeds from common stock issuance
|
192,714
|
-
|
-
|
|||||||||
Repurchase of common stock
|
-
|
(49,911
|
)
|
-
|
||||||||
Dividends paid
|
(50,281
|
)
|
-
|
-
|
||||||||
Payment of financing costs, net
|
(6,314
|
)
|
-
|
-
|
||||||||
Net Cash Provided by/(Used in) Financing Activities
|
263,267
|
(386,645
|
)
|
(496,457
|
)
|
|||||||
Effect of exchange rate changes on cash
|
(6,748
|
)
|
-
|
-
|
||||||||
Net increase/(decrease) in cash and cash equivalents
|
205,814
|
(16,063
|
)
|
17,430
|
||||||||
Cash and cash equivalents at beginning of year
|
528,933
|
734,747
|
718,684
|
|||||||||
Cash and cash equivalents at end of year
|
$
|
734,747
|
$
|
718,684
|
$
|
736,114
|
||||||
SUPPLEMENTAL CASH FLOW INFORMATION:
|
||||||||||||
Cash paid during the years for:
|
||||||||||||
Interest, net of amount capitalized
|
256,056
|
254,207
|
60,862
|
|||||||||
Income taxes
|
60,687
|
70,983
|
58,901
|
|||||||||
Reorganization expenses paid
|
-
|
-
|
99,144
|
|||||||||
Non cash financing and investing activities:
|
||||||||||||
Issuance of non-vested shares
|
3
|
-
|
-
|
|||||||||
Issuance of common stock under the restructuring
|
-
|
-
|
2,197,128
|
|||||||||
Proceeds from long-term debt
|
-
|
-
|
450,000
|
Year ended December 31,
|
||||||||||||
2015
|
2016
|
2017
|
||||||||||
Customer A
|
14
|
%
|
11
|
%
|
-
|
|||||||
Customer B
|
19
|
%
|
20
|
%
|
33
|
%
|
||||||
Customer C
|
13
|
%
|
-
|
-
|
||||||||
Customer D
|
15
|
%
|
31
|
%
|
40
|
%
|
||||||
Customer E
|
13
|
%
|
14
|
%
|
-
|
|||||||
Customer F
|
15
|
%
|
18
|
%
|
-
|
Year ended December 31,
|
||||||||
2016
|
2017
|
|||||||
Balance Sheet
|
||||||||
Advances for drilling units under construction and related costs
|
$
|
1,569
|
$
|
-
|
||||
Drilling units, machinery and equipment, net
|
488
|
-
|
||||||
Due to related parties
|
$
|
(7,231
|
)
|
$
|
(726
|
)
|
||
Accrued liabilities
|
$
|
(3,100
|
)
|
$
|
(11,786
|
)
|
Year ended December 31,
|
||||||||||||
Statement of Operations
|
2015
|
2016
|
2017
|
|||||||||
Revenues – commission fees
|
$
|
16,524
|
$
|
14,925
|
$
|
10,342
|
||||||
Drilling units operating expenses
|
$
|
-
|
$
|
4,209
|
$
|
904
|
||||||
Amortization and write-off of financing fees
|
$
|
2,781
|
$
|
-
|
$
|
-
|
||||||
General and administrative expenses
|
$
|
7,409
|
$
|
24,924
|
$
|
26,008
|
||||||
Interest income
|
$
|
6,024
|
$
|
-
|
$
|
-
|
||||||
Reorganization expenses (including non-cash issuance of shares and other expenses)
|
$
|
-
|
$
|
-
|
$
|
223,178
|
December 31,
|
||||||||
2016
|
2017
|
|||||||
Inventories
|
$
|
12,988
|
$
|
9,573
|
||||
Deferred mobilization expenses
|
6,351
|
6,482
|
||||||
Prepayments and advances
|
10,500
|
17,064
|
||||||
Intangible assets, net
|
-
|
402
|
||||||
Insurance claims
|
-
|
2,980
|
||||||
Other
|
85
|
1,485
|
||||||
Total
|
$
|
29,924
|
$
|
37,986
|
December 31,
|
||||||||
2016
|
2017
|
|||||||
Balance at beginning of year
|
$
|
394,852
|
$
|
545,469
|
||||
Advances for drilling units under construction and related costs
|
242,988
|
27,693
|
||||||
Impairment loss (advances and related costs for drilling unit under construction)
|
(92,371
|
)
|
(573,162
|
)
|
||||
Balance at end of year
|
$
|
545,469
|
$
|
-
|
Cost
|
Accumulated
Depreciation
|
Net Book Value
|
||||||||||
Balance December 31, 2015
|
$
|
7,258,995
|
$
|
(922,103
|
)
|
$
|
6,336,892
|
|||||
Additions
|
99,515
|
-
|
99,515
|
|||||||||
Disposal of assets
|
(7,756
|
)
|
133
|
(7,623
|
)
|
|||||||
Impairment loss
|
(3,658,815
|
)
|
-
|
(3,658,815
|
)
|
|||||||
Depreciation
|
-
|
(331,677
|
)
|
(331,677
|
)
|
|||||||
Balance December 31, 2016
|
$
|
3,691,939
|
(1,253,647
|
)
|
2,438,292
|
|||||||
Additions
|
9,726
|
-
|
9,726
|
|||||||||
Disposal of assets
|
(1,648
|
)
|
1,212
|
(436
|
)
|
|||||||
Impairment loss
|
(475,666
|
)
|
-
|
(475,666
|
)
|
|||||||
Depreciation
|
-
|
(119,749
|
)
|
(119,749
|
)
|
|||||||
Balance December 31, 2017
|
$
|
3,224,351
|
(1,372,184
|
)
|
1,852,167
|
December 31,
|
||||||||
2016
|
2017
|
|||||||
Deferred mobilization expenses
|
$
|
5,564
|
$
|
4,080
|
||||
Intangible assets, net
|
1,845
|
-
|
||||||
Prepaid investments
|
425
|
-
|
||||||
Security deposit
|
-
|
5,000
|
||||||
Total
|
$
|
7,834
|
$
|
9,080
|
December 31,
2016
|
December 31,
2017
|
|||||||
$1.3 billion Senior Secured Term Loan B Facility
|
$
|
1,270,750
|
$
|
-
|
||||
$1.9 billion Secured Term Loan B Facility
|
1,838,250
|
-
|
||||||
$462 million Senior Secured Credit Facility
|
249,542
|
81,886
|
||||||
$500 million Senior Unsecured Notes
|
130,974
|
-
|
||||||
$800 million Senior Secured Notes
|
459,723
|
-
|
||||||
$450 million Senior Secured Term Loan Facility
|
-
|
450,000
|
||||||
Less: Deferred financing costs
|
(61,466
|
)
|
(254)
|
|||||
Total debt
|
3,887,773
|
531,632
|
||||||
Less: Current portion
|
(640,557
|
)
|
(81,632
|
)
|
||||
Long-term portion
|
$
|
3,247,216
|
$
|
450,000
|
Loan
|
Loan Agreement Date
|
Original
Amount
|
December 31,
2016
|
New Loan
|
Discharges/ Repayment
|
December 31,
2017
|
|||||||||||||||
$800 million Senior Notes
|
September 20, 2012
|
$
|
800,000
|
459,723
|
-
|
(459,723
|
)
|
$
|
-
|
||||||||||||
$1.9 billion Secured Term Loan B Facility
|
July 12, 2013
|
1,900,000
|
1,838,250
|
-
|
(1,838,250
|
)
|
-
|
||||||||||||||
$500 million Senior Unsecured
Notes
|
March 26, 2014
|
500,000
|
130,974
|
-
|
(130,974
|
)
|
-
|
||||||||||||||
$1.3 billion Senior Secured
Term Loan B
|
July 25, 2014
|
1,300,000
|
1,270,750
|
-
|
(1,270,750
|
)
|
-
|
||||||||||||||
$462 million Senior Secured Credit Facility
|
February 13, 2015
|
462,000
|
249,542
|
-
|
(167,656
|
)
|
81,886
|
||||||||||||||
$ 450 million Senior Secured Term Loan Facility
|
September 22, 2017
|
450,000
|
-
|
450,000
|
-
|
450,000
|
|||||||||||||||
$
|
3,949,239
|
$
|
450,000
|
$
|
(3,867,353
|
)
|
$
|
531,886
|
2018
|
$
|
81,886
|
||
2019
|
-
|
|||
2020
|
-
|
|||
2021
|
-
|
|||
2022
|
-
|
|||
2023 and thereafter
|
450,000
|
|||
Total principal payments
|
531,886
|
|||
Less: Financing fees
|
(254
|
)
|
||
Total debt
|
$
|
531,632
|
Amount of Loss
|
|||||||||||||
Derivatives not designated
as hedging instruments
|
Location of Loss
Recognized
|
Year ended
December 31, 2015
|
Year ended
December 31, 2016
|
Year ended
December 31, 2017
|
|||||||||
Interest rate swaps
|
Loss on interest rate swaps
|
$
|
(11,513
|
)
|
$
|
(4,388
|
)
|
$
|
-
|
Quoted Prices in Active
Markets for Identical
Assets/Liabilities
(Level 1)
|
Significant Other
Observable Inputs
(Level 2)
|
Unobservable Inputs
(Level 3)
|
Impairment
loss
|
|||||||||||||
Non-Recurring measurements:
|
||||||||||||||||
Long-lived assets
|
$
|
-
|
$
|
1,035,499
|
$
|
-
|
$
|
(3,658,815
|
)
|
|||||||
Quoted Prices in Active
Markets for Identical
Assets/Liabilities
(Level 1)
|
Significant Other
Observable Inputs
(Level 2)
|
Unobservable Inputs
(Level 3)
|
Impairment
loss
|
|||||||||||||
Non-Recurring measurements:
|
||||||||||||||||
Long-lived assets
|
$
|
-
|
$
|
234,139
|
$
|
-
|
$
|
(475,666
|
)
|
|||||||
Number of
non vested shares
|
Weighted average grant date fair value per non vested shares
|
|||||||
Balance December 31, 2015
|
44
|
$
|
99,360.00
|
|||||
Forfeited
|
(17
|
)
|
92,736.00
|
|||||
Vested
|
(16
|
)
|
114,356.00
|
|||||
Balance December 31, 2016
|
11
|
$
|
87,032.00
|
|||||
Granted
|
12,000
|
25.56
|
||||||
Vested
|
(12,011
|
)
|
105.24
|
|||||
Balance December 31, 2017
|
-
|
$
|
-
|
Number of
vested shares
|
Weighted average grant date fair value per vested shares
|
|||||||
As at December 31, 2015
|
66
|
$
|
139,380.00
|
|||||
Vested shares granted in prior years
|
16
|
114,356.00
|
||||||
Granted and vested shares in prior years, but cancelled during 2016
|
(45
|
)
|
124,384.00
|
|||||
As at December 31, 2016
|
37
|
$
|
146,648.00
|
|||||
Vested shares granted in prior years
|
11
|
87,032.00
|
||||||
Vested shares granted in 2017
|
12,000
|
25.56
|
||||||
As at December 31, 2017
|
12,048
|
$
|
558.94
|
December 31,
|
||||||||
2016
|
2017
|
|||||||
Actuarial pension gain
|
3,346
|
3,476
|
||||||
Total
|
$
|
3,346
|
$
|
3,476
|
December 31,
|
||||||||||||
2015
|
2016
|
2017
|
||||||||||
Interest costs on long term debt
|
$
|
276,510
|
$
|
235,182
|
$
|
214,282
|
||||||
Amortization and write off of financing fees
|
24,033
|
21,040
|
61,212
|
|||||||||
Discount on receivable from drilling contract
|
3,018
|
(2,821
|
)
|
(308
|
)
|
|||||||
Capitalized borrowing costs
|
(26,055
|
)
|
(28,265
|
)
|
(27,718
|
)
|
||||||
Commissions, commitment fees and other financial expenses
|
2,842
|
1,845
|
874
|
|||||||||
Total
|
$
|
280,348
|
$
|
226,981
|
$
|
248,342
|
Year ended December 31
|
||||||||||||
2015
|
2016
|
2017
|
||||||||||
Domestic income/ (loss) (Marshall Islands/ Cayman Islands)
|
$
|
219,900
|
$
|
126,244
|
$
|
-
|
||||||
Foreign income
|
185,742
|
93,633
|
-
|
|||||||||
Domestic (loss)/ income (Cayman Islands)
|
-
|
(97,939
|
)
|
(276,471
|
)
|
|||||||
Foreign income
|
-
|
394,196
|
558,005
|
|||||||||
Total income before taxes, excluding impairment loss, gain from repurchases of senior notes, reorganization gain, net and loss from issuance of shares upon restructuring
|
$
|
405,642
|
$
|
516,134
|
$
|
281,534
|
Year Ended December 31,
|
||||||||||||
2015
|
2016
|
2017
|
||||||||||
Current Tax expense
|
$
|
99,816
|
$
|
106,315
|
$
|
63,495
|
||||||
Deferred Tax expense
|
-
|
-
|
-
|
|||||||||
Income taxes
|
$
|
99,816
|
$
|
106,315
|
$
|
63,495
|
||||||
Effective tax rate on income / (loss) excluding impairment loss and gain from repurchase of the senior secured notes
|
24.6
|
%
|
20.6
|
%
|
22.6
|
%
|
Year Ended December 31,
|
||||||||||||
Reconciliation of total tax expense:
|
2015
|
2016
|
2017
|
|||||||||
Income tax
|
94,331
|
106,315
|
63,495
|
|||||||||
Taxes on litigation matters subject to statutory rates, including interest and penalties
|
5,485
|
-
|
-
|
|||||||||
Total
|
$
|
99,816
|
$
|
106,315
|
$
|
63,495
|
Year ended December 31,
|
||||||||
2016
|
2017
|
|||||||
Deferred tax assets
|
||||||||
Losses carried forward
|
10,110
|
12,176
|
||||||
Total deferred tax assets
|
$
|
10,110
|
$
|
12,176
|
||||
Less: valuation allowance
|
(10,110
|
)
|
(12,176
|
)
|
||||
Total deferred tax assets, net
|
$
|
-
|
$
|
-
|
2015
|
2016
|
2017
|
||||||||||||||||||||||||||||||||||||||||||||||
Income (numerator)
|
Weighted- average number of outstanding shares (denominator)
|
Amount per share
|
Loss
(numerator)
|
Weighted- average number of outstanding share (denominator)
|
Amount per share
|
Loss (numerator)
|
Weighted- average number of outstanding shares
(denominator)
|
Amount per share
|
||||||||||||||||||||||||||||||||||||||||
Class A
|
Class A
|
Class A
|
Class A
|
Class A
|
Class A
|
Class A
|
Class B
|
Class A
|
Class B
|
Class A
|
Class B
|
|||||||||||||||||||||||||||||||||||||
Basic net income/ (loss) per share:
|
||||||||||||||||||||||||||||||||||||||||||||||||
Net income/ (loss)
|
$
|
80,014
|
-
|
-
|
$
|
(3,241,518
|
)
|
-
|
-
|
$
|
(5,366
|
)
|
$
|
(36
|
)
|
-
|
-
|
-
|
-
|
|||||||||||||||||||||||||||||
Less: Non- vested common stock dividends declared and undistributed earnings
|
(1,175
|
)
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
|||||||||||||||||||||||||||||||||||
Basic Earnings/ (loss) per share attributable to common stockholders
|
$
|
78,839
|
$
|
15,082
|
5,227.36
|
$
|
(3,241,518
|
)
|
10,538
|
(307,602.77
|
)
|
$
|
(5,366
|
)
|
$
|
(36
|
)
|
25,070,978
|
167,314
|
(0.21
|
)
|
(0.21
|
)
|
|||||||||||||||||||||||||
Diluted net income/ (loss) per share:
|
||||||||||||||||||||||||||||||||||||||||||||||||
Allocation of undistributed earnings/ (losses) for basic computation
|
-
|
-
|
-
|
-
|
-
|
-
|
(5,366
|
)
|
(36
|
)
|
-
|
-
|
-
|
-
|
||||||||||||||||||||||||||||||||||
Reallocation of undistributed earnings/ (losses) as a result of conversion of Class B to Class A shares
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
||||||||||||||||||||||||||||||||||||
Diluted Earnings/ (loss) per share
|
$
|
78,839
|
$
|
15,082
|
5,227.36
|
$
|
(3,241,518
|
)
|
10,538
|
(307,602.77
|
)
|
$
|
(5,366
|
)
|
$
|
(36
|
)
|
25,070,978
|
167,314
|
(0.21
|
)
|
(0.21
|
)
|
Country
|
2015
|
2016
|
2017
|
|||||||||
Angola
|
527,098
|
500,413
|
435,785
|
|||||||||
Brazil
|
581,438
|
517,885
|
333,186
|
|||||||||
Congo
|
157,235
|
241,953
|
185,040
|
|||||||||
Norway
|
231,189
|
74,925
|
53,509
|
|||||||||
Falklands
|
154,606
|
21,106
|
-
|
|||||||||
Senegal
|
52,214
|
289,162
|
-
|
|||||||||
Ivory Coast
|
33,723
|
1,164
|
-
|
|||||||||
Other service revenues
|
10,697
|
7,059
|
-
|
|||||||||
Total service revenues
|
$
|
1,748,200
|
1,653,667
|
1,007,520
|
2018
|
2019
|
Total
|
||||||||||
Drilling units building contracts
|
$
|
417,931
|
520,165
|
$
|
938,096
|
|||||||
Total obligations
|
$
|
417,931
|
520,165
|
$
|
938,096
|
/s/ Vashti Ramgeet | |
Vashti Ramgeet
Corporate Administrator
for and on behalf of
Maples Corporate Services Limited
Dated this 3rd day of November 2017
|
1 |
The name of the Company is OCEAN RIG UDW INC.
|
2 |
The Registered Office of the Company shall be at the offices of Maples Corporate Services Limited, PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands, or at such other place within the Cayman Islands as the Directors may decide.
|
3 |
The objects for which the Company is established are unrestricted and the Company shall have full power and authority to carry out any object not prohibited by the laws of the Cayman Islands.
|
4 |
The liability of each Member is limited to the amount unpaid on such Member's shares.
|
5 |
The share capital of the Company is US$19,000,000 divided into (i) 1,500,000,000 (one billion, five hundred million) class A common shares of a par value of US$0.01 each ("
Class A Common Shares
"), (ii) 300,000,000 (three hundred million) class B common shares of a par value of US$0.01 each ("
Class B Common Shares
"), and (iii) 100,000,000 (one hundred million) preferred shares of a par value of US$0.01 each ("
Preferred Shares
").
|
6 |
The Company has power to register by way of continuation as a body corporate limited by shares under the laws of any jurisdiction outside the Cayman Islands and to be deregistered in the Cayman Islands.
|
7 |
Capitalised terms that are not defined in this Memorandum of Association bear the respective meanings given to them in the Articles of Association of the Company.
|
1 |
Interpretation
|
1.1 |
In these Articles Table A in the First Schedule to the Statute does not apply, and capitalized terms used but not otherwise defined herein shall have the meaning ascribed to such terms in the Governance Agreements (defined below) and, unless there is something in the subject or context inconsistent therewith:
|
"Accelerated Termination Notice"
|
means a notice from the Company to all Shareholders confirming the Termination Date as a date falling forty-five (45) days after such notice.
|
"Accredited Investors"
|
has the meaning given to it in Regulation D promulgated under the Exchange Act.
|
"Acquisition Proposal"
|
means a proposal to consummate a transaction or series of related transactions pursuant to which one or more Persons directly or indirectly acquire (whether by merger, consolidation or sale or transfer of Shares or other equity interests) (a) not less than a majority of the outstanding Shares or (b) not less than a majority of the assets of the Company determined on a consolidated basis.
|
"Affiliate"
|
means, with respect to any specified Person, (a) any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person, or (b) any Related Fund of such specified Person or an Affiliate of such specified person;
provided
,
however
, that none of TMS nor any Appointing Person shall be considered an Affiliate of the Company or any Subsidiary of the Company and neither the Company nor any Subsidiary of the Company shall be considered an Affiliate of TMS or any Appointing Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct or cause the direction of the management and policies of such specified Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing.
|
"Annual General Meeting"
|
has the meaning given to it in Article 14.1.
|
"Appointing Person"
|
means each of the CEO Appointing Person and the Lender Appointing Persons, in each case for so long as it has the power to designate a director pursuant to Article 19.
|
"Articles"
|
means these articles of association of the Company.
|
"Associate"
|
when used to indicate a relationship with any person, means: (i) any corporation, partnership, company, unincorporated association or other entity of which such person is a director, officer or partner or is, directly or indirectly, the owner of fifteen percent (15%) or more of any class of Voting Shares; (ii) any trust or other estate in which such person has at least a twenty percent (20%) beneficial interest or as to which such person serves as trustee or in a similar fiduciary capacity; and (iii) any relative or spouse of such person, or any relative of such spouse, who has the same residence as such person.
|
"Auditor"
|
means the person for the time being performing the duties of auditor of the Company (if any).
|
"Board"
|
shall have the same meaning as the Board of Directors.
|
"Board of Directors"
|
means the directors for the time being of the Company.
|
"Cause"
|
means (a) prior to the Termination Date, indictment or conviction of, or a plea of guilty or no contest to, a fraud or felony on the part of a Director; and (b) after the Termination Date, actual fraud or wilful default on the part of a Director of the Company (and, for the avoidance of doubt, no person shall be found to have committed actual fraud or wilful default unless or until a court of competent jurisdiction shall have made a final and un-appealable finding to that effect).
|
"CEO Appointing Person"
|
means the Chief Executive Officer of the Company or his Affiliate designated in writing to the Company.
|
"Chairman"
|
has the meaning set forth in Article 14.3.
|
"Claim"
|
has the meaning ascribed in the Restructuring Agreement.
|
"Class A Common Share"
|
means a Class A Common Share of US$0.01 par value in the authorised capital of the Company issued subject to and in accordance with the provisions of the Statute and of these Articles and having the rights provided for under these Articles.
|
"Class B Common Share"
|
means a Class B Common Share of US$0.01 par value in the authorised capital of the Company issued subject to and in accordance with the provisions of the Statute and of these Articles and having the rights provided for under these Articles.
|
"Company"
|
means the above named company.
|
"Company-Held Debt"
|
has the meaning set forth in Major Actions.
|
"Company Sale Notice"
|
has the meaning set forth in Article 6.3.2.
|
"control"
|
including the terms "controlling," "controlled by" and "under common control with," means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of Voting Shares, by contract or otherwise. A person who is the owner of twenty percent (20%) or more of the outstanding Voting Shares of any corporation, partnership, company, unincorporated association or other entity shall be presumed to have control of such entity, in the absence of proof by a preponderance
|
"Governance Agreements"
|
means the various governance agreements to be entered into by or on behalf of various holders of the Shares in the Company on the Restructuring Effective Date.
|
"Governance Parties"
|
means the Shareholders that are party to the Governance Agreements.
|
"Governmental Authority"
|
means: (i) any nation, state, commonwealth, province, territory, county, municipality, district or other jurisdiction of any nature; (ii) any national, state, local, municipal or other government or (iii) any governmental or quasi-governmental authority of any nature (including any governmental division, department, agency, commission, instrumentality, official, organization, unit, body or entity and any court or other tribunal).
|
"Group Companies"
|
means the Company and its direct and indirect Subsidiaries.
|
"Indemnified Person"
|
has the meaning set forth in Article 32.
|
"Individual Management Agreements"
|
means the management agreements entered into between each of the individual vessel-owning Subsidiaries of the Company and TMS, which will become effective on the Restructuring Effective Date.
|
"ISS U.S. Categorization of Directors"
|
means the standards promulgated from time to time and reflected on the ISS website www.issgovernance.com.
|
"Lender Appointing Person"
|
means up to three Lender Shareholder Parties determined pursuant to Article 19.1.8.
|
"Lender Director"
|
has the meaning set forth in Article 19.1.2(ii).
|
"Lender Shareholder Parties"
|
means, collectively, all of the Members other than (a) any Group Company or (b) any Related Party.
|
"Majority Lender Directors"
|
means not less than two Lender Directors.
|
"Management Agreement"
|
means, collectively, (a) the Management Services Agreement, dated as of September 22, 2017, between the Company and TMS and (b) each Individual Management Agreement.
|
"Management Agreement Termination Date"
|
means the date on which the Management Agreement shall have been terminated and all fees due and payable by the Company thereunder have been paid in full.
|
"Material Contract"
|
means each contract, agreement or other arrangement (whether written or oral) that: (i) involves aggregate consideration or payments in excess of $10,000,000; (ii) provides for the indemnification by any Group Company of any Person or the assumption of any tax, environmental or other liability of any person that would reasonably be expected to exceed $10,000,000; (iii) is with any Governmental Authority and is outside of the ordinary course of business of the Group Companies (iv) limits or purports to limit the ability of any Group Company to compete in any line of business or with any Person or in any geographic area or during any period of time; or (v) provides for any joint venture, partnership or similar arrangement by the Company or any of its Subsidiaries.
|
"Member"
|
has the same meaning as in the Statute, meaning every Person who has agreed to become a member of the Company and whose name is entered on the Register of Members, shall be deemed to be a member of the company.
|
(ii) has (A) the right to acquire such shares (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise; provided, however, that a Person shall not be deemed the owner of shares tendered pursuant to a tender or exchange offer made by such Person or any of such Person's Affiliates or Associates until such tendered shares are accepted for purchase or exchange; or (B) the right to vote such shares pursuant to any agreement, arrangement or understanding; provided, however, that a Person shall not be deemed the owner of any shares because of such Person's right to vote such shares if the agreement, arrangement or understanding to vote such shares arises solely from a revocable proxy or consent given in response to a proxy or consent solicitation made to 10 or more Persons; or
(iii) has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent as described in item (B) of subparagraph (ii) above), or disposing of such shares with any other Person that beneficially owns, or whose Affiliates or Associates beneficially own, directly or indirectly, such shares.
|
|
"Permitted Offering"
|
has the meaning set forth in Article 6.3.4.
|
"Permitted Related Party Transaction"
|
means any of the following: (a) the Management Agreement; and (b) each Individual Management Agreement; and (c) any Related Party Transaction expressly permitted by the Management Agreement; and (d) any Related Party Transaction that (i) is on terms at least as favorable to the Company and its Subsidiaries as could be obtained on an arm's-length basis, (ii) involves less than $500,000 in total value and payments and (iii) when taken together with other Related Party Transactions entered into pursuant to this
clause (d)
, would not exceed $5,000,000 in the aggregate of value and payments in any 12-month period.
|
"Person"
|
means an individual, partnership, corporation, unincorporated organization or association, joint stock company, limited liability company, trust, joint venture or other entity, or a governmental agency or political subdivision thereof.
|
"Preferred Share"
|
means a preferred share in the capital of the Company of US$0.01 par value with the rights determined by the Directors at the time of issuance of such share in accordance with these Articles.
|
"Preemptive Rights Offer"
|
has the meaning set forth in Article 6.3.2.
|
"Preemptive Rights Period"
|
has the meaning set forth in Article 6.3.2.
|
"Preemptive Rights Shareholder"
|
has the meaning set forth in Article 6.3.1.
|
"President"
|
has the meaning set forth in Article 27.1.
|
"Proposed Offering"
|
has the meaning set forth in Article 6.3.1.
|
"Register of Members"
|
means the register of Members maintained in accordance with the Statute and includes (except where otherwise stated) any branch
or
duplicate register of Members. For purposes of clarity, the Register
of
|
computing the majority when a poll is demanded regard shall be had to the number of votes to which each Member is entitled.
|
|
"Standard Termination Notice"
|
means a notice from the Company to all Shareholders confirming the Termination Date as a date falling 60 days after such notice.
|
"Statute"
|
means the Companies Law (2016 Revision) of the Cayman Islands.
|
"Stock Split"
|
means the issuance of new Shares in the Company to shareholders in proportion to their holding at the time of the split which has the effect of increasing the number of Shares at a split ratio which shall be approved by Ordinary Resolution.
|
"Subsidiary"
|
means with respect to any specified company: (a) any corporation, exempted company, 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 shareholders' 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.
|
"Term Loan Facility"
|
means that certain exit term loan agreement, dated September 22, 2017 by and among the Company and its vessel-owning Subsidiaries.
|
"Termination Date"
|
means the earlier of (a) the date on which the Board (including Majority Lender Directors), and the Lender Shareholder Parties holding at least 66 2/3% of the outstanding Shares held by all Lender Shareholder Parties agree to terminate those provisions of these Articles that are specified to terminate on such date; and (b) the later of (x) the fifth anniversary of the Restructuring Effective Date and (y) the day immediately preceding the fifth Annual General Meeting held after the Restructuring Effective Date.
|
"TMS"
|
means TMS Offshore Services Ltd., a corporation formed in the Marshall Islands.
|
"Transfer"
|
means, with respect to any security of the Company, to directly or indirectly sell, exchange, transfer, hypothecate, negotiate, gift, bequeath, convey in trust, pledge, mortgage, grant a security interest in, assign, encumber, or otherwise dispose of all or any portion of such security, including by recapitalization, merger, consolidation, liquidation, dissolution, dividend, distribution or otherwise; "Transfer" used as a noun shall have a correlative meaning; provided, however, that a pledge or grant of a security interest in Shares to secure a "bona fide" loan shall
|
in no event be deemed a Transfer for any purpose of these Articles.
|
|
"Treasury Share"
|
means a Share held in the name of the Company as a treasury share in accordance with the Statute.
|
"Voting Shares"
|
means, with respect to any corporation, shares of any class or series entitled to vote generally in the election of directors and, with respect to any entity that is not a corporation, any equity interest entitled to vote generally in the election of the governing body of such entity.
|
"7.5% Lender Shareholder Party"
|
means at any time of determination, a Lender Shareholder Party that, together with its Affiliates, owns or holds not less than 7.5% or more of the outstanding Shares at such time.
|
"5% Shareholder Party"
|
means at any time of determination, a Lender Shareholder Party that, together with its Affiliates, owns or holds not less than 5% of the outstanding Shares at such time.
|
1.2 |
In these Articles:
|
(a) |
words importing the singular number include the plural number and vice versa;
|
(b) |
words importing the masculine gender include the feminine gender and vice versa;
|
(c) |
words importing persons include corporations as well as any other legal or natural person;
|
(d) |
"written" and "in writing" include all modes of representing or reproducing words in visible form, including in the form of an Electronic Record;
|
(e) |
"shall" shall be construed as imperative and "may" shall be construed as permissive;
|
(f) |
references to provisions of any law or regulation shall be construed as references to those provisions as amended, modified, re-enacted or replaced;
|
(g) |
any phrase introduced by the terms "including", "include", "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
|
(h) |
the term "and/or" is used herein to mean both "and" as well as "or." The use of "and/or" in certain contexts in no respects qualifies or modifies the use of the terms "and" or "or" in others. The term "or" shall not be interpreted to be exclusive and the term "and" shall not be interpreted to require the conjunctive (in each case, unless the context otherwise requires);
|
(i) |
headings are inserted for reference only and shall be ignored in construing these Articles;
|
(j) |
any requirements as to delivery under these Articles include delivery in the form of an Electronic Record;
|
(k) |
any requirements as to execution or signature under these Articles including the execution of these Articles themselves can be satisfied in the form of an electronic signature as defined in the Electronic Transactions Law; and
|
(l) |
sections 8 and 19(3) of the Electronic Transactions Law shall not apply.
|
2 |
Commencement of Business
|
2.1 |
The business of the Company may be commenced as soon after incorporation of the Company as the Directors shall see fit.
|
2.2 |
The Directors may pay, out of the capital or any other monies of the Company, all expenses incurred in or about the formation, establishment and/or continuation of the Company, including the expenses of registration.
|
3 |
Issue of Shares; Classes; Rights, Preferences and Restrictions of Shares
|
3.1 |
Subject to the provisions in the Memorandum and these Articles, including without limitation Section 9.3 and 19.13, and without prejudice to any rights attached to any existing Shares, the Directors may allot, issue, grant options over or otherwise dispose of Shares (including fractions of a Share), with or without preferred, deferred or other rights or restrictions, whether in regard to Dividend or other distribution, voting, return of capital or otherwise and to such Persons, at such times and on such other terms as they think proper, and may also (subject to the Statute and the Articles) vary such rights, including but not limited to the issuance of Preferred Shares which have such preferred rights to the Common Shares as the Directors may determine at the time of issuance of such Preferred Shares.
|
3.2 |
Classes
. The Directors shall designate any Share (including fractions of a Share) as either as a Class B Common Share or a Preferred Share at the time of its allotment or issuance and any Share not so designated shall be Class A Common Share. Except as otherwise provided in these Articles or the terms of issuance of such Shares, all Shares shall be identical and shall entitle the holders thereof to the same rights and privileges.
|
3.3 |
Voting Rights of Shares Generally
. On each matter on which the holders of Shares shall be entitled to vote, (a) each holder of Class A Common Shares shall be entitled to one (1) vote for each Class A Common Share registered in the name of such holder on the Register of Members and (b) each holder of Class B Common Shares shall be entitled to one (1) vote for Class B Common Share registered in the name of such holder on the Register of Members. Except as otherwise required by the Statute or these Articles, the holders of each class of Shares shall vote together as a single class.
|
3.4 |
Dividend Rights
. The holders of Shares shall be entitled to receive, to the extent permitted by law, and to share equally and ratably, share for share, such Dividends as may be declared from time to time by the Directors, whether payable in cash, property, securities or otherwise by the Company in accordance with these Articles.
|
3.5 |
Liquidation, Dissolution or Other Winding Up of the Company
. The holders of Shares shall be entitled to receive, to the extent permitted by the Statute, and to share equally and ratably, share for share, assets available for distribution amongst the Members, whether payable in cash, property, securities or otherwise by the Company in accordance with these Articles.
|
3.6 |
Trading Restrictions on Class B Common Shares
. The Class B Common Shares are intended to be a security that is not a "margin security" as defined in Regulation T of the Board of Governors of the Federal Reserve System of the United States of America, as from time to time in effect and all official rulings and interpretations thereunder or thereof. In furtherance of the foregoing, the Class B Common Shares shall not be listed on a national securities exchange or a national market system.
|
3.7 |
Conversion
.
|
3.8 |
The Company shall not issue Shares to bearer. Shares shall only be in fully registered form.
|
4 |
Register of Members
|
4.1 |
The Company shall maintain or cause to be maintained the Register of Members in accordance with the Statute at such place within or outside the Cayman Islands as the Directors deem fit. For purposes of clarity, the Register of Members may be held within the United States of America with the Company's transfer agent and which shall include the name and address of each shareholder, the amount paid for each share, the date entered on the Register of Members and the date a shareholder ceased to be a shareholder.
|
4.2 |
The Directors may determine that the Company shall maintain one or more branch registers of Members in accordance with the Statute. The Directors may also determine which Register of Members shall constitute the principal register and which shall constitute the branch register or registers, and to vary such determination from time to time.
|
5 |
Certificates for Shares
|
5.1 |
Shares may be issued in certificated or uncertificated form. A Member shall only be entitled to a share certificate if the Directors resolve that share certificates shall be issued. Share certificates representing Shares, if any, shall be in such form as the Directors may determine. Share certificates shall be signed by one or more Directors or other Person authorised by the Directors. The Directors may authorise certificates to be issued with the authorised signature(s) affixed by mechanical process or in the form of an electronic signature. All certificates for Shares shall be numbered or otherwise identified and shall specify the Shares to which they relate. All certificates surrendered to the Company in connect with any transfer of Shares shall be cancelled and subject to these Articles, no new certificate representing such Shares shall be issued until the former certificate representing a like number of relevant Shares shall have been surrendered and cancelled, provided always that Article 3.7 shall apply on conversion of Common Shares.
|
5.2 |
The Company shall not be bound to issue more than one certificate for Shares held jointly by more than one Person and delivery of a certificate to one joint shareholder shall be a sufficient delivery to all of them.
|
5.3 |
If a share certificate is defaced, worn out, lost or destroyed, it may be renewed on such terms (if any) as to evidence and indemnity and on the payment of such expenses reasonably incurred by the Company in investigating evidence, as the Directors may prescribe, and (in the case of defacement or wearing out) upon delivery of the old certificate.
|
5.4 |
Every share certificate sent in accordance with these Articles will be sent at the risk of the Member or other Person entitled to the certificate. The Company will not be responsible for any share certificate lost or delayed in the course of delivery.
|
6 |
Transfer of Shares; Drag-Along Sale; Preemptive Rights
|
6.1 |
The Directors shall have power and authority to make such rules and regulations as they may deem expedient concerning the issuance, registration and Transfer of Shares and may appoint transfer agents and registrars thereof;
provided
that except as specifically contemplated herein,
|
6.2 |
Drag-Along Sale
.
|
6.3 |
Preemptive Rights
.
|
6.3.1 |
Prior to earlier to occur of the Termination Date and the listing of the Shares on a U.S. national securities exchange registered with the SEC, in the event that the Company proposes to sell or otherwise issue (a "
Proposed Offering
") shares, warrants, options, securities or instruments convertible into or exercisable or exchangeable for shares, and all other rights to acquire shares of the Company ("
Dilutive Securities
"), other than in a Permitted Offering, each holder that, together with its Affiliates, owns or holds at least 3% of the outstanding Shares as of the date of the Company Sale Notice that is an Accredited Investor as of such date and as of the closing of the Proposed Offering (each, a "
Preemptive Rights Shareholder
") shall have the right to acquire that number or amount of such Dilutive Securities as is determined in accordance with Article 6.3.2 below, at the same price and upon the same terms and conditions as such Dilutive Securities are being offered by the Company in the Proposed Offering. No Dilutive Securities shall be issued by the Company to any Person unless the Company has first offered such securities to each Preemptive Rights Shareholder in the accordance with this Article 6.3.
|
6.3.2 |
At least 30 calendar days prior to the consummation of any Proposed Offering to which this Article 6.3 applies, the Company shall give written notice thereof to each Preemptive Rights Shareholder (the "
Company Sale Notice
"), setting forth the price and the other terms and conditions on which the Dilutive Securities are being offered to the proposed transferee(s), and offering to sell to each Preemptive Rights Shareholder its pro rata share of such Dilutive Securities on the same terms and conditions (the "
Preemptive Rights Offer
"); provided, that such pro rata share shall be based upon a ratio of the relative number of Shares beneficially owned by such Preemptive Rights Shareholder to the total number of Shares held by all Preemptive Rights Shareholders. Each Preemptive Rights Shareholder shall be entitled to accept any Preemptive Rights Offer by providing written notice to the Company not later than 10 calendar days after the date of the applicable Company Sale Notice (the "
Preemptive Rights Period
"), and any Preemptive Rights Shareholder who fails to timely accept any Preemptive Rights Offer shall have no further rights with respect to the Proposed Offering to which such Preemptive Rights Offer relates. Any Dilutive Securities that are offered in a Preemptive Rights Offer but are not accepted by Preemptive Rights Shareholders during the Preemptive Rights
|
6.3.3 |
No later than five calendar days following the expiration of the Preemptive Rights Period, the Company shall notify each Preemptive Rights Shareholder in writing (the "
Overallotment Notice
") of the number of Dilutive Securities that such Preemptive Rights Shareholder has agreed to purchase and the number of Dilutive Securities (if any) that remain available for purchase because one or more Preemptive Rights Shareholders did not exercise their right to purchase their pro rata portion of the Dilutive Securities (the "
Overallotment Shares
"). Each Preemptive Rights Shareholder exercising its right to purchase its pro rata portion of the Dilutive Securities in full (an "
Exercising Shareholder
") may purchase Overallotment Shares by giving written notice to the Company within five calendar days of receipt of the Overallotment Notice (the "
Overallotment Exercise Notice
") specifying the number of Overallotment Shares it desires to purchase. In the event that the Exercising Shareholders elect to purchase a number of Overallotment Shares that exceeds the number of Overallotment Shares available for sale, each Exercising Shareholder shall be entitled to purchase the lesser of (i) the number of Overallotment Shares specified in the Overallotment Exercise Notice and (ii) such Exercising Shareholder's pro rata portion of the Overallotment Shares (determined based on the number of Shares held by such Exercising Shareholder relative to the aggregate number of Shares held by all Exercising Shareholders and giving effect to clause (i)). Any Dilutive Securities that are offered in a Preemptive Rights Offer but are not accepted by Preemptive Rights Shareholders during the Preemptive Rights Period may be sold by the Company at any time prior to the 90th day following the expiration of the Preemptive Rights Period on the same terms and conditions as are set forth in the applicable Company Sale Notice.
|
6.3.4 |
As used herein, "
Permitted Offering
" means any sale or issuance by the Company of (i) shares, warrants, options, securities or instruments convertible into or exercisable or exchangeable for shares, and all other rights to acquire shares of the Company issued by the Company pursuant to the terms of any employee share option plan, employee benefit plan, or any similar benefit or incentive program or agreement covering directors, employees or consultants of any Group Company; or (ii) Dilutive Securities pursuant to (A) any share split, subdivision of shares, share dividend or similar transaction by the Company, (B) any merger or business combination transaction involving the Company or any of its Subsidiaries or as consideration for the acquisition by the Company or any other Group Company of assets or another business or entity, (C) any bona fide firm commitment underwritten sale of Shares to the public pursuant to an effective registration statement, or (D) the exercise of any rights or agreements, options, warrants or convertible securities outstanding as of the date hereof or issued or issuable pursuant to the exercise of any such rights or agreements granted after the date hereof.
|
6.3.5 |
Except as provided in this Article 6.3, the Company shall not grant to any Person any preemptive rights with respect to the issuance of equity securities of the Company.
|
6.4 |
Acquisition Proposals
. Prior to the Termination Date, if TMS, the Company or any other Group Company, or any director or officer of any of the foregoing, has been approached by or otherwise receives an Acquisition Proposal from one or more potential purchasers or any of their respective representatives:
|
6.4.1 |
TMS and the Group Companies shall deliver such Acquisition Proposal (or, in the case of an Acquisition Proposal provided orally, a written summary thereof) to the Lender Directors, and all
|
6.4.2 |
Majority Lender Directors shall have the power and authority to direct the Company and the Board to, as promptly as practicable, bring such Acquisition Proposal to a vote of the Shareholders, without any recommendation to reject such proposal from the Company, the Board or any other Person unless approved by Majority Lender Directors; and
|
6.4.3 |
if such Acquisition Proposal is approved by the affirmative vote of holders of a majority of the then-outstanding Shares, (A) the Company shall use commercially reasonable efforts to pursue and consummate such Acquisition Proposal and (B) for all purposes of Article 6.2, (i) such Acquisition Proposal shall constitute a "Drag-Along Sale," (ii) not less than two Lender Directors shall constitute the "Drag-Along Sellers" and (iii) the Shareholders shall constitute the "Dragged Shareholders."
|
7 |
Redemption, Repurchase and Surrender of Shares
|
7.1 |
Subject to the provisions of the Statute, the Company may issue Shares that are to be redeemed or are liable to be redeemed at the option of the Company acting by the Directors. The redemption of such Shares shall be effected (i) in accordance with Article 3.7, or (ii) in such manner and upon such other terms as the Company may, with prior approval of the Board, by Enhanced Special Resolution, determine before the issue of the Shares.
|
7.2 |
Subject to the provisions of the Statute, the Company may purchase its own Shares (including any redeemable Shares) in such manner and on such other terms as the Directors may agree with the relevant Member or may otherwise direct.
|
7.3 |
The Company may make a payment in respect of the redemption or purchase of its own Shares in any manner permitted by the Statute, including out of capital.
|
7.4 |
The Directors may accept the surrender for no consideration of any fully paid Share.
|
7.5 |
The Company may repurchase its own Shares, notes and any other debt securities on the open market on such terms as determined by the Directors.
|
7.6 |
Prior to the Termination Date, any of action undertaken pursuant to this Article 7 shall also be subject to the approval of Majority Lender Directors pursuant to Article 19.13.1 hereof.
|
8 |
Treasury Shares
|
8.1 |
The Directors may, prior to the purchase, redemption or surrender of any Share, determine that such Share shall be held as a Treasury Share.
|
8.2 |
The Directors may determine to cancel a Treasury Share or transfer a Treasury Share on such terms as they think proper (including, without limitation, for no consideration).
|
8.3 |
Prior to the Termination Date, any action undertaken pursuant to this Article 8 shall also be subject to the approval of Majority Lender Directors pursuant to Article 19.13.1 hereof.
|
9 |
Variation of Rights of Shares
|
9.1 |
Subject to the approval of the Majority Lender Directors, if at any time the share capital of the Company is divided into different classes of Shares, all or any of the rights attached to any class
|
9.2 |
For the purposes of a separate class meeting, the Directors may treat two or more or all the classes of Shares as forming one class of Shares if the Directors consider that such class of Shares would be affected in the same way by the proposals under consideration, but in any other case shall treat them as separate classes of Shares.
|
9.3 |
The rights conferred upon the shareholders of the Shares of any class issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the Shares of that class, be deemed to be varied by the creation or issue of further Shares ranking pari passu therewith.
|
10 |
Commission on Sale of Shares
|
11 |
Non Recognition of Trusts
|
12 |
Amendments of Memorandum and Articles of Association and Alteration of Capital
|
12.1 |
With the prior approval of the Board, the Company may by Ordinary Resolution:
|
(a) |
increase its share capital by such sum as the Ordinary Resolution shall prescribe and with such rights, priorities and privileges annexed thereto, as the Company in general meeting may determine;
|
(b) |
consolidate and divide all or any of its share capital into Shares of a larger amount than its existing Shares, including by Reverse Stock Split;
|
(c) |
convert all or any of its paid-up Shares into stock, and reconvert that stock into paid-up Shares of any denomination;
|
(d) |
subdivide its existing Shares or any of them into Shares of an amount smaller than is fixed by the Memorandum, including a Stock Split;
|
(e) |
cancel any Shares which, at the date of the passing of the Ordinary Resolution, have not been taken or agreed to be taken by any Person and diminish the amount of its share capital by the amount of the Shares so cancelled; and
|
(f) |
alter or add to these Articles, unless the Statute requires a Special Resolution and except as set forth in Articles 12.3 and 12.4 hereof.
|
12.2 |
[Reserved].
|
12.3 |
Subject to the provisions of the Statute and the provisions of these Articles as regards the matters to be dealt with by Ordinary Resolution and Special Resolution, the Company may, with the prior approval of the Board, by Enhanced Special Resolution:
|
(a) |
change its name;
|
(b) |
if first approved by at least two-thirds of the Board of Directors, alter or add to Articles 12.3, 19.2, 19.3, 19.4, 19.5, 19.9 and 20.1 hereof;
|
(c) |
alter or add to the Memorandum with respect to any objects, powers or other matters specified therein; and
|
(d) |
reduce its share capital or any capital redemption reserve fund.
|
12.4 |
In addition to foregoing clauses in this Article 12, prior to the Termination Date, the Company may only alter or add to this Article 12.4 and Articles 1, 6, 7.6, 8.3, 9.1, 12.3, 19.1, 19.2, 19.3, 19.4, 19.5, 19.7, 19.8, 19.9, 19.13, 23.2, 23.4, 30.3, 30.5, 30.6, 32.4, 36, 37, 39 and 40 with written instrument (a) approved by the Board and the Majority Lender Directors and (b) duly executed by or on behalf of (i) the Company, (ii) Governance Parties holding a majority of the Shares held by all Governance Parties and (iii) Lender Shareholder Parties holding 66 2/3% or more of the Shares owned by all Lender Shareholder Parties; provided, however, that: (x) if any amendment, supplement, modification or waiver to any of these Articles would reasonably be expected to disproportionately affect any Lender Shareholder Party in any material respect, such Lender Shareholder's approval shall be required; and (y) if any amendment, supplement, modification or waiver to any of these Articles would result in the reduction in the number of directors an Appointing Person has the right to appoint, such Appointing Person's approval shall be required.
|
12.5 |
After the Termination Date, these Articles may only be amended with (a) the approval of the Board; and (b) also the approval of an Ordinary Resolution or, if required by the Statute, a Special Resolution.
|
13 |
Offices and Places of Business
|
14 |
Shareholder Meetings
|
14.1 |
All general meetings, other than annual general meetings of shareholders ("
Annual General Meeting
"), shall be called extraordinary general meetings ("
Extraordinary General Meetings
").
|
14.2 |
The Company shall have an Annual General Meeting.
|
14.3 |
The Annual General Meeting shall be held on such day and at such time and place within or outside the Cayman Islands as the Board of Directors may determine (in accordance with this Article 14) for the purpose of electing Directors and of transacting such other business as may properly be brought before the meeting. The chairman of the Board of Directors (the "
Chairman
") or, in the Chairman's absence, another Person designated by the Board shall act as the chairman of all Annual General Meetings.
|
14.4 |
Nature of Business at Annual General Meetings. No business may be transacted at an Annual General Meeting, other than business that is either (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board (or any duly authorized committee thereof) which shall include the election or reelection (as applicable) of the Directors and the details of any proposed director which has been submitted by a Shareholder in accordance with Article 19; (b) otherwise properly brought before the Annual General Meeting by or at the direction of the Board (or any duly authorized committee thereof); or (c) otherwise properly brought before the Annual General Meeting by any shareholder of the Company (i) who is a shareholder of record on the date of the giving of the notice provided for in Article 14.11 and has remained a shareholder of record through the record date for the determination of shareholders entitled to vote at such Annual General Meeting, and (ii) who complies with the notice procedures set forth in this Article 14.
|
14.5 |
In addition to any other applicable requirements, for business to be properly brought before an Annual General Meeting by a shareholder, such shareholder must have given timely notice thereof in proper written form to the Company at its Registered Office.
|
14.6 |
To be timely, a shareholder's notice to the Company, other than in relation to the nomination of one or more directors by a shareholder in accordance with Article 19, must be delivered to, or mailed and received at, the Registered Office, not less than ninety (90) calendar days nor more than one-hundred eighty (180) calendar days prior to the one-year anniversary of the immediately preceding Annual General Meeting. In no event shall the public disclosure of any adjournment of an Annual General Meeting commence a new time period for the giving of the shareholder's notice described herein.
|
14.7 |
To be in proper written form, a shareholder's notice to the Company, other than in relation to the nomination of one or more directors by a shareholder in accordance with Article 19, must set forth as to each matter such shareholder proposes to bring before the Annual General Meeting (i) a brief description of the business desired to be brought before the Annual General Meeting and the reasons for conducting such business at the Annual General Meeting, (ii) the name and record address of such shareholder along with such shareholder's US tax identification number, if any, (iii) the class or series and number of shares of the Company which are owned beneficially or of record by such shareholder, (iv) a description of all arrangements or understandings between such shareholder and any other Person or Persons (including their names) in connection with the proposal of such business by such shareholder and any material interest of such shareholder in such business, and (v) a representation that such shareholder intends to appear in Person or by proxy at the Annual General Meeting to bring such business before the meeting.
|
14.8 |
No business shall be conducted at the Annual General Meeting except business brought before the Annual General Meeting in accordance with the procedures set forth in this Article 14; provided, however, that, once business has been properly brought before the Annual General Meeting in accordance with such procedures, nothing in this Article 14 shall be deemed to preclude discussion by any shareholder of any such business. If the Board (acting by way of simple majority) determines that business was not properly brought before the Annual General Meeting in accordance with the foregoing procedures, the Chairman of the meeting shall declare
|
14.9 |
A Person may participate at any meeting of shareholders by conference telephone or other communications equipment by means which all Persons participating in the meeting can communicate with each other. Participation by a Person in a general meeting in this manner is treated as presence at that meeting.
|
14.10 |
An Extraordinary General Meeting of shareholders, unless otherwise prescribed by law, may be called for any purpose or purposes at any time by the Chairman, a majority of the Board, or any officer of the Company who is also a Director. No other Person or Persons are permitted to call an Extraordinary General Meeting, unless otherwise prescribed by law. Such meetings shall be held at such place and on a date and at such time as may be designated in the notice thereof by the officer of the Company designated by the Board of Directors to deliver the notice of such meeting. The business transacted at any Extraordinary General Meetings shall be limited to the purposes stated in the notice.
|
14.11 |
Notice of Meetings. Notice of every Annual General Meeting and Extraordinary General Meeting, other than any meeting the giving of notice of which is otherwise prescribed by law, shall state the date, time, place and purpose thereof, and in the case of Extraordinary General Meetings, the name of the Person or Persons at whose direction the notice is being issued, and shall be given personally or sent by registered mail or facsimile at least fifteen (15) but not more than forty five (45) calendar days before such meeting (save in respect of an Extraordinary General Meeting called pursuant to Article 19.3), to each shareholder of record entitled to vote thereat and to each shareholder of record who, by reason of any action proposed at such meeting would be entitled to have his shares appraised if such action were taken, and the notice shall include a statement of that purpose and to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail, directed to the shareholder at his address as the same appears on the Register of Members or at such address as to which the shareholder has given notice to the Secretary. Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice, whether before or after the meeting, or who attends the meeting without protesting prior to the conclusion thereof the lack of notice to him.
|
14.12 |
Quorum. At all meetings of shareholders for the transaction of business, except as otherwise expressly provided by law, there must be present either in person or by proxy shareholders of record holding at least one-third of the shares issued and outstanding and entitled to vote at such meetings in order to constitute a quorum.
|
14.13 |
Adjournments. If a quorum is not present within half an hour from the time appointed for a meeting to commence or if during such a meeting a quorum ceases to be present, the meeting shall stand adjourned to such other day, time and/or place as the chairman may determine, and, if at the rescheduled meeting after the adjournment, a quorum is not present within half an hour from the time appointed for the meeting to commence, the shareholders present shall be a quorum. Any meeting of shareholders, annual or extraordinary, may be adjourned from time to time by the chairman of such meeting and reconvened at the same or some other place as the chairman may determine. Notice of any such adjourned meeting need not be given if the time and place thereof are announced at the meeting at which the adjournment is taken. However, if the chairman chooses to do so, the Company may issue a press release or public announcement of the proposed day, time and/or place of the rescheduled meeting. At the adjourned meeting the Company may transact any business which might have been transacted at the original meeting.
|
14.14 |
Voting. If a quorum is present, and except as otherwise expressly provided by the Statute, or these Articles, matters requiring a vote of the shareholders of the Company shall be passed by an Ordinary Resolution.
|
14.15 |
Fixing of Record Date. The Board of Directors may fix a time not more than forty-five (45) nor less than fifteen (15) calendar days prior to the date of any meeting of shareholders, or more than forty-five (45) calendar days prior to the last day on which the consent or dissent of shareholders may be expressed for any purpose without a meeting, as the time as of which shareholders entitled to notice of and to vote at such a meeting or whose consent or dissent is required or may be expressed for any purpose, as the case may be, shall be determined, and all Persons who were holders of record of Shares at such time and no others shall be entitled to notice of and to vote at such meeting or to express their consent or dissent, as the case may be.
|
14.16 |
Polls. Any shareholder present in person or by proxy may, before or on the declaration of the result of any vote conducted at the meeting, demand a poll for any business to be conducted at any Annual General Meeting or Extraordinary General Meeting. On a poll, votes may be given either personally or by proxy and every shareholder, and every Person representing a shareholder by proxy, shall have one vote for each Share of which he, or the Person represented by proxy, is the holder and which entitles such holder to vote on the relevant business.
|
14.17 |
A resolution (including an Ordinary Resolution, a Special Resolution or an Enhanced Special Resolution) in writing (in one or more counterparts) signed by or on behalf of all of the Members for the time being entitled to receive notice of and to attend and vote at general meetings (or, being corporations or other non-natural persons, signed by their duly authorised representatives) shall be as valid and effective as if the resolution had been passed at a general meeting of the Company duly convened and held.
|
15 |
Corporate Members
|
16 |
Proxies
|
16.1 |
The instrument appointing a proxy shall be in writing and shall be executed under the hand of the appointor or of his attorney duly authorised in writing, or, if the appointor is a corporation or other non-natural Person, under the hand of its duly authorised representative. A proxy need not be a Member.
|
16.2 |
The Directors may, in the notice convening any meeting or adjourned meeting, or in an instrument of proxy sent out by the Company, specify the manner by which the instrument appointing a proxy shall be deposited and the place and the time (being not later than the time appointed for the commencement of the meeting or adjourned meeting to which the proxy relates) at which the instrument appointing a proxy shall be deposited. In the absence of any such direction from the Directors in the notice convening any meeting or adjourned meeting or in an instrument of proxy sent out by the Company, the instrument appointing a proxy shall be deposited physically at the Registered Office not less than forty-eight (48) hours before the time appointed for the meeting or adjourned meeting to commence at which the Person named in the instrument proposes to vote.
|
16.3 |
The chairman may in any event at his discretion declare that an instrument of proxy shall be deemed to have been duly deposited. An instrument of proxy that is not deposited in the manner
|
16.4 |
The instrument appointing a proxy may be in any usual or common form (or such other form as the Directors may approve) and may be expressed to be for a particular meeting or any adjournment thereof or generally until revoked. An instrument appointing a proxy shall be deemed to include the power to demand or join or concur in demanding a poll.
|
16.5 |
Votes given in accordance with the terms of an instrument of proxy shall be valid notwithstanding the previous death or insanity of the principal or revocation of the proxy or of the authority under which the proxy was executed, or the transfer of the Share in respect of which the proxy is given unless notice in writing of such death, insanity, revocation or transfer was received by the Company at the Registered Office before the commencement of the general meeting, or adjourned meeting at which it is sought to use the proxy.
|
17 |
Shares that May Not be Voted
|
18 |
Authority of Directors
|
18.1 |
The affairs, business and property of the Company shall be managed by its Board of Directors. The number of Directors is determined according to these Articles. The Directors need not be residents of the Cayman Islands nor shareholders of the Company. Group Companies may, to the extent permitted by law, be elected Directors.
|
18.2 |
The Directors may exercise all the powers of the Company to borrow money and to mortgage or charge its undertaking, property and assets (present and future) and uncalled capital or any part thereof and to issue debentures, debenture share, mortgages, bonds and other such securities whether outright or as security for any debt, liability or obligation of the Company or of any third party.
|
18.3 |
The Board of Directors shall be elected as specified in Article 19.
|
19 |
Board of Directors
|
19.1. |
Appointment and Removal of Directors
|
19.1.1. |
Generally
. The Board of Directors shall be initially constituted with seven persons, which number may be increased or reduced as provided herein and in accordance with these Articles.
|
19.1.2 |
Board of Directors of the Company
. Effective as of the effective date hereof, the initial Board of Directors will be constituted as follows: George Economou, Chrysoula Kandylidis, Michael Pearson, Vassilis Karamitsanis, George Kokkodis, and John Liveris. Following the date on which the Lender Appointing Persons shall have been determined pursuant to Article 19.1.8 below, subject to Article 19.13.4, the following persons shall be appointed as directors:
|
19.1.3 |
Exculpation
. No Lender Shareholder Party, any Affiliate of any Lender Shareholder Party, any CEO Appointing Person, nor any Affiliate of any CEO Appointing Person, shall have any liability as a result of: (i) designating any individual as a Director or (ii) proposing to designate any individual for election as a Director, for any act or omission by such individual in his or her capacity as a Director, nor shall any Lender Shareholder Party, any Affiliate of any Lender Shareholder Party, any CEO Appointing Person, nor any Affiliate of any CEO Appointing Person have any liability as a result of voting for any such Director in accordance with the provisions of these Articles;
provided
,
however
, that this Article 19.1.3 shall not exculpate: any Lender Shareholder Party, any Affiliate of any Lender Shareholder Party, any CEO Appointing Person, nor any Affiliate of any CEO Appointing Person, for any action taken or omitted to be taken by such Person that (x) is a breach or violation of these Articles or (y) is an action taken in any other capacity other than such Person's capacity as a Lender Appointing Person or a CEO Appointing Person.
|
19.1.4 |
[Reserved].
|
19.1.5 |
Removal and Replacement of Directors and Officers by Appointing Persons.
|
19.1.6 |
Committees
. Not 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 Board of Directors for consideration. The Company shall at all times maintain an Audit Committee and Compensation Committee unless otherwise agreed in writing by the not less than two Lender Directors.
|
19.1.7 |
Observer Rights
.
|
19.1.8 |
Determination of Lender Appointing Persons
. On a date that is two business days following the date of adoption of these articles, the Company shall determine in its reasonable judgment the Lender Appointing Persons, as follows:
|
(i) |
if there are three or fewer 7.5% Lender Shareholder Parties, then each such 7.5% Lender Shareholder Party will become a Lender Appointing Person for a five year term; or
|
(ii) |
if there are more than three 7.5% Lender Shareholder Parties, then three Lender Appointing Persons shall be designated by a majority vote of the Shares of all 7.5% Lender Shareholder Parties, which Lender Appointing Persons shall be appointed 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.
|
19.1.9 |
The Company shall have no obligation to independently determine whether Lender Shareholder Parties are Affiliates of one another and may rely on information provided to the Company by Lender Shareholder Parties prior to such date of determination. Such determination by the Company based on information provided by Lender Shareholder Parties shall be final and binding on the Shareholders absent willful misconduct or manifest error. Promptly following such determination, the Company shall provide written notice to all Lender Shareholder Parties identifying the Lender Appointing Persons.
|
19.1.10 |
Transferability of Rights of Appointing Persons. The rights of the Lender Appointing Persons or the CEO Appointing Person shall not be assignable or transferable to any third party.
|
19.2 |
Following the issuance of a Standard Termination Notice, which notice shall include a list of the individuals which the Board proposes should be elected as the directors of the Company at the Annual General Meeting to be held on the relevant Termination Date, the Board shall:
|
(a) |
forty-five (45) calendar days prior to the Termination Date, issue the relevant notice to convene an Annual General Meeting to be held forty-five (45) calendar days thereafter; the business of such meeting being (i) accepting the resignation of each Director currently in office and (ii) the appointment or reappointment (as applicable) of the successor Directors, in each case, with effect from the Termination Date. The notice shall include a list of all nominees for the office of director received from the shareholders or the Board in accordance with Articles 19.5 through 19.7; and
|
(b) |
each Director in office immediately prior to the commencement of the Annual General Meeting held on the Termination Date pursuant to this Article 19.2 shall, and shall be deemed to, resign that office with effect from the Termination Date. Notwithstanding such resignation, each such Director may be eligible for reelection at such Extraordinary General Meeting if they are nominated in accordance with the provisions of this Article 19.
|
19.3 |
Following the issuance of an Accelerated Termination Notice, which notice shall include a list of the individuals which the Board proposes should be elected as the directors of the Company at the Extraordinary General Meeting to be held on the relevant Termination Date, the Board shall:
|
(a) |
thirty (30) calendar days prior to the Termination Date, issue the relevant notice to convene an Extraordinary General Meeting to be held thirty (30) calendar days thereafter; the business of such meeting being (i) accepting the resignation of each Director currently in office, and (ii) the appointment or reappointment (as applicable) of the successor Directors, in each case, with effect from the Termination Date. The notice shall include a list of all nominees for the office of director received from the shareholders or the Board in accordance with Articles 19.5 through 19.7; and
|
(b) |
each Director in office immediately prior to the commencement of the Extraordinary General Meeting held on the Termination Date pursuant to this Article 19.3 shall, and shall be deemed to, resign that office with effect from the Termination Date. Notwithstanding such resignation, each such Director may be eligible for reelection at such Extraordinary General Meeting if they are nominated in accordance with the provisions of this Article 19.
|
19.4 |
On and after the Termination Date:
|
(a) |
the Board of Directors shall at all times be comprised of seven (7) directors with not less than 50% of such directors being "Independent Outside Directors" (and not "Inside Directors" or "Affiliated Outside Directors"), in each case determined in accordance with the ISS U.S. Categorization of Directors in effect at the time of the relevant director appointments;
|
(b) |
the Board of Directors shall be divided into three classes, as nearly equal in number as the then total number of directors constituting the entire Board of Directors permits, with the term of office of one or another of the three classes expiring each year. The directors elected at an Annual General Meeting to succeed those whose terms then expire shall be identified as being directors of the same class as the directors whom they succeed, and each of them shall hold office until the third succeeding Annual General Meeting and until such director's successor is elected and has qualified; and
|
(c) |
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.
|
19.5 |
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 the following procedures shall be eligible for election as Directors of the Company. Nominations of Persons for election to the Board of Directors may be made in writing prior to any Annual General Meeting or the Extraordinary General Meeting held in accordance with Article 14, 19.2 or 19.3 by or at the direction of the Board of Directors (or any duly authorized committee thereof), or (b) by any shareholder of the Company (i) who is a shareholder of record on the date of the giving of the notice provided for in this Article 19 and (ii) who complies with the notice procedures set forth in this Article 19.
|
19.6 |
To be in proper written form, a shareholder's notice to the Company must set forth: (a) as to each Person whom the shareholder proposes to nominate for election as a Director (i) the name, age, business address and residence address of the Person, (ii) the principal occupation or employment of the Person, and (iii) the class or series and number of shares of the Company which are owned beneficially or of record by the Person and (b) as to the shareholder giving the notice (i) the name and record address of such shareholder along with such shareholder's US tax identification number (if any), (ii) the class or series and number of shares of the Company which are owned beneficially and of record by such shareholder, (iii) a description of all arrangements or understandings between such shareholder and each proposed nominee and any other Person and Persons (including their names) pursuant to which the nomination(s) are to be made by such shareholder, and (iv) a representation that such shareholder intends to appear in Person or by proxy at the meeting to nominate the Person or Persons named in its notice. Such notice must be accompanied by a written consent of each proposed nominee being named as a nominee and to serve as a Director if elected.
|
19.7 |
Notwithstanding any other provision of these Articles, a shareholder's notice to the Company pursuant to Articles 19.5 and 19.6 above must be delivered to or mailed and received at the
|
19.8 |
No person shall be eligible for election as a Director of the Company unless nominated in accordance with the procedures set forth in this Article 19. For the avoidance of doubt, any nomination made to the Company under this Article 19 shall be deemed to be validly received in accordance with the procedures set forth in this Article 19 unless the Board (acting by way of simple majority) determines that such nomination was not made in accordance with the foregoing procedures and notifies the relevant nominating shareholder in writing of that determination, setting out in detail the provisions of this Article 19 which were not complied with, (i) in respect of the Extraordinary General Meeting within 5 calendar days, or (ii) in all other circumstances, not within 15 calendar days, in each case, of receipt of the relevant nomination. Any nomination which is not rejected by the Board in accordance with the foregoing requirements shall be deemed to be valid and shall be specified in the notice of meeting which is circulated pursuant to Article 19.2, 19.3 or 14.4 (as applicable) and put to a vote of the shareholders at the relevant meeting.
|
19.9 |
Notwithstanding any other provisions of these Articles, (a) prior to the Termination Date, Directors may be removed only in accordance with Article 19.1.5; and (b) from and after the Termination Date, any Director or the entire Board of Directors may be removed at any time, but only for Cause and only by an Enhanced Special Resolution.
|
19.10 |
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. To be timely, a shareholder's notice to the Company must be delivered to or mailed and received at the Registered Office of the Company not less than sixty (60) calendar days nor more than one hundred eighty (180) calendar days prior to the one-year anniversary date of the immediately preceding Annual General Meeting. To be in proper written form, a shareholder's notice must set forth: (a) a statement of the grounds, if any, on which such Director is proposed to be removed, (b) evidence reasonably satisfactory to the Secretary of such shareholder's status as such and of the number of shares of each class of shares of the Company beneficially owned by such shareholder, and (c) a list of the names and addresses of other shareholders of the Company, if any, with whom such shareholder is acting in concert, and the number of shares of each class of shares of the Company beneficially owned by each such shareholder.
|
19.11 |
No shareholder proposal to remove a Director shall be voted upon at an Annual General Meeting unless proposed in accordance with the procedures set forth in this Article 19. If the Board (acting by simple majority) determines, based on the facts, that a shareholder proposal to remove a Director was not made in accordance with the foregoing procedures, the chairman shall declare to the meeting that a proposal to remove a Director of the Company was not made in accordance with the procedures prescribed by these Articles, and such defective proposal shall be disregarded.
|
19.12. |
[Reserved.]
|
19.13 |
Rights and Authority of Majority Lender Directors
|
19.13.1 |
Major Action Approval Rights
. The Company shall not, nor shall it permit any Group Company to, directly or indirectly, take any of the actions set forth on
Schedule 1
unless such action has been expressly approved by the Board of Directors, which approval includes Majority Lender Directors.
|
19.13.2 |
Other Approval Rights
. The Company shall not, nor shall it permit any Group Company to, directly or indirectly, take any of the following actions unless such action has been expressly approved by the Board of Directors, which approval includes Majority Lender Directors:
|
(a) |
the establishment, adoption, entering into, amendment or modification to, termination of, or waiver of any provision under, the MEP or any other equity incentive plan, bonus incentive plan, severance plan, or employee benefit plan;
|
(b) |
the grant or award of any severance, equity or non-cash bonus entitlement to any director, officer or employee of Company or any of its Subsidiaries, including any grant or any other equity incentive plan or non-cash bonus incentive plan, or any amendment to or waiver of any term of any such grant or award;
|
(c) |
the establishment or approval of the annual operating budget of the Company (the "Annual Approved Budget") and any amendments, modifications or supplements thereto, which Annual Approved Budget shall constitute the "Annual Approved Budget" referenced in the Management Agreement;
|
(d) |
the approval or payment of any salary, bonus or other compensation to (i) any Director, (ii) Mr. George Economou, (iii) Mr. Anthony Kandylidis or (iv) any Family Member of any of the persons identified in the foregoing clauses (i) though (iii);
|
(e) |
the following actions taken under or otherwise in respect of the Management Agreement: (i) each of the actions set forth in Article 19.13.3 below; (ii) the approval of manning services and fees; (iii) the approval of the payment of any fees or other amounts except as provided in the Management Agreement; (iv) the exercise of termination rights and remedies; (v) the amendment, modification or supplement of, or the waiver of any provision under, the Management Agreement; and (vi) the acceleration of any payment under the Management Agreement;
|
(f) |
the making of any Election other than one referred to in Article 40.2;
|
(g) |
request a reduction of services to be provided under the Management Agreement;
|
(h) |
the Company's or any Group Company's approval of any subcontracting or assignment by the Manager of its rights or obligations under the Management Agreement; and
|
(i) |
entering into any agreement to do any of the foregoing.
|
19.13.3 |
Exclusive Authority of Majority Lender Directors
. The Majority Lender Directors will have the exclusive power and authority to direct and cause the Company and its Subsidiaries to take any of the following actions:
|
(a) |
exercise all termination rights and remedies of any Group Company under the Management Agreement;
|
(b) |
cure any default of any Group Company under the Management Agreement, including making payments on behalf of the Company or such Subsidiary of the Company as required under the Management Agreement;
|
(c) |
establish the goals and resulting bonus payable with respect to the "Strategic Priorities Metric" (as defined in the Management Agreement);
|
(d) |
request services under the Management Agreement;
|
(e) |
request information pursuant to Section 12.4 of the Management Agreement or any successor provision;
|
(f) |
rescind a termination of the Management Agreement; and
|
(g) |
in connection with disputes arising under the Management Agreement, select an arbitrator on behalf of the Company and its Subsidiaries under the Management Agreement.
|
19.13.4 |
No Action Prior to Lender Director Appointment
. Prior to the appointment of the three Lender Appointing Persons, the Company shall not take any action if such action would otherwise require Lender Directors' approval. For the avoidance of doubt, if three Lender Appointing Persons have not been determined within 2 business days after the date of adoption of these Articles, the 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.
|
19.13.5 |
Right to Separate Counsel
. The various Directors shall have the right to retain separate legal counsel on their behalf as they deem necessary, and incur reasonable fees and expenses in connection therewith, at the expense of Company.
|
19.13.6 |
Notices
. The Company shall promptly provide to the Lender Directors a copy of any notice any Group Company receives from the Manager pursuant to the Management Agreement.
|
19.13.7 |
Listing
. If at any time the Shares are no longer listed on the Nasdaq Global Select Market, at the direction of Majority Lender Directors, (i) the Company shall, and the Shareholders shall take all Necessary Action to cause the Company to, use commercially reasonable efforts to cause the Shares to be listed on the Nasdaq Global Select Market or, subject to the approval of the Majority Lender Directors, another U.S. national securities exchange registered with the SEC and (ii) the Shareholders and the Company shall take such actions as are reasonably necessary to facilitate such listing, including meeting minimum director requirements, in each case to the extent such actions do not have a materially adverse impact on the rights or obligations of the Lender Shareholder Parties.
|
20 |
Vacation of Office of Director
|
20.1 |
Subject to Article 19.1, any vacancies in the Board of Directors for any reason, and any created directorships resulting from any increase in the number of directors, may be filled by the vote
of
not less than a majority of the members of the Board of Directors then in office, and any directors
|
20.2 |
The continuing Directors (or a sole continuing Director, as the case may be) may act notwithstanding any vacancy in their body, but if and so long as their number is reduced below the number fixed by or pursuant to these Articles as the necessary quorum of Directors the continuing Directors or Director may act for the purpose of increasing the number of Directors to be equal to such fixed number, or of summoning a general meeting of the Company, but for no other purpose.
|
21 |
Proceedings of Directors
|
21.1 |
The quorum for the transaction of the business of the Directors may be fixed by the Directors, and unless so fixed shall be a majority of the Directors at the time in office, present in person or by proxy as provided in Article 21.10 or by conference telephone, shall constitute a quorum for the transaction of business.
|
21.2 |
Subject to the provisions of these Articles, the Directors may regulate their proceedings as they think fit. Questions arising at any meeting shall be decided by a majority of votes. In the case of an equality of votes, the chairman shall have a second or casting vote.
|
21.3 |
A person may participate in a meeting of the Directors or any committee of Directors by conference telephone or other communications equipment by means of which all the persons participating in the meeting can communicate with each other at the same time. Participation by a person in a meeting in this manner is treated as presence in person at that meeting.
|
21.4 |
A resolution in writing (in one or more counterparts) signed by all the Directors or all the members of a committee of the Directors or, in the case of a resolution in writing relating to the removal of any Director or the vacation of office by any Director, all of the Directors other than the Director who is the subject of such resolution shall be as valid and effectual as if it had been passed at a meeting of the Directors, or committee of Directors as the case may be, duly convened and held.
|
21.5 |
Regular meetings of the Board of Directors may be held at such time and place as may be determined by resolution of the Board of Directors and no notice shall be required for any regular meeting. Except as otherwise provided by the Statute, any business may be transacted at any regular meeting.
|
21.6 |
Special Director Meetings of the Board of Directors may, unless otherwise prescribed by law, be called from time to time by the Chairman, a majority of the Board, or any officer of the Company who is also a Director ("
Special Director Meetings
"). The President or the Secretary shall call a Special Director Meeting of the Board upon written request directed to either of them by the Chairman, a majority of the Board of Directors, or any Officer of the Company who is also a director of the Company, stating the time, place, and purpose of such Special Director Meeting. Special Director Meetings shall be held on a date and at such time and at such place as may be designated in the notice thereof by the officer calling the meeting.
|
21.7 |
Notice of Special Director Meeting: Notice of the date, time and place of each Special Director Meeting of the Board of Directors shall be given to each Director at least forty-eight (48) hours prior to such meeting, unless the notice is given orally or delivered in person, in which case it shall be given at least twenty-four (24) hours prior to such meeting. For the purpose of this article, notice shall be deemed to be duly given to a Director if given to him personally (including by telephone) or if such notice be delivered to such Director by mail, telegraph, telefax, cablegram, telex, or teleprinter to his last known address. Notice of a meeting need not be given to any Director who submits a signed waiver of notice, whether before or after the meeting or who attends the meeting without protesting, prior to the conclusion thereof, the lack of notice to him.
|
21.8 |
The Directors may elect a chairman of their board and determine the period for which he is to hold office.
|
21.9 |
All acts done by any meeting of the Directors or of a committee of the Directors) shall, notwithstanding that it is afterwards discovered that there was some defect in the appointment of any Director, and/or that they or any of them were disqualified, and/or had vacated their office and/or were not entitled to vote, be as valid as if every such person had been duly appointed and/or not disqualified to be a Director and/or had not vacated their office and/or had been entitled to vote, as the case may be.
|
21.10 |
A Director may be represented at any meetings of the board of Directors by a proxy appointed in writing by him provided that individual is another Director and provided the proxy sets out the specific issues to be voted on. The proxy shall count towards the quorum and the vote of the proxy shall for all purposes be deemed to be that of the appointing Director.
|
21.11 |
Voting: The vote of the majority of the Directors, present in person, by proxy, or by conference telephone, at a meeting at which a quorum is present shall be the act of the Directors. Any action required or permitted to be taken at a meeting may be taken without a meeting if all members of the Board consent thereto in writing.
|
22 |
Presumption of Assent
|
23 |
Directors' Interests, Related Party Transactions and Insider Trading Policy
|
23.1 |
No contract or transaction between the Company and one or more of its Directors or officers, or between the Company and any other corporation, partnership, association or other organization in which one or more of its Directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the Director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or her or their votes are counted for such purpose, if: (i) the material facts as to his or her relationship or interest as to the contract or transaction are disclosed or are known to the Board of Directors or a committee of the Board of Directors or such committee in good faith authorises the contract or transaction by the affirmative
|
23.2 |
Related Party Transactions
. Prior to the Termination Date, except with the approval of the Board of Directors, which approval must include Majority Lender Directors, the Company shall not, and shall not permit any Group Company to:
|
23.2.1 |
enter into any Related Party Transaction other than a Permitted Related Party Transaction; or
|
23.2.2 |
amend, modify, supplement, or terminate, waive any provision of, extend any provision or remedy related to, or accelerate any payment by any Person 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 (c) 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.
|
23.3 |
Notwithstanding Article 23.1:
|
(a) |
a Director may hold any other office or place of profit under the Company (other than the office of Auditor) in conjunction with his office of Director for such period and on such terms as to remuneration and otherwise as the Directors may determine;
|
(b) |
a Director may act by himself or by, through or on behalf of his firm in a professional capacity for the Company and he or his firm shall be entitled to remuneration for professional services as if he were not a Director;
|
(c) |
a Director may be or become a director or other officer of or otherwise interested in any company promoted by the Company or in which the Company may be interested as a shareholder, a contracting party or otherwise, and no such Director shall be accountable to the Company for any remuneration or other benefits received by him as a director or officer of, or from his interest in, such other company; and
|
(d) |
a general notice that a Director is a shareholder, director, officer or employee of any specified firm or company and is to be regarded as interested in any transaction with such firm or company shall be sufficient disclosure for the purposes of voting on a resolution in respect of a contract or transaction in which he has an interest, and after such general notice it shall not be necessary to give special notice relating to any particular transaction.
|
23.4 |
Insider Trading Policy
. The Company shall maintain an insider trading policy applicable to the Lender Directors and the respective Lender Appointing Person in the form set forth on Schedule 3 hereto.
|
24 |
Minutes
|
25 |
Delegation of Directors' Powers
|
25.1 |
The Directors may in their sole discretion appoint or remove such officers of the Company ("
Officers
") as they deem necessary and may determine the remuneration of such Officers, if any.
|
25.2 |
The Directors may delegate any of their powers, authorities and discretions, including the power to sub-delegate, to any Officer or committee consisting of one or more Directors. They may also delegate to any Director or Officer holding any other executive office such of their powers, authorities and discretions as they consider desirable to be exercised by him. Any such delegation may be made subject to any conditions the Directors may impose and either collaterally with or to the exclusion of their own powers and any such delegation may be revoked or altered by the Directors. Subject to any such conditions, the proceedings of a committee of Directors shall be governed by these Articles regulating the proceedings of Directors, so far as they are capable of applying.
|
25.3 |
The Board of Directors may, by resolution or resolutions passed by a majority of the entire Board, designate from among its members an executive committee to consist of one or more of the Directors of the Company, which, to the extent provided in said resolution or resolutions, or in these Articles, shall have and may exercise, to the extent permitted by law, the powers of the Board of Directors in the management of the business and affairs of the Company, and may have power to authorize the Seal to be affixed to all papers which may require it, provided, however, that no committee shall have the power or authority to (i) fill a vacancy in the Board or in a committee thereof, (ii) amend or repeal provisions of these Articles to the extent permitted by these Articles, (iii) amend or repeal any resolution of the entire Board, (iv) increase the number of Directors on the Board, or (v) remove any Director. In addition, the Board of Directors may, by resolution or resolutions passed by a majority of the entire Board designate from among its members other committees to consist of one or more of the Directors of the Company, each of which shall perform such function and have such authority and powers as shall be delegated to it by said resolutions or as provided for in these Articles, except that only the executive committee may have and exercise the powers of the Board of Directors. Members of the executive committee and any other committee shall hold office for such period as may be prescribed by the vote of a majority of the entire Board of Directors. Vacancies in membership of such committees shall be filled by vote of the board of Directors. Committees may adopt their own rules of procedure and may meet at stated times or on such notice as they may determine. Each committee shall keep a record of its proceedings and report the same to the Board when requested.
|
25.4 |
The Directors may by power of attorney or otherwise appoint any person to be the agent of the Company on such conditions as the Directors may determine, provided that the delegation is not to the exclusion of their own powers and may be revoked by the Directors at any time.
|
25.5 |
The Directors may by power of attorney or otherwise appoint any company, firm, person or body of persons, whether nominated directly or indirectly by the Directors, to be the attorney or authorised signatory of the Company for such purpose and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Directors under these Articles) and for such period and subject to such conditions as they may think fit, and any such powers of attorney or other appointment may contain such provisions for the protection and convenience of persons dealing with any such attorneys or authorised signatories as the Directors may think
fit
|
25.6 |
The Directors may appoint such officers of the Company (including, for the avoidance of doubt and without limitation, any secretary) as they consider necessary on such terms, at such remuneration and to perform such duties, and subject to such provisions as to disqualification and removal as the Directors may think fit. Unless otherwise specified in the terms of his appointment an officer of the Company may be removed by resolution of the Directors or Members. An officer of the Company may vacate his office at any time if he gives notice in writing to the Company that he resigns his office.
|
26 |
Remuneration of Directors
|
27 |
Officers
|
27.1 |
The Board of Directors shall appoint a president (the "
President
"), Secretary and treasurer and such other officers with such duties as it may deem necessary. Officers may be of any nationality, need not be residents of the Cayman Islands and may be, but are not required to be, Directors. Officers of the Company shall be natural persons except the secretary may be a corporate entity. Any two or more offices may be held by the same natural person.
|
27.2 |
Subject to Article 19.13.2, the salaries of the officers and any other compensation paid to them shall be fixed from time to time by the Board of Directors or any authorized committee thereof. The Board of Directors may at any meeting appoint additional officers. Each officer shall hold office until his successor shall have been duly appointed and qualified, except in the event of the earlier termination of his term of office, through death, resignation, removal or otherwise. Any officer may be removed by the Board at any time with or without Cause. Any vacancy in an office may be filled for the unexpired portion of the term of such office by the Board of Directors at any regular or Special Director Meeting.
|
27.3 |
Officers shall exercise such powers and perform such duties as may be assigned to them by the Board of Directors or the President.
|
27.4 |
Bond: The Board of Directors shall have power to the extent permitted by law, to require any officer, agent or employee of the Company to give bond for the faithful discharge of his duties in such form and with such surety or sureties as the Board of Directors may deem advisable.
|
28 |
Dividends, Distributions and Reserve
|
28.1 |
Subject to the Statute and this Article 28.1 and except as otherwise provided by the rights attached to any Shares, the Directors may resolve to pay Dividends and other distributions on Shares in issue and authorise payment of the Dividends or other distributions out of the funds of the Company lawfully available therefor. A Dividend shall be deemed to be an interim Dividend unless the terms of the resolution pursuant to which the Directors resolve to pay such Dividend specifically state that such Dividend shall be a final Dividend. No Dividend or other distribution shall be paid except out of the realised or unrealised profits of the Company, out of the share premium account or as otherwise permitted by law. The Board of Directors may fix a time
not
|
28.2 |
Except as otherwise provided by the rights attached to any Shares, all Dividends and other distributions shall be paid pro rata in accordance with the number of Shares entitled to such Dividend. If any Share is issued on terms providing that it shall rank for Dividend as from a particular date then such Share shall rank for Dividend accordingly.
|
28.3 |
The Directors may deduct from any Dividend or other distribution payable to any Member all sums of money (if any) then payable by him to the Company on account of calls or otherwise.
|
28.4 |
The Directors may resolve that any Dividend or other distribution be paid wholly or partly by the distribution of specific assets and in particular (but without limitation) by the distribution of shares, debentures, or securities of any other company or in any one or more of such ways and where any difficulty arises in regard to such distribution, the Directors may settle the same as they think expedient and in particular may issue fractional Shares and may fix the value for distribution of such specific assets or any part thereof and may determine that cash payments shall be made to any Members upon the basis of the value so fixed in order to adjust the rights of all Members and may vest any such specific assets in trustees in such manner as may seem expedient to the Directors.
|
28.5 |
Except as otherwise provided by the rights attached to any Shares, Dividends and other distributions may be paid in any currency. The Directors may determine the basis of conversion for any currency conversions that may be required and how any costs involved are to be met.
|
28.6 |
The Directors may, before resolving to pay any Dividend or other distribution, set aside such sums as they think proper as a reserve or reserves which shall, at the discretion of the Directors, be applicable for any purpose of the Company and pending such application may, at the discretion of the Directors, be employed in the business of the Company.
|
28.7 |
Any Dividend, other distribution, interest or other monies payable in cash in respect of Shares may be paid by wire transfer to the shareholder or by cheque or warrant sent through the post directed to the registered address of the holder, in the case of joint holders, to the registered address of the shareholder who is first named on the Register of Members or to such person and to such address as such shareholder or joint shareholders may in writing direct or through the payment facilities of the Company's transfer agent or securities depositary. Every such cheque or warrant shall be made payable to the order of the person to whom it is sent. Any one of two or more joint holders may give effectual receipts for any Dividends, other distributions, bonuses, or other monies payable in respect of the Share held by them as joint holders.
|
28.8 |
No Dividend or other distribution shall bear interest against the Company unless provided for in the resolutions through which such securities were issued. 28.9 Any Dividend or other distribution which cannot be paid to a Member and/or which remains unclaimed after six months from the date on which such Dividend or other distribution becomes payable may, in the discretion of the Directors, be paid into a separate account in the Company's name, provided that the Company shall not be constituted as a trustee in respect of that account and the Dividend or other distribution shall remain as a debt due to the Member. Any Dividend or other distribution which remains unclaimed after a period of six years from the date on which such Dividend or other distribution becomes payable shall be forfeited and shall revert to the Company.
|
29 |
Capitalisation
|
30 |
Books of Account
|
30.1 |
The Directors shall cause proper books of account (including, where applicable, material underlying documentation including contracts and invoices) to be kept with respect to all sums of money received and expended by the Company and the matters in respect of which the receipt or expenditure takes place, all sales and purchases of goods by the Company and the assets and liabilities of the Company. Proper books shall not be deemed to be kept if there are not kept such books of account as are necessary to give a true and fair view of the state of the Company's affairs and to explain its transactions.
|
30.2 |
Subject to Articles 30.3 and 30.5 below, the Directors shall determine whether and to what extent and at what times and places and under what conditions or regulations the accounts and books of the Company or any of them shall be open to the inspection of Members not being Directors and no Member (not being a Director) shall have any right of inspecting any account or book or document of the Company except as conferred by Statute or authorised by the Directors or by the Company in general meeting.
|
30.3 |
Each 5% Shareholder Party, and its representatives, advisors and auditors, shall, upon written demand, have the right upon reasonable notice and during the usual hours for business to have access to personnel, accountants, auditors, counsel, properties and information of the Company or any Group Company, including the right to inspect the books, records, business operations, internal controls and policies of the Group Companies;
provided
,
however
, that no person that is a Competitor shall have any access, inspection or other rights under this Article 30.3. Any request made pursuant to this Article 30.3 shall (1) be in writing, and (2) describe with reasonable particularity the records or information desired, and (3) contain a certification of the Shareholder certifying the purpose of such inspection, which must be reasonably related to the Shareholder Party's interests as a Shareholder. The Company shall cause its and the other Group Companies' personnel, accountants, auditors, and counsel to make themselves available for meetings or other discussions with such 5% Shareholder Party or its representatives, advisors or auditors, as the case may be. All information provided pursuant to this Article 30.3 shall be subject to the following confidentiality restrictions: (a) the Shareholder shall use any disclosed information only for the purposes disclosed to the Company in the Shareholder's request for information and not for any other purpose; (b) except as reasonably necessary in connection with asserting any claim, in the Shareholder's capacity as a Shareholder, against the Company, or any of the Company's Directors, Officers, employees, or agents, the Shareholder shall not disclose, publish, or communicate the disclosed information to any Person, other than its advisors who also have
|
30.4 |
The Directors may cause to be prepared and to be laid before the Company in general meeting profit and loss accounts, balance sheets, group accounts (if any) and such other reports and accounts as may be required by law.
|
30.5 |
Reports
.
|
30.5.1 |
The Company shall make available to each shareholders on a site or in an electronic data room accessible to all shareholders, make available to the public on a freely-accessible section of the Company's website and, upon request of any shareholders, deliver to such shareholders, the following financial and business information relating to the Group Companies, and with respect to
clauses (i)
and
(ii)
below, accompanied by a reasonably detailed narrative discussion of the changes in the Company's financial condition and results of operations compared with the prior periods presented, which will, with respect to the Company's audited consolidated annual financial statements, be in form and substance substantially the same as the discussion contained in the "Management Discussion & Analysis" section of an Exchange Act report:
|
30.5.2 |
Promptly, and in no event later than 15 days, after issuing the annual and quarterly reports described in Article 30.5.1, the Company shall hold a conference call to discuss the information contained in such annual and quarterly reports, including the results of the Company's operations and the financial performance of the Company, and to answer
|
30.6 |
Each Lender Shareholder Party shall, upon written request, have the right upon reasonable notice and during the usual hours for business to receive a copy of a form of Governance Agreements. Any Lender Shareholder Party (other than the Governance Parties from time to time) may elect to become party to a Governance Agreement and, upon execution of a Governance Agreement, the Company and the Group Companies party thereto shall execute and deliver to such Lender Shareholder Party such Governance Agreement and, thereafter, such Lender Shareholder Party shall be a Governance Party.
|
31 |
Winding Up
|
31.1 |
If the Company shall be wound up the liquidator shall apply the assets of the Company in satisfaction of creditors' claims in such manner and order as such liquidator thinks fit. Subject to the rights attaching to any Shares, in a winding up:
|
(a) |
if the assets available for distribution amongst the Members shall be insufficient to repay the whole of the Company's issued share capital, such assets shall be distributed so that, as nearly as may be, the losses shall be borne by the Members in proportion to the par value of the Shares held by them; or
|
(b) |
if the assets available for distribution amongst the Members shall be more than sufficient to repay the whole of the Company's issued share capital at the commencement of the winding up, the surplus shall be distributed amongst the Members in proportion to the par value of the Shares held by them at the commencement of the winding up subject to a deduction from those Shares in respect of which there are monies due, of all monies payable to the Company for unpaid calls or otherwise.
|
31.2 |
If the Company shall be wound up the liquidator may, subject to the rights attaching to any Shares and with the approval of a Special Resolution of the Company and any other approval required by the Statute, divide amongst the Members in kind the whole or any part of the assets of the Company (whether such assets shall consist of property of the same kind or not) and may for that purpose value any assets and determine how the division shall be carried out as between the Members or different classes of Members. The liquidator may, with the like approval, vest the whole or any part of such assets in trustees upon such trusts for the benefit of the Members as the liquidator, with the like approval, shall think fit, but so that no Member shall be compelled to accept any asset upon which there is a liability.
|
32 |
Indemnity and Insurance
|
32.1 |
Every Director and Officer of the Company (which for the avoidance of doubt, shall not include auditors of the Company), together with every former Director and former Officer of the Company (each an "
Indemnified Person
") shall be indemnified out of the assets of the Company against any liability, action, proceeding, claim, demand, costs, damages or expenses, including legal expenses, whatsoever which they or any of them may incur as a result of any act or failure to act in carrying out their functions other than such liability (if any) that they may incur (i) by reason of their own actual fraud or wilful default, or (ii) as a result of the insurance policy maintained by the Company not available due to such person's willful failure to disclose to the insurance provider (where, in the absence of such failure to disclose, the insurance maintained by the Company would have otherwise been available). No Indemnified Person shall be liable to the Company for any loss or damage incurred by the Company as a result (whether direct or indirect)
|
32.2 |
The Company shall advance to each Indemnified Person reasonable attorneys' fees and other costs and expenses incurred in connection with the defence of any action, suit, proceeding or investigation involving such Indemnified Person for which indemnity will or could be sought. In connection with any advance of any expenses hereunder, the Indemnified Person shall execute an undertaking to repay the advanced amount to the Company if it shall be determined by final judgment or other final adjudication that such Indemnified Person was not entitled to indemnification pursuant to this Article 32. If it shall be determined by a final un-appealable judgment or other final un-appealable adjudication that such Indemnified Person was not entitled to indemnification with respect to such judgment, costs or expenses, then such party shall not be indemnified with respect to such judgment, costs or expenses and any advancement shall be returned to the Company (without interest) by the Indemnified Person.
|
32.3 |
No director shall be personally liable to the Company or any of its shareholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Statute as the same exists or may hereafter be amended. If the Statute is amended hereafter to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the Company shall be eliminated or limited to the fullest extent authorized by the Statute, as so amended. Any repeal or modification of this Article 32.3 shall not adversely affect any right or protection of a director of the Company existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification.
|
32.4 |
Subject to market availability, the Directors, on behalf of the Company, shall purchase and maintain insurance for the benefit of any Director or other officer of the Company who is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including any Group Company against any against any expense, liability or loss asserted, against such person and incurred by such person in any such capacity, or arising out of such person's status as such, which, by virtue of any rule of law, would otherwise attach to such person in respect of any negligence, default, breach of duty or breach of trust of which such person may be guilty in relation to the Company, with coverage of not less than $400,000,000.
|
33 |
Financial Year
|
34 |
Transfer by Way of Continuation
|
35 |
Seal
|
36 |
Post-Termination Date
|
37 |
Mergers and Consolidations
|
38 |
[Reserved]
|
39 |
Petition to Wind-Up the Company
|
40 |
Tax Matters
|
40.1 |
Upon written request from a Shareholder, the Company shall provide such Shareholder any information reasonably requested by the Shareholder in connection with the Shareholder's tax filing or other reporting obligations.
|
40.2 |
For each of the Group Companies, other than the Company, an Election has been made with effect prior to the Restructuring Effective Date for such Group Company to be treated as a disregarded entity for US federal income tax purposes.
|
1. |
All issuances and purchases of debt and equity, including:
|
(a) |
Equity Issuances
: Any issuance of Shares or other equity interests of the Company or any Subsidiary of the Company, except for issuances of equity interests by a Subsidiary of the Company to the Company or a wholly-owned Subsidiary of the Company.
|
(b) |
Redemptions of equity interests
: Any redemption, repurchase, retirement, combination, split, reverse split or reclassification of Shares or other equity interests of the Company or any Subsidiary of the Company, other than a redemption in order to effect the conversion of Shares pursuant to Article 3.7.
|
(c) |
Indebtedness
:
|
(d) |
Liens
: Any creation of, or permitting the creation of or suffering to exist, by the Company or any of its Subsidiaries 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 the Company or such subsidiary, other than liens securing (i) trade indebtedness incurred in the ordinary course of business of the Company or such Subsidiary; (ii) the indebtedness already existing on the date hereof and set forth on
Schedule 2
to these Articles and identified on such Schedule as being secured by a lien; (iii) the Permitted Facility Refinancing to the extent the same as those grant under the Term Loan Facility; and (iv) the Permitted Revolver.
|
(e) |
Debt Redemptions and Repurchases
: Any redemption or repurchase of any debt securities, or prepayment of any other indebtedness, of the Company or any of its Subsidiaries 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) by the Company or any of its Subsidiaries 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, in each case by the Company or any of its Subsidiaries which, when taken together with all other commitments, constructions, purchases and acquisitions of vessels of the Company and its Subsidiaries, involve greater than $1,000,000 in value and/or payments in any year.
|
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
|
(b) |
Other Corporate Transactions
: Entering into by the Company or any of its Subsidiaries of 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 by the Company or any of its Subsidiaries or (ii) amending, modifying, supplementing, extending or terminating, or waiving or extending any provision or remedy related to, the Management Agreement or any other Material Contract by the Company or any of its Subsidiaries, or (iii) accelerate any payment by any Company or any of its Subsidiaries 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 the Company) by the Company or any of its Subsidiaries.
|
5. |
All material corporate structure changes, including:
|
(a) |
Organizational Documents
: The amendment to, or waiver of any of the provisions of, the Organizational Documents of Company or any of its Subsidiaries, or entering into or approving any merger, consolidation, amalgamation, recapitalization or other form of business combination involving Company or any of its Subsidiaries.
|
(b) |
Change in Corporate Entity
: The Company or any of its Subsidiaries 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 by the Company or any of its Subsidiaries 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 Documents (whether at inception or as a result of an amendment thereto) (i) shall not include any item that could reasonably be expected to conflict with the rights, obligations and terms of these Articles, and (ii) shall contain an express statement that such Subsidiary shall not take, or omit to take, any action contrary to the these Articles.
|
6. |
All related party transactions, including all Related Party Transactions other than Permitted Related Party Transactions.
|
7. |
The Company or any of its Subsidiaries entering into any agreement to do any of the foregoing.
|
I. |
Definitions and Explanations
|
1. |
What Information is "Material"?
|
· |
Unpublished financial results (annual, quarterly or otherwise);
|
· |
Unpublished projections of future earnings or losses;
|
· |
News of a pending or proposed merger;
|
· |
News of a significant acquisition or a sale of significant assets;
|
· |
Impending announcements of bankruptcy or financial liquidity problems;
|
· |
Gain or loss of a substantial customer or supplier;
|
· |
Changes in the Company's distribution or dividend policy;
|
· |
Share splits;
|
· |
Changes in the Company's credit rating;
|
· |
New equity or debt offerings;
|
· |
Significant developments in litigation or regulatory proceedings; and
|
· |
Changes in senior management.
|
2. |
What Information is "Non-Public"?
|
· |
Any spouse, minor child, minor stepchild and anyone else living in the insider's household;
|
· |
Partnerships in which the insider is a general partner;
|
· |
Trusts of which the insider is a trustee; and
|
· |
Estates of which the insider is an executor.
|
II. |
General Policy
|
III. |
Additional Trading Guidelines and Requirements for Window Group
|
IV. |
Planned Trading Programs
|
· |
The purchase or sale of securities was effected pursuant to a pre-existing plan; and
|
· |
The insider adopted the plan while unaware of any Material, Non-Public Information.
|
· |
Before becoming aware of Material, Non-Public Information, the insider shall have
(1) entered into a binding contract to purchase or sell the Company's securities, (2) provided instructions to another person to execute the trade for his or her account, or (3) adopted a written plan for trading the Company's securities (each of which is referred to as a "Rule 10b5-1 Plan").
|
· |
With respect to the purchase or sale of the Company's securities, the Rule 10b5-1 Plan either: (1) expressly specified the amount of the securities (whether a specified number of securities or a specified dollar value of securities) to be purchased or sold on a specific date and at a specific price; (2) included a written formula or algorithm, or computer program, for determining the amount of the securities (whether a specified number of securities or a specified dollar value of securities), price and date; or (3) provided an employee or third party who is not aware of Material, Non-Public Information with discretion to purchase or sell the securities without any subsequent influence from the insider over how, when or whether to trade.
|
· |
The purchase or sale that occurred was made pursuant to a written Rule 10b5-1 Plan. The insider cannot deviate from the plan by altering the amount, the price, or the timing of the purchase or sale of the Company's securities. Any deviation from, or alteration to, the specifications will render the defense unavailable. Although deviations from a Rule 10b5-1 Plan are not permissible, it is possible for an insider acting in good faith to modify the plan at a time when the insider is unaware of any Material, Non-Public Information. In such a situation, a purchase or sale that complies with the modified plan will be treated as a transaction pursuant to a new plan.
|
· |
An insider cannot enter into a corresponding or hedging transaction, or alter an existing corresponding or hedging position with respect to the securities to be bought or sold under the Rule 10b5-1 Plan.
|
V. |
Potential Criminal and Civil Liability and/or Disciplinary Action
|
1. |
For individuals who trade on Material, Non-Public Information (or tip information to others):
|
· |
A civil penalty of up to three times the profit gained or loss avoided resulting from the violation;
|
· |
A criminal fine of up to $5.0 million (no matter how small the profit); and/or
|
· |
A jail term of up to 20 years.
|
2. |
For a company (as well as possibly any supervisory person) that fails to take appropriate steps to prevent illegal trading:
|
· |
A civil penalty of up to the greater of $1.978 million or three times the profit gained or loss avoided as a result of the insider's violation;
|
· |
A criminal penalty of up to $25.0 million; and/or
|
· |
The civil penalties may extend personal liability to the Company's directors, officers and other supervisory personnel if they fail to take appropriate steps to prevent insider trading.
|
Signature
|
|
Type or Print Name
|
|
Date
|
1 |
The Petitioner do deliver a sealed copy of this Order to the Registrar of Companies.
|
2 |
Costs reserved pending further Order.
|
3 |
The Petitioner, the Ad Hoc Group and the Joint Provisional Liquidators shall file and serve any written submissions relating to costs within 10 days of the date of this Order.
|
4 |
Highland Capital Management LP shall file and serve any response to such written submissions within 10 days of those submissions being filed.
|
THE HONORABLE JUSTICE PARKER
|
1 |
First and Second Affidavits of Eleanor G Fisher sworn on 24 May and 2 July 2017;
|
2 |
First Affidavit of Nollaig Murphy sworn on 24 May 2017;
|
3 |
First Affidavit of Stephen C Ashley sworn on 25 May 2017;
|
4 |
First, Second and Third Affidavits of Antonios Kandylidis sworn on 21 June, 2 July and 24 August 2017;
|
5 |
Expert Opinions of Allan L Gropper sworn on 22 March, 2 July and 23 August 2017;
|
6 |
Expert Opinion of Dennis J Reeder sworn on 22 March 2017;
|
7 |
Expert Opinion of Vincent R Vroom sworn on 4 May 2017;
|
8 |
First and Second Affidavits of Jon M. Poglitsch sworn on 20 June and 10 August 2017;
|
9 |
First Affidavit of Bradley A Robins sworn on 20 June 2017;
|
10 |
Expert Opinion of Basil M Karatzas sworn on 20 June 2017;
|
11 |
Expert Opinion of Paul N Silverstein sworn on 20 June 2017;
|
12 |
First Affidavit of Chad Griffin sworn on 2 July 2017;
|
13 |
First and Second Affidavits of Stephen Phillips sworn on 30 June and 17 August 2017;
|
14 |
First and Second Affidavits of James Daloia sworn on 30 June and 17 August 2017;
|
15 |
First and Second Affidavits of John Pike sworn on 2 July and 24 August 2017;
|
16 |
First and Second Affidavits of Rachel Baxendale sworn on 7 July and 24 August 2017,
|
17 |
First Affidavit of Scott Ellington sworn on 15 August 2017;
|
18 |
First and Second Affidavits of Simon Appell sworn on 17 August and 24 August 2017;
|
19 |
First Affidavit of Phillip Zeigler sworn on 24 August 2017;
|
20 |
Expert Opinion of Erland Bassoe sworn on 23 August 2017;
|
IN THE GRAND COURT
OF THE CAYMAN ISLANDS FINANCIAL SERVICES DIVISION |
FSD Cause No. 102 of 2017
|
(A) |
UDW DETAILS
|
(B) |
THE EXISTING DEBT
|
(a) |
the 2019 Notes, issued by UDW, with an outstanding principal value of approximately US$131.0 million (plus accrued interest),
|
(b) |
the 2017 Notes, issued by DRH, with an Outstanding principal value of approximately US$459.7 million (plus accrued interest):
|
(c) |
the DFH Credit Facility borrowed by DFH and DP (as joint and several borrowers), with an outstanding principal value of approximately US$1.83 billion (plus accrued interest); and
|
(d) |
the DOV Credit Facility borrowed by DOV and DVP (as joint and several borrowers), with an outstanding principal value of approximately US$1.27 billion (plus accrued interest),
|
(a) |
the 2019 Notes and 2017 Notes have been issued in global form of the Global Note initially being deposited with the 2019 Notes Common Depository and the 2017 Notes Common Depository (respectively) under electronic systems designed to facilitate paperless transactions of dematerialised securities; and
|
(b) |
such electronic systems involve interests in the 2019 Notes and the 2017 Notes (respectively) being held by Account Holders. Each Account Holder may be holding its interests in the 2019 Notes and 2017 Notes on behalf of itself as a UDW Scheme Creditor and/or (directly or indirectly) for one or more other UDW Scheme Creditors.
|
(a) |
in accordance with the terms of this UDW Scheme, each UDW Scheme Creditor will release its UDW Scheme Claims and its UDW Ancillary Scheme Claims in exchange for its UDW Scheme Creditor Entitlements;
|
(b) |
in accordance with the DFH Scheme, each DFH Scheme Creditor will;
|
(i) |
transfer a portion of its DFH Scheme Claims (being the DFH Transfer Portion)) to UDW in exchange for its DFH New Share Entitlement; and
|
(ii) |
release
-
a portion of its DFH Scheme Claims (being the DFH Release Portion) in exchange for its DFH Cash Entitlement and DFH New Loan Entitlement,
|
(c) |
in accordance with the DOV Scheme, each DOV Scheme Creditor will:
|
(i) |
transfer a portion of its DOV Scheme Claims (being the DOV Transfer Portion) to UDW in exchange for its DOV New Share Entitlement; and
|
(ii) |
release a portion of its DOV Scheme Claims (being the DOV Release Portion) in exchange for its DOV Cash Entitlement, and DOV New Loan Entitlement,
|
(d) |
in accordance with the DRH Scheme, each DRH Scheme Creditor will release its DRH Scheme Claims in exchange for its DRH Scheme Creditor Entitlements.
|
(D) |
BINDING ON THIRD PARTIES
|
1. |
DEFINITIONS
|
1.1 |
In this scheme of arrangement terms used but not defined shall have the meaning given to them in the explanatory statement issued by the Scheme Companies dated 21 July 2017 pursuant to Order 102, Rule 20(4) of the Cayman Islands Grand Court Rules 1995 (Revised Edition) (the "
Explanatory Statement
").
|
2. |
INTERPRETATION
|
(a) |
a company is a "subsidiary" of another company, its "holding company", if that other company (a) holds a majority of the voting rights in it; (b) is a member of it and has the right to appoint or remove a majority of its board of directors; or (c) is a member of it and controls alone, or pursuant to an agreement with other members, a majority of the voting rights in it, or it is a subsidiary of a company that is itself a direct or indirect subsidiary of that other company;
|
(b) |
references to 'recitals', 'clauses' and 'schedules' are references to the recitals, clauses and schedules of this UDW Scheme;
|
(c) |
references to a statute or statutory provision include the same as subsequently modified, amended or re-enacted from time to time;
|
(d) |
the singular includes the plural and
vice versa
and words importing one gender shall include all genders;
|
(e) |
headings are for ease of reference only and shall not affect the interpretation of this UDW Scheme;
|
(f) |
to the extent that there shall be any conflict of inconsistency between the terms of this UDW Scheme and the Explanatory Statement then the terms of this UDW Scheme will prevail;
|
(g) |
references to an agreement, deed or document shall be deemed also to refer to such agreement, deed or document as amended, supplemented, restated, verified, replaced, and/or novated (in whole or in part) from time to time and to any agreement, deed or document executed pursuant thereto;
|
(h) |
references to US$ are references to the lawful currency of the United States;
|
(i) |
references to a 'person' includes references to an individual, firm, partnership, company, corporation, other legal entity, unincorporated body of persons or any state or state agency:
|
(j) |
references to times and dates are to times and dates in the Cayman Islands; and
|
(k) |
'including', 'includes' and 'included' shall be construed without limitation.
|
3. |
APPLICATION AND EFFECTIVENESS OF THE UDW SCHEME
|
3.1 |
This UDW Scheme will become effective in accordance with its terms on the UDW Lodgement Date.
|
3.2 |
The compromise and arrangement effected by this UDW Scheme shall apply to all UDW Scheme Claims and any UDW Ancillary Scheme Claims and shall be binding on all UDW Scheme Creditors.
|
3.3 |
Subject to clause 22 of this UDW Scheme, in the event that the Restructuring Effective Date has not occurred on or before the Longstop Date, the terms of, and obligations on the parties under or pursuant to this UDW Scheme shall lapse and all compromises and arrangements provided by this UDW Scheme shall have no force or effect.
|
4. |
RESTRUCTURING EFFECTIVE DATE
|
4.1 |
The Restructuring Effective Date will occur upon the Business Day on which UDW gives notice to the Scheme Creditors through the Information Agent Website that the following conditions have been satisfied or waived (as applicable) in accordance with clause 4.2, provided that the DFH Scheme Conditions and the DOV Scheme Conditions have also been satisfied or waived (as applicable):
|
(a) |
the UDW Sanction Order has been granted;
|
(b) |
the UDW Lodgement Date has occurred;
|
(c) |
the Restructuring Support Agreement Conditions have been satisfied or waived;
|
(d) |
each UDW Restructuring Document, other than the UDW 2017 Notes Release and the UDW 2019 Notes Release, has been executed (as applicable) and has either become effective in accordance with its terms or is being held in escrow pursuant to the terms of this UDW Scheme;
|
(e) |
the Majority Supporting Lenders have confirmed that each of the conditions precedent contained in section 5 of the New Credit Agreement have been satisfied or waived (as applicable) or will be satisfied on the Restructuring Effective Date by virtue of completion of the Scheme Steps;
|
(f) |
the Chapter 15 Orders have been granted (other than in respect of the DRH Scheme);
|
(g) |
each director of UDW has executed an Indemnification Confirmation Agreement and delivered it to UDW to be held in escrow pursuant to the terms of this UDW Scheme;
|
(h) |
the organisational documents of each of the Material UDW Subsidiaries have been amended to include an express provision prohibiting such subsidiary from taking any action not in accordance with the New UDW Articles;
|
(i) |
the Security Deposit (as defined in the Master Services Agreement) has been paid into escrow in accordance with the terms of the Master Services Agreement and the Management Services Escrow Agreement; and
|
(j) |
the Insider Trading Policy has been adopted by UDW,
|
4.2 |
The requirement for the UDW Scheme Conditions from (and including) 4.1(f) to (and including) 4.1(j) to be satisfied for the Restructuring Effective Date to occur may be waived with the consent of (i) UDW and (ii) the holders of a simple majority by value of the UDW Scheme Claims.
|
5. |
RELEASE OF UDW SCHEME CLAIMS AND UDW ANCILLARY SCHEME CLAIMS
|
5.1 |
On the Restructuring Effective Date, subject to the occurrence of the UDW Scheme Steps, each UDW Scheme Creditor will release fully and absolutely its UDW Scheme Claims and any UDW Ancillary Scheme Claims in exchange for its UDW Scheme Creditor Entitlements.
|
5.2 |
Following the absolute release of the UDW Scheme Claims and UDW Ancillary Scheme Claims pursuant to clause 5.1, no UDW Scheme Creditor shall have any remaining interest in or entitlement to any UDW Scheme Claims or UDW Ancillary Scheme Claims.
|
5.3 |
Nothing in this clause 5 shall release or otherwise affect any Preserved UDW Claims
|
6. |
ENTITLEMENT OF UDW SCHEME CREDITORS
|
6.1 |
UDW Scheme Creditor Entitlements will only be issued to a UDW Scheme Creditor (or its Nominated Recipient(s)) on the Restructuring Effective Date (or in relation to New Non-Marginable Shares as soon as reasonably practicable following the UDW EGM) if the UDW Scheme Creditor is either: (i) a UDW Cash Option Participant; (ii) not a Disqualified Person or a Prohibited Transferee; or (iii) is a Disqualified Person or Prohibited Transferee but has nominated one or more Nominated Recipient(s) to receive all its UDW New Share Entitlements, and in each case:
|
(a) |
the Information Agent has received a validly completed Account Holder Letter and/or Lender Claim Letter (as applicable) and a validly completed Confirmation Form from that UDW Scheme Creditor and its Nominated Recipient(s) (if applicable) prior to the Submission Deadline (or such later time as the Information Agent may decide in its absolute discretion); and
|
(b) |
the UDW Scheme Creditor and its Nominated Recipient(s) (if applicable) have provided all documentation or information reasonably requested by any relevant Agent or Scheme Company for the purposes of any "Know Your Customer" checks required to distribute UDW Scheme Creditor Entitlements to the relevant UDW Scheme Creditor or Nominated Recipient (as applicable).
|
6.2 |
Subject to clause 12 and the other terms of this UDW Scheme, no UDW Scheme Creditor shall have any entitlement to receive any consideration in relation to its UDW Scheme Claims other than under clause 6.1.
|
6.3 |
Each UDW Scheme Creditor who (i) is not a Disqualified Person or a Prohibited Transferee and (ii) is a Disqualified Person or a Prohibited Transferee but who nominates one or more Nominated Recipient(s) to receive all its UDW Scheme Creditor Entitlements, agrees that it and/or its Nominated Recipient(s) (as applicable) will, subject to such UDW Scheme Creditor (and Nominated Recipient if applicable) complying with the requirements set out in clause 6.1:
|
(a) |
become a holder of its UDW New Share Entitlements on the Restructuring Effective Date; or
|
(b) |
if it is a UDW Cash Option Participant, receive its UDW Cash Option Entitlements on the Restructuring Effective Date.
|
6.4 |
Fractions of UDW New Share Entitlements will not be allotted and will be rounded down to the nearest whole share.
|
6.5 |
Fractions of UDW Cash Option Entitlements will be rounded down to the nearest US$1.
|
7. |
DETERMINATION OF UDW SCHEME CLAIMS
|
7.1 |
Subject to clause 7.2 below, the UDW
-
Scheme Creditors entitled to receive UDW Scheme Creditor Entitlements under this UDW Scheme are the UDW Scheme Creditors as at the Entitlement Record Time and each UDW Scheme Creditor's UDW Scheme Creditor Entitlements will be determined based on its UDW Scheme Claims as at the Entitlement Record Time.
|
7.2 |
The JPLs may (but shall have no obligation to do so), in their absolute discretion and subject to the receipt of such written supporting evidence as they may reasonably require, agree to recognise the assignment or transfer of UDW Scheme Claims after the Entitlement Record Time for the purposes Of determining UDW Scheme Creditor Entitlements, provided that any recognition of assignments or transfers of UDW Guarantee Claims pursuant to this clause 7.2 shall only be effective if such assignment or transfer is also recognised for the purposes of determining, as applicable, DOV Scheme Creditor Entitlements under the DOV Scheme (if such UDW Guarantee Claims relate to the DOV Scheme); and/or DFH Scheme Creditor Entitlements under the DFH Scheme (if such UDW Guarantee Claims, relate to the DFH Scheme); and/or the DRH Scheme Creditor Entitlements under the DRH Scheme (if such UDW Guarantee Claims relate to the DRH Scheme), in each case in accordance' with the terms of the relevant Scheme.
|
8. |
PROVISION OF INFORMATION BY UDW SCHEME CREDITORS
|
8.1 |
Account Holder Letters, Lender Claim Letters and Confirmation Forms (as applicable) submitted by or on behalf of UDW Scheme Creditors shall be submitted in accordance with the instructions set out in the Account Holder Letter, Lender Claim Letter and Confirmation Form (as applicable).
|
8.2 |
Whether an Account Holder Letter, Lender Claim Letter or Confirmation Form (as applicable) has been validly completed shall be determined by the Information Agent at its discretion, provided that, if the Information Agent determines that an Account Holder Letter, Lender Claim Letter and/or Confirmation Form (as applicable) has not been validly completed, it will comply with clause 8.3.
|
8.3 |
If the Information Agent determines that an Account Holder Letter, Lender Claim Letter and/or Confirmation Form (as applicable) has not been validly completed, it shall promptly prepare a written statement setting out the basis for its determination and send that statement by electronic mail to
the party that provided such Account Holder Letter, Lender Claim Letter and/or Confirmation Form (as applicable). A UDW Scheme Creditor may resubmit such Account Holder Letter, Lender Claim Letter and/or Confirmation Form (as applicable) together with such additional information as reasonably requested by the Information Agent.
|
9. |
OBLIGATIONS OF UDW
|
(a) |
issuance or distribution of the UDW Scheme Consideration; and
|
(b) |
execution of the UDW Restructuring Documents, shall satisfy all of UDW's obligations to issue or distribute the UDW Scheme Creditor Entitlements to the UDW Scheme Creditors under this UDW Scheme.
|
10. |
GRANT OF AUTHORITY IN FAVOUR OF UDW TO EXECUTE THE RESTRUCTURING DOCUMENTS
|
10.1 |
Each UDW Scheme Creditor hereby irrevocably authorises and instructs UDW and appoints UDW as its agent and attorney (acting by its directors, the JPLs or other duly appointed representatives) on and from the UDW Lodgement Date, to enter into, execute and deliver as a deed (as applicable); on its behalf, without discretion, the UDW Restructuring Documents (including, without limitation, the UDW Deed of Covenant and Release) and such other documents required to implement the Restructuring.
|
10.2 |
Notwithstanding and without prejudice to the generality of clause 10.1, upon the UDW Lodgement Date each UDW Scheme Creditor hereby irrevocably authorises and instructs UDW, and appoints UDW as its agent and attorney (acting by its directors, the JPLs or other duly appointed representatives) to, without discretion:
|
(a) |
issue a confirmation to the 2019 Notes Common Depository to cancel the 2019 Notes on its receipt of corresponding instructions to that effect from the relevant Clearing Systems on the Restructuring Effective Date;
|
(b) |
deliver the 2019 Notes Trustee Instruction to the 2019 Notes Trustee;
|
(c) |
deliver the UDW 2017 Notes Trustee Instruction to the 2017 Notes 'Trustee;
|
(d) |
deliver the UDW DFH Administrative Agent Instruction to the DFH Administrative Agent; and
|
(e) |
deliver the UDW DOV Administrative Agent Instruction to the DOV Administrative Agent.
|
10.3 |
The UDW Restructuring Documents executed on behalf of the UDW Scheme Creditors by UDW pursuant to clause 10.1 will become effective when they are delivered or released from escrow, in each case in accordance with clause 12.4, whereupon they shall be unconditionally and irrevocably binding on all UDW Scheme Creditors who are party to such UDW Restructuring Document.
|
10.4 |
The authorities granted by or pursuant to this clause 10 shall be treated, for all purposes whatsoever and without limitation, as having been granted by deed.
|
10.5 |
UDW hereby undertakes that it shall, and shall procure that its direct and indirect subsidiaries shall:
|
(a) |
as soon as reasonably practicable following the UDW Lodgement Date, take all steps to enter into, execute and (as necessary) deliver as a deed (or otherwise) any UDW Restructuring Document and such other documents that are required to give effect to the Restructuring; and
|
(b) |
take all other steps as are required to give effect to the Restructuring.
|
10.6 |
UDW shall cease to be the agent and attorney of each UDW Scheme Creditor under clauses 10.1 and 10.2 upon completion of all of the UDW Scheme Steps (other than in connection with the authority to sign the UDW Shareholder Proxies on behalf of any UDW Scheme Creditor whose New UDW Shares have been placed into the Holding Period Trust, with such authority ceasing on the date of the UDW EGM) or if this UDW Scheme lapses in accordance with clause 22.
|
11. |
UNDERTAKINGS FROM UDW SCHEME CREDITORS
|
(a) |
irrevocably ratifies and confirms any act which UDW, the JPLs, the Agents and any of their officers, directors, former directors, employees, partners, members, agents, attorneys, financial advisers
,
or other professionals, representatives and advisers may lawfully do or cause to be done or purport to do in accordance with the terms of this UDW Scheme; and
|
(b) |
undertakes to UDW, the JPLs, the Agents and any of their officers, directors, former directors, employees, partners, members, agents, attorneys, financial advisers or other professionals, representatives and advisers and their respective Affiliates, directors, managers and officers to treat all of its UDW Scheme Claims as having been waived, cancelled or released in consideration for its UDW Scheme Creditor Entitlements pursuant to this UDW Scheme whether or not the UDW Scheme Creditor has had its UDW Scheme Creditor Entitlements issued and/or paid to it, its Nominated Recipient(s) or the Holding Period Trustee,
|
12. |
TRUST IN RELATION TO UDW SCHEME CREDITOR ENTITLEMENTS
|
12.1 |
If a UDW Scheme Creditor (or its Nominated Recipient(s)) is not issued its UDW Scheme Creditor Entitlements pursuant to clause 6.1, the relevant UDW Scheme Creditor Entitlements will be issued to the Holding Period Trustee on the Restructuring Effective Date, who will hold such UDW Scheme Creditor Entitlements (the "
Trust Consideration
") on trust pursuant to the Holding Period Trust Agreement for the relevant UDW Scheme Creditor until the expiry of the Holding Period.
|
12.2 |
Pursuant to the Holding Period Trust Agreement, the Holding Period Trustee shall, if instructed by the Information Agent before the expiry of the Holding Period (acting on the instructions of a UDW Scheme Creditor entitled to Trust Consideration):
|
(a) |
distribute; or
|
(b) |
sell and distribute the net proceeds arising from the sale of,
|
(a) |
delivered a validly completed Account Holder Letter, Lender Claim Letter and/or Confirmation Form (as applicable) to the Information Agent; and
|
(b) |
provided all documentation or information reasonably requested by any relevant Agent or Scheme Company for the purposes of any "Know Your Customer" checks required to distribute UDW Scheme Creditor Entitlements to the relevant UDW Scheme Creditor
-
or Nominated Recipient (as applicable),
|
12.3 |
Neither the Holding Period Trustee nor any person other than the relevant UDW Scheme. Creditor shall at any time whatsoever, either present or future, have any beneficial interest in the Trust Consideration, until the expiration of the Holding Period. Any interest, dividends, distributions, repayments or prepayments (or any other rights or benefits) paid to the Holding Period Trustee from time to time in respect of Trust Consideration shall form part of the Trust Consideration and be dealt with in accordance with the terms of the Holding Period Trust Agreement.
|
12.4 |
If at the expiration of the tenth Business Day following the expiration of the Holding Period, the Holding Period Trustee has not received an instruction in accordance with the Holding Period Trust Agreement in respect of any remaining property in the Trust Fund, the Holding. Period Trustee and UDW shall, and is irrevocably authorised and instructed by each relevant Trust Scheme Creditor (as defined in the Holding Period Trust Agreement) to sell, cancel, waive, release or transfer to any Scheme Company any property in the Trust Fund (as applicable and at the direction of UDW). The proceeds of any such sale, and any remaining cash constituting the Trust Consideration may be paid to any Scheme Company or to a charity selected by UDW.
|
13. |
UDW SCHEME STEPS
|
13.1 |
As soon as possible following the UDW Sanction Order Date, subject to the occurrence of the DFH Sanction Order Date and the DOV Sanction Order Date, UDW will file the UDW Sanction Order with the Registrar of Companies.
|
13.2 |
UDW will take all reasonable steps to ensure that the Chapter 15 Enforcement Hearing will be held as soon as possible following the UDW Lodgement Date.
|
13.3 |
As soon as possible following the UDW Lodgement Date, subject to the occurrence of the DFH Lodgement Date and the DOV Lodgement Date, UDW will:
|
(a) |
notify UDW Scheme Creditor through the Information Agent Website that the UDW Lodgement Date has occurred;
|
(b) |
acting through the Chapter 15 Representative, attend the Chapter 15 Enforcement Hearing to seek the Chapter 15 Enforcement Order;
|
(c) |
acting on behalf of the UDW Scheme Creditors pursuant to the grant of authority given under clause 10 of this UDW Scheme, deliver
|
(i) |
the 2019 Notes Trustee Instruction to the 2019 Notes Trustee;
|
(ii) |
the UDW 2017 Notes Trustee Instruction to the 2017 Notes Trustee;
|
(iii) |
the UDW DFH Administrative Agent Instruction to the DFH Administrative Agent; and
|
(iv) |
the UDW DOV Administrative Agent Instruction to the DOV Administrative Agent;
|
(d) |
acting on its own behalf, and acting on behalf of the UDW Scheme Creditors pursuant to the grant of authority given under clause. 10 of this UDW Scheme, execute the UDW Restructuring Documents to which UDW and the UDW Scheme Creditors (as applicable) are party and hold such executed documents in escrow until the Restructuring Effective Date;
|
(e) |
notify the Holding Period Trustee that the UDW Lodgement Date has occurred; and
|
(f) |
procure that each member of the Group promptly executes the UDW Restructuring Documents which they are party to and deliver such executed documents to UDW to be held in escrow until the Restructuring Effective Date.
|
13.4 |
Upon receipt of the 2019 Notes Trustee Instruction, the 2019 Notes Trustee shall be irrevocably instructed and authorised to, and shall promptly and without discretion, execute the UDW Restructuring Documents to which it is a party (including, without limitation, the UDW 2019 Notes Release) and deliver such executed documents to UDW to be held in escrow until the Restructuring Effective Date, save that to the extent that the 2019 Notes Trustee does not execute the Restructuring Documents the UDW Scheme Steps shall proceed and the effect of this UDW Scheme shall not be affected in any way.
|
13.5 |
Upon receipt of the UDW 2017 Notes Trustee Instruction, the 2017 Notes Trustee shall be irrevocably instructed and authorised to, and shall, promptly and without discretion:
|
(a) |
execute the UDW Restructuring Documents to which it is party (including, without limitation, the UDW 2017 Notes Release) and deliver such executed documents to UDW to be held in escrow until the Restructuring Effective Date; and
|
(b) |
execute and deliver the UDW 2017 Notes Collateral Agent Instruction to the 2017 Notes Collateral Agent,
|
13.6 |
Upon receipt of the UDW DFH Administrative Agent Instruction, the DFH Administrative Agent shall be irrevocably instructed and authorised to, and shall, promptly and without discretion:
|
(a) |
execute the UDW Restructuring Documents to which it is party (including, without limitation, the UDW DFH Release) and deliver such executed documents to UDW to be held in escrow until the Restructuring Effective Date; and
|
(b) |
execute and deliver the UDW DFH Collateral Agent Instruction to the DFH Collateral Agent.
|
13.7 |
Upon receipt of the UDW DOV Administrative Agent Instruction, the DOV Administrative Agent shall be irrevocably instructed and authorised to, and shall, promptly and without discretion:
|
(a) |
execute the UDW Restructuring Documents to which it is party (including, without limitation, the UDW DOV Release) and deliver such executed documents to UDW to be held in escrow until the Restructuring Effective Date; and
|
(b) |
execute and deliver the UDW DOV Collateral Agent Instruction to the DOV Collateral Agent,
|
13.8 |
Upon receipt of the UDW 2017 Notes Collateral Agent Instruction, the 2017 Notes Collateral Agent shall be irrevocably instructed and authorised to, and shall, promptly and without discretion, execute the UDW Restructuring Documents to which it is party (including, without limitation the UDW 2017 Notes Release) and deliver such executed documents to UDW to be held in escrow until the Restructuring Effective Date, save that to the extent that the 2017 Notes Collateral Agent does not execute the Restructuring Documents the UDW Scheme Steps shall proceed and the effect of this UDW Scheme shall not be affected in any way.
|
13.9 |
Upon receipt of the UDW DFH Collateral Agent Instruction, the DFH Collateral Agent shall be irrevocably instructed and authorised to, and shall, promptly and without discretion, execute the UDW Restructuring Documents to which it is party (including, without limitation, the UDW DFH Release) and deliver such executed documents to UDW to be held in escrow until the Restructuring Effective Date,
|
13.10 |
Upon receipt of the UDW DOV Collateral Agent Instruction, the DOV Collateral Agent shall be irrevocably instructed and authorised to, and
.
shall, promptly and without discretion, execute the UDW Restructuring Documents to which it is party (including,
|
13.11 |
Upon notification that the UDW Lodgement Date has occurred, the Holding Period Trustee shall promptly and without discretion execute the Holding Period Trust Agreement and deliver the same to UDW to be held in escrow until the Restructuring Effective Date,
|
13.12 |
On the Restructuring Effective Date, promptly after UDW notifies the UDW Scheme Creditors through the Information Agent Website that the Restructuring Effective Date has occurred, the following UDW Scheme Steps shall occur in the following order
|
(a) |
UDW shall date and release
-
the executed Holding Period Trust Agreement from escrow and it shall become effective;
|
(b) |
The UDW Cash Option Entitlements shall be paid to the UDW Cash Option Participants and/or their Nominated Recipient(s) who are entitled to receive their UDW Cash Option Entitlements, in each case pursuant to clause 6.1.
|
(c) |
The UDW New Share Entitlements shall be issued to Marginable Participants only by UDW instructing the Transfer Agent to issue the New Marginable Shares to: (i) the relevant brokers or custody accounts identified in the Account Holder Letter or Lender Claim Letter of the UDW Scheme Creditors and/or their Nominated Recipients who are Marginable Participants and who are entitled to receive their UDW New Share Entitlements; and (ii) the Holding Period Trustee in respect of those UDW Scheme Creditors who are not entitled to receive their UDW New Share Entitlements, in each case pursuant to clause 6.1. The Transfer Agent shall confirm that such New Marginable Shares have been issued to such broker and custody accounts in accordance with any valid instructions received by it.
|
(d) |
UDW shall date and release from escrow the executed Governance Agreements for each recipient of New Marginable Shares which has previously delivered a signature page to a Governance Agreement and each such Governance Agreement shall become effective.
|
(e) |
UDW shall date and release the Indemnification Confirmation Agreements and UDW Deed of Covenant and Release from escrow and they shall each become effective.
|
(f) |
UDW shall terminate any existing management services agreement(s) and date and release the Master Services Agreement, Management Services Power of Attorney and Individual Management Services Agreements from escrow, and they shall each become effective.
|
(g) |
UDW will issue the MEP to be held as necessary stock until they are allocated to TMS in accordance with the terms of the Master Services Agreement.
|
(h) |
UDW shall date and release the Preserved Claims Assignments and the Preserved Claims Trust Deed from escrow and they shall become effective.
|
(i) |
UDW shall execute the UDW Shareholder Proxies.
|
(j) |
UDW shall date and release the UDW Releases from escrow and they shall each become effective.
|
(k) |
UDW shall instruct the Clearing Systems to:
|
(i) |
debit the Book-Entry Interests relating to the 2019 Notes from the custody account of each UDW Scheme Creditor that is a 2019 Notes Creditor (or its Account Holder, as applicable) and to credit or cause to be credited to the custody account of UDW, the Book-Entry Interests in an amount equal to that debited from the Book-Entry Interests of each UDW Scheme Creditor's custody account being a 2019 Notes Creditor, and
|
(ii) |
authorise the cancellation of the Group's Book-Entry Interests relating to the 2019 Notes held in the Group's custody account or the Group's Account Holder's custody account.
|
13.13 |
Following the completion of the UDW Scheme Steps on the Restructuring Effective Date:
|
(a) |
UDW shall promptly enter into a Lender Appointing Person Indemnification Agreement for each Lender Appointing Person and a Director Indemnification Agreement for each new director of UDW,
|
(b) |
The Information Agent shall provide each UDW Scheme. Creditor and/or any Nominated Recipient(s) with copies of the executed UDW Restructuring Documents they are party to via the Information Agent Website,
|
(c) |
UDW will to the extent not already done convene the UDW EGM on not less than 21 days' notice and within 45 days of the Restructuring Effective Date to approve and adopt the New UDW Articles.
|
(d) |
Promptly following the adoption of the New UDW Articles and the resolutions to create the New Non-Marginable Shares at the UDW EGM, UDW shall instruct the Transfer Agent to issue the New Non-Marginable Shares through the relevant brokers or custody accounts identified in the Account Holder Letters or Lender Claim Letters (as applicable) of the UDW Scheme Creditors and/or their Nominated Recipient(s) who: (i) are entitled to receive their UDW New Share Entitlements pursuant to clause 6.1; and (ii) are Non-Marginable Participants. In the event that the relevant resolutions to create the New Non-Marginable Shares are not adopted at the UDW EGM, any Non-Marginable Participants may elect to receive, or nominate a Nominated Recipient to receive, their UDW New Share Entitlements in the form of New Marginable Shares by submitting an updated Account Holder Letter and/or Lender Claim Letter to the Information Agent, which, to be validly completed, need not include Part 5 of the Account Holder
|
(e) |
UDW shall date and release from escrow the executed Governance Agreements for each recipient of New Non-Marginable Shares which has previously delivered a. signature page to a Governance Agreement and each such Governance Agreement shall become effective.
|
(f) |
The JPLs shall promptly apply to the Cayman Court for discharge of their appointment and of the Winding Up Petition relating to UDW.
|
14. |
RELEASES
|
14.1 |
With effect from the Restructuring Effective Date, each UDW Scheme Creditor and UDW (for its own behalf and on behalf of its subsidiaries) to the fullest extent permitted by law, shall and shall be deemed to completely and forever release, waive, acquit, forgive, and discharge unconditionally each of the Protected Parties from any and all Claims and/or Liabilities arising or resulting from the Protected Parties' involvement in the negotiation, execution, performance or implementation of the Schemes, the Restructuring or the Restructuring Support Agreement, subject to clause 16 in relation to the JPLs only, except for Claims and/or Liabilities arising out of:
|
(a) |
any matter, act, omission, transaction, event, occurrence, cause or thing whatsoever directly or indirectly relating to the Group (including, but not limited to, the New Finance Documents) arising or taking place after the Restructuring Effective Date;
|
(b) |
any fraud, gross negligence or wilful default;
|
(c) |
any breach by a Protected Party of its express obligations or representations in the Restructuring Support Agreement, this UDW Scheme or the UDW Restructuring Documents;
|
(d) |
any Preserved UDW Claims; or
|
(e) |
any Liabilities owed to UDW as Lender under the DFH Amended and Restated Credit Agreement and the DOV Amended and Restated Credit Agreement.
|
14.2 |
The parties to this UDW Scheme may not by agreement rescind or vary any term of this clause 14 with respect to a Protected Party without the consent of such Protected Party.
|
15. |
STAY OF PROCEEDINGS
|
(a) |
not to bring or continue, or instruct, direct or authorise any other person to bring or continue any Proceedings, other than any Allowed Proceedings, against any of the Protected Parties in respect of any UDW Scheme Claims or UDW Ancillary Scheme Claims or otherwise to assert any UDW Scheme Claims or UDW Ancillary Scheme Claims against any of the Protected Parties;
|
(b) |
not to bring any Proceedings, other than any Allowed Proceedings, against any Protected Party which imposes or attempts to impose upon any of them any Claim or Liability whatsoever in connection with the implementation of the Schemes, and/or the Restructuring;
|
(c) |
not to bring any Proceedings, other than any Allowed Proceedings, against any Protected Party on the basis that any conditions or requirements for that Protected Party taking any action in accordance with, or pursuant to, this UDW Scheme, the Restructuring or instructions given to that Protected Party in connection with the Restructuring, have not been satisfied or were not met in full;
|
(d) |
not to make, demand or institute (or threaten to institute) any Proceedings against the Agents in connection with this UDW Scheme or the Restructuring, other than an Allowed Proceeding;
|
(e) |
not to prove, or seek to prove, in the insolvencies of any member of the Group (if any insolvency occurs) in respect of any UDW Scheme Claims or UDW Ancillary Scheme Claims; and
|
(f) |
to treat the UDW Scheme Claims as having been fully and absolutely released on and from the Restructuring Effective Date,
|
16. |
THE JPLS
|
16.1 |
Notwithstanding clause 13.13(f) and clause 14.2, the JPLs act as agents for and on behalf of UDW and, subject to clause 16.2, neither they nor any of their firms or affiliated firms, nor any of their or their firms' or affiliated firms' officers, directors, former directors, employees, partners, members, agents, attorneys, financial advisers or other professionals, representatives and advisers shall incur any liability whatsoever (in respect of any of the obligations undertaken by UDW, or in respect of any failure on the part of UDW to perform or comply with any such obligations, or under any associated arrangements or negotiations, or under any document entered into pursuant to this UDW Scheme, or howsoever otherwise).
|
16.2 |
Notwithstanding clause 13.13(f) and clause 14.2, the JPLs, their firms and affiliated firms, and any of their or their firms' or affiliated firms' officers, directors, former directors, employees, partners, members, agents, attorneys, financial advisers or other professionals, representatives and advisers shall not incur any liability whatsoever under this UDW Scheme nor in relation to any related matter or claim, whether in contract, tort (including negligence) or restitution or by reference to any other remedy or right in any jurisdiction or forum except for any claims or causes of action arising from or relating to fraud, wilful default or wilful misconduct.
|
16.3 |
The exclusions of liability set out in this UDW Scheme shall arise and continue notwithstanding the termination of the agency of the JPLs or their discharge from office as joint provisional liquidators of this UDW Scheme before or after the Restructuring Effective Date and shall operate as a waiver of any claims in tort as well as under contract.
|
16.4 |
Each of the JPLs' firms, affiliated firms, and any of their or their firms' or their affiliated firms' officers, directors, former directors, employees, partners, members, agents, attorneys, financial advisers or other professionals, representatives and advisers shalt be entitled to rely on and enjoy the benefit of this clause 16 as if they were a party hereto.
|
16.5 |
Any joint provisional liquidator of UDW appointed after the date of this UDW Scheme shall be entitled to rely on and enjoy the benefit of this clause 16 as if they were a party hereto.
|
16.6 |
Nothing in this UDW Scheme shall require the JPLs to take any action which would breach any applicable law or regulation.
|
17. |
FUTURE LIQUIDATION
|
18. |
RELIANCE FOR SECTION 3
(
A
)(
10
)
EXEMPTION
|
19. |
APPLICATION TO THE CAYMAN COURT FOR DIRECTIONS
|
20. |
FOREIGN REPRESENTATIVE
|
21. |
COSTS
|
22. |
LONGSTOP DATE
|
22.1 |
If the Restructuring Effective Date has not occurred by the Longstop Date, the terms of, and the obligations on the parties under, this UDW Scheme shall lapse and cease to have any effect, provided that UDW may, at its discretion, extend the Longstop Date to such later date agreed between UDW and UDW Scheme Creditors constituting a simple majority of UDW Scheme Claims by value at that time, provided that such extension shall only become effective if it is also agreed to by: (i) the DFH Scheme Creditors pursuant to the terms of the DFH Scheme; and (ii) the DOV Scheme Creditors pursuant to the terms of the DOV Scheme.
|
22.2 |
If the Restructuring Effective Date has not occurred by the Longstop Date, as may be extended pursuant to clause 22.1 hereof:
|
(a) |
the rights and obligations of the UDW Scheme Creditors under the Existing Finance Documents, 2019 Notes Indenture, DFH Credit Facility, DOV Credit Facility and 2017 Notes Indenture shall not be affected and shall remain in full force and effect (and any defaults occurring under the 2019 Notes Indenture, 2017 Notes Indenture, DOV Credit Facility or DFH Credit Facility shall be deemed not to have been waived and any grace period that expired during the duration of this UDW Scheme shall remain expired following the termination of this UDW Scheme); and
|
(b) |
any UDW Restructuring Documents held in escrow shall be promptly destroyed.
|
23. |
MODIFICATION
|
24. |
EXERCISE OF DISCRETION
|
24.1 |
Where, under or pursuant to any provision of this UDW Scheme, a matter is to be determined by;
|
(a) |
UDW, it shall be determined by its directors, the JPLs or other duly appointed representatives; or
|
(b) |
the Information Agent, it shall be determined in its discretion in such manner as it may consider fair and reasonable and after consultation with the Advisers to the Ad Hoc Group.
|
24.2 |
If any difficulty shall arise in determining any such matter either generally or in any particular case or in ensuring the implementation of this UDW Scheme in accordance with the UDW Scheme Steps, it shall be determined by the directors of UDW and the JPLs in such manner as they shall consider to be fair and reasonable and their decision shall, insofar as permitted by law, be final and binding on all concerned.
|
25. |
PERFORMANCE OF OBLIGATIONS ON DATES OTHER THAN A BUSINESS DAY
|
26. |
NOTICES
|
26.1 |
Any notice or other communication to be given under or in connection with this UDW Scheme (a "
Notice
") shall be in the English language in writing and shall be signed by or on behalf of the person giving it. A Notice may be delivered personally or sent by email, fax, pre-paid recorded delivery or international courier to the address or email address as set out below (or as may be notified by notice to UDW Scheme Creditors from time to time) or in relation to any Notice to be given to the UDW Scheme Creditors only;
|
(a) |
through the Clearing Systems in relation to the 2017 Notes Creditors or the 2019 Notes or to the relevant Account Holders;
|
(h) |
through the DFH Administrative Agent in relation to DFH Lenders under the DFH Credit Facility;
|
(e) |
through the DOV Administrative Agent in relation to the DOV Lenders under the DOV Credit Facility; or
|
(d) |
in each case, the Information Agent Website, and marked for the attention of the relevant person as agreed between the parties.
|
26.2 |
A Notice shall be deemed to have been received:
|
(a) |
at the time of delivery if delivered personally;
|
(b) |
at the time of transmission if sent by e-mail;
|
(c) |
at the time of transmission if sent through the Clearing Systems;
|
(d) |
at the time of being published if made through the Information Agent Website (in relation to UDW Scheme Creditors);
|
(e) |
two (2) Business Days after the time and date of posting if sent by pre-paid recorded delivery; or
|
(f) |
three (3) Business Days after the time and date of posting if sent by international courier,
|
26.3 |
The addresses for Notices are as follows:
|
(a) |
in the case of UDW:
|
(i) |
Information Agent
|
Phone: |
+1 855-631-5346 (toll-free US and Canada)
+1 917-460-0913 (international) |
(ii) |
JPLs
|
(b) |
in the case of a UDW Scheme Creditor,
|
(c) |
in the case of any other person, any address set forth for that person in any agreement entered into in connection with this UDW Scheme.
|
26.4 |
In proving service, it shall be sufficient proof, in the case of a notice sent by post, that the
envelope was properly stamped, addressed and posted.
|
26.5 |
The accidental omission to send any notice, written communication or other document in accordance with clauses 26.1 to 26.4 of this UDW Scheme, or the non-receipt of any such notice by any UDW Scheme Creditor, shall not affect the provisions of this UDW Scheme.
|
26.6 |
UDW shall not be responsible for any loss or delay in the transmission of any notices, other documents or payments posted by or to any UDW Scheme Creditors (or their Nominated Recipient(s)) which shall be posted at the risk of such UDW Scheme Creditors (or their Nominated Recipient(s)).
|
27. |
THIRD PARTIES
|
27.1 |
Subject to clause 27.2, no person who is not a party to this deed has any right under the
Cayman Islands Contracts (Rights of Third Parties) Law 2014 (as amended from time to time) to enforce any of its terms.
|
27.2 |
The JPLs and the Protected Parties may enforce this deed in accordance with the Contracts (Rights of Third Parties) Law 2014 (as amended from time to time).
|
28. |
GOVERNING LAW AND JURISDICTION
|
28.1 |
This UDW Scheme and any non-contractual obligations arising out of or in connection
with this UDW Scheme shall be governed by, and this UDW Scheme shall be construed in accordance with, the laws of Cayman Islands. The Cayman Court shall have exclusive
|
28.2 |
Each of the UDW Scheme Creditors irrevocably submits to the jurisdiction of the Cayman Court for the purposes of clause 28.1, provided, however, that nothing in this clause 28 shall affect the validity of other provisions governing law and jurisdiction as between UDW and any of the UDW Scheme Creditors, whether contained in any contract or otherwise.
|
(1) |
OCEAN RIG UDW INC.
(
IN PROVISIONAL LIQUIDATION
)
, a company registered by way of continuation as an exempted company in 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 and registered office at c/o Maples Corporate Services Limited, PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands ("
UDW
");
|
(2) |
THE UDW SCHEME CREDITORS
acting by UDW pursuant to the authority conferred upon UDW by the UDW Scheme Creditors under the UDW Scheme (each as defined in the Explanatory Statement (as defined below)); and
|
(3) |
SIMON APPELL
and
ELEANOR FISHER
, as joint provisional liquidators of UDW solely for the purposes of obtaining the benefit of the exclusion of personal liability.
|
(A) |
Pursuant to clause 13 of the UDW Scheme and in consideration for each of the UDW Scheme Creditors receiving all rights and benefits under the UDW Scheme (including, without limitation, their entitlement to the UDW Scheme Consideration), the UDW Scheme Creditors have authorised UDW to enter into and execute and deliver this deed on their behalf.
|
(B) |
The parties hereto have agreed to enter into and execute and deliver this deed on the terms set out below.
|
1. |
DEFINITIONS AND INTERPRETATION
|
1.1 |
In this deed, unless the context otherwise requires or otherwise expressly provided for:
|
(a) |
capitalised words and expressions shall have the same meaning given to them in the explanatory statement issued by UDW, Drill Rigs Holdings Inc. (in provisional liquidation), Drillships Financing Holding Inc. (in provisional liquidation), and Drillships Ocean Ventures Inc. (in provisional liquidation) on [***] 2017 (the "
Explanatory Statement
");
|
(b) |
references to 'clauses' are references to the clauses of this deed:
|
(c) |
references to a statute or statutory provision include the same as subsequently modified, amended or re-enacted from time to time;
|
(d) |
references to a person include references to an individual, firm, partnership, company, corporation, unincorporated body of persons or any state or state agency;
|
(e) |
the singular includes the plural and
vice versa
and words importing one gender shall include all genders; and
|
(f) |
headings are for ease of reference only and shall not affect the interpretation of this deed.
|
2. |
RELEASES
|
2.1 |
With effect from the Restructuring Effective Date, each UDW Scheme Creditor and UDW (for its own behalf and on behalf of its subsidiaries) to the fullest extent permitted by law, shall and shall be deemed to completely and forever release, waive, acquit, forgive and discharge unconditionally each of the Protected Parties from any and all Claims and/or Liabilities arising or resulting from the Protected Parties' involvement in the negotiation, execution, performance or implementation of the Schemes, the Restructuring or the Restructuring Support Agreement, subject to clause 4 in relation to the JPLs only, except for Claims and/or Liabilities arising out of:
|
(a) |
any matter, act, omission, transaction, event, occurrence, cause or thing whatsoever directly or indirectly relating to the Group (including, but not limited to, the New Finance Documents) arising or taking place after the Restructuring Effective Date;
|
(b) |
any fraud, gross negligence or wilful default;
|
(c) |
any breach by a Protected Party of its express obligations or representations in the Restructuring Support Agreement, the UDW Scheme or the UDW Restructuring Documents;
|
(d) |
any Preserved Claims; or
|
(e) |
any Liabilities owed to UDW as Lender under the DFH Amended and Restated Credit Agreement and the DOV Amended and Restated Credit Agreement
|
2.2 |
Protected Parties shall be entitled to rely on and enjoy the benefit of the above clause 2.1 as if they were a party hereto.
|
3. |
STAY OF PROCEEDINGS
|
(a) |
not to bring or continue, or instruct, direct or authorise any other person to bring or continue any Proceedings, other than any Allowed Proceedings, against any of the
|
(b) |
not to bring any Proceedings, other than any Allowed Proceedings, against; any Protected Party which imposes or attempts to impose upon any of them any Claim or Liability whatsoever in connection with the implementation of the Schemes, and/or the Restructuring;
|
(c) |
not to bring any Proceedings, other than any Allowed Proceedings, against any Protected Party on the basis that any conditions or requirements for that Protected Party taking any action in accordance with, or pursuant to, the UDW Scheme, the Restructuring or instructions given to that Protected Party in connection with the Restructuring, have not been satisfied or were not met in full;
|
(d) |
not to make, demand or institute (or threaten to institute) any Proceedings against the Agents in connection with the UDW Scheme or the Restructuring, other than an Allowed Proceeding;
|
(e) |
not to prove, or seek to prove, in the insolvencies of any member of the Group (if any insolvency occurs) in respect of any UDW Scheme Claims or UDW Ancillary Scheme Claims; and
|
(f) |
to treat all UDW Scheme Claims as having been irrevocably cancelled, waived and released absolutely on and from the Restructuring Effective Date,
|
4. |
THE JPLS
|
4.1 |
Notwithstanding clause 2 and clause 3, the JPLs act as agents for and on behalf of UDW and subject to clause 4.2 in relation to the JPLs only, neither they nor any of their firm, affiliated firms, officers, directors, former directors, employees, partners, members, agents, attorneys, financial advisers or other professionals, representatives and advisers shall incur any personal liability whatsoever in respect of any of the obligations undertaken by UDW, or in respect of any failure on the part of UDW to perform or comply with any such obligations, or under any associated arrangements or negotiations, or under any document (including but not limited to this deed) entered into pursuant to the UDW Scheme, or howsoever otherwise,
|
4.2 |
Notwithstanding clause 2 and clause 3, the JPLs shall not incur any personal liability whatsoever under the UDW Scheme, under this deed, nor in relation to any related matter or claim, whether in contract, tort (including negligence) or restitution or by reference to any other remedy or right in any jurisdiction or forum except for any claims or causes of action arising from or relating to fraud, wilful default or wilful misconduct.
|
4.3 |
The exclusions of liability set out in the UDW Scheme shall arise and continue notwithstanding the termination of the agency of the JPLs or their discharge from office as joint provisional liquidators of the UDW Scheme before or after the Restructuring Effective Date and shall operate as a waiver of any claims in tort as well as under contract.
|
4.4 |
Each of the JIPLs' their firm, affiliated firms, officers, directors, former directors. employees. partners, members, agents, attorneys, financial advisers or other professionals, representatives and advisers shall be entitled to rely on and enjoy the benefit of this clause 4 as if they were party hereto,
|
4.5 |
Any joint, provisional liquidator of UDW appointed after the date of the UDW Scheme shall be entitled to rely on and enjoy the benefit of this clause 4 as if they were a party hereto,
|
4.6 |
Nothing in the UDW Scheme shall require the JPLs to take any action which would breach any applicable law or regulation.
|
5. |
THIRD PARTIES
|
5.1 |
Subject to clause 5.2, no person who is not a party to this deed has any right under the Contracts (Rights of Third Parties) Law 2014 (as amended from time to time) to enforce any of its terms,
|
5.2 |
This deed is made for the benefit of the Protected Parties, and the Protected Parties may enforce this deed in accordance with the Contracts (Rights of Third Parties) Law 2014 (as amended from time to time).
|
6. |
SEVERABILITY
|
7. |
COUNTERPARTS
|
8. |
GOVERNING LAW
|
9. |
JURISDICTION
|
EXECUTED AS A DEED
by each
UDW
|
)
|
|
SCHEME CREDITOR
by its duly
|
)
|
|
appointed agent and attorney,
|
)
|
|
OCEAN RIG UDW INC.
(
IN
|
)
|
|
PROVISIONAL LIQUIDATION
)
|
||
a company incorporated in the Cayman
|
||
Islands acting by
|
||
SIMON APPELL or ELEANOR FISHER
|
||
as JOINT PROVISIONAL LIQUIDATORS
|
||
as agents without personal liability,
|
||
in the presence of:
|
||
Witness signature:
|
||
Name (print):
|
||
Address:
|
U.S. BANK NATIONAL
ASSOCIATION
, as Trustee
|
||
By:
|
||
Name:
|
||
Title:
|
U.S. BANK NATIONAL
ASSOCIATION
, as Noteholder Collateral Agent
|
||
By:
|
||
Name:
|
||
Title:
|
OCEAN RIG UDW INC.
(
IN
PROVISIONAL LIQUIDATION
)
acting by Simon Appell and Eleanor Fisher as provisional liquidators (without personal liability)
|
||
Name: Simon Appell
|
||
Title: Joint Provisional Liquidator
|
||
Name: Eleanor Fisher
|
||
Title: Joint Provisional Liquidator
|
OCEAN RIG UDW INC.
(
IN
PROVISIONAL LIQUIDATION
)
|
||
By:
|
||
Name:
|
||
Title: Director
|
||
By the JPLs as provisional liquidators of Ocean Rig UDW Inc. (in provisional liquidation), solely for the purposes of obtaining the benefit of the exclusion of personal liability
|
||
Name: Simon Appell
|
||
Title: Joint Provisional Liquidator
|
||
Name: Eleanor Fisher
|
||
Title: Joint Provisional Liquidator
|
DEUTSCHE BANK AG NEW YORK BRANCH
,
as Administrative Agent and Collateral Agent
|
||
By:
|
||
Name:
|
||
Title:
|
By:
|
||
Name:
|
||
Title:
|
OCEAN RIG UDW INC.
(
IN
PROVISIONAL LIQUIDATION
)
acting by Simon Appell and Eleanor Fisher as provisional liquidators (without personal liability)
|
|
Simon Appell
|
|
Eleanor Fisher
|
|
OCEAN RIG UDW INC.
(
IN
PROVISIONAL LIQUIDATION
)
|
||
By:
|
||
Name:
|
||
Title: Director
|
||
By the JPLs as provisional liquidators of Ocean Rig UDW Inc. (in provisional liquidation) solely for the purposes of obtaining the benefit of the exclusion of personal liability
|
|
Simon Appell
|
|
Eleanor Fisher
|
|
DEUTSCHE BANK
.
AG NEW YORK BRANCH
,
as Administrative Agent and Collateral Agent
|
||
By:
|
||
Name:
|
||
Title:
|
By:
|
||
Name:
|
||
Title:
|
OCEAN RIG UDW INC.
(
IN
PROVISIONAL LIQUIDATION
)
acting by Simon Appell and Eleanor Fisher as provisional liquidators (without personal liability)
|
|
Simon Appell
|
|
Eleanor Fisher
|
|
OCEAN RIG UDW INC.
(
IN
PROVISIONAL LIQUIDATION
)
|
||
By:
|
||
Name:
|
||
Title: Director
|
||
By the JPLs as provisional liquidators of Ocean Rig UDW Inc. (in provisional liquidation) solely for the purposes of obtaining the benefit of the exclusion of personal liability
|
|
Simon Appell
|
|
Eleanor Fisher
|
|
DEUTSCHE BANK
TRUST COMANY
,
as Trustee
|
||
By:
|
||
Name:
|
||
Title:
|
OCEAN RIG UDW INC.
(
IN
PROVISIONAL LIQUIDATION
)
acting by Simon Appell and Eleanor Fisher as provisional liquidators (without personal liability)
|
|
Simon Appell
|
|
Eleanor Fisher
|
|
OCEAN RIG UDW INC.
(
IN
PROVISIONAL LIQUIDATION
)
|
||
By:
|
||
Name:
|
||
Title: Director
|
||
By the JPLs as provisional liquidators of Ocean Rig UDW Inc. (in provisional liquidation) solely for the purposes of obtaining the benefit of the exclusion of personal liability
|
|
Simon Appell
|
|
Eleanor Fisher
|
|
Clause | Page | |
1.
|
DEFINITIONS
|
1
|
2.
|
COMMENCEMENT AND APPOINTMENT
|
2
|
3.
|
AUTHORITY OF THE MANAGER
|
2
|
4.
|
MANAGEMENT SERVICES
|
2
|
5.
|
MANAGER'S OBLIGATIONS
|
3
|
6.
|
OWNER'S OBLIGATIONS
|
3
|
7.
|
INSURANCE POLICIES
|
3
|
8.
|
FEES AND EXPENSES
|
4
|
9.
|
[RESERVED]
|
5
|
10.
|
MANAGER'S RIGHT TO SUB-CONTRACT
|
5
|
11.
|
RESPONSIBILITIES
|
6
|
12.
|
GENERAL ADMINISTRATION
|
7
|
13.
|
COMPLIANCE WITH LAWS AND REGULATIONS
|
7
|
14.
|
DURATION OF THE AGREEMENT
|
7
|
15.
|
TERMINATION
|
8
|
16.
|
DISPUTE RESOLUTION
|
8
|
17.
|
RESERVED.
|
8
|
18.
|
NOTICES
|
8
|
19.
|
PARTIAL VALIDITY
|
9
|
20.
|
AMENDMENTS AND WAIVERS
|
9
|
21.
|
CONFIDENTIALITY
|
9
|
22.
|
[RESERVED]
|
10
|
23.
|
GOVERNING LAW
|
10
|
24.
|
THIRD PARTY RIGHTS
|
10
|
25.
|
SURVIVAL
|
10
|
26.
|
ASSIGNMENTS
|
10
|
27.
|
COUNTERPARTS
|
10
|
(1) |
OCEAN RIG 2 INC.
, a corporation duly incorporated under the laws of the Marshall Islands (the "
Owner
"); and
|
(2) |
TMS OFFSHORE SERVICES LTD.
, a corporation organized under the laws of the Marshall Islands (the "
Manager
").
|
1. |
DEFINITIONS
|
1.1 |
In this Agreement save where the context otherwise requires, the following words and expressions shall have the meanings hereby assigned to them:
|
1.2 |
Interpretation
|
(a) |
Singular/Plural
|
(b) |
Headings
|
2. |
COMMENCEMENT AND APPOINTMENT
|
3. |
AUTHORITY OF THE MANAGER
|
4. |
MANAGEMENT SERVICES
|
4.1 |
General Management Services.
|
(a) |
seeking and negotiating employment for the Vessels of the Owner and the conclusion (including the execution thereof) of charter parties or other contracts relating to the employment of the Vessels;
|
(b) |
arranging insurances for the Vessels and the general operations of the Owner, on such terms as the Owner shall have instructed or agreed, in particular regarding conditions, insured values, deductibles, franchises and limits of liability; and requirements of charter parties, financing agreements or other contracts relating to the Vessels;
|
(c) |
Providing services related to the financing, treasury, accounting and other day-to-day financial operations of the Owner;
|
(d) |
retaining counsel for the Owner and otherwise coordinating the various legal services required by the Owner;
|
(e) |
providing information technology services for the Owner;
|
(f) |
providing manning services for the Owner;
|
(g) |
providing commercial and marketing services for the Owner;
|
(h) |
providing executive services for the Owner;
|
(i) |
providing legal support services for the Owner;
|
(j) |
providing superintendency services for the Owner;
|
(k) |
preparing and filing all financial and other reports required for the Owner to comply with applicable securities laws, its loan and credit agreements, and the Memorandum and Articles;
|
(l) |
providing other non-technical/operational support services for the Owner, including such services as may be required to ensure that the Owner complies with all requirements of charter parties, financing agreements or other contracts relating to the Vessel;
|
(m) |
providing catering services for the Owner;
|
(n) |
providing other administrative services for the Owner; and
|
(o) |
such additional services as shall be mutually agreed by the parties.
|
5. |
MANAGER'S OBLIGATIONS
|
5.1 |
The Manager undertakes to use its best endeavours to provide the Management Services as agents for and on behalf of the Owner in accordance with sound management practice and to protect and promote the interests of the Owner in all matters relating to the provision of services hereunder.
|
5.2 |
Without limiting in any manner its obligations under Section 5.1, the Manager shall be entitled to allocate its available supplies, manpower and services in such manner as in the prevailing circumstances the Manager in its absolute discretion considers to be fair and reasonable.
|
6. |
OWNER'S OBLIGATIONS
|
6.1 |
The Owner shall pay all sums due to the Manager punctually in accordance with the terms of this Agreement. In the event of payment after thirty (30) days following the due date of any outstanding sums the Manager shall be entitled to charge interest at the rate of 2% per annum, unless such payment is subject to a bona fide dispute.
|
6.2 |
The Owner shall cooperate with Manager in the performance of the Services and shall not impede the Manager from performing the Services subject to the Owner's right to request fewer Management Services.
|
7. |
INSURANCE POLICIES
|
(a) |
at the Owner's expense, each Vessel is insured for not less than its sound market value or entered for its full gross tonnage, as the case may be for:
|
(i) |
hull and machinery marine risks (including but not limited to crew negligence) and excess liabilities;
|
(ii) |
protection and indemnity risks (including but not limited to pollution risks and diversion expenses);
|
(iii) |
war risks (including but not limited to blocking and trapping, protection and indemnity, terrorism and crew risks); and
|
(iv) |
such optional insurances as may be agreed (such as piracy, kidnap and ransom, loss of hire and FD & D).
|
(b) |
all premiums, deductibles, supplementary calls and/or excess supplementary calls and release calls on the Owner's Insurances are paid by their due date on a gross basis;
|
(c) |
the Owner's Insurances name the Manager and, subject to underwriters' agreement, any third party designated by the Manager as a joint assured, with full cover. It is understood that in some cases, such as protection and indemnity, the normal terms for such cover may impose on the Manager and any such third party a liability in respect of premiums or calls arising in connection with the Owner's Insurances.
|
(d) |
written evidence is provided, to the reasonable satisfaction of the Manager, of the Owner's compliance with their obligations under this Clause 7 within a reasonable time of the commencement of the Agreement, and of each renewal date and, if specifically requested, of each payment date of the Owner's Insurances, it being understood that the Manager shall arrange for insurance per Clause 4.1(b) and Clause 7.
|
8. |
FEES AND EXPENSES
|
8.1 |
Fixed Daily Cash Payments
|
8.2 |
[RESERVED]
.
|
8.3 |
Other Fees
|
(a) |
a fee of $35 per person per day for offshore personnel provided through the Manager, such offshore personnel's wages and related expenses being the responsibility of the Owner;
|
(b) |
a fee of $50 per person per day for catering services provided through the Manager, the wages and related expenses of the personnel providing such catering services, including provisions, but excluding travel expenses, being the responsibility of the Manager; and
|
(c) |
a fee of $2,000 per person per day for superintendent attendance offshore provided by the Manager, the wages and related expenses of the personnel providing such superintendent services, excluding travel expenses, being the responsibility of the Manager.
|
8.4 |
Additional Other Fees
|
9. |
[RESERVED]
|
10. |
MANAGER'S RIGHT TO SUB-CONTRACT
|
11. |
RESPONSIBILITIES
|
11.1 |
Force Majeure
|
(a) |
Neither party shall be liable for any loss, damage or delay due to any of the following force majeure events and/or conditions to the extent that the party invoking force majeure is prevented or hindered from performing any or all of their obligations under this Agreement, provided they have made all reasonable efforts to avoid, minimize or prevent the effect of such events and/or conditions:
|
(i) |
of God;
|
(ii) |
any Government requisition, control, intervention, requirement or interference;
|
(iii) |
any circumstances arising out of war, threatened act of war or warlike operations, acts of terrorism, sabotage or piracy, or the consequences thereof;
|
(iv) |
riots, civil commotion, blockades or embargoes;
|
(v) |
epidemics;
|
(vi) |
earthquakes, landslides, floods or other extraordinary weather conditions;
|
(vii) |
strikes, lockouts or other industrial action, unless limited to the employees of the party seeking to invoke force majeure;
|
(viii) |
fire, accident, explosion except where caused by negligence of the party seeking to invoke force majeure; and
|
(ix) |
any other similar cause beyond the reasonable control of either party.
|
11.2 |
Liability
|
11.3 |
Indemnity
|
12. |
GENERAL ADMINISTRATION
|
12.1 |
The Manager shall keep the Owner informed in a timely manner of any incident of which the Manager becomes aware which gives or may give rise to delay to the Vessel or claims or disputes involving third parties or any material non-compliance with the requirements of any charter party or other contract relating to the Vessel.
|
12.2 |
The Manager shall handle and settle all claims and disputes arising out of the Management Services hereunder, unless the Owner instructs the Manager otherwise. The Manager shall keep the Owner appropriately informed in a timely manner throughout the handling of such claims and disputes.
|
12.3 |
The Owner may request the Manager to bring or defend other actions, suits or proceedings related to the Management Services on terms to be agreed.
|
12.4 |
The Manager shall have power to obtain appropriate legal or technical or other outside expert advice in relation to the handling and settlement of claims in relation to Clauses 12.1 and 12.2 and disputes and any other matters affecting the interests of the Owner in respect of any Vessel, unless the Owner instructs the Manager otherwise.
|
12.5 |
The Owner shall arrange for the provision of any necessary guarantee bond or other security in connection with disputes referred to in Clause 12.2.
|
13. |
COMPLIANCE WITH LAWS AND REGULATIONS
|
14. |
DURATION OF THE AGREEMENT
|
14.1 |
The initial term of this Agreement shall be ten (10) years commencing on the Commencement Date. Thereafter, unless terminated earlier in accordance with Clause 15, the term of this Agreement shall automatically renew for successive one (1) year terms upon approval of the
|
14.2 |
Where any Vessel is not at a mutually convenient port or place on the expiry of such period, this Agreement shall terminate on the subsequent arrival of the Vessel at the next mutually convenient port or place.
|
15. |
TERMINATION
|
15.1 |
This Agreement may be terminated by the Owner or the Manager at any time.
|
16. |
DISPUTE RESOLUTION
|
16.1 |
All disputes arising out of this Agreement shall be arbitrated in London, England in the following manner. One arbitrator is to be appointed by the Owner, another is to be appointed by the Manager, and a third is to be appointed by the two foregoing appointed arbitrators. Their decision or that of any two of them shall be final and for the purpose of enforcing any award, this Agreement may be made a rule of the court. The arbitrators shall be commercial persons, conversant with shipping matters. Such arbitration is to be conducted in accordance with the rules of the London Maritime Arbitrators Association terms current at the time when the arbitration proceeding are commenced and in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof.
|
17. |
RESERVED.
|
18. |
NOTICES
|
18.1 |
All notices given by either party or their agents to the other party or their agents in accordance with the provisions of this Agreement shall be in writing and shall, unless specifically provided in this Agreement to the contrary, be sent to the address for that other party as set out below or as appropriate or to such other address as the other party may designate in writing.
|
(a) |
in the case of the Owner, PO Box 309, Ugland House, South Church Street, George Town, Grand Cayman, KY1-1104 Cayman Islands; or
|
(b) |
in the case of the Manager, c/o Cefai & Associates, 5/1 Merchants Street, Valletta, Malta.
|
18.2 |
Any notice given under this Agreement shall take effect on receipt by the other party and shall be deemed to have been received:
|
(a) |
if posted, on the seventh (7th) day after posting;
|
(b) |
if sent by facsimile or electronically, on the day of transmission; and
|
(c) |
if delivered by hand, on the day of delivery.
|
19. |
PARTIAL VALIDITY
|
20. |
AMENDMENTS AND WAIVERS
|
21. |
CONFIDENTIALITY
|
21.1 |
Except as may be required by applicable law, any non-public or confidential information relating to the business or affairs of the Owner or the Owner's principals obtained by the Manager in the performance of this Agreement shall be kept strictly confidential by the Manager and its Affiliates and subcontractors.
|
21.2 |
Except as may be required by applicable law this Agreement including all terms, detailed conditions and period is to be kept private and confidential and beyond the reach of any third party.
|
21.3 |
Except as may be required by applicable law, any non-public or confidential information relating to the business or affairs of the Manager and/or the Manager's principals obtained by the Owner or the Owner's principals and not relating to the Owner, its business or its assets (which would be covered by Clause 21.1) in the performance of this Agreement shall be kept strictly confidential.
|
22. |
[RESERVED]
|
23. |
GOVERNING LAW
|
24. |
THIRD PARTY RIGHTS
|
25. |
SURVIVAL
|
26. |
ASSIGNMENTS
|
26.1 |
The Owner may, without the consent of the Manager, assign its rights hereunder to its lenders by way of security for borrowings
|
26.2 |
The Manager may assign its rights and delegate its responsibilities hereunder to any of its Affiliates, provided, however, that, unless the Owner provides its prior written consent (not to be unreasonably withheld), to the novation of the Manager's responsibilities and obligations to the relevant Affiliate, the Manager shall remain responsible for the proper performance of this Agreement.
|
27. |
COUNTERPARTS
|
27.1 |
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.
|
27.2 |
Transmission by fax or emailed scanned copy of an executed counterpart of this Agreement shall be deemed to constitute due and sufficient delivery of such counterpart.
|
Oc
ean Rig 2 Inc.
, as the Owner
|
||
By:
|
/s/
Savvas Tournis
|
|
Name:
Savvas Tournis
|
||
Title: Attorney-in-Fact
|
TMS Offshore Services Ltd.
, as the Manager
|
||
By:
|
/s/ Dr. Renato Cefai
|
|
Name: DR. RENATO CEFAI
|
||
Title: DIRECTOR
|
||
MARE SERVICES LTD.
5/1 MERCHANTS STREET
VALLETTA VLT 1171
|
Name of Vessel
|
IMO Ship Identification No.
|
Port of Registry
|
Semi-submersible "
Eirik Raude
"
|
8765266
|
Nassau
|
Clause
|
Page
|
|
1.
|
DEFINITIONS
|
1
|
2.
|
COMMENCEMENT AND APPOINTMENT
|
2
|
3.
|
AUTHORITY OF THE MANAGER
|
2
|
4.
|
MANAGEMENT SERVICES
|
2
|
5.
|
MANAGER'S OBLIGATIONS
|
3
|
6.
|
OWNER'S OBLIGATIONS
|
3
|
7.
|
INSURANCE POLICIES
|
3
|
8.
|
FEES AND EXPENSES
|
4
|
9.
|
[RESERVED]
|
5
|
10.
|
MANAGER'S RIGHT TO SUB-CONTRACT
|
5
|
11.
|
RESPONSIBILITIES
|
6
|
12.
|
GENERAL ADMINISTRATION
|
7
|
13.
|
COMPLIANCE WITH LAWS AND REGULATIONS
|
7
|
14.
|
DURATION OF THE AGREEMENT
|
7
|
15.
|
TERMINATION
|
8
|
16.
|
DISPUTE RESOLUTION
|
8
|
17.
|
RESERVED.
|
8
|
18.
|
NOTICES
|
8
|
19.
|
PARTIAL VALIDITY
|
9
|
20.
|
AMENDMENTS AND WAIVERS
|
9
|
21.
|
CONFIDENTIALITY
|
9
|
22.
|
[RESERVED]
|
10
|
23.
|
GOVERNING LAW
|
10
|
24.
|
THIRD PARTY RIGHTS
|
10
|
25.
|
SURVIVAL
|
10
|
26.
|
ASSIGNMENTS
|
10
|
27.
|
COUNTERPARTS
|
10
|
(1) |
OCEAN RIG 1 INC.
, a corporation duly incorporated under the laws of the Marshall Islands (the "
Owner
"); and
|
(2) |
TMS OFFSHORE SERVICES LTD.
, a corporation organized under the laws of the Marshall Islands (the "
Manager
").
|
1.1 |
In this Agreement save where the context otherwise requires, the following words and expressions shall have the meanings hereby assigned to them:
|
1.2 |
Interpretation
|
(a) |
Singular/Plural
|
(b) |
Headings
|
4.1 |
General Management Services.
|
(a) |
seeking and negotiating employment for the Vessels of the Owner and the conclusion (including the execution thereof) of charter parties or other contracts relating to the employment of the Vessels;
|
(b) |
arranging insurances for the Vessels and the general operations of the Owner, on such terms as the Owner shall have instructed or agreed, in particular regarding conditions, insured values, deductibles, franchises and limits of liability; and requirements of charter parties, financing agreements or other contracts relating to the Vessels;.
|
(c) |
Providing services related to the financing, treasury, accounting and other day-to-day financial operations of the Owner;
|
(d) |
retaining counsel for the Owner and otherwise coordinating the various legal services required by the Owner;
|
(e) |
providing information technology services for the Owner;
|
(f) |
providing manning services for the Owner;
|
(g) |
providing commercial and marketing services for the Owner;
|
(h) |
providing executive services for the Owner;
|
(i) |
providing legal support services for the Owner;
|
(j) |
providing superintendency services for the Owner;
|
(k) |
preparing and filing all financial and other reports required for the Owner to comply with applicable securities laws, its loan and credit agreements, and the Memorandum and Articles;
|
(l) |
providing other non-technical/operational support services for the Owner, including such services as may be required to ensure that the Owner complies with all requirements of charter parties, financing agreements or other contracts relating to the Vessel;
|
(m) |
providing catering services for the Owner;
|
(n) |
providing other administrative services for the Owner; and
|
(o) |
such additional services as shall be mutually agreed by the parties.
|
5.1 |
The Manager undertakes to use its best endeavours to provide the Management Services as agents for and on behalf of the Owner in accordance with sound management practice and to protect and promote the interests of the Owner in all matters relating to the provision of services hereunder.
|
5.2 |
Without limiting in any manner its obligations under Section 5.1, the Manager shall be entitled to allocate its available supplies, manpower and services in such manner as in the prevailing circumstances the Manager in its absolute discretion considers to be fair and reasonable.
|
6.1 |
The Owner shall pay all sums due to the Manager punctually in accordance with the terms of this Agreement. In the event of payment after thirty (30) days following the due date of any outstanding sums the Manager shall be entitled to charge interest at the rate of 2% per annum, unless such payment is subject to a bona fide dispute.
|
6.2 |
The Owner shall cooperate with Manager in the performance of the Services and shall not impede the Manager from performing the Services subject to the Owner's right to request fewer Management Services.
|
(a) |
at the Owner's expense, each Vessel is insured for not less than its sound market value or entered for its full gross tonnage, as the case may be for:
|
(i) |
hull and machinery marine risks (including but not limited to crew negligence) and excess liabilities;
|
(ii) |
protection and indemnity risks (including but not limited to pollution risks and diversion expenses);
|
(iii) |
war risks (including but not limited to blocking and trapping, protection and indemnity, terrorism and crew risks); and
|
(iv) |
such optional insurances as may be agreed (such as piracy, kidnap and ransom, loss of hire and FD & D).
|
(b) |
all premiums, deductibles, supplementary calls and/or excess supplementary calls and release calls on the Owner's Insurances are paid by their due date on a gross basis;
|
(c) |
the Owner's Insurances name the Manager and, subject to underwriters' agreement, any third party designated by the Manager as a joint assured, with full cover. It is understood that in some cases, such as protection and indemnity, the normal terms for such cover may impose on the Manager and any such third party a liability in respect of premiums or calls arising in connection with the Owner's Insurances.
|
(d) |
written evidence is provided, to the reasonable satisfaction of the Manager, of the Owner's compliance with their obligations under this Clause 7 within a reasonable time of the commencement of the Agreement, and of each renewal date and, if specifically requested, of each payment date of the Owner's Insurances, it being understood that the Manager shall arrange for insurance per Clause 4.1(b) and Clause 7.
|
8.1 |
Fixed Daily Cash Payments
|
8.2 |
[RESERVED]
.
|
8.3 |
Other Fees
The Owner shall, at its election provided in writing to the Manager, pursue services at the following rates with the Manager:
|
(a) |
a fee of $35 per person per day for offshore personnel provided through the Manager, such offshore personnel's wages and related expenses being the responsibility of the Owner;
|
(b) |
a fee of $50 per person per day for catering services provided through the Manager, the wages and related expenses of the personnel providing such catering services, including provisions, but excluding travel expenses, being the responsibility of the Manager; and
|
(c) |
a fee of $2,000 per person per day for superintendent attendance offshore provided by the Manager, the wages and related expenses of the personnel providing such superintendent services, excluding travel expenses, being the responsibility of the Manager.
|
8.4 |
Additional Other Fees
The Owner shall pay such other fees as shall be provided for under this Agreement to the extent approved by the Owner.
|
11.1 |
Force Majeure
|
(a) |
Neither party shall be liable for any loss, damage or delay due to any of the following force majeure events and/or conditions to the extent that the party invoking force majeure is prevented or hindered from performing any or all of their obligations under this Agreement, provided they have made all reasonable efforts to avoid, minimize or prevent the effect of such events and/or conditions:
|
(i) |
of God;
|
(ii) |
any Government requisition, control, intervention, requirement or interference;
|
(iii) |
any circumstances arising out of war, threatened act of war or warlike operations, acts of terrorism, sabotage or piracy, or the consequences thereof;
|
(iv) |
riots, civil commotion, blockades or embargoes;
|
(v) |
epidemics;
|
(vi) |
earthquakes, landslides, floods or other extraordinary weather conditions;
|
(vii) |
strikes, lockouts or other industrial action, unless limited to the employees of the party seeking to invoke force majeure;
|
(viii) |
fire, accident, explosion except where caused by negligence of the party seeking to invoke force majeure; and
|
(ix) |
any other similar cause beyond the reasonable control of either party.
|
11.2 |
Liability
|
11.3 |
Indemnity
|
12.1 |
The Manager shall keep the Owner informed in a timely manner of any incident of which the Manager becomes aware which gives or may give rise to delay to the Vessel or claims or disputes involving third parties or any material non-compliance with the requirements of any charter party or other contract relating to the Vessel.
|
12.2 |
The Manager shall handle and settle all claims and disputes arising out of the Management Services hereunder, unless the Owner instructs the Manager otherwise. The Manager shall keep the Owner appropriately informed in a timely manner throughout the handling of such claims and disputes.
|
12.3 |
The Owner may request the Manager to bring or defend other actions, suits or proceedings related to the Management Services on terms to be agreed.
|
12.4 |
The Manager shall have power to obtain appropriate legal or technical or other outside expert advice in relation to the handling and settlement of claims in relation to Clauses 12.1 and 12.2 and disputes and any other matters affecting the interests of the Owner in respect of any Vessel, unless the Owner instructs the Manager otherwise.
|
12.5 |
The Owner shall arrange for the provision of any necessary guarantee bond or other security in connection with disputes referred to in Clause 12.2.
|
14.1 |
The initial term of this Agreement shall be ten (10) years commencing on the Commencement Date. Thereafter, unless terminated earlier in accordance with Clause 15, the term of this Agreement shall automatically renew for successive one (1) year terms upon approval of the
|
14.2 |
Where any Vessel is not at a mutually convenient port or place on the expiry of such period, this Agreement shall terminate on the subsequent arrival of the Vessel at the next mutually convenient port or place.
|
15.1 |
This Agreement may be terminated by the Owner or the Manager at any time.
|
16.1 |
All disputes arising out of this Agreement shall be arbitrated in London, England in the following manner. One arbitrator is to be appointed by the Owner, another is to be appointed by the Manager, and a third is to be appointed by the two foregoing appointed arbitrators. Their decision or that of any two of them shall be final and for the purpose of enforcing any award, this Agreement may be made a rule of the court. The arbitrators shall be commercial persons, conversant with shipping matters. Such arbitration is to be conducted in accordance with the rules of the London Maritime Arbitrators Association terms current at the time when the arbitration proceeding are commenced and in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof.
|
18.1 |
All notices given by either party or their agents to the other party or their agents in accordance with the provisions of this Agreement shall be in writing and shall, unless specifically provided in this Agreement to the contrary, be sent to the address for that other party as set out below or as appropriate or to such other address as the other party may designate in writing.
|
(a) |
in the case of the Owner, PO Box 309, Ugland House, South Church Street, George Town, Grand Cayman, KY1-1104 Cayman Islands; or
|
(b) |
in the case of the Manager, c/o Cefai & Associates, 5/1 Merchants Street, Valletta, Malta.
|
18.2 |
Any notice given under this Agreement shall take effect on receipt by the other party and shall be deemed to have been received:
|
(a) |
if posted, on the seventh (7th) day after posting;
|
(b) |
if sent by facsimile or electronically, on the day of transmission; and
|
(c) |
if delivered by hand, on the day of delivery.
|
21.1 |
Except as may be required by applicable law, any non-public or confidential information relating to the business or affairs of the Owner or the Owner's principals obtained by the Manager in the performance of this Agreement shall be kept strictly confidential by the Manager and its Affiliates and subcontractors.
|
21.2 |
Except as may be required by applicable law this Agreement including all terms, detailed conditions and period is to be kept private and confidential and beyond the reach of any third party.
|
21.3 |
Except as may be required by applicable law, any non-public or confidential information relating to the business or affairs of the Manager and/or the Manager's principals obtained by the Owner or the Owner's principals and not relating to the Owner, its business or its assets (which would be covered by Clause 21.1) in the performance of this Agreement shall be kept strictly confidential.
|
26.1 |
The Owner may, without the consent of the Manager, assign its rights hereunder to its lenders by way of security for borrowings
|
26.2 |
The Manager may assign its rights and delegate its responsibilities hereunder to any of its Affiliates, provided, however, that, unless the Owner provides its prior written consent (not to be unreasonably withheld), to the novation of the Manager's responsibilities and obligations to the relevant Affiliate, the Manager shall remain responsible for the proper performance of this Agreement.
|
27.1 |
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.
|
27.2 |
Transmission by fax or emailed scanned copy of an executed counterpart of this Agreement shall be deemed to constitute due and sufficient delivery of such counterpart.
|
Ocean Rig 1 Inc.
, as the Owner
|
||
By:
|
/s/ Savvas Tournis
|
|
Name: Savvas Tournis
|
||
Title: Attorney-At-Law
|
TMS Offshore Services Ltd.
, as the Manager
|
||
By:
|
/s/ Dr. Renato Cefai
|
|
Name: Dr. Renato Cefai
|
||
Title: Director
|
||
Mare Services Ltd
5/1 Merchants Street
Valletta VLT 1171
|
Name of Vessel |
IMO Ship Identification No.
|
Port of Registry
|
Semi-submersible " Leiv Eiriksson " |
8767317
|
Nassau
|
Clause
|
Page
|
1.
|
DEFINITIONS
|
1
|
2.
|
COMMENCEMENT AND APPOINTMENT
|
2
|
3.
|
AUTHORITY OF THE MANAGER
|
2
|
4.
|
MANAGEMENT SERVICES
|
2
|
5.
|
MANAGER'S OBLIGATIONS
|
3
|
6.
|
OWNER'S OBLIGATIONS
|
3
|
7.
|
INSURANCE POLICIES
|
3
|
8.
|
FEES AND EXPENSES
|
4
|
9.
|
[RESERVED]
|
5
|
10.
|
MANAGER'S RIGHT TO SUB-CONTRACT
|
5
|
11.
|
RESPONSIBILITIES
|
6
|
12.
|
GENERAL ADMINISTRATION
|
7
|
13.
|
COMPLIANCE WITH LAWS AND REGULATIONS
|
7
|
14.
|
DURATION OF THE AGREEMENT
|
7
|
15.
|
TERMINATION
|
8
|
16.
|
DISPUTE RESOLUTION
|
8
|
17.
|
RESERVED.
|
8
|
18.
|
NOTICES
|
8
|
19.
|
PARTIAL VALIDITY
|
9
|
20.
|
AMENDMENTS AND WAIVERS
|
9
|
21.
|
CONFIDENTIALITY
|
9
|
22.
|
[RESERVED]
|
10
|
23.
|
GOVERNING LAW
|
10
|
24.
|
THIRD PARTY RIGHTS
|
10
|
25.
|
SURVIVAL
|
10
|
26.
|
ASSIGNMENTS
|
10
|
27.
|
COUNTERPARTS
|
10
|
(1) |
DRILLSHIP ALONISSOS OWNERS INC.
, a corporation duly incorporated under the laws of the Marshall Islands (the "
Owner
"); and
|
(2) |
TMS OFFSHORE SERVICES LTD.
, a corporation organized under the laws of the Marshall Islands (the "
Manager
").
|
1. |
DEFINITIONS
|
1.1 |
In this Agreement save where the context otherwise requires, the following words and
expressions shall have the meanings hereby assigned to them:
|
1.2 |
Interpretation
|
(a) |
Singular/Plural
|
(b) |
Headings
|
2. |
COMMENCEMENT AND APPOINTMENT
|
3. |
AUTHORITY OF THE MANAGER
|
4. |
MANAGEMENT SERVICES
|
4.1 |
General Management Services.
|
(a) |
seeking and negotiating employment for the Vessels of the Owner and the conclusion (including the execution thereof) of charter parties or other contracts relating to the employment of the Vessels;
|
(b) |
arranging insurances for the Vessels and the general operations of the Owner, on such terms as the Owner shall have instructed or agreed, in particular regarding conditions, insured values, deductibles, franchises and limits of liability; and requirements of charter parties, financing agreements or other contracts relating to the Vessels;.
|
(c) |
Providing services related to the financing, treasury, accounting and other day-to-day financial operations of the Owner;
|
(d) |
retaining counsel for the Owner and otherwise coordinating the various legal services required by the Owner;
|
(e) |
providing information technology services for the Owner;
|
(f) |
providing manning services for the Owner;
|
(g) |
providing commercial and marketing services for the Owner;
|
(h) |
providing executive services for the Owner;
|
(i) |
providing legal support services for the Owner;
|
(j) |
providing superintendency services for the Owner;
|
(k) |
preparing and filing all financial and other reports required for the Owner to comply with applicable securities laws, its loan and credit agreements, and the Memorandum and Articles;
|
(l) |
providing other non-technical/operational support services for the Owner, including such services as may be required to ensure that the Owner complies with all requirements of charter parties, financing agreements or other contracts relating to the Vessel;
|
(m) |
providing catering services for the Owner;
|
(n) |
providing other administrative services for the Owner; and
|
(o) |
such additional services as shall be mutually agreed by the parties.
|
5. |
MANAGER'S OBLIGATIONS
|
5.1 |
The Manager undertakes to use its best endeavours to provide the Management Services as
agents for and on behalf of the Owner in accordance with sound management practice and to protect and promote the interests of the Owner in all matters relating to the provision of services hereunder.
|
5.2 |
Without limiting in any manner its obligations under Section 5.1, the Manager shall be entitled
to allocate its available supplies, manpower and services in such manner as in the prevailing circumstances the Manager in its absolute discretion considers to be fair and reasonable.
|
6. |
OWNER'S OBLIGATIONS
|
6.1 |
The Owner shall pay all sums due to the Manager punctually in accordance with the terms of
this Agreement. In the event of payment after thirty (30) days following the due date of any outstanding sums the Manager shall be entitled to charge interest at the rate of 2% per annum, unless such payment is subject to a bona fide dispute.
|
6.2 |
The Owner shall cooperate with Manager in the performance of the Services and shall not
impede the Manager from performing the Services subject to the Owner's right to request fewer Management Services.
|
7. |
INSURANCE POLICIES
|
(a) |
at the Owner's expense, each Vessel is insured for not less than its sound market value or entered for its full gross tonnage, as the case may be for:
|
(i) |
hull and machinery marine risks (including but not limited to crew negligence) and excess liabilities;
|
(ii) |
protection and indemnity risks (including but not limited to pollution risks and diversion expenses);
|
(iii) |
war risks (including but not limited to blocking and trapping, protection and indemnity, terrorism and crew risks); and
|
(iv) |
such optional insurances as may be agreed (such as piracy, kidnap and ransom, loss of hire and FD & D).
|
(b) |
all premiums, deductibles, supplementary calls and/or excess supplementary calls and release calls on the Owner's Insurances are paid by their due date on a gross basis;
|
(c) |
the Owner's Insurances name the Manager and, subject to underwriters' agreement, any third party designated by the Manager as a joint assured, with full cover. It is understood that in some cases, such as protection and indemnity, the normal terms for such cover may impose on the Manager and any such third party a liability in respect of premiums or calls arising in connection with the Owner's Insurances.
|
(d) |
written evidence is provided, to the reasonable satisfaction of the Manager, of the Owner's compliance with their obligations under this Clause 7 within a reasonable time of the commencement of the Agreement, and of each renewal date and, if specifically requested, of each payment date of the Owner's Insurances, it being understood that the Manager shall arrange for insurance per Clause 4.1(b) and Clause 7.
|
8. |
FEES AND EXPENSES
|
8.1 |
Fixed Daily Cash Payments
|
8.2 |
[RESERVED].
|
8.3 |
Other Fees
|
(a) |
a fee of $35 per person per day for offshore personnel provided through the Manager, such offshore personnel's wages and related expenses being the responsibility of the Owner;
|
(b) |
a fee of $50 per person per day for catering services provided through the Manager, the wages and related expenses of the personnel providing such catering services, including provisions, but excluding travel expenses, being the responsibility of the Manager; and
|
(c) |
a fee of $2,000 per person per day for superintendent attendance offshore provided by the Manager, the wages and related expenses of the personnel providing such superintendent services, excluding travel expenses, being the responsibility of the Manager.
|
8.4 |
Additional Other Fees
|
9. |
[RESERVED]
|
10. |
MANAGER'S RIGHT TO SUB-CONTRACT
|
11. |
RESPONSIBILITIES
|
11.1 |
Force Majeure
|
(a) |
Neither party shall be liable for any loss, damage or delay due to any of the following force majeure events and/or conditions to the extent that the party invoking force majeure is prevented or hindered from performing any or all of their obligations under this Agreement, provided they have made all reasonable efforts to avoid, minimize or prevent the effect of such events and/or conditions:
|
(i) |
of God;
|
(ii) |
any Government requisition, control, intervention, requirement or interference;
|
(iii) |
any circumstances arising out of war, threatened act of war or warlike operations, acts of terrorism, sabotage or piracy, or the consequences thereof;
|
(iv) |
riots, civil commotion, blockades or embargoes;
|
(v) |
epidemics;
|
(vi) |
earthquakes, landslides, floods or other extraordinary weather conditions;
|
(vii) |
strikes, lockouts or other industrial action, unless limited to the employees of the party seeking to invoke force majeure;
|
(viii) |
fire, accident, explosion except where caused by negligence of the party seeking to invoke force majeure; and
|
(ix) |
any other similar cause beyond the reasonable control of either party.
|
11.2 |
Liability
|
11.3 |
Indemnity
|
12. |
GENERAL ADMINISTRATION
|
12.1 |
The Manager shall keep the Owner informed in a timely manner of any incident of which the Manager becomes aware which gives or may give rise to delay to the Vessel or claims or disputes involving third parties or any material non-compliance with the requirements of any charter party or other contract relating to the Vessel.
|
12.2 |
The Manager shall handle and settle all claims and disputes arising out of the Management Services hereunder, unless the Owner instructs the Manager otherwise. The Manager shall keep the Owner appropriately informed in a timely manner throughout the handling of such claims and disputes.
|
12.3 |
The Owner may request the Manager to bring or defend other actions, suits or proceedings related to the Management Services on terms to be agreed.
|
12.4 |
The Manager shall have power to obtain appropriate legal or technical or other outside expert advice in relation to the handling and settlement of claims in relation to Clauses 12.1 and 12.2 and disputes and any other matters affecting the interests of the Owner in respect of any Vessel, unless the Owner instructs the Manager otherwise.
|
12.5 |
The Owner shall arrange for the provision of any necessary guarantee bond or other security in connection with disputes referred to in Clause 12.2.
|
13. |
COMPLIANCE WITH LAWS AND REGULATIONS
|
14. |
DURATION OF THE AGREEMENT
|
14.1 |
The initial term of this Agreement shall be ten (10) years commencing on the Commencement Date. Thereafter, unless terminated earlier in accordance with Clause 15, the term of this Agreement shall automatically renew for successive one (1) year terms upon approval of the
|
14.2 |
Where any Vessel is not at a mutually convenient port or place on the expiry of such period, this Agreement shall terminate on the subsequent arrival of the Vessel at the next mutually convenient port or place.
|
15. |
TERMINATION
|
15.1 |
This Agreement may be terminated by the Owner or the Manager at any time.
|
16. |
DISPUTE RESOLUTION
|
16.1 |
All disputes arising out of this Agreement shall be arbitrated in London, England in the following manner. One arbitrator is to be appointed by the Owner, another is to be appointed by the Manager, and a third is to be appointed by the two foregoing appointed arbitrators. Their decision or that of any two of them shall be final and for the purpose of enforcing any award, this Agreement may be made a rule of the court. The arbitrators shall be commercial persons, conversant with shipping matters. Such arbitration is to be conducted in accordance with the rules of the London Maritime Arbitrators Association terms current at the time when the arbitration proceeding are commenced and in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof.
|
17. |
RESERVED.
|
18. |
NOTICES
|
18.1 |
All notices given by either party or their agents to the other party or their agents in accordance with the provisions of this Agreement shall be in writing and shall, unless specifically provided in this Agreement to the contrary, be sent to the address for that other party as set out below or as appropriate or to such other address as the other party may designate in writing.
|
(a) |
in the case of the Owner, PO Box 309, Ugland House, South Church Street, George Town, Grand Cayman, KY1-1104 Cayman Islands; or
|
(b) |
in the case of the Manager, c/o Cefai & Associates, 5/1 Merchants Street, Valletta, Malta.
|
18.2 |
Any notice given under this Agreement shall take effect on receipt by the other party and shall be deemed to have been received:
|
(a) |
if posted, on the seventh (7th) day after posting;
|
(b) |
if sent by facsimile or electronically, on the day of transmission; and
|
(c) |
if delivered by hand, on the day of delivery.
|
19. |
PARTIAL VALIDITY
|
20. |
AMENDMENTS AND WAIVERS
|
21. |
CONFIDENTIALITY
|
21.1 |
Except as may be required by applicable law, any non-public or confidential information relating to the business or affairs of the Owner or the Owner's principals obtained by the Manager in the performance of this Agreement shall be kept strictly confidential by the Manager and its Affiliates and subcontractors.
|
21.2 |
Except as may be required by applicable law this Agreement including all terms, detailed conditions and period is to be kept private and confidential and beyond the reach of any third party.
|
21.3 |
Except as may be required by applicable law, any non-public or confidential information relating to the business or affairs of the Manager and/or the Manager's principals obtained by the Owner or the Owner's principals and not relating to the Owner, its business or its assets (which would be covered by Clause 21.1) in the performance of this Agreement shall be kept strictly confidential.
|
22. |
[RESERVED]
|
23. |
GOVERNING LAW
|
24. |
THIRD PARTY RIGHTS
|
25. |
SURVIVAL
|
26. |
ASSIGNMENTS
|
26.1 |
The Owner may, without the consent of the Manager, assign its rights hereunder to its lenders by way of security for borrowings
|
26.2 |
The Manager may assign its rights and delegate its responsibilities hereunder to any of its Affiliates, provided, however, that, unless the Owner provides its prior written consent (not to be unreasonably withheld), to the novation of the Manager's responsibilities and obligations to the relevant Affiliate, the Manager shall remain responsible for the proper performance of this Agreement.
|
27. |
COUNTERPARTS
|
27.1 |
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.
|
27.2 |
Transmission by fax or emailed scanned copy of an executed counterpart of this Agreement shall be deemed to constitute due and sufficient delivery of such counterpart.
|
Drillships Alonissos Owners Inc, as the Owner
|
||
By:
|
/s/ Dr. Renato Cefai
|
|
Name:
DR. RENATO CEFAI
|
||
Title: DIRECTOR
|
||
MARE SERVICES LTD.
5/1 MERCHANTS STREET
VALLETTA VLT 1171
|
TMS Offshore Services Ltd., as the Manager
|
||
By:
|
/s/ Dr. Renato Cefai
|
|
Name: DR. RENATO CEFAI
|
||
Title: DIRECTOR
|
||
MARE SERVICES LTD.
5/1 MERCHANTS STREET
VALLETTA VLT 1171
|
Name of Vessel
|
IMO Ship Identification No.
|
Port of Registry
|
Drillship "
Ocean Rig Apollo
"
|
9676981
|
Republic of the Marshall Islands
|
Clause
|
Page
|
|
1.
|
DEFINITIONS
|
1
|
2.
|
COMMENCEMENT AND APPOINTMENT
|
2
|
3.
|
AUTHORITY OF THE MANAGER
|
2
|
4.
|
MANAGEMENT SERVICES
|
2
|
5.
|
MANAGER'S OBLIGATIONS
|
3
|
6.
|
OWNER'S OBLIGATIONS
|
3
|
7.
|
INSURANCE POLICIES
|
3
|
8.
|
FEES AND EXPENSES
|
4
|
9.
|
[RESERVED]
|
5
|
10.
|
MANAGER'S RIGHT TO SUB-CONTRACT
|
5
|
11.
|
RESPONSIBILITIES
|
6
|
12.
|
GENERAL ADMINISTRATION
|
7
|
13.
|
COMPLIANCE WITH LAWS AND REGULATIONS
|
7
|
14.
|
DURATION OF THE AGREEMENT
|
7
|
15.
|
TERMINATION
|
8
|
16.
|
DISPUTE RESOLUTION
|
8
|
17.
|
RESERVED
|
8
|
18.
|
NOTICES
|
8
|
19.
|
PARTIAL VALIDITY
|
9
|
20.
|
AMENDMENTS AND WAIVERS
|
9
|
21.
|
CONFIDENTIALITY
|
9
|
22.
|
[RESERVED]
|
10
|
23.
|
GOVERNING LAW
|
10
|
24.
|
THIRD PARTY RIGHTS
|
10
|
25.
|
SURVIVAL
|
10
|
26.
|
ASSIGNMENTS
|
10
|
27.
|
COUNTERPARTS
|
10
|
(1) |
DRILLSHIP KYTHNOS OWNERS INC
., a corporation duly incorporated under the laws of the Marshall Islands (the "
Owner
"); and
|
(2) |
TMS OFFSHORE SERVICES LTD.
, a corporation organized under the laws of the Marshall Islands (the "
Manager
").
|
1. |
DEFINITIONS
|
1.1 |
In this Agreement save where the context otherwise requires, the following words and expressions shall have the meanings hereby assigned to them:
|
1.2 |
Interpretation In this Agreement:
|
(a) |
Singular/Plural
|
(b) |
Headings
|
2. |
COMMENCEMENT AND APPOINTMENT
|
3. |
AUTHORITY OF THE MANAGER
|
4. |
MANAGEMENT SERVICES
|
4.1 |
General Management Services.
|
(a) |
seeking and negotiating employment for the Vessels of the Owner and the conclusion (including the execution thereof) of charter parties or other contracts relating to the employment of the Vessels;
|
(b) |
arranging insurances for the Vessels and the general operations of the Owner, on such terms as the Owner shall have instructed or agreed, in particular regarding conditions, insured values, deductibles, franchises and limits of liability; and requirements of charter parties, financing agreements or other contracts relating to the Vessels;
|
(c) |
Providing services related to the financing, treasury, accounting and other day-to-day financial operations of the Owner;
|
(d) |
retaining counsel for the Owner and otherwise coordinating the various legal services required by the Owner;
|
(e) |
providing information technology services for the Owner;
|
(f) |
providing manning services for the Owner;
|
(g) |
providing commercial and marketing services for the Owner;
|
(h) |
providing executive services for the Owner;
|
(i) |
providing legal support services for the Owner;
|
(j) |
providing superintendency services for the Owner;
|
(k) |
preparing and filing all financial and other reports required for the Owner to comply with applicable securities laws, its loan and credit agreements, and the Memorandum and Articles;
|
(l) |
providing other non-technical/operational support services for the Owner, including such services as may be required to ensure that the Owner complies with all requirements of charter parties, financing agreements or other contracts relating to the Vessel;
|
(m) |
providing catering services for the Owner;
|
(n) |
providing other administrative services for the Owner; and
|
(o) |
such additional services as shall be mutually agreed by the parties.
|
5. |
MANAGER'S OBLIGATIONS
|
5.1 |
The Manager undertakes to use its best endeavours to provide the Management Services as agents for and on behalf of the Owner in accordance with sound management practice and to protect and promote the interests of the Owner in all matters relating to the provision of services hereunder.
|
5.2 |
Without limiting in any manner its obligations under Section 5.1, the Manager shall be entitled to allocate its available supplies, manpower and services in such manner as in the prevailing circumstances the Manager in its absolute discretion considers to be fair and reasonable.
|
6. |
OWNER'S OBLIGATIONS
|
6.1 |
The Owner shall pay all sums due to the Manager punctually in accordance with the terms of this Agreement. In the event of payment after thirty (30) days following the due date of any outstanding sums the Manager shall be entitled to charge interest at the rate of 2% per annum, unless such payment is subject to a bona fide dispute.
|
6.2 |
The Owner shall cooperate with Manager in the performance of the Services and shall not impede the Manager from performing the Services subject to the Owner's right to request fewer Management Services.
|
7. |
INSURANCE POLICIES
|
(a) |
at the Owner's expense, each Vessel is insured for not less than its sound market value or entered for its full gross tonnage, as the case may be for:
|
(i) |
hull and machinery marine risks (including but not limited to crew negligence) and excess liabilities;
|
(ii) |
protection and indemnity risks (including but not limited to pollution risks and diversion expenses);
|
(iii) |
war risks (including but not limited to blocking and trapping, protection and indemnity, terrorism and crew risks); and
|
(iv) |
such optional insurances as may be agreed (such as piracy, kidnap and ransom, loss of hire and FD & D).
|
(b) |
all premiums, deductibles, supplementary calls and/or excess supplementary calls and release calls on the Owner's Insurances are paid by their due date on a gross basis;
|
(c) |
the Owner's Insurances name the Manager and, subject to underwriters' agreement, any third party designated by the Manager as a joint assured, with full cover. It is understood that in some cases, such as protection and indemnity, the normal terms for such cover may impose on the Manager and any such third party a liability in respect of premiums or calls arising in connection with the Owner's Insurances.
|
(d) |
written evidence is provided, to the reasonable satisfaction of the Manager, of the Owner's compliance with their obligations under this Clause 7 within a reasonable time of the commencement of the Agreement, and of each renewal date and, if specifically requested, of each payment date of the Owner's Insurances, it being understood that the Manager shall arrange for insurance per Clause 4.1(b) and Clause 7.
|
8. |
FEES AND EXPENSES
|
8.1 |
Fixed Daily Cash Payments
The Owner will pay to the Manager a daily fee of U.S. $300 per day (the "
Fixed Daily Cash Payments
"),
plus reasonable out-of-pocket expenses (including professionals' fees and expenses), travel expenses and expenses in connection with the performance of the
|
8.2 |
[RESERVED].
|
8.3 |
Other Fees
The Owner shall, at its election provided in writing to the Manager, pursue services at the following rates with the Manager:
|
(a) |
a fee of $35 per person per day for offshore personnel provided through the Manager, such offshore personnel's wages and related expenses being the responsibility of the Owner;
|
(b) |
a fee of $50 per person per day for catering services provided through the Manager, the wages and related expenses of the personnel providing such catering services, including provisions, but excluding travel expenses, being the responsibility of the Manager; and
|
(c) |
a fee of $2,000 per person per day for superintendent attendance offshore provided by the Manager, the wages and related expenses of the personnel providing such superintendent services, excluding travel expenses, being the responsibility of the Manager.
|
8.4 |
Additional Other Fees
The Owner shall pay such other fees as shall be provided for under this Agreement to the extent approved by the Owner.
|
9. |
[RESERVED]
|
10. |
MANAGER'S RIGHT TO SUB-CONTRACT
|
11. |
RESPONSIBILITIES
|
11.1 |
Force Majeure
|
(a) |
Neither party shall be liable for any loss, damage or delay due to any of the following force majeure events and/or conditions to the extent that the party invoking force majeure is prevented or hindered from performing any or all of their obligations under this Agreement, provided they have made all reasonable efforts to avoid, minimize or prevent the effect of such events and/or conditions:
|
(i) |
of God;
|
(ii) |
any Government requisition, control, intervention, requirement or interference;
|
(iii) |
any circumstances arising out of war, threatened act of war or warlike operations, acts of terrorism, sabotage or piracy, or the consequences thereof;
|
(iv) |
riots, civil commotion, blockades or embargoes;
|
(v) |
epidemics;
|
(vi) |
earthquakes, landslides, floods or other extraordinary weather conditions;
|
(vii) |
strikes, lockouts or other industrial action, unless limited to the employees of the party seeking to invoke force majeure;
|
(viii) |
fire, accident, explosion except where caused by negligence of the party seeking to invoke force majeure; and
|
(ix) |
any other similar cause beyond the reasonable control of either party.
|
11.2 |
Liability
|
11.3 |
Indemnity
|
12. |
GENERAL ADMINISTRATION
|
12.1 |
The Manager shall keep the Owner informed in a timely manner of any incident of which the Manager becomes aware which gives or may give rise to delay to the Vessel or claims or disputes involving third parties or any material non-compliance with the requirements of any charter party or other contract relating to the Vessel.
|
12.2 |
The Manager shall handle and settle all claims and disputes arising out of the Management Services hereunder, unless the Owner instructs the Manager otherwise. The Manager shall keep the Owner appropriately informed in a timely manner throughout the handling of such claims and disputes.
|
12.3 |
The Owner may request the Manager to bring or defend other actions, suits or proceedings related to the Management Services on terms to be agreed.
|
12.4 |
The Manager shall have power to obtain appropriate legal or technical or other outside expert advice in relation to the handling and settlement of claims in relation to Clauses 12.1 and 12.2 and disputes and any other matters affecting the interests of the Owner in respect of any Vessel, unless the Owner instructs the Manager otherwise.
|
12.5 |
The Owner shall arrange for the provision of any necessary guarantee bond or other security in connection with disputes referred to in Clause 12.2.
|
13. |
COMPLIANCE WITH LAWS AND REGULATIONS
|
14. |
DURATION OF THE AGREEMENT
|
14.1 |
The initial term of this Agreement shall be ten (10) years commencing on the Commencement Date. Thereafter, unless terminated earlier in accordance with Clause 15, the term of this Agreement shall automatically renew for successive one (1) year terms upon approval of the
|
14.2 |
Where any Vessel is not at a mutually convenient port or place on the expiry of such period, this Agreement shall terminate on the subsequent arrival of the Vessel at the next mutually convenient port or place.
|
15. |
TERMINATION
|
15.1 |
This Agreement may be terminated by the Owner or the Manager at any time.
|
16. |
DISPUTE RESOLUTION
|
16.1 |
All disputes arising out of this Agreement shall be arbitrated in London, England in the following manner. One arbitrator is to be appointed by the Owner, another is to be appointed by the Manager, and a third is to be appointed by the two foregoing appointed arbitrators. Their decision or that of any two of them shall be final and for the purpose of enforcing any award, this Agreement may be made a rule of the court. The arbitrators shall be commercial persons, conversant with shipping matters. Such arbitration is to be conducted in accordance with the rules of the London Maritime Arbitrators Association terms current at the time when the arbitration proceeding are commenced and in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof.
|
17. |
RESERVED.
|
18. |
NOTICES
|
18.1 |
All notices given by either party or their agents to the other party or their agents in accordance with the provisions of this Agreement shall be in writing and shall, unless specifically provided in this Agreement to the contrary, be sent to the address for that other party as set out below or as appropriate or to such other address as the other party may designate in writing.
|
(a) |
in the case of the Owner, PO Box 309, Ugland House, South Church Street, George Town, Grand Cayman, KY1-1104 Cayman Islands; or
|
(b) |
in the case of the Manager, c/o Cefai & Associates, 5/1 Merchants Street, Valletta, Malta.
|
18.2 |
Any notice given under this Agreement shall take effect on receipt by the other party and shall be deemed to have been received:
|
(a) |
if posted, on the seventh (7th) day after posting;
|
(b) |
if sent by facsimile or electronically, on the day of transmission; and
|
(c) |
if delivered by hand, on the day of delivery.
|
19. |
PARTIAL VALIDITY
|
20. |
AMENDMENTS AND WAIVERS
|
21. |
CONFIDENTIALITY
|
21.1 |
Except as may be required by applicable law, any non-public or confidential information relating to the business or affairs of the Owner or the Owner's principals obtained by the Manager in the performance of this Agreement shall be kept strictly confidential by the Manager and its Affiliates and subcontractors.
|
21.2 |
Except as may be required by applicable law this Agreement including all terms, detailed conditions and period is to be kept private and confidential and beyond the reach of any third party.
|
21.3 |
Except as may be required by applicable law, any non-public or confidential information relating to the business or affairs of the Manager and/or the Manager's principals obtained by the Owner or the Owner's principals and not relating to the Owner, its business or its assets (which would be covered by Clause 21.1) in the performance of this Agreement shall be kept strictly confidential.
|
22. |
[RESERVED]
|
23. |
GOVERNING LAW
|
24. |
THIRD PARTY RIGHTS
|
25. |
SURVIVAL
|
26. |
ASSIGNMENTS
|
26.1 |
The Owner may, without the consent of the Manager, assign its rights hereunder to its lenders by way of security for borrowings
|
26.2 |
The Manager may assign its rights and delegate its responsibilities hereunder to any of its Affiliates, provided, however, that, unless the Owner provides its prior written consent (not to be unreasonably withheld), to the novation of the Manager's responsibilities and obligations to the relevant Affiliate, the Manager shall remain responsible for the proper performance of this Agreement.
|
27. |
COUNTERPARTS
|
27.1 |
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.
|
27.2 |
Transmission by fax or emailed scanned copy of an executed counterpart of this Agreement shall be deemed to constitute due and sufficient delivery of such counterpart.
|
Drillship Kythnos Owners Inc.
, as the Owner
|
||
By:
|
/s/ Savvas Tournis
|
|
Name:
|
Savvas Tournis
|
|
Title:
|
Attorney-in-fact
|
|
TMS Offshore Services Ltd.
, as the Manager
|
||
By:
|
/s/ Dr. RENATO CEFAI
|
|
Name:
|
Dr. Renato Cefai
|
|
Title:
|
DIRECTOR
|
|
MARE SERVICES LTD
|
||
5/1 MERCHANTS STREET
|
||
VALLETTA VLT 1171
|
Name of Vessel
|
IMO Ship Identification No
.
|
Port of Registry
|
Drillship
"Ocean Rig Athena"
|
9632557
|
Republic of the Marshall Islands
|
Clause
|
Page
|
|
1.
|
DEFINITIONS
|
1
|
2.
|
COMMENCEMENT AND APPOINTMENT
|
2
|
3.
|
AUTHORITY OF THE MANAGER
|
2
|
4.
|
MANAGEMENT SERVICES
|
2
|
5.
|
MANAGER'S OBLIGATIONS
|
3
|
6.
|
OWNER'S OBLIGATIONS
|
3
|
7.
|
INSURANCE POLICIES
|
3
|
8.
|
FEES AND EXPENSES
|
4
|
9.
|
[RESERVED]
|
5
|
10.
|
MANAGER'S RIGHT TO SUB-CONTRACT
|
5
|
11.
|
RESPONSIBILITIES
|
6
|
12.
|
GENERAL ADMINISTRATION
|
7
|
13.
|
COMPLIANCE WITH LAWS AND REGULATIONS
|
7
|
14.
|
DURATION OF THE AGREEMENT
|
7
|
15.
|
TERMINATION
|
8
|
16.
|
DISPUTE RESOLUTION
|
8
|
17.
|
RESERVED
|
8
|
18.
|
NOTICES
|
8
|
19.
|
PARTIAL VALIDITY
|
9
|
20.
|
AMENDMENTS AND WAIVERS
|
9
|
21.
|
CONFIDENTIALITY
|
9
|
22.
|
[RESERVED]
|
10
|
23.
|
GOVERNING LAW
|
10
|
24.
|
THIRD PARTY RIGHTS
|
10
|
25.
|
SURVIVAL
|
10
|
26.
|
ASSIGNMENTS
|
10
|
27.
|
COUNTERPARTS
|
10
|
(1) |
DRILLSHIP HYDRA OWNERS INC.
, a corporation duly incorporated under the laws of the Marshall Islands (the "
Owner
"); and
|
(2) |
TMS OFFSHORE SERVICES LTD.
, a corporation organized under the laws of the Marshall Islands (the "
Manager
").
|
1. |
DEFINITIONS
|
1.1 |
In this Agreement save where the context otherwise requires, the following words and expressions shall have the meanings hereby assigned to them:
|
1.2 |
Interpretation
|
(a) |
Singular/Plural
|
(b) |
Headings
|
2. |
COMMENCEMENT AND APPOINTMENT
|
3. |
AUTHORITY OF THE MANAGER
|
4. |
MANAGEMENT SERVICES
|
4.1 |
General Management Services.
|
(a) |
seeking and negotiating employment for the Vessels of the Owner and the conclusion (including the execution thereof) of charter parties or other contracts relating to the employment of the Vessels;
|
(b) |
arranging insurances for the Vessels and the general operations of the Owner, on such terms as the Owner shall have instructed or agreed, in particular regarding conditions, insured values, deductibles, franchises and limits of liability; and requirements of charter parties, financing agreements or other contracts relating to the Vessels;.
|
(c) |
Providing services related to the financing, treasury, accounting and other day-to-day financial operations of the Owner;
|
(d) |
retaining counsel for the Owner and otherwise coordinating the various legal services required by the Owner;
|
(e) |
providing information technology services for the Owner;
|
(f) |
providing manning services for the Owner;
|
(g) |
providing commercial and marketing services for the Owner;
|
(h) |
providing executive services for the Owner;
|
(i) |
providing legal support services for the Owner;
|
(j) |
providing superintendency services for the Owner;
|
(k) |
preparing and filing all financial and other reports required for the Owner to comply with applicable securities laws, its loan and credit agreements, and the Memorandum and Articles;
|
(l) |
providing other non-technical/operational support services for the Owner, including such services as may be required to ensure that the Owner complies with all requirements of charter parties, financing agreements or other contracts relating to the Vessel;
|
(m) |
providing catering services for the Owner;
|
(n) |
providing other administrative services for the Owner; and
|
(o) |
such additional services as shall be mutually agreed by the parties.
|
5. |
MANAGER'S OBLIGATIONS
|
5.1 |
The Manager undertakes to use its best endeavours to provide the Management Services as agents for and on behalf of the Owner in accordance with sound management practice and to protect and promote the interests of the Owner in all matters relating to the provision of services hereunder.
|
5.2 |
Without limiting in any manner its obligations under Section 5.1, the Manager shall be entitled to allocate its available supplies, manpower and services in such manner as in the prevailing circumstances the Manager in its absolute discretion considers to be fair and reasonable.
|
6. |
OWNER'S OBLIGATIONS
|
6.1 |
The Owner shall pay all sums due to the Manager punctually in accordance with the terms of this Agreement. In the event of payment after thirty (30) days following the due date of any outstanding sums the Manager shall be entitled to charge interest at the rate of 2% per annum, unless such payment is subject to a bona fide dispute.
|
6.2 |
The Owner shall cooperate with Manager in the performance of the Services and shall not impede the Manager from performing the Services subject to the Owner's right to request fewer Management Services.
|
7. |
INSURANCE POLICIES
|
(a) |
at the Owner's expense, each Vessel is insured for not less than its sound market value or entered for its full gross tonnage, as the case may be for:
|
(i) |
hull and machinery marine risks (including but not limited to crew negligence) and excess liabilities;
|
(ii) |
protection and indemnity risks (including but not limited to pollution risks and diversion expenses);
|
(iii) |
war risks (including but not limited to blocking and trapping, protection and indemnity, terrorism and crew risks); and
|
(iv) |
such optional insurances as may be agreed (such as piracy, kidnap and ransom, loss of hire and FD & D).
|
(b) |
all premiums, deductibles, supplementary calls and/or excess supplementary calls and release calls on the Owner's Insurances are paid by their due date on a gross basis;
|
(c) |
the Owner's Insurances name the Manager and, subject to underwriters' agreement, any third party designated by the Manager as a joint assured, with full cover. It is understood that in some cases, such as protection and indemnity, the normal terms for such cover may impose on the Manager and any such third party a liability in respect of premiums or calls arising in connection with the Owner's Insurances.
|
(d) |
written evidence is provided, to the reasonable satisfaction of the Manager, of the Owner's compliance with their obligations under this Clause 7 within a reasonable time of the commencement of the Agreement, and of each renewal date and, if specifically requested, of each payment date of the Owner's Insurances, it being understood that the Manager shall arrange for insurance per Clause 4.1(b) and Clause 7.
|
8. |
FEES AND EXPENSES
|
8.1 |
Fixed Daily Cash Payments
The Owner will pay to the Manager a daily fee of U.S. $300 per day (the "
Fixed Daily Cash Payments
"),
plus reasonable out-of-pocket expenses (including professionals' fees and expenses), travel expenses and expenses in connection with the performance of the
|
8.2 |
[RESERVED].
|
8.3 |
Other Fees
|
(a) |
a fee of $35 per person per day for offshore personnel provided through the Manager, such offshore personnel's wages and related expenses being the responsibility of the Owner;
|
(b) |
a fee of $50 per person per day for catering services provided through the Manager, the wages and related expenses of the personnel providing such catering services, including provisions, but excluding travel expenses, being the responsibility of the Manager; and
|
(c) |
a fee of $2,000 per person per day for superintendent attendance offshore provided by the Manager, the wages and related expenses of the personnel providing such superintendent services, excluding travel expenses, being the responsibility of the Manager.
|
8.4 |
Additional Other Fees
The Owner shall pay such other fees as shall be provided for under this Agreement to the extent approved by the Owner.
|
9. |
[RESERVED]
|
10. |
MANAGER'S RIGHT TO SUB-CONTRACT
|
11. |
RESPONSIBILITIES
|
11.1 |
Force Majeure
|
(a) |
Neither party shall be liable for any loss, damage or delay due to any of the following force majeure events and/or conditions to the extent that the party invoking force majeure is prevented or hindered from performing any or all of their obligations under this Agreement, provided they have made all reasonable efforts to avoid, minimize or prevent the effect of such events and/or conditions:
|
(i) |
of God;
|
(ii) |
any Government requisition, control, intervention, requirement or interference;
|
(iii) |
any circumstances arising out of war, threatened act of war or warlike operations, acts of terrorism, sabotage or piracy, or the consequences thereof;
|
(iv) |
riots, civil commotion, blockades or embargoes;
|
(v) |
epidemics;
|
(vi) |
earthquakes, landslides, floods or other extraordinary weather conditions;
|
(vii) |
strikes, lockouts or other industrial action, unless limited to the employees of the party seeking to invoke force majeure;
|
(viii) |
fire, accident, explosion except where caused by negligence of the party seeking to invoke force majeure; and
|
(ix) |
any other similar cause beyond the reasonable control of either party.
|
11.2 |
Liability
|
11.3 |
Indemnity
|
12. |
GENERAL ADMINISTRATION
|
12.1 |
The Manager shall keep the Owner informed in a timely manner of any incident of which the Manager becomes aware which gives or may give rise to delay to the Vessel or claims or disputes involving third parties or any material non-compliance with the requirements of any charter party or other contract relating to the Vessel.
|
12.2 |
The Manager shall handle and settle all claims and disputes arising out of the Management Services hereunder, unless the Owner instructs the Manager otherwise. The Manager shall keep the Owner appropriately informed in a timely manner throughout the handling of such claims and disputes.
|
12.3 |
The Owner may request the Manager to bring or defend other actions, suits or proceedings related to the Management Services on terms to be agreed.
|
12.4 |
The Manager shall have power to obtain appropriate legal or technical or other outside expert advice in relation to the handling and settlement of claims in relation to Clauses 12.1 and 12.2 and disputes and any other matters affecting the interests of the Owner in respect of any Vessel, unless the Owner instructs the Manager otherwise.
|
12.5 |
The Owner shall arrange for the provision of any necessary guarantee bond or other security in connection with disputes referred to in Clause 12.2.
|
13. |
COMPLIANCE WITH LAWS AND REGULATIONS
|
14. |
DURATION OF THE AGREEMENT
|
14.1 |
The initial term of this Agreement shall be ten (10) years commencing on the Commencement Date. Thereafter, unless terminated earlier in accordance with Clause 15, the term of this Agreement shall automatically renew for successive one (1) year terms upon approval of the
|
14.2 |
Where any Vessel is not at a mutually convenient port or place on the expiry of such period, this Agreement shall terminate on the subsequent arrival of the Vessel at the next mutually convenient port or place.
|
15. |
TERMINATION
|
15.1 |
This Agreement may be terminated by the Owner or the Manager at any time.
|
16. |
DISPUTE RESOLUTION
|
16.1 |
All disputes arising out of this Agreement shall be arbitrated in London, England in the following manner. One arbitrator is to be appointed by the Owner, another is to be appointed by the Manager, and a third is to be appointed by the two foregoing appointed arbitrators. Their decision or that of any two of them shall be final and for the purpose of enforcing any award, this Agreement may be made a rule of the court. The arbitrators shall be commercial persons, conversant with shipping matters. Such arbitration is to be conducted in accordance with the rules of the London Maritime Arbitrators Association terms current at the time when the arbitration proceeding are commenced and in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof.
|
17. |
RESERVED.
|
18. |
NOTICES
|
18.1 |
All notices given by either party or their agents to the other party or their agents in accordance with the provisions of this Agreement shall be in writing and shall, unless specifically provided in this Agreement to the contrary, be sent to the address for that other party as set out below or as appropriate or to such other address as the other party may designate in writing.
|
(a) |
in the case of the Owner, PO Box 309, Ugland House, South Church Street, George Town, Grand Cayman, KY1-1104 Cayman Islands; or
|
(b) |
in the case of the Manager, c/o Cefai & Associates, 5/1 Merchants Street, Valletta, Malta.
|
18.2 |
Any notice given under this Agreement shall take effect on receipt by the other party and shall be deemed to have been received:
|
(a) |
if posted, on the seventh (7th) day after posting;
|
(b) |
if sent by facsimile or electronically, on the day of transmission; and
|
(c) |
if delivered by hand, on the day of delivery.
|
19. |
PARTIAL VALIDITY
|
20. |
AMENDMENTS AND WAIVERS
|
21. |
CONFIDENTIALITY
|
21.1 |
Except as may be required by applicable law, any non-public or confidential information relating to the business or affairs of the Owner or the Owner's principals obtained by the Manager in the performance of this Agreement shall be kept strictly confidential by the Manager and its Affiliates and subcontractors.
|
21.2 |
Except as may be required by applicable law this Agreement including all terms, detailed conditions and period is to be kept private and confidential and beyond the reach of any third party.
|
21.3 |
Except as may be required by applicable law, any non-public or confidential information relating to the business or affairs of the Manager and/or the Manager's principals obtained by the Owner or the Owner's principals and not relating to the Owner, its business or its assets (which would be covered by Clause 21.1) in the performance of this Agreement shall be kept strictly confidential.
|
22. |
[RESERVED]
|
23. |
GOVERNING LAW
|
24. |
THIRD PARTY RIGHTS
|
25. |
SURVIVAL
|
26. |
ASSIGNMENTS
|
26.1 |
The Owner may, without the consent of the Manager, assign its rights hereunder to its lenders by way of security for borrowings
|
26.2 |
The Manager may assign its rights and delegate its responsibilities hereunder to any of its Affiliates, provided, however, that, unless the Owner provides its prior written consent (not to be unreasonably withheld), to the novation of the Manager's responsibilities and obligations to the relevant Affiliate, the Manager shall remain responsible for the proper performance of this Agreement.
|
27. |
COUNTERPARTS
|
27.1 |
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.
|
27.2 |
Transmission by fax or emailed scanned copy of an executed counterpart of this Agreement shall be deemed to constitute due and sufficient delivery of such counterpart.
|
Drillship Hydra Owners Inc.
, as the Owner
|
||
By:
|
/s/ Savvas Tournis | |
Name:
|
Savvas Tournis | |
Title:
|
Attorney-in-fact
|
|
TMS Offshore Services Ltd.
, as the Manager
|
||
By:
|
/s/ Dr. RENATO CEFAI
|
|
Name:
|
Dr. Renato Cefai
|
|
Title:
|
DIRECTOR
|
|
MARE SERVICES LTD
|
||
5/1 MERCHANTS STREET
|
||
VALLETTA VLT 1171
|
Name of Vessel
|
IMO Ship Identification No
.
|
Port of Registry
|
Drillship
"Ocean Rig
Corcovado"
|
9472995
|
Republic of the Marshall Islands
|
Clause
|
Page
|
|
1.
|
DEFINITIONS
|
1
|
2.
|
COMMENCEMENT AND APPOINTMENT
|
2
|
3.
|
AUTHORITY OF THE MANAGER
|
2
|
4.
|
MANAGEMENT SERVICES
|
2
|
5.
|
MANAGER'S OBLIGATIONS
|
3
|
6.
|
OWNER'S OBLIGATIONS
|
3
|
7.
|
INSURANCE POLICIES
|
3
|
8.
|
FEES AND EXPENSES
|
4
|
9.
|
[RESERVED]
|
5
|
10.
|
MANAGER'S RIGHT TO SUB-CONTRACT
|
5
|
11.
|
RESPONSIBILITIES
|
6
|
12.
|
GENERAL ADMINISTRATION
|
7
|
13.
|
COMPLIANCE WITH LAWS AND REGULATIONS
|
7
|
14.
|
DURATION OF THE AGREEMENT
|
7
|
15.
|
TERMINATION
|
8
|
16.
|
DISPUTE RESOLUTION
|
8
|
17.
|
RESERVED.
|
8
|
18.
|
NOTICES
|
8
|
19.
|
PARTIAL VALIDITY
|
9
|
20.
|
AMENDMENTS AND WAIVERS
|
9
|
21.
|
CONFIDENTIALITY
|
9
|
22.
|
[RESERVED]
|
10
|
23.
|
GOVERNING LAW
|
10
|
24.
|
THIRD PARTY RIGHTS
|
10
|
25.
|
SURVIVAL
|
10
|
26.
|
ASSIGNMENTS
|
10
|
27.
|
COUNTERPARTS
|
10
|
(1) |
DRILLSHIP SKOPELOS OWNERS INC.
, a corporation duly incorporated under the laws of the Marshall Islands (the "
Owner
"); and
|
(2) |
TMS OFFSHORE SERVICES LTD.
, a corporation organized under the laws of the Marshall Islands (the "
Manager
").
|
1.1 |
In this Agreement save where the context otherwise requires, the following words and expressions shall have the meanings hereby assigned to them:
|
1.2 |
Interpretation
|
(a) |
Singular/Plural
|
(b) |
Headings
|
4.1 |
General Management Services.
|
(a) |
seeking and negotiating employment for the Vessels of the Owner and the conclusion (including the execution thereof) of charter parties or other contracts relating to the employment of the Vessels;
|
(b) |
arranging insurances for the Vessels and the general operations of the Owner, on such terms as the Owner shall have instructed or agreed, in particular regarding conditions, insured values, deductibles, franchises and limits of liability; and requirements of charter parties, financing agreements or other contracts relating to the Vessels;.
|
(c) |
Providing services related to the financing, treasury, accounting and other day-to-day financial operations of the Owner;
|
(d) |
retaining counsel for the Owner and otherwise coordinating the various legal services required by the Owner;
|
(e) |
providing information technology services for the Owner;
|
(f) |
providing manning services for the Owner;
|
(g) |
providing commercial and marketing services for the Owner;
|
(h) |
providing executive services for the Owner;
|
(i) |
providing legal support services for the Owner;
|
(j) |
providing superintendency services for the Owner;
|
(k) |
preparing and filing all financial and other reports required for the Owner to comply with applicable securities laws, its loan and credit agreements, and the Memorandum and Articles;
|
(l) |
providing other non-technical/operational support services for the Owner, including such services as may be required to ensure that the Owner complies with all requirements of charter parties, financing agreements or other contracts relating to the Vessel;
|
(m) |
providing catering services for the Owner;
|
(n) |
providing other administrative services for the Owner; and
|
(o) |
such additional services as shall be mutually agreed by the parties.
|
5.1 |
The Manager undertakes to use its best endeavours to provide the Management Services as agents for and on behalf of the Owner in accordance with sound management practice and to protect and promote the interests of the Owner in all matters relating to the provision of services hereunder.
|
5.2 |
Without limiting in any manner its obligations under Section 5.1, the Manager shall be entitled to allocate its available supplies, manpower and services in such manner as in the prevailing circumstances the Manager in its absolute discretion considers to be fair and reasonable.
|
6.1 |
The Owner shall pay all sums due to the Manager punctually in accordance with the terms of this Agreement. In the event of payment after thirty (30) days following the due date of any outstanding sums the Manager shall be entitled to charge interest at the rate of 2% per annum, unless such payment is subject to a bona fide dispute.
|
6.2 |
The Owner shall cooperate with Manager in the performance of the Services and shall not impede the Manager from performing the Services subject to the Owner's right to request fewer Management Services.
|
(a) |
at the Owner's expense, each Vessel is insured for not less than its sound market value or entered for its full gross tonnage, as the case may be for:
|
(i) |
hull and machinery marine risks (including but not limited to crew negligence) and excess liabilities;
|
(ii) |
protection and indemnity risks (including but not limited to pollution risks and diversion expenses);
|
(iii) |
war risks (including but not limited to blocking and trapping, protection and indemnity, terrorism and crew risks); and
|
(iv) |
such optional insurances as may be agreed (such as piracy, kidnap and ransom, loss of hire and FD & D).
|
(b) |
all premiums, deductibles, supplementary calls and/or excess supplementary calls and release calls on the Owner's Insurances are paid by their due date on a gross basis;
|
(c) |
the Owner's Insurances name the Manager and, subject to underwriters' agreement, any third party designated by the Manager as a joint assured, with full cover. It is understood that in some cases, such as protection and indemnity, the normal terms for such cover may impose on the Manager and any such third party a liability in respect of premiums or calls arising in connection with the Owner's Insurances.
|
(d) |
written evidence is provided, to the reasonable satisfaction of the Manager, of the Owner's compliance with their obligations under this Clause 7 within a reasonable time of the commencement of the Agreement, and of each renewal date and, if specifically requested, of each payment date of the Owner's Insurances, it being understood that the Manager shall arrange for insurance per Clause 4.1(b) and Clause 7.
|
8.1 |
Fixed Daily Cash Payments The Owner will pay to the Manager a daily fee of U.S. $300 per day (the "
Fixed Daily Cash Payments
"), plus reasonable out-of-pocket expenses (including professionals' fees and expenses), travel expenses and expenses in connection with the performance of the
|
8.2 |
[RESERVED]
.
|
8.3 |
Other Fees
The Owner shall, at its election provided in writing to the Manager, pursue services at the following rates with the Manager:
|
(a) |
a fee of $35 per person per day for offshore personnel provided through the Manager, such offshore personnel's wages and related expenses being the responsibility of the Owner;
|
(b) |
a fee of $50 per person per day for catering services provided through the Manager, the wages and related expenses of the personnel providing such catering services, including provisions, but excluding travel expenses, being the responsibility of the Manager; and
|
(c) |
a fee of $2,000 per person per day for superintendent attendance offshore provided by the Manager, the wages and related expenses of the personnel providing such superintendent services, excluding travel expenses, being the responsibility of the Manager.
|
8.4 |
Additional Other Fees
The Owner shall pay such other fees as shall be provided for under this Agreement to the extent approved by the Owner.
|
11.1 |
Force Majeure
|
(a) |
Neither party shall be liable for any loss, damage or delay due to any of the following force majeure events and/or conditions to the extent that the party invoking force majeure is prevented or hindered from performing any or all of their obligations under this Agreement, provided they have made all reasonable efforts to avoid, minimize or prevent the effect of such events and/or conditions:
|
(i) |
of God;
|
(ii) |
any Government requisition, control, intervention, requirement or interference;
|
(iii) |
any circumstances arising out of war, threatened act of war or warlike operations, acts of terrorism, sabotage or piracy, or the consequences thereof;
|
(iv) |
riots, civil commotion, blockades or embargoes;
|
(v) |
epidemics;
|
(vi) |
earthquakes, landslides, floods or other extraordinary weather conditions;
|
(vii) |
strikes, lockouts or other industrial action, unless limited to the employees of the party seeking to invoke force majeure;
|
(viii) |
fire, accident, explosion except where caused by negligence of the party seeking to invoke force majeure; and
|
(ix) |
any other similar cause beyond the reasonable control of either party.
|
11.2 |
Liability
|
11.3 |
Indemnity
|
12.1 |
The Manager shall keep the Owner informed in a timely manner of any incident of which the Manager becomes aware which gives or may give rise to delay to the Vessel or claims or disputes involving third parties or any material non-compliance with the requirements of any charter party or other contract relating to the Vessel.
|
12.2 |
The Manager shall handle and settle all claims and disputes arising out of the Management Services hereunder, unless the Owner instructs the Manager otherwise. The Manager shall keep the Owner appropriately informed in a timely manner throughout the handling of such claims and disputes.
|
12.3 |
The Owner may request the Manager to bring or defend other actions, suits or proceedings related to the Management Services on terms to be agreed.
|
12.4 |
The Manager shall have power to obtain appropriate legal or technical or other outside expert advice in relation to the handling and settlement of claims in relation to Clauses 12.1 and 12.2 and disputes and any other matters affecting the interests of the Owner in respect of any Vessel, unless the Owner instructs the Manager otherwise.
|
12.5 |
The Owner shall arrange for the provision of any necessary guarantee bond or other security in connection with disputes referred to in Clause 12.2.
|
14.1 |
The initial term of this Agreement shall be ten (10) years commencing on the Commencement Date. Thereafter, unless terminated earlier in accordance with Clause 15, the term of this Agreement shall automatically renew for successive one (1) year terms upon approval of the
|
14.2 |
Where any Vessel is not at a mutually convenient port or place on the expiry of such period, this Agreement shall terminate on the subsequent arrival of the Vessel at the next mutually convenient port or place.
|
15.1 |
This Agreement may be terminated by the Owner or the Manager at any time.
|
16.1 |
All disputes arising out of this Agreement shall be arbitrated in London, England in the following manner. One arbitrator is to be appointed by the Owner, another is to be appointed by the Manager, and a third is to be appointed by the two foregoing appointed arbitrators. Their decision or that of any two of them shall be final and for the purpose of enforcing any award, this Agreement may be made a rule of the court. The arbitrators shall be commercial persons, conversant with shipping matters. Such arbitration is to be conducted in accordance with the rules of the London Maritime Arbitrators Association terms current at the time when the arbitration proceeding are commenced and in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof.
|
18.1 |
All notices given by either party or their agents to the other party or their agents in accordance with the provisions of this Agreement shall be in writing and shall, unless specifically provided in this Agreement to the contrary, be sent to the address for that other party as set out below or as appropriate or to such other address as the other party may designate in writing.
|
(a) |
in the case of the Owner, PO Box 309, Ugland House, South Church Street, George Town, Grand Cayman, KY1-1104 Cayman Islands; or
|
(b) |
in the case of the Manager, c/o Cefai & Associates, 5/1 Merchants Street, Valletta, Malta.
|
18.2 |
Any notice given under this Agreement shall take effect on receipt by the other party and shall be deemed to have been received:
|
(a) |
if posted, on the seventh (7th) day after posting;
|
(b) |
if sent by facsimile or electronically, on the day of transmission; and
|
(c) |
if delivered by hand, on the day of delivery.
|
21.1 |
Except as may be required by applicable law, any non-public or confidential information relating to the business or affairs of the Owner or the Owner's principals obtained by the Manager in the performance of this Agreement shall be kept strictly confidential by the Manager and its Affiliates and subcontractors.
|
21.2 |
Except as may be required by applicable law this Agreement including all terms, detailed conditions and period is to be kept private and confidential and beyond the reach of any third party.
|
21.3 |
Except as may be required by applicable law, any non-public or confidential information relating to the business or affairs of the Manager and/or the Manager's principals obtained by the Owner or the Owner's principals and not relating to the Owner, its business or its assets (which would be covered by Clause 21.1) in the performance of this Agreement shall be kept strictly confidential.
|
26.1 |
The Owner may, without the consent of the Manager, assign its rights hereunder to its lenders by way of security for borrowings
|
26.2 |
The Manager may assign its rights and delegate its responsibilities hereunder to any of its Affiliates, provided, however, that, unless the Owner provides its prior written consent (not to be unreasonably withheld), to the novation of the Manager's responsibilities and obligations to the relevant Affiliate, the Manager shall remain responsible for the proper performance of this Agreement.
|
27.1 |
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.
|
27.2 |
Transmission by fax or emailed scanned copy of an executed counterpart of this Agreement shall be deemed to constitute due and sufficient delivery of such counterpart.
|
Drillship Skopelos Owners Inc.
, as the Owner
|
||
By:
|
/s/Savvas Tournis
|
|
Name: Savvas Tournis
|
||
Title: Attorney-At-Law
|
TMS Offshore Services Ltd.
, as the Manager
|
||
By:
|
/s/ Dr. Renato Cefai
|
|
Name: Dr. Renato Cefai
|
||
Title: Director
|
||
Mare Services Limited
|
||
5/1 Merchants Street
|
||
Valletta VLT 1171
|
Name of Vessel
|
IMO Ship Identification No.
|
Port of Registry
|
Drillship "
Ocean Rig Mykonos
"
|
9516882
|
Republic of the Marshall Islands
|
Clause
|
Page
|
|
1.
|
DEFINITIONS
|
1
|
2.
|
COMMENCEMENT AND APPOINTMENT
|
2
|
3.
|
AUTHORITY OF THE MANAGER
|
2
|
4.
|
MANAGEMENT SERVICES
|
2
|
5.
|
MANAGER'S OBLIGATIONS
|
3
|
6.
|
OWNER'S OBLIGATIONS
|
3
|
7.
|
INSURANCE POLICIES
|
3
|
8.
|
FEES AND EXPENSES
|
4
|
9.
|
[RESERVED]
|
5
|
10.
|
MANAGER'S RIGHT TO SUB-CONTRACT
|
5
|
11.
|
RESPONSIBILITIES
|
6
|
12.
|
GENERAL ADMINISTRATION
|
7
|
13.
|
COMPLIANCE WITH LAWS AND REGULATIONS
|
7
|
14.
|
DURATION OF THE AGREEMENT
|
7
|
15.
|
TERMINATION
|
8
|
16.
|
DISPUTE RESOLUTION
|
8
|
17.
|
RESERVED.
|
8
|
18.
|
NOTICES
|
8
|
19.
|
PARTIAL VALIDITY
|
9
|
20.
|
AMENDMENTS AND WAIVERS
|
9
|
21.
|
CONFIDENTIALITY
|
9
|
22.
|
[RESERVED]
|
10
|
23.
|
GOVERNING LAW
|
10
|
24.
|
THIRD PARTY RIGHTS
|
10
|
25.
|
SURVIVAL
|
10
|
26.
|
ASSIGNMENTS
|
10
|
27.
|
COUNTERPARTS
|
10
|
(1) |
DRILLSHIP SKIATHOS OWNERS INC.
, a corporation duly incorporated under the laws of the Marshall Islands (the "
Owner
"); and
|
(2) |
TMS OFFSHORE SERVICES LTD.
, a corporation organized under the laws of the Marshall Islands (the "
Manager
").
|
1.1 |
In this Agreement save where the context otherwise requires, the following words and expressions shall have the meanings hereby assigned to them:
|
1.2 |
Interpretation
|
(a) |
Singular/Plural
|
(b) |
Headings
|
4.1 |
General Management Services.
|
(a) |
seeking and negotiating employment for the Vessels of the Owner and the conclusion (including the execution thereof) of charter parties or other contracts relating to the employment of the Vessels;
|
(b) |
arranging insurances for the Vessels and the general operations of the Owner, on such terms as the Owner shall have instructed or agreed, in particular regarding conditions, insured values, deductibles, franchises and limits of liability; and requirements of charter parties, financing agreements or other contracts relating to the Vessels;.
|
(c) |
Providing services related to the financing, treasury, accounting and other day-to-day financial operations of the Owner;
|
(d) |
retaining counsel for the Owner and otherwise coordinating the various legal services required by the Owner;
|
(e) |
providing information technology services for the Owner;
|
(f) |
providing manning services for the Owner;
|
(g) |
providing commercial and marketing services for the Owner;
|
(h) |
providing executive services for the Owner;
|
(i) |
providing legal support services for the Owner;
|
(j) |
providing superintendency services for the Owner;
|
(k) |
preparing and filing all financial and other reports required for the Owner to comply with applicable securities laws, its loan and credit agreements, and the Memorandum and Articles;
|
(l) |
providing other non-technical/operational support services for the Owner, including such services as may be required to ensure that the Owner complies with all requirements of charter parties, financing agreements or other contracts relating to the Vessel;
|
(m) |
providing catering services for the Owner;
|
(n) |
providing other administrative services for the Owner; and
|
(o) |
such additional services as shall be mutually agreed by the parties.
|
5.1 |
The Manager undertakes to use its best endeavours to provide the Management Services as agents for and on behalf of the Owner in accordance with sound management practice and to protect and promote the interests of the Owner in all matters relating to the provision of services hereunder.
|
5.2 |
Without limiting in any manner its obligations under Section 5.1, the Manager shall be entitled to allocate its available supplies, manpower and services in such manner as in the prevailing circumstances the Manager in its absolute discretion considers to be fair and reasonable.
|
6.1 |
The Owner shall pay all sums due to the Manager punctually in accordance with the terms of this Agreement. In the event of payment after thirty (30) days following the due date of any outstanding sums the Manager shall be entitled to charge interest at the rate of 2% per annum, unless such payment is subject to a bona fide dispute.
|
6.2 |
The Owner shall cooperate with Manager in the performance of the Services and shall not impede the Manager from performing the Services subject to the Owner's right to request fewer Management Services.
|
(a) |
at the Owner's expense, each Vessel is insured for not less than its sound market value or entered for its full gross tonnage, as the case may be for:
|
(i) |
hull and machinery marine risks (including but not limited to crew negligence) and excess liabilities;
|
(ii) |
protection and indemnity risks (including but not limited to pollution risks and diversion expenses);
|
(iii) |
war risks (including but not limited to blocking and trapping, protection and indemnity, terrorism and crew risks); and
|
(iv) |
such optional insurances as may be agreed (such as piracy, kidnap and ransom, loss of hire and FD & D).
|
(b) |
all premiums, deductibles, supplementary calls and/or excess supplementary calls and release calls on the Owner's Insurances are paid by their due date on a gross basis;
|
(c) |
the Owner's Insurances name the Manager and, subject to underwriters' agreement, any third party designated by the Manager as a joint assured, with full cover. It is understood that in some cases, such as protection and indemnity, the normal terms for such cover may impose on the Manager and any such third party a liability in respect of premiums or calls arising in connection with the Owner's Insurances.
|
(d) |
written evidence is provided, to the reasonable satisfaction of the Manager, of the Owner's compliance with their obligations under this Clause 7 within a reasonable time of the commencement of the Agreement, and of each renewal date and, if specifically requested, of each payment date of the Owner's Insurances, it being understood that the Manager shall arrange for insurance per Clause 4.1(b) and Clause 7.
|
8.1 |
Fixed Daily Cash Payments
|
8.2 |
[RESERVED].
|
8.3 |
Other Fees
|
(a) |
a fee of $35 per person per day for offshore personnel provided through the Manager, such offshore personnel's wages and related expenses being the responsibility of the Owner;
|
(b) |
a fee of $50 per person per day for catering services provided through the Manager, the wages and related expenses of the personnel providing such catering services, including provisions, but excluding travel expenses, being the responsibility of the Manager; and
|
(c) |
a fee of $2,000 per person per day for superintendent attendance offshore provided by the Manager, the wages and related expenses of the personnel providing such superintendent services, excluding travel expenses, being the responsibility of the Manager.
|
8.4 |
Additional Other Fees The Owner shall pay such other fees as shall be provided for under this Agreement to the extent approved by the Owner.
|
11.1 |
Force Majeure
|
(a) |
Neither party shall be liable for any loss, damage or delay due to any of the following force majeure events and/or conditions to the extent that the party invoking force majeure is prevented or hindered from performing any or all of their obligations under this Agreement, provided they have made all reasonable efforts to avoid, minimize or prevent the effect of such events and/or conditions:
|
(i) |
of God;
|
(ii) |
any Government requisition, control, intervention, requirement or interference;
|
(iii) |
any circumstances arising out of war, threatened act of war or warlike operations, acts of terrorism, sabotage or piracy, or the consequences thereof;
|
(iv) |
riots, civil commotion, blockades or embargoes;
|
(v) |
epidemics;
|
(vi) |
earthquakes, landslides, floods or other extraordinary weather conditions;
|
(vii) |
strikes, lockouts or other industrial action, unless limited to the employees of the party seeking to invoke force majeure;
|
(viii) |
fire, accident, explosion except where caused by negligence of the party seeking to invoke force majeure; and
|
(ix) |
any other similar cause beyond the reasonable control of either party.
|
11.2 |
Liability
|
11.3 |
Indemnity
|
12.1 |
The Manager shall keep the Owner informed in a timely manner of any incident of which the Manager becomes aware which gives or may give rise to delay to the Vessel or claims or disputes involving third parties or any material non-compliance with the requirements of any charter party or other contract relating to the Vessel.
|
12.2 |
The Manager shall handle and settle all claims and disputes arising out of the Management Services hereunder, unless the Owner instructs the Manager otherwise. The Manager shall keep the Owner appropriately informed in a timely manner throughout the handling of such claims and disputes.
|
12.3 |
The Owner may request the Manager to bring or defend other actions, suits or proceedings related to the Management Services on terms to be agreed.
|
12.4 |
The Manager shall have power to obtain appropriate legal or technical or other outside expert advice in relation to the handling and settlement of claims in relation to Clauses 12.1 and 12.2 and disputes and any other matters affecting the interests of the Owner in respect of any Vessel, unless the Owner instructs the Manager otherwise.
|
12.5 |
The Owner shall arrange for the provision of any necessary guarantee bond or other security in connection with disputes referred to in Clause 12.2.
|
14.1 |
The initial term of this Agreement shall be ten (10) years commencing on the Commencement Date. Thereafter, unless terminated earlier in accordance with Clause 15, the term of this Agreement shall automatically renew for successive one (1) year terms upon approval of the
|
14.2 |
Where any Vessel is not at a mutually convenient port or place on the expiry of such period, this Agreement shall terminate on the subsequent arrival of the Vessel at the next mutually convenient port or place.
|
15.1 |
This Agreement may be terminated by the Owner or the Manager at any time.
|
16.1 |
All disputes arising out of this Agreement shall be arbitrated in London, England in the following manner. One arbitrator is to be appointed by the Owner, another is to be appointed by the Manager, and a third is to be appointed by the two foregoing appointed arbitrators. Their decision or that of any two of them shall be final and for the purpose of enforcing any award, this Agreement may be made a rule of the court. The arbitrators shall be commercial persons, conversant with shipping matters. Such arbitration is to be conducted in accordance with the rules of the London Maritime Arbitrators Association terms current at the time when the arbitration proceeding are commenced and in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof.
|
18.1 |
All notices given by either party or their agents to the other party or their agents in accordance with the provisions of this Agreement shall be in writing and shall, unless specifically provided in this Agreement to the contrary, be sent to the address for that other party as set out below or as appropriate or to such other address as the other party may designate in writing.
|
(a) |
in the case of the Owner, PO Box 309, Ugland House, South Church Street, George Town, Grand Cayman, KY1-1104 Cayman Islands; or
|
(b) |
in the case of the Manager, c/o Cefai & Associates, 5/1 Merchants Street, Valletta, Malta.
|
18.2 |
Any notice given under this Agreement shall take effect on receipt by the other party and shall be deemed to have been received:
|
(a) |
if posted, on the seventh (7th) day after posting;
|
(b) |
if sent by facsimile or electronically, on the day of transmission; and
|
(c) |
if delivered by hand, on the day of delivery.
|
21.1 |
Except as may be required by applicable law, any non-public or confidential information relating to the business or affairs of the Owner or the Owner's principals obtained by the Manager in the performance of this Agreement shall be kept strictly confidential by the Manager and its Affiliates and subcontractors.
|
21.2 |
Except as may be required by applicable law this Agreement including all terms, detailed conditions and period is to be kept private and confidential and beyond the reach of any third party.
|
21.3 |
Except as may be required by applicable law, any non-public or confidential information relating to the business or affairs of the Manager and/or the Manager's principals obtained by the Owner or the Owner's principals and not relating to the Owner, its business or its assets (which would be covered by Clause 21.1) in the performance of this Agreement shall be kept strictly confidential.
|
26.1 |
The Owner may, without the consent of the Manager, assign its rights hereunder to its lenders by way of security for borrowings
|
26.2 |
The Manager may assign its rights and delegate its responsibilities hereunder to any of its Affiliates, provided, however, that, unless the Owner provides its prior written consent (not to be unreasonably withheld), to the novation of the Manager's responsibilities and obligations to the relevant Affiliate, the Manager shall remain responsible for the proper performance of this Agreement.
|
27.1 |
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.
|
27.2 |
Transmission by fax or emailed scanned copy of an executed counterpart of this Agreement shall be deemed to constitute due and sufficient delivery of such counterpart.
|
Drillship Skiathos Owners Inc.
, as the Owner
|
||
By:
|
/s/Savvas Tournis
|
|
Name: Savvas Tournis
|
||
Title: Attorney-At-Law
|
TMS Offshore Services Ltd.
, as the Manager
|
||
By:
|
/s/ Dr. Renato Cefai
|
|
Name: Dr. Renato Cefai
|
||
Title: Director
|
||
Mare Services Limited
|
||
5/1 Merchants Street
|
||
Valletta VLT 1171
|
Name of Vessel
|
IMO Ship Identification No.
|
Port of Registry
|
Drillship "
Ocean Rig Mylos
"
|
9632533
|
Republic of the Marshall Islands
|
Clause
|
Page
|
|
1.
|
DEFINITIONS
|
1
|
2.
|
COMMENCEMENT AND APPOINTMENT
|
2
|
3.
|
AUTHORITY OF THE MANAGER
|
2
|
4.
|
MANAGEMENT SERVICES
|
2
|
5.
|
MANAGER'S OBLIGATIONS
|
3
|
6.
|
OWNER'S OBLIGATIONS
|
3
|
7.
|
INSURANCE POLICIES
|
3
|
8.
|
FEES AND EXPENSES
|
4
|
9.
|
[RESERVED]
|
5
|
10.
|
MANAGER'S RIGHT TO SUB-CONTRACT
|
5
|
11.
|
RESPONSIBILITIES
|
6
|
12.
|
GENERAL ADMINISTRATION
|
7
|
13.
|
COMPLIANCE WITH LAWS AND REGULATIONS
|
7
|
14.
|
DURATION OF THE AGREEMENT
|
7
|
15.
|
TERMINATION
|
8
|
16.
|
DISPUTE RESOLUTION
|
8
|
17.
|
RESERVED.
|
8
|
18.
|
NOTICES
|
8
|
19.
|
PARTIAL VALIDITY
|
9
|
20.
|
AMENDMENTS AND WAIVERS
|
9
|
21.
|
CONFIDENTIALITY
|
9
|
22.
|
[RESERVED]
|
10
|
23.
|
GOVERNING LAW
|
10
|
24.
|
THIRD PARTY RIGHTS
|
10
|
25.
|
SURVIVAL
|
10
|
26.
|
ASSIGNMENTS
|
10
|
27.
|
COUNTERPARTS
|
10
|
(1) |
DRILLSHIP PAROS OWNERS INC.
, a corporation duly incorporated under the laws of the Marshall Islands (the "
Owner
"); and
|
(2) |
TMS OFFSHORE SERVICES LTD.
, a corporation organized under the laws of the Marshall Islands (the "
Manager
").
|
1. |
DEFINITIONS
|
1.1 |
In this Agreement save where the context otherwise requires, the following words and expressions shall have the meanings hereby assigned to them:
|
1.2 |
Interpretation In this Agreement:
|
(a) |
Singular/Plural
|
(b) |
Headings
|
2. |
COMMENCEMENT AND APPOINTMENT
|
3. |
AUTHORITY OF THE MANAGER
|
4. |
MANAGEMENT SERVICES
|
4.1 |
General Management Services.
|
(a) |
seeking and negotiating employment for the Vessels of the Owner and the conclusion (including the execution thereof) of charter parties or other contracts relating to the employment of the Vessels;
|
(b) |
arranging insurances for the Vessels and the general operations of the Owner, on such terms as the Owner shall have instructed or agreed, in particular regarding conditions, insured values, deductibles, franchises and limits of liability; and requirements of charter parties, financing agreements or other contracts relating to the Vessels;.
|
(c) |
Providing services related to the financing, treasury, accounting and other day-to-day financial operations of the Owner;
|
(d) |
retaining counsel for the Owner and otherwise coordinating the various legal services required by the Owner;
|
(e) |
providing information technology services for the Owner;
|
(f) |
providing manning services for the Owner;
|
(g) |
providing commercial and marketing services for the Owner;
|
(h) |
providing executive services for the Owner;
|
(i) |
providing legal support services for the Owner;
|
(j) |
providing superintendency services for the Owner;
|
(k) |
preparing and filing all financial and other reports required for the Owner to comply with applicable securities laws, its loan and credit agreements, and the Memorandum and Articles;
|
(l) |
providing other non-technical/operational support services for the Owner, including such services as may be required to ensure that the Owner complies with all requirements of charter parties, financing agreements or other contracts relating to the Vessel;
|
(m) |
providing catering services for the Owner;
|
(n) |
providing other administrative services for the Owner; and
|
(o) |
such additional services as shall be mutually agreed by the parties.
|
5. |
MANAGER'S OBLIGATIONS
|
5.1 |
The Manager undertakes to use its best endeavours to provide the Management Services as agents for and on behalf of the Owner in accordance with sound management practice and to protect and promote the interests of the Owner in all matters relating to the provision of services hereunder.
|
5.2 |
Without limiting in any manner its obligations under Section 5.1, the Manager shall be entitled to allocate its available supplies, manpower and services in such manner as in the prevailing circumstances the Manager in its absolute discretion considers to be fair and reasonable.
|
6. |
OWNER'S OBLIGATIONS
|
6.1 |
The Owner shall pay all sums due to the Manager punctually in accordance with the terms of this Agreement. In the event of payment after thirty (30) days following the due date of any outstanding sums the Manager shall be entitled to charge interest at the rate of 2% per annum, unless such payment is subject to a bona fide dispute.
|
6.2 |
The Owner shall cooperate with Manager in the performance of the Services and shall not impede the Manager from performing the Services subject to the Owner's right to request fewer Management Services.
|
7. |
INSURANCE POLICIES
|
(a) |
at the Owner's expense, each Vessel is insured for not less than its sound market value or entered for its full gross tonnage, as the case may be for:
|
(i) |
hull and machinery marine risks (including but not limited to crew negligence) and excess liabilities;
|
(ii) |
protection and indemnity risks (including but not limited to pollution risks and diversion expenses);
|
(iii) |
war risks (including but not limited to blocking and trapping, protection and indemnity, terrorism and crew risks); and
|
(iv) |
such optional insurances as may be agreed (such as piracy, kidnap and ransom, loss of hire and FD & D).
|
(b) |
all premiums, deductibles, supplementary calls and/or excess supplementary calls and release calls on the Owner's Insurances are paid by their due date on a gross basis;
|
(c) |
the Owner's Insurances name the Manager and, subject to underwriters' agreement, any third party designated by the Manager as a joint assured, with full cover. It is understood that in some cases, such as protection and indemnity, the normal terms for such cover may impose on the Manager and any such third party a liability in respect of premiums or calls arising in connection with the Owner's Insurances.
|
(d) |
written evidence is provided, to the reasonable satisfaction of the Manager, of the Owner's compliance with their obligations under this Clause 7 within a reasonable time of the commencement of the Agreement, and of each renewal date and, if specifically requested, of each payment date of the Owner's Insurances, it being understood that the Manager shall arrange for insurance per Clause 4.1(b) and Clause 7.
|
8. |
FEES AND EXPENSES
|
8.1 |
Fixed Daily Cash Payments
The Owner will pay to the Manager a daily fee of U.S. $300 per day (the "
Fixed Daily Cash Payments
"), plus reasonable out-of-pocket expenses (including professionals' fees and expenses), travel expenses and expenses in connection with the performance of the
|
8.2 |
[RESERVED].
|
8.3 |
Other Fees
The Owner shall, at its election provided in writing to the Manager, pursue services at the following rates with the Manager:
|
(a) |
a fee of $35 per person per day for offshore personnel provided through the Manager, such offshore personnel's wages and related expenses being the responsibility of the Owner;
|
(b) |
a fee of $50 per person per day for catering services provided through the Manager, the wages and related expenses of the personnel providing such catering services, including provisions, but excluding travel expenses, being the responsibility of the Manager; and
|
(c) |
a fee of $2,000 per person per day for superintendent attendance offshore provided by the Manager, the wages and related expenses of the personnel providing such superintendent services, excluding travel expenses, being the responsibility of the Manager.
|
8.4 |
Additional Other Fees
|
9. |
[RESERVED]
|
10. |
MANAGER'S RIGHT TO SUB-CONTRACT
|
11. |
RESPONSIBILITIES
|
11.1 |
Force Majeure
|
(a) |
Neither party shall be liable for any loss, damage or delay due to any of the following force majeure events and/or conditions to the extent that the party invoking force majeure is prevented or hindered from performing any or all of their obligations under this Agreement, provided they have made all reasonable efforts to avoid, minimize or prevent the effect of such events and/or conditions:
|
(i) |
of God;
|
(ii) |
any Government requisition, control, intervention, requirement or interference;
|
(iii) |
any circumstances arising out of war, threatened act of war or warlike operations, acts of terrorism, sabotage or piracy, or the consequences thereof;
|
(iv) |
riots, civil commotion, blockades or embargoes;
|
(v) |
epidemics;
|
(vi) |
earthquakes, landslides, floods or other extraordinary weather conditions;
|
(vii) |
strikes, lockouts or other industrial action, unless limited to the employees of the party seeking to invoke force majeure;
|
(viii) |
fire, accident, explosion except where caused by negligence of the party seeking to invoke force majeure; and
|
(ix) |
any other similar cause beyond the reasonable control of either party.
|
11.2 |
Liability
|
11.3 |
Indemnity
|
12. |
GENERAL ADMINISTRATION
|
12.1 |
The Manager shall keep the Owner informed in a timely manner of any incident of which the Manager becomes aware which gives or may give rise to delay to the Vessel or claims or disputes involving third parties or any material non-compliance with the requirements of any charter party or other contract relating to the Vessel.
|
12.2 |
The Manager shall handle and settle all claims and disputes arising out of the Management Services hereunder, unless the Owner instructs the Manager otherwise. The Manager shall keep the Owner appropriately informed in a timely manner throughout the handling of such claims and disputes.
|
12.3 |
The Owner may request the Manager to bring or defend other actions, suits or proceedings related to the Management Services on terms to be agreed.
|
12.4 |
The Manager shall have power to obtain appropriate legal or technical or other outside expert advice in relation to the handling and settlement of claims in relation to Clauses 12.1 and 12.2 and disputes and any other matters affecting the interests of the Owner in respect of any Vessel, unless the Owner instructs the Manager otherwise.
|
12.5 |
The Owner shall arrange for the provision of any necessary guarantee bond or other security in connection with disputes referred to in Clause 12.2.
|
13. |
COMPLIANCE WITH LAWS AND REGULATIONS
|
14. |
DURATION OF THE AGREEMENT
|
14.1 |
The initial term of this Agreement shall be ten (10) years commencing on the Commencement Date. Thereafter, unless terminated earlier in accordance with Clause 15, the term of this Agreement shall automatically renew for successive one (1) year terms upon approval of the
|
14.2 |
Where any Vessel is not at a mutually convenient port or place on the expiry of such period, this Agreement shall terminate on the subsequent arrival of the Vessel at the next mutually convenient port or place.
|
15. |
TERMINATION
|
15.1 |
This Agreement may be terminated by the Owner or the Manager at any time.
|
16. |
DISPUTE RESOLUTION
|
16.1 |
All disputes arising out of this Agreement shall be arbitrated in London, England in the following manner. One arbitrator is to be appointed by the Owner, another is to be appointed by the Manager, and a third is to be appointed by the two foregoing appointed arbitrators. Their decision or that of any two of them shall be final and for the purpose of enforcing any award, this Agreement may be made a rule of the court. The arbitrators shall be commercial persons, conversant with shipping matters. Such arbitration is to be conducted in accordance with the rules of the London Maritime Arbitrators Association terms current at the time when the arbitration proceeding are commenced and in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof.
|
17. |
RESERVED.
|
18. |
NOTICES
|
18.1 |
All notices given by either party or their agents to the other party or their agents in accordance with the provisions of this Agreement shall be in writing and shall, unless specifically provided in this Agreement to the contrary, be sent to the address for that other party as set out below or as appropriate or to such other address as the other party may designate in writing.
|
(a) |
in the case of the Owner, PO Box 309, Ugland House, South Church Street, George Town, Grand Cayman, KY1-1104 Cayman Islands; or
|
(b) |
in the case of the Manager, c/o Cefai & Associates, 5/1 Merchants Street, Valletta, Malta.
|
18.2 |
Any notice given under this Agreement shall take effect on receipt by the other party and shall be deemed to have been received:
|
(a) |
if posted, on the seventh (7th) day after posting;
|
(b) |
if sent by facsimile or electronically, on the day of transmission; and
|
(c) |
if delivered by hand, on the day of delivery.
|
19. |
PARTIAL VALIDITY
|
20. |
AMENDMENTS AND WAIVERS
|
21. |
CONFIDENTIALITY
|
21.1 |
Except as may be required by applicable law, any non-public or confidential information relating to the business or affairs of the Owner or the Owner's principals obtained by the Manager in the performance of this Agreement shall be kept strictly confidential by the Manager and its Affiliates and subcontractors.
|
21.2 |
Except as may be required by applicable law this Agreement including all terms, detailed conditions and period is to be kept private and confidential and beyond the reach of any third party.
|
21.3 |
Except as may be required by applicable law, any non-public or confidential information relating to the business or affairs of the Manager and/or the Manager's principals obtained by the Owner or the Owner's principals and not relating to the Owner, its business or its assets (which would be covered by Clause 21.1) in the performance of this Agreement shall be kept strictly confidential.
|
22. |
[RESERVED]
|
23. |
GOVERNING LAW
|
24. |
THIRD PARTY RIGHTS
|
25. |
SURVIVAL
|
26. |
ASSIGNMENTS
|
26.1 |
The Owner may, without the consent of the Manager, assign its rights hereunder to its lenders by way of security for borrowings
|
26.2 |
The Manager may assign its rights and delegate its responsibilities hereunder to any of its Affiliates, provided, however, that, unless the Owner provides its prior written consent (not to be unreasonably withheld), to the novation of the Manager's responsibilities and obligations to the relevant Affiliate, the Manager shall remain responsible for the proper performance of this Agreement.
|
27. |
COUNTERPARTS
|
27.1 |
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.
|
27.2 |
Transmission by fax or emailed scanned copy of an executed counterpart of this Agreement shall be deemed to constitute due and sufficient delivery of such counterpart.
|
Drillship Paros Owners Inc.
, as the Owner
|
||||
By:
|
/s/ Savvas Tournis
|
|||
Name:
|
Savvas Tournis
|
|||
Title:
|
Attorney-in-fact
|
TMS Offshore Services Ltd.
, as the Manager
|
||||
By:
|
/s/ Dr. Renato Cefai
|
|||
Name:
|
Dr. RENATO CEFAI
DIRECTOR
MARE SERVICES LTD
5/1 MERCHANTS STREET
VALLETTA V_T 1171
|
|||
Title:
|
Sole Director
|
Name of Vessel
|
IMO Ship Identification No.
|
Port of Registry
|
Drillship "
Ocean Rig Olympia
"
|
9473004
|
Republic of the Marshall Islands
|
Clause
|
Page
|
|
1.
|
DEFINITIONS
|
1
|
2.
|
COMMENCEMENT AND APPOINTMENT
|
2
|
3.
|
AUTHORITY OF THE MANAGER
|
2
|
4.
|
MANAGEMENT SERVICES
|
2
|
5.
|
MANAGER'S OBLIGATIONS
|
3
|
6.
|
OWNER'S OBLIGATIONS
|
3
|
7.
|
INSURANCE POLICIES
|
3
|
8.
|
FEES AND EXPENSES
|
4
|
9.
|
[RESERVED]
|
5
|
10.
|
MANAGER'S RIGHT TO SUB-CONTRACT
|
5
|
11.
|
RESPONSIBILITIES
|
6
|
12.
|
GENERAL ADMINISTRATION
|
7
|
13.
|
COMPLIANCE WITH LAWS AND REGULATIONS
|
7
|
14.
|
DURATION OF THE AGREEMENT
|
7
|
15.
|
TERMINATION
|
8
|
16.
|
DISPUTE RESOLUTION
|
8
|
17.
|
RESERVED
|
8
|
18.
|
NOTICES
|
8
|
19.
|
PARTIAL VALIDITY
|
9
|
20.
|
AMENDMENTS AND WAIVERS
|
9
|
21.
|
CONFIDENTIALITY
|
9
|
22.
|
[RESERVED]
|
10
|
23.
|
GOVERNING LAW
|
10
|
24.
|
THIRD PARTY RIGHTS
|
10
|
25.
|
SURVIVAL
|
10
|
26.
|
ASSIGNMENTS
|
10
|
27.
|
COUNTERPARTS
|
10
|
(1) |
AGON SHIPPING INC.,
a corporation duly incorporated under the laws of the Marshall Islands (the "
Owner
");
and
|
(2) |
TMS OFFSHORE SERVICES LTD.,
a corporation organized under the laws of the Marshall Islands (the "
Manager
").
|
1. |
DEFINITIONS
|
1.1 |
In this Agreement save where the context otherwise requires, the following words and expressions shall have the meanings hereby assigned to them:
|
1.2 |
Interpretation
|
(a) |
Singular/Plural
|
(b) |
Headings
|
2. |
COMMENCEMENT AND APPOINTMENT
|
3. |
AUTHORITY OF THE MANAGER
|
4. |
MANAGEMENT SERVICES
|
4.1 |
General Management Services.
|
(a) |
seeking and negotiating employment for the Vessels of the Owner and the conclusion (including the execution thereof) of charter parties or other contracts relating to the employment of the Vessels;
|
(b) |
arranging insurances for the Vessels and the general operations of the Owner, on such terms as the Owner shall have instructed or agreed, in particular regarding conditions, insured values, deductibles, franchises and limits of liability; and requirements of charter parties, financing agreements or other contracts relating to the Vessels;.
|
(c) |
Providing services related to the financing, treasury, accounting and other day-to-day financial operations of the Owner;
|
(d) |
retaining counsel for the Owner and otherwise coordinating the various legal services required by the Owner;
|
(e) |
providing information technology services for the Owner;
|
(f) |
providing manning services for the Owner;
|
(g) |
providing commercial and marketing services for the Owner;
|
(h) |
providing executive services for the Owner;
|
(i) |
providing legal support services for the Owner;
|
(j) |
providing superintendency services for the Owner;
|
(k) |
preparing and filing all financial and other reports required for the Owner to comply with applicable securities laws, its loan and credit agreements, and the Memorandum and Articles;
|
(l) |
providing other non-technical/operational support services for the Owner, including such services as may be required to ensure that the Owner complies with all requirements of charter parties, financing agreements or other contracts relating to the Vessel;
|
(m) |
providing catering services for the Owner;
|
(n) |
providing other administrative services for the Owner; and
|
(o) |
such additional services as shall be mutually agreed by the parties.
|
5. |
MANAGER'S OBLIGATIONS
|
5.1 |
The Manager undertakes to use its best endeavours to provide the Management Services as agents for and on behalf of the Owner in accordance with sound management practice and to protect and promote the interests of the Owner in all matters relating to the provision of services hereunder.
|
5.2 |
Without limiting in any manner its obligations under Section 5.1, the Manager shall be entitled to allocate its available supplies, manpower and services in such manner as in the prevailing circumstances the Manager in its absolute discretion considers to be fair and reasonable.
|
6. |
OWNER'S OBLIGATIONS
|
6.1 |
The Owner shall pay all sums due to the Manager punctually in accordance with the terms of this Agreement. In the event of payment after thirty (30) days following the due date of any outstanding sums the Manager shall be entitled to charge interest at the rate of 2% per annum, unless such payment is subject to a bona fide dispute.
|
6.2 |
The Owner shall cooperate with Manager in the performance of the Services and shall not impede the Manager from performing the Services subject to the Owner's right to request fewer Management Services.
|
7. |
INSURANCE POLICIES
|
(a) |
at the Owner's expense, each Vessel is insured for not less than its sound market value or entered for its full gross tonnage, as the case may be for:
|
(i) |
hull and machinery marine risks (including but not limited to crew negligence) and excess liabilities;
|
(ii) |
protection and indemnity risks (including but not limited to pollution risks and diversion expenses);
|
(iii) |
war risks (including but not limited to blocking and trapping, protection and indemnity, terrorism and crew risks); and
|
(iv) |
such optional insurances as may be agreed (such as piracy, kidnap and ransom, loss of hire and FD & D).
|
(b) |
all premiums, deductibles, supplementary calls and/or excess supplementary calls and release calls on the Owner's Insurances are paid by their due date on a gross basis;
|
(c) |
the Owner's Insurances name the Manager and, subject to underwriters' agreement, any third party designated by the Manager as a joint assured, with full cover. It is understood that in some cases, such as protection and indemnity, the normal terms for such cover may impose on the Manager and any such third party a liability in respect of premiums or calls arising in connection with the Owner's Insurances.
|
(d) |
written evidence is provided, to the reasonable satisfaction of the Manager, of the Owner's compliance with their obligations under this Clause 7 within a reasonable time of the commencement of the Agreement, and of each renewal date and, if specifically requested, of each payment date of the Owner's Insurances, it being understood that the Manager shall arrange for insurance per Clause 4.1(b) and Clause 7.
|
8. |
FEES AND EXPENSES
|
8.1 |
Fixed Daily Cash Payments The Owner will pay to the Manager a daily fee of U.S. $300 per day (the "
Fixed Daily Cash Payments
")
,
plus reasonable out-of-pocket expenses (including professionals' fees and expenses), travel expenses and expenses in connection with the performance of the
|
8.2 |
[RESERVED].
|
8.3 |
Other Fees
|
(a) |
a fee of $35 per person per day for offshore personnel provided through the Manager, such offshore personnel's wages and related expenses being the responsibility of the Owner;
|
(b) |
a fee of $50 per person per day for catering services provided through the Manager, the wages and related expenses of the personnel providing such catering services, including provisions, but excluding travel expenses, being the responsibility of the Manager; and
|
(c) |
a fee of $2,000 per person per day for superintendent attendance offshore provided by the Manager, the wages and related expenses of the personnel providing such superintendent services, excluding travel expenses, being the responsibility of the Manager.
|
8.4 |
Additional Other Fees
|
9. |
[RESERVED]
|
10. |
MANAGER'S RIGHT TO SUB-CONTRACT
|
11. |
RESPONSIBILITIES
|
11.1 |
Force Majeure
|
(a) |
Neither party shall be liable for any loss, damage or delay due to any of the following force majeure events and/or conditions to the extent that the party invoking force majeure is prevented or hindered from performing any or all of their obligations under this Agreement, provided they have made all reasonable efforts to avoid, minimize or prevent the effect of such events and/or conditions:
|
(i) |
of God;
|
(ii) |
any Government requisition, control, intervention, requirement or interference;
|
(iii) |
any circumstances arising out of war, threatened act of war or warlike operations, acts of terrorism, sabotage or piracy, or the consequences thereof;
|
(iv) |
riots, civil commotion, blockades or embargoes;
|
(v) |
epidemics;
|
(vi) |
earthquakes, landslides, floods or other extraordinary weather conditions;
|
(vii) |
strikes, lockouts or other industrial action, unless limited to the employees of the party seeking to invoke force majeure;
|
(viii) |
fire, accident, explosion except where caused by negligence of the party seeking to invoke force majeure; and
|
(ix) |
any other similar cause beyond the reasonable control of either party.
|
11.2 |
Liability
|
11.3 |
Indemnity
|
12. |
GENERAL ADMINISTRATION
|
12.1 |
The Manager shall keep the Owner informed in a timely manner of any incident of which the Manager becomes aware which gives or may give rise to delay to the Vessel or claims or disputes involving third parties or any material non-compliance with the requirements of any charter party or other contract relating to the Vessel.
|
12.2 |
The Manager shall handle and settle all claims and disputes arising out of the Management Services hereunder, unless the Owner instructs the Manager otherwise. The Manager shall keep the Owner appropriately informed in a timely manner throughout the handling of such claims and disputes.
|
12.3 |
The Owner may request the Manager to bring or defend other actions, suits or proceedings related to the Management Services on terms to be agreed.
|
12.4 |
The Manager shall have power to obtain appropriate legal or technical or other outside expert advice in relation to the handling and settlement of claims in relation to Clauses 12.1 and 12.2 and disputes and any other matters affecting the interests of the Owner in respect of any Vessel, unless the Owner instructs the Manager otherwise.
|
12.5 |
The Owner shall arrange for the provision of any necessary guarantee bond or other security in connection with disputes referred to in Clause 12.2.
|
13. |
COMPLIANCE WITH LAWS AND REGULATIONS
|
14. |
DURATION OF THE AGREEMENT
|
14.1 |
The initial term of this Agreement shall be ten (10) years commencing on the Commencement Date. Thereafter, unless terminated earlier in accordance with Clause 15, the term of this Agreement shall automatically renew for successive one (1) year terms upon approval of the
|
14.2 |
Where any Vessel is not at a mutually convenient port or place on the expiry of such period, this Agreement shall terminate on the subsequent arrival of the Vessel at the next mutually convenient port or place.
|
15. |
TERMINATION
|
15.1 |
This Agreement may be terminated by the Owner or the Manager at any time.
|
16. |
DISPUTE RESOLUTION
|
16.1 |
All disputes arising out of this Agreement shall be arbitrated in London, England in the following manner. One arbitrator is to be appointed by the Owner, another is to be appointed by the Manager, and a third is to be appointed by the two foregoing appointed arbitrators. Their decision or that of any two of them shall be final and for the purpose of enforcing any award, this Agreement may be made a rule of the court. The arbitrators shall be commercial persons, conversant with shipping matters. Such arbitration is to be conducted in accordance with the rules of the London Maritime Arbitrators Association terms current at the time when the arbitration proceeding are commenced and in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof.
|
17. |
RESERVED.
|
18. |
NOTICES
|
18.1 |
All notices given by either party or their agents to the other party or their agents in accordance with the provisions of this Agreement shall be in writing and shall, unless specifically provided in this Agreement to the contrary, be sent to the address for that other party as set out below or as appropriate or to such other address as the other party may designate in writing.
|
(a) |
in the case of the Owner, PO Box 309, Ugland House, South Church Street, George Town, Grand Cayman, KY1-1104 Cayman Islands; or
|
(b) |
in the case of the Manager, c/o Cefai & Associates, 5/1 Merchants Street, Valletta, Malta.
|
18.2 |
Any notice given under this Agreement shall take effect on receipt by the other party and shall be deemed to have been received:
|
(a) |
if posted, on the seventh (7th) day after posting;
|
(b) |
if sent by facsimile or electronically, on the day of transmission; and
|
(c) |
if delivered by hand, on the day of delivery.
|
19. |
PARTIAL VALIDITY
|
20. |
AMENDMENTS AND WAIVERS
|
21. |
CONFIDENTIALITY
|
21.1 |
Except as may be required by applicable law, any non-public or confidential information relating to the business or affairs of the Owner or the Owner's principals obtained by the Manager in the performance of this Agreement shall be kept strictly confidential by the Manager and its Affiliates and subcontractors.
|
21.2 |
Except as may be required by applicable law this Agreement including all terms, detailed conditions and period is to be kept private and confidential and beyond the reach of any third party.
|
21.3 |
Except as may be required by applicable law, any non-public or confidential information relating to the business or affairs of the Manager and/or the Manager's principals obtained by the Owner or the Owner's principals and not relating to the Owner, its business or its assets (which would be covered by Clause 21.1) in the performance of this Agreement shall be kept strictly confidential.
|
22. |
[RESERVED]
|
23. |
GOVERNING LAW
|
24. |
THIRD PARTY RIGHTS
|
25. |
SURVIVAL
|
26. |
ASSIGNMENTS
|
26.1 |
The Owner may, without the consent of the Manager, assign its rights hereunder to its lenders by way of security for borrowings
|
26.2 |
The Manager may assign its rights and delegate its responsibilities hereunder to any of its Affiliates, provided, however, that, unless the Owner provides its prior written consent (not to be unreasonably withheld), to the novation of the Manager's responsibilities and obligations to the relevant Affiliate, the Manager shall remain responsible for the proper performance of this Agreement.
|
27. |
COUNTERPARTS
|
27.1 |
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.
|
27.2 |
Transmission by fax or emailed scanned copy of an executed counterpart of this Agreement shall be deemed to constitute due and sufficient delivery of such counterpart.
|
Agon Shipping Inc.
, as the Owner
|
||
By:
|
/s/ Savvas Tournis
|
|
Name:
|
Savvas Tournis
|
|
Title:
|
Attorney-in-fact
|
|
TMS Offshore Santos Ltd.
, as the Manager
|
||
By:
|
/s/ Dr. RENATO CEFAI
|
|
Name:
|
Dr. Renato Cefai
|
|
Title:
|
DIRECTOR
|
|
MARE SERVICES LTD
|
||
5/1 MERCHANTS STREET
|
||
VALLETTA VLT 1171
|
Name of Vessel
|
IMO Ship Identification No.
|
Port of Registry
|
Drillship
"Ocean Rig Paros"
|
9541198
|
Republic of Marshall Islands
|
Clause
|
Page
|
|
1.
|
DEFINITIONS
|
1
|
2.
|
COMMENCEMENT AND APPOINTMENT
|
2
|
3.
|
AUTHORITY OF THE MANAGER
|
2
|
4.
|
MANAGEMENT SERVICES
|
2
|
5.
|
MANAGER'S OBLIGATIONS
|
3
|
6.
|
OWNER'S OBLIGATIONS
|
3
|
7.
|
INSURANCE POLICIES
|
3
|
8.
|
FEES AND EXPENSES
|
4
|
9.
|
[RESERVED]
|
5
|
10.
|
MANAGER'S RIGHT TO SUB-CONTRACT
|
5
|
11.
|
RESPONSIBILITIES
|
6
|
12.
|
GENERAL ADMINISTRATION
|
7
|
13.
|
COMPLIANCE WITH LAWS AND REGULATIONS
|
7
|
14.
|
DURATION OF THE AGREEMENT
|
7
|
15.
|
TERMINATION
|
8
|
16.
|
DISPUTE RESOLUTION
|
8
|
17.
|
RESERVED.
|
8
|
18.
|
NOTICES
|
8
|
19.
|
PARTIAL VALIDITY
|
9
|
20.
|
AMENDMENTS AND WAIVERS
|
9
|
21.
|
CONFIDENTIALITY
|
9
|
22.
|
[RESERVED]
|
10
|
23.
|
GOVERNING LAW
|
10
|
24.
|
THIRD PARTY RIGHTS
|
10
|
25.
|
SURVIVAL
|
10
|
26.
|
ASSIGNMENTS
|
10
|
27.
|
COUNTERPARTS
|
10
|
(1) |
DRILLSHIP KITHIRA OWNERS INC.
, a corporation duly incorporated under the laws of the Marshall Islands (the "
Owner
"); and
|
(2) |
TMS OFFSHORE SERVICES LTD.
, a corporation organized under the laws of the Marshall Islands (the "
Manager
").
|
1. |
DEFINITIONS
|
1.1 |
In this Agreement save where the context otherwise requires, the following words and expressions shall have the meanings hereby assigned to them:
|
1.2 |
Interpretation In this Agreement:
|
(a) |
Singular/Plural
|
(b) |
Headings
|
2. |
COMMENCEMENT AND APPOINTMENT
|
3. |
AUTHORITY OF THE MANAGER
|
4. |
MANAGEMENT SERVICES
|
4.1 |
General Management Services.
|
(a) |
seeking and negotiating employment for the Vessels of the Owner and the conclusion (including the execution thereof) of charter parties or other contracts relating to the employment of the Vessels;
|
(b) |
arranging insurances for the Vessels and the general operations of the Owner, on such terms as the Owner shall have instructed or agreed, in particular regarding conditions, insured values, deductibles, franchises and limits of liability; and requirements of charter parties, financing agreements or other contracts relating to the Vessels;.
|
(c) |
Providing services related to the financing, treasury, accounting and other day-to-day financial operations of the Owner;
|
(d) |
retaining counsel for the Owner and otherwise coordinating the various legal services required by the Owner;
|
(e) |
providing information technology services for the Owner;
|
(f) |
providing manning services for the Owner;
|
(g) |
providing commercial and marketing services for the Owner;
|
(h) |
providing executive services for the Owner;
|
(i) |
providing legal support services for the Owner;
|
(j) |
providing superintendency services for the Owner;
|
(k) |
preparing and filing all financial and other reports required for the Owner to comply with applicable securities laws, its loan and credit agreements, and the Memorandum and Articles;
|
(l) |
providing other non-technical/operational support services for the Owner, including such services as may be required to ensure that the Owner complies with all requirements of charter parties, financing agreements or other contracts relating to the Vessel;
|
(m) |
providing catering services for the Owner;
|
(n) |
providing other administrative services for the Owner; and
|
(o) |
such additional services as shall be mutually agreed by the parties.
|
5. |
MANAGER'S OBLIGATIONS
|
5.1 |
The Manager undertakes to use its best endeavours to provide the Management Services as agents for and on behalf of the Owner in accordance with sound management practice and to protect and promote the interests of the Owner in all matters relating to the provision of services hereunder.
|
5.2 |
Without limiting in any manner its obligations under Section 5.1, the Manager shall be entitled to allocate its available supplies, manpower and services in such manner as in the prevailing circumstances the Manager in its absolute discretion considers to be fair and reasonable.
|
6. |
OWNER'S OBLIGATIONS
|
6.1 |
The Owner shall pay all sums due to the Manager punctually in accordance with the terms of this Agreement. In the event of payment after thirty (30) days following the due date of any outstanding sums the Manager shall be entitled to charge interest at the rate of 2% per annum, unless such payment is subject to a bona fide dispute.
|
6.2 |
The Owner shall cooperate with Manager in the performance of the Services and shall not impede the Manager from performing the Services subject to the Owner's right to request fewer Management Services.
|
7. |
INSURANCE POLICIES
|
(a) |
at the Owner's expense, each Vessel is insured for not less than its sound market value or entered for its full gross tonnage, as the case may be for:
|
(i) |
hull and machinery marine risks (including but not limited to crew negligence) and excess liabilities;
|
(ii) |
protection and indemnity risks (including but not limited to pollution risks and diversion expenses);
|
(iii) |
war risks (including but not limited to blocking and trapping, protection and indemnity, terrorism and crew risks); and
|
(iv) |
such optional insurances as may be agreed (such as piracy, kidnap and ransom, loss of hire and FD & D).
|
(b) |
all premiums, deductibles, supplementary calls and/or excess supplementary calls and release calls on the Owner's Insurances are paid by their due date on a gross basis;
|
(c) |
the Owner's Insurances name the Manager and, subject to underwriters' agreement, any third party designated by the Manager as a joint assured, with full cover. It is understood that in some cases, such as protection and indemnity, the normal terms for such cover may impose on the Manager and any such third party a liability in respect of premiums or calls arising in connection with the Owner's Insurances.
|
(d) |
written evidence is provided, to the reasonable satisfaction of the Manager, of the Owner's compliance with their obligations under this Clause 7 within a reasonable time of the commencement of the Agreement, and of each renewal date and, if specifically requested, of each payment date of the Owner's Insurances, it being understood that the Manager shall arrange for insurance per Clause 4.1(b) and Clause 7.
|
8. |
FEES AND EXPENSES
|
8.1 |
Fixed Daily Cash Payments The Owner will pay to the Manager a daily fee of U.S. $300 per day (the "
Fixed Daily Cash Payments
"),
plus reasonable out-of-pocket expenses (including professionals' fees and expenses), travel expenses and expenses in connection with the performance of the
|
8.2. |
[RESERVED].
|
8.3 |
Other Fees
The Owner shall, at its election provided in writing to the Manager, pursue services at the following rates with the Manager:
|
(a) |
a fee of $35 per person per day for offshore personnel provided through the Manager, such offshore personnel's wages and related expenses being the responsibility of the Owner;
|
(b) |
a fee of $50 per person per day for catering services provided through the Manager, the wages and related expenses of the personnel providing such catering services, including provisions, but excluding travel expenses, being the responsibility of the Manager; and
|
(c) |
a fee of $2,000 per person per day for superintendent attendance offshore provided by the Manager, the wages and related expenses of the personnel providing such superintendent services, excluding travel expenses, being the responsibility of the Manager.
|
8.4 |
Additional Other Fees
The Owner shall pay such other fees as shall be provided for under this Agreement to the extent approved by the Owner.
|
9. |
[RESERVED]
|
10. |
MANAGER'S RIGHT TO SUB-CONTRACT
|
11. |
RESPONSIBILITIES
|
11.1 |
Force Majeure
|
(a) |
Neither party shall be liable for any loss, damage or delay due to any of the following force majeure events and/or conditions to the extent that the party invoking force majeure is prevented or hindered from performing any or all of their obligations under this Agreement, provided they have made all reasonable efforts to avoid, minimize or prevent the effect of such events and/or conditions:
|
(i) |
of God;
|
(ii) |
any Government requisition, control, intervention, requirement or interference;
|
(iii) |
any circumstances arising out of war, threatened act of war or warlike operations, acts of terrorism, sabotage or piracy, or the consequences thereof;
|
(iv) |
riots, civil commotion, blockades or embargoes;
|
(v) |
epidemics;
|
(vi) |
earthquakes, landslides, floods or other extraordinary weather conditions;
|
(vii) |
strikes, lockouts or other industrial action, unless limited to the employees of the party seeking to invoke force majeure;
|
(viii) |
fire, accident, explosion except where caused by negligence of the party seeking to invoke force majeure; and
|
(ix) |
any other similar cause beyond the reasonable control of either party.
|
11.2 |
Liability
|
11.3 |
Indemnity
|
12. |
GENERAL ADMINISTRATION
|
12.1 |
The Manager shall keep the Owner informed in a timely manner of any incident of which the Manager becomes aware which gives or may give rise to delay to the Vessel or claims or disputes involving third parties or any material non-compliance with the requirements of any charter party or other contract relating to the Vessel.
|
12.2 |
The Manager shall handle and settle all claims and disputes arising out of the Management Services hereunder, unless the Owner instructs the Manager otherwise. The Manager shall keep the Owner appropriately informed in a timely manner throughout the handling of such claims and disputes.
|
12.3 |
The Owner may request the Manager to bring or defend other actions, suits or proceedings related to the Management Services on terms to be agreed.
|
12.4 |
The Manager shall have power to obtain appropriate legal or technical or other outside expert advice in relation to the handling and settlement of claims in relation to Clauses 12.1 and 12.2 and disputes and any other matters affecting the interests of the Owner in respect of any Vessel, unless the Owner instructs the Manager otherwise.
|
12.5 |
The Owner shall arrange for the provision of any necessary guarantee bond or other security in connection with disputes referred to in Clause 12.2.
|
13. |
COMPLIANCE WITH LAWS AND REGULATIONS
|
14. |
DURATION OF THE AGREEMENT
|
14.1 |
The initial term of this Agreement shall be ten (10) years commencing on the Commencement Date. Thereafter, unless terminated earlier in accordance with Clause 15, the term of this Agreement shall automatically renew for successive one (1) year terms upon approval of the
|
14.2 |
Where any Vessel is not at a mutually convenient port or place on the expiry of such period, this Agreement shall terminate on the subsequent arrival of the Vessel at the next mutually convenient port or place.
|
15. |
TERMINATION
|
15.1 |
This Agreement may be terminated by the Owner or the Manager at any time.
|
16. |
DISPUTE RESOLUTION
|
16.1 |
All disputes arising out of this Agreement shall be arbitrated in London, England in the following manner. One arbitrator is to be appointed by the Owner, another is to be appointed by the Manager, and a third is to be appointed by the two foregoing appointed arbitrators. Their decision or that of any two of them shall be final and for the purpose of enforcing any award, this Agreement may be made a rule of the court. The arbitrators shall be commercial persons, conversant with shipping matters. Such arbitration is to be conducted in accordance with the rules of the London Maritime Arbitrators Association terms current at the time when the arbitration proceeding are commenced and in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof.
|
17. |
RESERVED.
|
18. |
NOTICES
|
18.1 |
All notices given by either party or their agents to the other party or their agents in accordance with the provisions of this Agreement shall be in writing and shall, unless specifically provided in this Agreement to the contrary, be sent to the address for that other party as set out below or as appropriate or to such other address as the other party may designate in writing.
|
(a) |
in the case of the Owner, PO Box 309, Ugland House, South Church Street, George Town, Grand Cayman, KY1-1104 Cayman Islands; or
|
(b) |
in the case of the Manager, c/o Cefai & Associates, 5/1 Merchants Street, Valletta, Malta.
|
18.2 |
Any notice given under this Agreement shall take effect on receipt by the other party and shall be deemed to have been received:
|
(a) |
if posted, on the seventh (7th) day after posting;
|
(b) |
if sent by facsimile or electronically, on the day of transmission; and
|
(c) |
if delivered by hand, on the day of delivery.
|
19. |
PARTIAL VALIDITY
|
20. |
AMENDMENTS AND WAIVERS
|
21. |
CONFIDENTIALITY
|
21.1 |
Except as may be required by applicable law, any non-public or confidential information relating to the business or affairs of the Owner or the Owner's principals obtained by the Manager in the performance of this Agreement shall be kept strictly confidential by the Manager and its Affiliates and subcontractors.
|
21.2 |
Except as may be required by applicable law this Agreement including all terms, detailed conditions and period is to be kept private and confidential and beyond the reach of any third party.
|
21.3 |
Except as may be required by applicable law, any non-public or confidential information relating to the business or affairs of the Manager and/or the Manager's principals obtained by the Owner or the Owner's principals and not relating to the Owner, its business or its assets (which would be covered by Clause 21.1) in the performance of this Agreement shall be kept strictly confidential.
|
22. |
[RESERVED]
|
23. |
GOVERNING LAW
|
24. |
THIRD PARTY RIGHTS
|
25. |
SURVIVAL
|
26. |
ASSIGNMENTS
|
26.1 |
The Owner may, without the consent of the Manager, assign its rights hereunder to its lenders by way of security for borrowings
|
26.2 |
The Manager may assign its rights and delegate its responsibilities hereunder to any of its Affiliates, provided, however, that, unless the Owner provides its prior written consent (not to be unreasonably withheld), to the novation of the Manager's responsibilities and obligations to the relevant Affiliate, the Manager shall remain responsible for the proper performance of this Agreement.
|
27. |
COUNTERPARTS
|
27.1 |
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.
|
27.2 |
Transmission by fax or emailed scanned copy of an executed counterpart of this Agreement shall be deemed to constitute due and sufficient delivery of such counterpart.
|
Drillship Kithira Owners Inc.
, as the Owner
|
||
By:
|
/s/
Savvas Tournis
|
|
Name:
|
Savvas Tournis | |
Title:
|
Attorney-in-fact
|
|
TMS Offshore Services Ltd.
, as the Manager
|
||
By:
|
/s/ Dr. RENATO CEFAI
|
|
Name:
|
Dr. Renato Cefai
|
|
Title:
|
DIRECTOR
|
|
MARE SERVICES LTD
|
||
5/1 MERCHANTS STREET
|
||
VALLETTA VLT 1171
|
Name of Vessel
|
IMO Ship Identification No
.
|
Port of Registry
|
Drillship
"Ocean Rig Poseidon"
|
9516870
|
Republic of the Marshall Islands
|
Clause
|
Page
|
|
1.
|
DEFINITIONS
|
1
|
2.
|
COMMENCEMENT AND APPOINTMENT
|
2
|
3.
|
AUTHORITY OF THE MANAGER
|
2
|
4.
|
MANAGEMENT SERVICES
|
2
|
5.
|
MANAGER'S OBLIGATIONS
|
3
|
6.
|
OWNER'S OBLIGATIONS
|
3
|
7.
|
INSURANCE POLICIES
|
3
|
8.
|
FEES AND EXPENSES
|
4
|
9.
|
[RESERVED]
|
5
|
10.
|
MANAGER'S RIGHT TO SUB-CONTRACT
|
5
|
11.
|
RESPONSIBILITIES
|
6
|
12.
|
GENERAL ADMINISTRATION
|
7
|
13.
|
COMPLIANCE WITH LAWS AND REGULATIONS
|
7
|
14.
|
DURATION OF THE AGREEMENT
|
7
|
15.
|
TERMINATION
|
8
|
16.
|
DISPUTE RESOLUTION
|
8
|
17.
|
RESERVED.
|
8
|
18.
|
NOTICES
|
8
|
19.
|
PARTIAL VALIDITY
|
9
|
20.
|
AMENDMENTS AND WAIVERS
|
9
|
21.
|
CONFIDENTIALITY
|
9
|
22.
|
[RESERVED]
|
10
|
23.
|
GOVERNING LAW
|
10
|
24.
|
THIRD PARTY RIGHTS
|
10
|
25.
|
SURVIVAL
|
10
|
26.
|
ASSIGNMENTS
|
10
|
27.
|
COUNTERPARTS
|
10
|
(1) |
DRILLSHIP SKYROS OWNERS INC.
, a corporation duly incorporated under the laws of the Marshall Islands (the "
Owner
"); and
|
(2) |
TMS OFFSHORE SERVICES LTD.
, a corporation organized under the laws of the Marshall Islands (the "
Manager
").
|
1.1 |
In this Agreement save where the context otherwise requires, the following words and expressions shall have the meanings hereby assigned to them:
|
1.2 |
Interpretation
|
(a) |
Singular/Plural
|
(b) |
Headings
|
4.1 |
General Management Services.
|
(a) |
seeking and negotiating employment for the Vessels of the Owner and the conclusion (including the execution thereof) of charter parties or other contracts relating to the employment of the Vessels;
|
(b) |
arranging insurances for the Vessels and the general operations of the Owner, on such terms as the Owner shall have instructed or agreed, in particular regarding conditions, insured values, deductibles, franchises and limits of liability; and requirements of charter parties, financing agreements or other contracts relating to the Vessels;.
|
(c) |
Providing services related to the financing, treasury, accounting and other day-to-day financial operations of the Owner;
|
(d) |
retaining counsel for the Owner and otherwise coordinating the various legal services required by the Owner;
|
(e) |
providing information technology services for the Owner;
|
(f) |
providing manning services for the Owner;
|
(g) |
providing commercial and marketing services for the Owner;
|
(h) |
providing executive services for the Owner;
|
(i) |
providing legal support services for the Owner;
|
(j) |
providing superintendency services for the Owner;
|
(k) |
preparing and filing all financial and other reports required for the Owner to comply with applicable securities laws, its loan and credit agreements, and the Memorandum and Articles;
|
(l) |
providing other non-technical/operational support services for the Owner, including such services as may be required to ensure that the Owner complies with all requirements of charter parties, financing agreements or other contracts relating to the Vessel;
|
(m) |
providing catering services for the Owner;
|
(n) |
providing other administrative services for the Owner; and
|
(o) |
such additional services as shall be mutually agreed by the parties.
|
5.1 |
The Manager undertakes to use its best endeavours to provide the Management Services as agents for and on behalf of the Owner in accordance with sound management practice and to protect and promote the interests of the Owner in all matters relating to the provision of services hereunder.
|
5.2 |
Without limiting in any manner its obligations under Section 5.1, the Manager shall be entitled to allocate its available supplies, manpower and services in such manner as in the prevailing circumstances the Manager in its absolute discretion considers to be fair and reasonable.
|
6.1 |
The Owner shall pay all sums due to the Manager punctually in accordance with the terms of this Agreement. In the event of payment after thirty (30) days following the due date of any outstanding sums the Manager shall be entitled to charge interest at the rate of 2% per annum, unless such payment is subject to a bona fide dispute.
|
6.2 |
The Owner shall cooperate with Manager in the performance of the Services and shall not impede the Manager from performing the Services subject to the Owner's right to request fewer Management Services.
|
(a) |
at the Owner's expense, each Vessel is insured for not less than its sound market value or entered for its full gross tonnage, as the case may be for:
|
(i) |
hull and machinery marine risks (including but not limited to crew negligence) and excess liabilities;
|
(ii) |
protection and indemnity risks (including but not limited to pollution risks and diversion expenses);
|
(iii) |
war risks (including but not limited to blocking and trapping, protection and indemnity, terrorism and crew risks); and
|
(iv) |
such optional insurances as may be agreed (such as piracy, kidnap and ransom, loss of hire and FD & D).
|
(b) |
all premiums, deductibles, supplementary calls and/or excess supplementary calls and release calls on the Owner's Insurances are paid by their due date on a gross basis;
|
(c) |
the Owner's Insurances name the Manager and, subject to underwriters' agreement, any third party designated by the Manager as a joint assured, with full cover. It is understood that in some cases, such as protection and indemnity, the normal terms for such cover may impose on the Manager and any such third party a liability in respect of premiums or calls arising in connection with the Owner's Insurances.
|
(d) |
written evidence is provided, to the reasonable satisfaction of the Manager, of the Owner's compliance with their obligations under this Clause 7 within a reasonable time of the commencement of the Agreement, and of each renewal date and, if specifically requested, of each payment date of the Owner's Insurances, it being understood that the Manager shall arrange for insurance per Clause 4.1(b) and Clause 7.
|
8.1 |
Fixed Daily Cash Payments
|
8.2 |
[RESERVED]
.
|
8.3 |
Other Fees
|
(a) |
a fee of $35 per person per day for offshore personnel provided through the Manager, such offshore personnel's wages and related expenses being the responsibility of the Owner;
|
(b) |
a fee of $50 per person per day for catering services provided through the Manager, the wages and related expenses of the personnel providing such catering services, including provisions, but excluding travel expenses, being the responsibility of the Manager; and
|
(c) |
a fee of $2,000 per person per day for superintendent attendance offshore provided by the Manager, the wages and related expenses of the personnel providing such superintendent services, excluding travel expenses, being the responsibility of the Manager.
|
8.4 |
Additional Other Fees
|
11.1 |
Force Majeure
|
(a) |
Neither party shall be liable for any loss, damage or delay due to any of the following force majeure events and/or conditions to the extent that the party invoking force majeure is prevented or hindered from performing any or all of their obligations under this Agreement, provided they have made all reasonable efforts to avoid, minimize or prevent the effect of such events and/or conditions:
|
(i) |
of God;
|
(ii) |
any Government requisition, control, intervention, requirement or interference;
|
(iii) |
any circumstances arising out of war, threatened act of war or warlike operations, acts of terrorism, sabotage or piracy, or the consequences thereof;
|
(iv) |
riots, civil commotion, blockades or embargoes;
|
(v) |
epidemics;
|
(vi) |
earthquakes, landslides, floods or other extraordinary weather conditions;
|
(vii) |
strikes, lockouts or other industrial action, unless limited to the employees of the party seeking to invoke force majeure;
|
(viii) |
fire, accident, explosion except where caused by negligence of the party seeking to invoke force majeure; and
|
(ix) |
any other similar cause beyond the reasonable control of either party.
|
11.2 |
Liability
|
11.3 |
Indemnity
|
12.1 |
The Manager shall keep the Owner informed in a timely manner of any incident of which the Manager becomes aware which gives or may give rise to delay to the Vessel or claims or disputes involving third parties or any material non-compliance with the requirements of any charter party or other contract relating to the Vessel.
|
12.2 |
The Manager shall handle and settle all claims and disputes arising out of the Management Services hereunder, unless the Owner instructs the Manager otherwise. The Manager shall keep the Owner appropriately informed in a timely manner throughout the handling of such claims and disputes.
|
12.3 |
The Owner may request the Manager to bring or defend other actions, suits or proceedings related to the Management Services on terms to be agreed.
|
12.4 |
The Manager shall have power to obtain appropriate legal or technical or other outside expert advice in relation to the handling and settlement of claims in relation to Clauses 12.1 and 12.2 and disputes and any other matters affecting the interests of the Owner in respect of any Vessel, unless the Owner instructs the Manager otherwise.
|
12.5 |
The Owner shall arrange for the provision of any necessary guarantee bond or other security in connection with disputes referred to in Clause 12.2.
|
14.1 |
The initial term of this Agreement shall be ten (10) years commencing on the Commencement Date. Thereafter, unless terminated earlier in accordance with Clause 15, the term of this Agreement shall automatically renew for successive one (1) year terms upon approval of the
|
14.2 |
Where any Vessel is not at a mutually convenient port or place on the expiry of such period, this Agreement shall terminate on the subsequent arrival of the Vessel at the next mutually convenient port or place.
|
15.1 |
This Agreement may be terminated by the Owner or the Manager at any time.
|
16.1 |
All disputes arising out of this Agreement shall be arbitrated in London, England in the following manner. One arbitrator is to be appointed by the Owner, another is to be appointed by the Manager, and a third is to be appointed by the two foregoing appointed arbitrators. Their decision or that of any two of them shall be final and for the purpose of enforcing any award, this Agreement may be made a rule of the court. The arbitrators shall be commercial persons, conversant with shipping matters. Such arbitration is to be conducted in accordance with the rules of the London Maritime Arbitrators Association terms current at the time when the arbitration proceeding are commenced and in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof.
|
18.1 |
All notices given by either party or their agents to the other party or their agents in accordance with the provisions of this Agreement shall be in writing and shall, unless specifically provided in this Agreement to the contrary, be sent to the address for that other party as set out below or as appropriate or to such other address as the other party may designate in writing.
|
(a) |
in the case of the Owner, PO Box 309, Ugland House, South Church Street, George Town, Grand Cayman, KY1-1104 Cayman Islands; or
|
(b) |
in the case of the Manager, c/o Cefai & Associates, 5/1 Merchants Street, Valletta, Malta.
|
18.2 |
Any notice given under this Agreement shall take effect on receipt by the other party and shall be deemed to have been received:
|
(a) |
if posted, on the seventh (7th) day after posting;
|
(b) |
if sent by facsimile or electronically, on the day of transmission; and
|
(c) |
if delivered by hand, on the day of delivery.
|
21.1 |
Except as may be required by applicable law, any non-public or confidential information relating to the business or affairs of the Owner or the Owner's principals obtained by the Manager in the performance of this Agreement shall be kept strictly confidential by the Manager and its Affiliates and subcontractors.
|
21.2 |
Except as may be required by applicable law this Agreement including all terms, detailed conditions and period is to be kept private and confidential and beyond the reach of any third party.
|
21.3 |
Except as may be required by applicable law, any non-public or confidential information relating to the business or affairs of the Manager and/or the Manager's principals obtained by the Owner or the Owner's principals and not relating to the Owner, its business or its assets (which would be covered by Clause 21.1) in the performance of this Agreement shall be kept strictly confidential.
|
26.1 |
The Owner may, without the consent of the Manager, assign its rights hereunder to its lenders by way of security for borrowings
|
26.2 |
The Manager may assign its rights and delegate its responsibilities hereunder to any of its Affiliates, provided, however, that, unless the Owner provides its prior written consent (not to be unreasonably withheld), to the novation of the Manager's responsibilities and obligations to the relevant Affiliate, the Manager shall remain responsible for the proper performance of this Agreement.
|
27.1 |
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.
|
27.2 |
Transmission by fax or emailed scanned copy of an executed counterpart of this Agreement shall be deemed to constitute due and sufficient delivery of such counterpart.
|
Drillship Skyros Owner Inc.
, as the Owner
|
||
By:
|
/s/Savvas Tournis
|
|
Name: Savvas Tournis
|
||
Title: Attorney-At-Law
|
TMS Offshore Services Ltd.
, as the Manager
|
||
By:
|
/s/ Dr. Renato Cefai
|
|
Name: Dr. Renato Cefai
|
||
Title: Director
|
||
Mare Services Limited
|
||
5/1 Merchants Street
|
||
Valletta VLT 1171
|
Name of Vessel
|
IMO Ship Identification No.
|
Port of Registry
|
Drillship "
Ocean Rig Skyros
"
|
9632545
|
Republic of the Marshall Islands
|
(1) |
OCEAN RIG UDW INC.
,
a corporation registered by way of continuation in the Cayman Islands with its registered address at PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands and with registration number MC-310396
("
UDW
"),
on its own behalf and on behalf of all of its direct and indirect Subsidiaries other than the DFH Parties, the DOV Parties and the DRH Parties (collectively the
"
UDW Parties
")
;
|
(2) |
DRILLSHIPS FINANCING HOLDING INC.
,
a Marshall Islands corporation with company registration number 61701 and a registered foreign office in the Cayman Islands at PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands
("
DFH
"),
on its own behalf and on behalf of its direct and indirect Subsidiaries (collectively the
"
DFH Parties
")
;
|
(3) |
DRILLSHIPS OCEAN VENTURES INC.
,
a Marshall Islands corporation with company registration number 55652 and a registered foreign office in the Cayman Islands at PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands
("
DOV
")
on its own behalf and on behalf of its direct and indirect Subsidiaries (collectively the
"
DOV Parties
")
;
and
|
(4) |
DRILL RIGS HOLDINGS INC.
,
a Marshall Islands corporation with company registration number 61701 and a registered foreign office in the Cayman Islands at PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands
("
DRH
")
on its own behalf and on behalf of its direct and indirect Subsidiaries; (collectively the
"
DRH Parties
",
and together with the UDW Parties, the DFH Parties, and the DOV Parties, the
"
Parties
"
or the
"
Group
")
.
|
(A) |
UDW is a publicly traded company incorporated in the Cayman Islands and the ultimae parent company of the other Parties.
|
(B) |
The Group has historically operated a cash management protocol pursuant to which cash has been transferred between entities to meet the needs of the entities within the Group as and when those needs arose. These transfers have been recorded in the Group's internal books and records as creating intragroup receivables and payables between members of the Group that are subordinated to the Senior Debt.
|
(C) |
In the light of the forgoing, each member of the Group has concluded that it is in its interests and the interests of its stakeholders to settle the intragroup receivables and payables in accordance with the terms of this Deed.
|
1. |
DEFINITIONS AND INTERPRETATION
|
(a) |
the indenture dated 20 September 2012 between, inter alios, DRH and UDW governing the 6.5% senior secured notes due 2017;
|
(b) |
the indenture dated 26 March 2014 between UDW and Deutsche Bank Trust Company Americas governing the 7.25% Senior Notes due 2019;
|
(c) |
the DFH Agreement; and
|
(d) |
the DOV Agreement.
|
1.2 |
Any reference in this Deed to an agreement is a reference to such agreement as amended and or restated from time to time.
|
2. |
ACKNOWLEDGMENT AND CONSIDERATION
|
3. |
SETTLEMENT AND RELEASE OF INTRAGROUP LIABILITIES
|
3.1 |
On or before the Effective Date, or as soon as practicable thereafter, UDW shall procure Alley and Algarve to request that the relevant issuer take all actions necessary to cancel the respective Treasury Bonds.
|
3.2 |
Each Party hereby agrees that, on the Effective Date, all Intragroup Liabilities owed to it shall be immediately, irrevocably and unconditionally waived and released.
|
3.3 |
For the avoidance of doubt, without affecting the validity or enforceability of the above mentioned release of the Intragroup Liabilities, additional agreements may be entered into at the option of the respective parties to record the effect of the release of the Intragroup Liabilities (by distribution, contribution or otherwise) at their sole discretion.
|
4. |
COSTS
|
5. |
FURTHER ASSURANCE
|
6. |
ENTIRE AGREEMENT
|
6.1 |
This Deed constitutes the whole agreement between the Parties with regards to the terms contained in it and supersedes any previous arrangements or agreements between them relating to such terms.
|
6.2 |
Each Party confirms that it has not entered into this Deed on the basis of any representation, warranty, undertaking or other statement whatsoever which is not expressly incorporated into this Deed.
|
6.3 |
Save in relation to breach of this Deed, no Party shall have any right or remedy, or make or have any claim, against another Party in connection with the subject matter of this Deed.
|
7. |
THIRD PARTY RIGHTS
|
8. |
SEVERABILITY
|
9. |
COUNTERPARTS
|
10. |
GOVERNING LAW
|
1. |
AMENDMENT
|
1.1 |
The introductory section of the RSA to delete the description of "
THE INITIAL SUPPORTING CREDITORS
"
and replace it with the following:
|
1.2 |
Schedule
1
(Definitions)
of the RSA to delete the definition of "
Early Consent Date
"
and to add the following definitions:
|
1.3 |
Clause 12.1(a) of the RSA is hereby amended to delete the term "Early Consent Date" and to replace that term with the phrase "Term Loan Early Consent Date (including a purchaser under an open trade that has not closed as of the Term Loan Early Consent Date)."
|
1.4 |
Clause 12.1(b) of the RSA is hereby amended to delete the term "Early Consent Date" and to replace that term with "Term Loan Early Consent Date."
|
1.5 |
Clauses 12.2(a) of the RSA is hereby amended to delete the term "Early Consent Date" and to replace that term with the phrase "
DRH
Early Consent Date (including a purchaser under an open trade that has not closed as of the
DRH
Early Consent Date)."
|
1.6 |
Clauses 12.2(b) of the RSA is hereby amended to delete the term "Early Consent Date" each time it appears in Clause 12.2 and to replace that term with "
DRH
Early Consent Date."
|
1.7 |
Clause 12.3 to delete the text thereof in its entirety and replace it with the following:
|
(a) |
Any Supporting Creditor that accedes to this Agreement before the Term Loan 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 Term Loan Early Consent Date) shall be entitled to a
pro rata
share of the Term Loan Early Consent Fee or DRH Early Consent Fee, as applicable, with respect to such Claims so long as such Supporting Creditor has timely provided all Supporting Creditor Update Notices in accordance with Clause 3.4(e) as of the Record Date, and to the extent that the Claims have been acquired from another Supporting Creditor, the selling Supporting Creditor shall not be entitled to the Term Loan Early Consent Fee or DRH Early Consent Fee, as applicable, with respect to such Claims.
|
(b) |
Any Supporting Creditor that accedes to this Agreement after the Term Loan Early Consent Date but prior to the DRH Early Consent Date shall not be entitled to a pro rata share of the Term Loan Early Consent Fee under any circumstances, but if such Supporting Creditor acquires further DRH Scheme Claims after acceding to this Agreement (whether before, on, or after the DRH Early Consent Date) it shall be entitled to
a
pro rata
share of the DRH Early Consent Fee with respect to such Claims so long as such Supporting Creditor has timely provided all Supporting Creditor Update Notices in accordance with Clause 3.4(e) as of the Record Date, and to the extent that any Claims have been acquired from another Supporting Creditor (including any DFH Scheme Claims and DOV Schemes), the
|
1.8 |
Schedule 4
(Form of Accession Letter)
of the RSA to add "[purchaser under an open trade]" after "[beneficial]" in paragraph 3 thereof
|
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 Amendment shall constitute a Restructuring Document for purposes of the RSA. Except as specifically amended by this Amendment, the RSA shall remain unchanged and unwaived and shall remain in full force and effect and are hereby ratified and confirmed. The amendment set forth herein shall be limited precisely as provided for herein to the provisions expressly amended herein and shall not be deemed to be an amendment or waiver of any right, power or remedy of any party hereto under, or an amendment or 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
|
Ocean Rig UDW Inc.
as Parent
|
||||
By:
|
/s/ Anthony Kandylidis
|
|||
Name:
|
||||
Title:
|
||||
Elliott Associates, LP
|
||||
By:
|
Elliott Capital Advisors, L.P., General Partner
|
|||
By:
|
Braxton Associates, Inc., General Partner
|
|||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Springfield Associates, LLC
|
||||
By:
|
Elliott Associates, L.P., as managing member
|
|||
By:
|
Elliott Capital Advisors, L.P., as general partner
|
|||
By:
|
Braxton Associates, Inc., as general partner
|
|||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Elliott International, LP
|
||||
By:
|
Elliott International Capital Advisors, Inc., as Attorney-in-Fact
|
|||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Kensington International Limited
|
||||
By:
|
Elliott International Capital Advisors, Inc., as Attorney-in-Fact
|
|||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Queensferry M LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry A LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry C LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry E LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry H LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Upton A LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Upton C LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry Y LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Upton E LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Athena Investments Holdings LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Upton I LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry B LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Upton B LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Upton D LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry N LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Queensferry O LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry P LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry Q LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry S LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry U LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Queensferry W LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry X LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Lovington Onshore LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Jesmond Holdings LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Bristol Partners LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Queensferry F LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry G LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry I LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry J LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry L LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
GIM Holdings LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Clementine Ltd.
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Benjamin Capital Ltd.
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Columbia Point Limited
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Winter Valley Offshore LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Queensferry D LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Upton F LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry R LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry V LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry Z LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
BLUEMOUNTAIN GUADALUPE PEAK FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN MONTENVERS MASTER FUND SCA SICAV-SIF
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN TIMBERLINE LTD.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN KICKING HORSE FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN LOGAN OPPORTUNITIES MASTER FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN SUMMIT TRADING L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN FOINAVEN MASTER FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN CREDIT ALTERNATIVES MASTER FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
AVENUE COPPERS OPPORTUNITIES FUND, L.P.
|
|||
By:
Avenue COPPERS Opportunities Fund GenPar, LLC,
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE-ASRS EUROPE OPPORTUNITIES FUND, L.P.
|
|||
By:
Avenue-ARS Europe Opportunities Fund GenPar, LLC,
its General Partner |
|||
By:
GL ASRS Europe Partners, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE ENERGY OPPORTUNITIES FUND, L.P.
|
|||
By:
Avenue Energy Opportunities Partners, LLC,
its General Partner |
|||
By:
GL Energy Opportunities Partners, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE ENTRUST CUSTOMIZED PORTFOLIO SPC ON BEHALF AND FOR THE ACCOUNT OF AVENUE US/EUROPE DISTRESSED SEGREGATED PORTFOLIO
|
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE EUROPE OPPORTUNITIES MASTER FUND L.P.
|
|||
By:
Avenue Europe Opportunities Fund GenPar, LLC,
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE EUROPE SPECIAL SITUATIONS FUND III (U.S.
)
, L.P.
|
|||
By:
Avenue Europe Capital Partners III, LLC,
its General Partner |
|||
By:
GL Europe Partners III, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE EUROPE SPECIAL SITUATIONS FUND III (EURO
)
, L.P.
|
|||
By:
Avenue Europe Capital Partners III, LLC,
its General Partner |
|||
By:
GL Europe Partners III, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE INVESTMENTS, L.P.
|
|||
By:
Avenue Partners, LLC
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
AVENUE PPF OPPORTUNITIES FUND, L.P.
|
|||
By:
Avenue PPF Opportunities Fund GenPar, LLC,
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE SPECIAL OPPORTUNITIES FUND II, L.P.
|
|||
By:
Avenue SO Capital Partners II, LLC,
its General Partner |
|||
By:
GL SO Partners II, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
MANAGED ACCOUNTS MASTER FUND SERVICES – MAP10
a Sub Trust of Managed Accounts Master Fund Services |
|||
By:
Avenue Capital Management II, L.P.
its Investment Manager |
|||
By:
Avenue Capital Management II GenPar, LLC
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
HATHOR CAPITAL LIMITED
|
||||
By:
|
/s/ James Murphy
|
|||
Name: James Murphy
|
||||
Title: Attorney-in-Fact
|
||||
RICIMER CAPITAL LIMITED
|
||||
By:
|
/s/ James Murphy
|
|||
Name: James Murphy
|
||||
Title: Attorney-in-Fact
|
||||
SILVER TEAL CAPITAL LIMITED
|
||||
By:
|
/s/ James Murphy
|
|||
Name: James Murphy
|
||||
Title: Attorney-in-Fact
|
||||
CASTLE APRON CAPITAL LIMITED
|
||||
By:
|
/s/ James Murphy
|
|||
Name: James Murphy
|
||||
Title: Attorney-in-Fact
|
||||
LION POINT MASTER L.P.
|
||||
By:
Lion Point Capital, LP,
its investment manager |
||||
By:
|
/s/ James Murphy
|
|||
Name: James Murphy
|
||||
Title: COO/CFO
|
1. |
AMENDMENT
|
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 Amendment shall constitute a Restructuring Document for purposes of the RSA. Except as specifically amended by this Amendment, the RSA shall remain unchanged and unwaived and shall remain in full force and effect and are hereby ratified and
|
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.
|
Ocean Rig UDW Inc.
as Parent
|
||||
By:
|
/s/ Anthony Kandylidis
|
|||
Name:
|
||||
Title:
|
||||
Elliott Associates, LP
|
||||
By:
|
Elliott Capital Advisors, L.P., General Partner
|
|||
By:
|
Braxton Associates, Inc., General Partner
|
|||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Springfield Associates, LLC
|
||||
By:
|
Elliott Associates, L.P., as managing member
|
|||
By:
|
Elliott Capital Advisors, L.P., as general partner
|
|||
By:
|
Braxton Associates, Inc., as general partner
|
|||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Elliott International, LP
|
||||
By:
|
Elliott International Capital Advisors, Inc., as Attorney-in-Fact
|
|||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Kensington International Limited
|
||||
By:
|
Elliott International Capital Advisors, Inc., as Attorney-in-Fact
|
|||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Queensferry M LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry A LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry C LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry E LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry H LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Upton A LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Upton C LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry Y LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Upton E LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Athena Investments Holdings LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Upton I LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry B LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Upton B LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Upton D LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry N LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Queensferry O LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry P LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry Q LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry S LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry U LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Queensferry W LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry X LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Lovington Onshore LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Jesmond Holdings LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Bristol Partners LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Queensferry F LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry G LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry I LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry J LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry L LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
GIM Holdings LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Clementine Ltd.
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Benjamin Capital Ltd.
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Columbia Point Limited
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Winter Valley Offshore LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Queensferry D LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Upton F LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry R LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry V LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry Z LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
BLUEMOUNTAIN GUADALUPE PEAK FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN MONTENVERS MASTER FUND SCA SICAV-SIF
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN TIMBERLINE LTD.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN KICKING HORSE FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN LOGAN OPPORTUNITIES MASTER FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN SUMMIT TRADING L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN FOINAVEN MASTER FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN CREDIT ALTERNATIVES MASTER FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
AVENUE COPPERS OPPORTUNITIES FUND, L.P.
|
|||
By:
Avenue COPPERS Opportunities Fund GenPar, LLC,
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE-ASRS EUROPE OPPORTUNITIES FUND, L.P.
|
|||
By:
Avenue-ARS Europe Opportunities Fund GenPar, LLC,
its General Partner |
|||
By:
GL ASRS Europe Partners, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE ENERGY OPPORTUNITIES FUND, L.P.
|
|||
By:
Avenue Energy Opportunities Partners, LLC,
its General Partner |
|||
By:
GL Energy Opportunities Partners, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE ENTRUST CUSTOMIZED PORTFOLIO SPC ON BEHALF AND FOR THE
ACCOUNT OF AVENUE US/EUROPE DISTRESSED SEGREGATED PORTFOLIO
|
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE EUROPE OPPORTUNITIES MASTER FUND L.P.
|
|||
By:
Avenue Europe Opportunities Fund GenPar, LLC,
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE EUROPE SPECIAL SITUATIONS FUND III (U.S.), L.P.
|
|||
By:
Avenue Europe Capital Partners III, LLC,
its General Partner |
|||
By:
GL Europe Partners III, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE EUROPE SPECIAL SITUATIONS FUND III (EURO), L.P.
|
|||
By:
Avenue Europe Capital Partners III, LLC,
its General Partner |
|||
By:
GL Europe Partners III, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE INVESTMENTS, L.P.
|
|||
By:
Avenue Partners, LLC
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
AVENUE PPF OPPORTUNITIES FUND, L.P.
|
|||
By:
Avenue PPF Opportunities Fund GenPar, LLC,
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE SPECIAL OPPORTUNITIES FUND II, L.P.
|
|||
By:
Avenue SO Capital Partners II, LLC,
its General Partner |
|||
By:
GL SO Partners II, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
MANAGED ACCOUNTS MASTER FUND SERVICES – MAP10
a Sub Trust of Managed Accounts Master Fund Services |
|||
By:
Avenue Capital Management II, L.P.
its Investment Manager |
|||
By:
Avenue Capital Management II GenPar, LLC
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
HATHOR CAPITAL LIMITED
|
||||
By:
|
/s/ James Murphy
|
|||
Name: James Murphy
|
||||
Title: Attorney-in-Fact
|
||||
RICIMER CAPITAL LIMITED
|
||||
By:
|
/s/ James Murphy
|
|||
Name: James Murphy
|
||||
Title: Attorney-in-Fact
|
||||
SILVER TEAL CAPITAL LIMITED
|
||||
By:
|
/s/ James Murphy
|
|||
Name: James Murphy
|
||||
Title: Attorney-in-Fact
|
||||
CASTLE APRON CAPITAL LIMITED
|
||||
By:
|
/s/ James Murphy
|
|||
Name: James Murphy
|
||||
Title: Attorney-in-Fact
|
||||
LION POINT MASTER L.P.
|
||||
By:
Lion Point Capital, LP,
its investment manager |
||||
By:
|
/s/ James Murphy
|
|||
Name: James Murphy
|
||||
Title: COO/CFO
|
1. |
AMENDMENT
|
(a) |
by deleting the words "Term Loan Early Consent Date" where used in Clause 12.1, and replacing with the words "Term Loan Early Consent Deadline";
|
(b) |
by inserting the following words after the words "fail to vote" in Clause 12.1(b):
|
(c) |
by adding a new Clause 12.1(c) as follows:
|
(d) |
by deleting paragraph 12.3 and replacing with the following:
|
"(a) |
Any Supporting Creditor that accedes to this Agreement (with respect to DFH Scheme Claims and/or DOV Scheme Claims) before the Term Loan Early Consent Deadline and then acquires further DFH Scheme Claims, DOV Scheme Claims or DRH Scheme Claims after acceding to this Agreement but before the occurrence of the Term Loan Early Consent Deadline shall be entitled to a
pro rata
share of the Term Loan Early Consent Fee or DRH Early Consent Fee, as applicable, with respect to such Claims so long as such Supporting Creditor has timely provided all Supporting Creditor Update Notices in accordance with Clause 3.4(e) and 12.1(c) as of the Record Date, and to the extent that any such Claims have been acquired from another Supporting Creditor, the selling Supporting Creditor shall not be entitled to the Term Loan Early Consent Fee or DRH Early Consent Fee, as applicable, with respect to such Claims.
|
(b) |
Any Supporting Creditor that accedes to this Agreement (with respect to DRH Scheme Claims) before the DRH Early Consent Date and then acquires further DRH Scheme Claims, DFH Scheme Claims or DOV Scheme Claims after acceding to this Agreement (whether before, on, or after the DRH Early Consent Date) shall be entitled to a
pro rata
share of the DRH Early Consent Fee or the Term Loan Early Consent Fee, as applicable, with respect to such Claims so long as such Supporting Creditor has timely provided all Supporting Creditor Update Notices in accordance with Clause 3.4(e) and 12.1(c) as of the Record Date, and to the extent that any such Claims have been acquired from another Supporting Creditor, the
|
(e) |
by adding the following definition to Schedule 1
(Definitions):
|
(f) |
by deleting the definition "Term Loan Early Consent Date" from Schedule 1 (Definitions) and replacing with the following:
|
(g) |
by deleting Schedule 9
(Form of Supporting Creditor Update Notice)
and replacing it with the form annexed hereto as Exhibit A.
|
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 Amendment shall constitute a Restructuring Document for purposes of the RSA. Except as specifically amended by this Amendment, the RSA shall remain unchanged and unwaived and shall remain in full force and effect and are hereby ratified and confirmed. The amendment set forth herein shall be limited precisely as provided for herein to the provisions expressly amended herein and shall not be deemed to be an amendment or waiver of any right, power or remedy of any party hereto under, or an amendment or 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.
|
Ocean Rig UDW Inc.
as Parent
|
||||
By:
|
/s/ Anthony Kandylidis
|
|||
Name:
|
||||
Title:
|
||||
in Cayman | ||||
AVENUE COPPERS OPPORTUNITIES FUND, L.P.
|
|||
By:
Avenue COPPERS Opportunities Fund GenPar, LLC,
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE-ASRS EUROPE OPPORTUNITIES FUND, L.P.
|
|||
By:
Avenue-ARS Europe Opportunities Fund GenPar, LLC,
its General Partner |
|||
By:
GL ASRS Europe Partners, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE ENERGY OPPORTUNITIES FUND, L.P.
|
|||
By:
Avenue Energy Opportunities Partners, LLC,
its General Partner |
|||
By:
GL Energy Opportunities Partners, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE ENTRUST CUSTOMIZED PORTFOLIO SPC ON BEHALF AND FOR THE
ACCOUNT OF AVENUE US/EUROPE DISTRESSED SEGREGATED PORTFOLIO
|
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE EUROPE OPPORTUNITIES MASTER FUND L.P.
|
|||
By:
Avenue Europe Opportunities Fund GenPar, LLC,
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE EUROPE SPECIAL SITUATIONS FUND III (U.S.), L.P.
|
|||
By:
Avenue Europe Capital Partners III, LLC,
its General Partner |
|||
By:
GL Europe Partners III, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE EUROPE SPECIAL SITUATIONS FUND III (EURO), L.P.
|
|||
By:
Avenue Europe Capital Partners III, LLC,
its General Partner |
|||
By:
GL Europe Partners III, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE INVESTMENTS, L.P.
|
|||
By:
Avenue Partners, LLC
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
AVENUE PPF OPPORTUNITIES FUND, L.P.
|
|||
By:
Avenue PPF Opportunities Fund GenPar, LLC,
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE SPECIAL OPPORTUNITIES FUND II, L.P.
|
|||
By:
Avenue SO Capital Partners II, LLC,
its General Partner |
|||
By:
GL SO Partners II, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
MANAGED ACCOUNTS MASTER FUND SERVICES – MAP10
a Sub Trust of Managed Accounts Master Fund Services |
|||
By:
Avenue Capital Management II, L.P.
its Investment Manager |
|||
By:
Avenue Capital Management II GenPar, LLC
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
BLUEMOUNTAIN GUADALUPE PEAK FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN MONTENVERS MASTER FUND SCA SICAV-SIF
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN TIMBERLINE LTD.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN KICKING HORSE FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN LOGAN OPPORTUNITIES MASTER FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN SUMMIT TRADING L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN FOINAVEN MASTER FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN CREDIT ALTERNATIVES MASTER FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
Elliott Associates, LP
|
||||
By:
|
Elliott Capital Advisors, L.P., General Partner
|
|||
By:
|
Braxton Associates, Inc., General Partner
|
|||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Springfield Associates, LLC
|
||||
By:
|
Elliott Associates, L.P., as managing member
|
|||
By:
|
Elliott Capital Advisors, L.P., as general partner
|
|||
By:
|
Braxton Associates, Inc., as general partner
|
|||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Elliott International, LP
|
||||
By:
|
Elliott International Capital Advisors, Inc., as Attorney-in-Fact
|
|||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Kensington International Limited
|
||||
By:
|
Elliott International Capital Advisors, Inc., as Attorney-in-Fact
|
|||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Queensferry M LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry A LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry C LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry E LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry H LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Upton A LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Upton C LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry Y LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Upton E LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Athena Investments Holdings LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Upton I LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry B LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Upton B LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Upton D LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry N LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Queensferry O LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry P LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry Q LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry S LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry U LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Queensferry W LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry X LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Lovington Onshore LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Jesmond Holdings LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Bristol Partners LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Queensferry F LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry G LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry I LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry J LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry L LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
GIM Holdings LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Clementine Ltd.
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Benjamin Capital Ltd.
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Columbia Point Limited
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Winter Valley Offshore LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Queensferry D LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Upton F LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry R LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry V LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry Z LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
HATHOR CAPITAL LIMITED
|
||||
By:
|
/s/ James Murphy
|
|||
Name: James Murphy
|
||||
Title: Attorney-in-Fact
|
||||
RICIMER CAPITAL LIMITED
|
||||
By:
|
/s/ James Murphy
|
|||
Name: James Murphy
|
||||
Title: Attorney-in-Fact
|
||||
SILVER TEAL CAPITAL LIMITED
|
||||
By:
|
/s/ James Murphy
|
|||
Name: James Murphy
|
||||
Title: Attorney-in-Fact
|
||||
CASTLE APRON CAPITAL LIMITED
|
||||
By:
|
/s/ James Murphy
|
|||
Name: James Murphy
|
||||
Title: Attorney-in-Fact
|
||||
LION POINT MASTER L.P.
|
||||
By:
Lion Point Capital, LP,
its investment manager |
||||
By:
|
/s/ James Murphy
|
|||
Name: James Murphy
|
||||
Title: COO/CFO
|
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:
|
[Identify Supporting Creditor] (the
"
Supporting Creditor
")
|
Date:
|
[
·
]
|
Debt Instrument
|
Legal and Beneficial
Ownership Position (1) |
Open / Unsettled Trade
Position (1) |
Legal and Beneficial
Ownership Position + Unsettled Trade Position (1) |
DFH Loans
|
|||
DOV Loans
|
|||
DRH Bonds
|
|||
Parent Bonds
|
Debt Instrument
|
Legal and Beneficial
Ownership Position (A) |
Open / Unsettled Trade
Position (A) |
Legal and Beneficial
Ownership Position + Unsettled Trade Position (A) |
DFH Loans
|
|||
DOV Loans
|
|||
DRH Bonds
|
|||
Parent Bonds
|
Date
|
P / S
(A)
|
Counterparty
(if trading with a bank,
specify which desk or division is
the counterparty)
|
Debt Instrument
Type (B) |
Amount
(C)
|
Trade Status
(D)
|
Date
|
P / S
(A)
|
Counterparty
(if trading with a bank, specify which desk or division is the counterparty)
|
Debt Instrument
Type
(B)
|
Amount
(C)
|
Trade Status
(D)
|
1. |
AMENDMENT
|
(a) |
In Clause 9 (
THE RESTRUCTURING EFFECTIVE DATE
)
,
by (i) adding the words "subject to any applicable fee cap" at the beginning of paragraph (g), (ii) adding the words ", the DRH Group," after "the Group" and before the words "and to the Ad Hoc Committee" in paragraph (g), (iii) deleting the word "and" at the end of paragraph (g), (iv) by deleting the "." at the end of paragraph (h) and replacing it with "; and", and (v) by adding the following new paragraph (i):
|
(i) |
the documents constituting the Preserved Claims Trust shall have been executed and held in escrow until the Restructuring Effective Date in accordance with the Parent Scheme.
|
(b) |
In Clause 11 (
RESTRUCTURING EFFECTIVE DATE WAIVER AND RELEASE
)
by adding the words "to the Preserved Parent Claims or" before the words "to any claim arising out of" in the
proviso.
|
(c) |
by deleting the title to Clause 12 and replacing it with the following:
"
EARLY CONSENT/PUT OPTION
"
;
|
(d) |
In Clause 12.2
(
DRH EARLY CONSENT FEE
)
,
by deleting the text thereof in its entirety and replacing it with the following:
|
"(a) |
Subject to paragraph (b) below, each holder of DRH Scheme Claims that has acceded to this Agreement by the DRH Early Consent Deadline will receive its
pro rata
portion of the DRH Early Consent Fee with respect to such Claims (calculated with respect to all holders of DRH Scheme Claims who have acceded to this Agreement by the DRH Early Consent Deadline) on, and subject to the occurrence of, the Restructuring Effective Date of the DRH Scheme.
|
(b) |
Any holder of a DRH Scheme Claim that has acceded to this Agreement before the DRH Early Consent Deadline 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 DRH Early Consent Fee and any such 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."
|
(e) |
In Clause 12.3(b), by deleting the term "DRH Early Consent Date" each time it appears and replacing the term with "DRH Early Consent Deadline", and by adding the following parenthetical after the words "Record Date":
|
(f) |
by adding a new Clause 12.3.1 as follows:
|
(a) |
Any holder of a DRH Scheme Claim, regardless of whether such holder has acceded to this Agreement, may elect to exercise the DRH Put Option.
|
(b) |
If the DRH Scheme is sanctioned and becomes effective, each of the DRH Put Underwriters shall receive its
pro rata
share (calculated based on all DRH Scheme Claims held by each of the DRH Put Underwriters) of the DRH Put Underwriters Fee on the Restructuring Effective Date;
|
(c) |
The obligation of each DRH Put Underwriter to underwrite the DRH Put Option will be several and not joint and otherwise as specified in the DRH Put Underwriter Commitment Letter;
provided
, that in the event that a DRH Put Underwriter fails to fund its
pro rata
share of the DRH Put Price, the other non-defaulting DRH Put Underwriters may elect to, but are not obligated to, fund such defaulting DRH Put Underwriter's
pro rata
share of the DRH Put Price and receive such defaulting DRH Put Underwriter's
pro rata
share of the DRH Put Underwriters Fee (in accordance with Clause 12.3.1(b)). The obligation to fund the DRH Put Option and the corresponding right to receive a
pro rata
share of the DRH Put Underwriters Fee as described in Clause 12.3.1(b) will be fixed as of the date of this Amendment on
a
pro rata
basis (calculated based on all DRH Scheme Claims held by each of the DRH Put Underwriters on such date) (such DRH Scheme Claims, the
"
Backstop Rights
"
).
After the effective date of this Amendment, a holder of Backstop Rights may only transfer such Backstop Rights to a party other than a DRH Put Underwriter that is party to this Amendment (or any of its affiliates) with the consent of the Parent (which consent will not be unreasonably withheld). For the avoidance of doubt, the
DRH
Scheme Claims held by the DRH Put Underwriters shall, subject to the provisions of Clause 14
(Transfer of Claims),
remain freely tradeable
(i.e.,
without the consent of the Company or any other party)."
|
(g) |
by adding a new Clause 16.2(f), as follows:
|
"(f) |
by the Majority DRH Put Underwriters giving written notice to the Parent to terminate with respect to the DRH Put Underwriters only, if any of the following events occur (it being understood, for the avoidance of doubt, that any such termination on account of the foregoing shall also terminate the obligation of each DRH Put Underwriter to underwrite the DRH Put Option):
|
(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
|
(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 any of the Group Members fails, as determined in good faith by the Majority DRH Put Underwriters, to use commercially reasonable efforts to ensure that any of the steps described in Clause 8.2 (Scheme Implementation Steps) are satisfied;
|
(iv) |
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;
|
(v) |
if the Parent or any Group Member is or becomes a Sanctions Target;
|
(vi) |
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 DRH Put Underwriters, has failed to remedy such a breach by the earlier of (a) within 14 days of the receipt of written notice from the Majority DRH Put Underwriters, and (b) the Business Day immediately preceding the Restructuring Effective Date;
|
(vii) |
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;
|
(viii) |
if the Parent and its Significant Subsidiaries are unable to continue to manage their operations in the ordinary course of business; and
|
(ix) |
the Parent is in breach of its obligation under any fee arrangement to pay any professional fees, costs and expenses incurred by the DRH Put Underwriters, 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."
|
(h) |
In Clause 19.2 by (i) deleting the word "or" at the end of paragraph (e), (ii) by deleting the "." at the end of paragraph (f) and replacing it with "; and", (iii) by relabeling existing paragraph "(f)" as paragraph "(g)" and (iii) by adding the following new paragraph (f):
|
(i) |
In Clause 23.1 by deleting the "." at the end of the clause and inserting the following: "and
provided, further,
that no amendment or waiver may be made without the consent of the Majority DRH Put Underwriters that (i) materially adversely affects the rights and entitlements of the holders of the DRH Scheme Claims in a disproportionate manner to the rights and entitlement of the Supporting Creditors generally, or (ii) provides materially different treatment for the holders of the DRH Scheme Claims than provided in this Amendment (it being understood that any change to the definition of DRH Scheme Consideration or DRH Put Underwriters Fee shall constitute materially different treatment for purposes of this Clause 23)."
|
(j) |
by deleting clause (b) of the definition of "DRH Scheme Consideration" in Schedule 1
(Definitions)
and replacing it with the following:
|
(k) |
by deleting the definition
"DRH
Early Consent Date" from Schedule 1
(Definitions)
and replacing with the following:
|
(1) |
by deleting the amount "$2.5 million" in the definition of "DRH Early Consent Fee" in Schedule 1 (
Definitions
) and replacing it with "$3.0 million".
|
(m) |
by deleting the amount "40.2%" in the definition of "DFH Scheme Shares" in Schedule 1 (
Definitions
) and replacing it with "39.0%".
|
(n) |
by deleting the amount "36.0%" in the definition of "DOV Scheme Shares" in Schedule 1 (
Definitions
) and replacing it with "35.0%".
|
(o) |
by deleting the amount "2.9%" in the definition of "DRH Scheme Shares" in Schedule 1 (
Definitions
) and replacing it with "4.0%".
|
(p) |
by deleting the amount "9.5%" from the definition of "MEP" in Schedule 1 (
Definitions
) and replacing it with "9.3%".
|
(q) |
by adding the following definitions to Schedule 1 (
Definitions
) in respective alphabetical order:
|
(r) |
by deleting Schedule 3
(
Restructuring Term Sheet
)
and replacing it with the form annexed hereto as Exhibit A.
|
2.1 |
This Amendment shall become effective upon such time as the Amendment has been duly executed by each of Parent (on its own behalf and on behalf of each of the Scheme Companies) and the Majority Supporting Lenders on the date hereof
|
2.2 |
Notwithstanding anything to the contrary contained herein or in the RSA, the obligations of the members of the DRH Put Underwriters hereunder are subject to the rights of the advisors to the DRH Put Underwriters to review the Principal Restructuring Documents without interference with the promotion of the Schemes in order to assure compliance with the provisions of this Amendment.
|
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
|
4.1 |
This Amendment shall constitute a Restructuring Document for purposes of the RSA. Except as specifically amended by this Amendment, the RSA shall remain unchanged and unwaived and shall remain in full force and effect and is hereby ratified and confirmed. The amendment set forth herein shall be limited precisely as provided for herein to the provisions expressly amended herein and shall not be deemed to be an amendment or waiver of any right, power or remedy of any party hereto under, or an amendment or 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. Accordingly, upon the execution of Accession Letter by the DRH Put Underwriters in accordance with this Amendment, holders of approximately 57% of the DRH Scheme Claims in the aggregate will be parties to 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.
|
Ocean Rig UDW Inc.
as Parent
|
||||
By:
|
/s/ Anthony Kandylidis
|
|||
Name: Anthony Kandylidis
|
||||
Title: President & CFO
|
||||
AVENUE COPPERS OPPORTUNITIES FUND, L.P.
|
|||
By:
Avenue COPPERS Opportunities Fund GenPar, LLC,
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE-ASRS EUROPE OPPORTUNITIES FUND, L.P.
|
|||
By:
Avenue-ASRS Europe Opportunities Fund GenPar, LLC,
its General Partner |
|||
By:
GL ASRS Europe Partners, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE ENERGY OPPORTUNITIES FUND, L.P.
|
|||
By:
Avenue Energy Opportunities Partners, LLC,
its General Partner |
|||
By:
GL Energy Opportunities Partners, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE ENTRUST CUSTOMIZED PORTFOLIO SPC ON BEHALF AND FOR THE
ACCOUNT OF AVENUE US/EUROPE DISTRESSED SEGREGATED PORTFOLIO
|
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE EUROPE OPPORTUNITIES MASTER FUND L.P.
|
|||
By:
Avenue Europe Opportunities Fund GenPar, LLC,
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE EUROPE SPECIAL SITUATIONS FUND III (U.S.), L.P.
|
|||
By:
Avenue Europe Capital Partners III, LLC,
its General Partner |
|||
By:
GL Europe Partners III, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE EUROPE SPECIAL SITUATIONS FUND III (EURO) L.P.
|
|||
By:
Avenue Europe Capital Partners III, LLC,
its General Partner |
|||
By:
GL Europe Partners III, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE INVESTMENTS, L.P.
|
|||
By:
Avenue Partners, LLC
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
AVENUE PPF OPPORTUNITIES FUND, L.P.
|
|||
By:
Avenue PPF Opportunities Fund GenPar, LLC,
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
AVENUE SPECIAL OPPORTUNITIES FUND II, L.P.
|
|||
By:
Avenue SO Capital Partners II, LLC,
its General Partner |
|||
By:
GL SO Partners II, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
MANAGED ACCOUNTS MASTER FUND SERVICES – MAP10
a Sub Trust of Managed Accounts Master Fund Serrvices |
|||
By:
Avenue Capital Management II, L.P.
its Investment Manager |
|||
By:
Avenue Capital Management II GenPar, LLC
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name: Sonia Gardner
|
|||
Title: Member
|
|||
BLUEMOUNTAIN GUADALUPE PEAK FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN MONTENVERS MASTER FUND SCA SICAV-SIF
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN TIMBERLINE LTD.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN KICKING HORSE FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN LOGAN OPPORTUNITIES MASTER FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN SUMMIT TRADING L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN FOINAVEN MASTER FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
BLUEMOUNTAIN CREDIT ALTERNATIVES MASTER FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name: David M. O'Mara
|
|||
Title: Deputy General Counsel
|
|||
Elliott Associates, LP
|
||||
By:
|
Elliott Capital Advisors, L.P., General Partner
|
|||
By:
|
Braxton Associates, Inc., General Partner
|
|||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Springfield Associates, LLC
|
||||
By:
|
Elliott Associates, L.P., as managing member
|
|||
By:
|
Elliott Capital Advisors, L.P., as general partner
|
|||
By:
|
Braxton Associates, Inc., as general partner
|
|||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Elliott International, LP
|
||||
By:
|
Elliott International Capital Advisors, Inc.,
as Attorney-in-Fact
|
|||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Kensington International Limited
|
||||
By:
|
Elliott International Capital Advisors, Inc.,
as Attorney-in-Fact
|
|||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Queensferry M LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry A LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry C LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry E LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry H LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Upton A LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Upton C LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry Y LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Upton E LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Athena Investments Holdings LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Upton I LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry B LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Upton B LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Upton D LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry N LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Queensferry O LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry P LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry Q LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry S LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry U LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Queensferry W LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry X LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Lovington Onshore LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Jesmond Holdings LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Bristol Partners LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Queensferry F LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry G LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry I LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry J LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry L LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
GIM Holdings LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Clementine Ltd.
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Benjamin Capital Ltd.
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Columbia Point Limited
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Winter Valley Offshore LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
Queensferry D LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Upton F LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry R LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry V LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
||||
Queensferry Z LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name: Elliot Greenberg
|
||||
Title: Vice President
|
HATHOR CAPITAL LIMITED
|
||||
By:
|
/s/ James Murphy
|
|||
Name: James Murphy
|
||||
Title: Attorney-in-Fact
|
||||
RICIMER CAPITAL LIMITED
|
||||
By:
|
/s/ James Murphy
|
|||
Name: James Murphy
|
||||
Title: Attorney-in-Fact
|
||||
SILVER TEAL CAPITAL LIMITED
|
||||
By:
|
/s/ James Murphy
|
|||
Name: James Murphy
|
||||
Title: Attorney-in-Fact
|
||||
CASTLE APRON CAPITAL LIMITED
|
||||
By:
|
/s/ James Murphy
|
|||
Name: James Murphy
|
||||
Title: Attorney-in-Fact
|
||||
LION POINT MASTER L.P.
|
||||
By:
Lion Point Capital, LP,
its investment manager |
||||
By:
|
/s/ James Murphy
|
|||
Name: James Murphy
|
||||
Title: COO/CFO
|
1. Parent Scheme
|
|
Parent Scheme Consideration
|
In exchange for its Parent Scheme Claims, each Parent Scheme Claim Holder will receive: either (i) its
pro rata
share of the Parent Scheme Shares or (ii) if the relevant Parent Scheme Claim Holders has exercised its Cash Option, its
pro rata
share of the Parent Scheme Cash Consideration.
If any Parent Scheme Claim Holders exercise their Cash Option, the Parent Scheme Shares that would otherwise be distributed to such Parent Scheme Claim Holders shall be distributed, on
a
pro rata
basis, to the Parent Scheme Claim Holders who have not exercised their Cash Option.
|
Voting: Group Member Bondholders and Affiliates of Parent
|
No Parent Scheme Claims held by any Group Member Bondholder or Affiliate of the Parent shall be voted in the Parent Scheme.
|
2. DFH Scheme
|
|
DFH Scheme Consideration
|
Each holder of a DFH Scheme Claim will exchange its DFH Loans with the Parent for its
pro rata
portion of the DFH Scheme Consideration.
|
3. DOV Scheme
|
|
DOV Scheme Consideration
|
Each holder of a DOV Scheme Claim will exchange its DOV Loans with the Parent for its
pro rata
portion of the DOV Scheme Consideration.
|
4. DRH Scheme
|
|
DRH Scheme Consideration
|
If each of the Parent Scheme and the DRH Scheme are sanctioned and become effective on the Restructuring Effective Date, each holder of a DRH Scheme Claim will exchange its DRH Bonds with the Parent for its
pro rata
portion of the applicable DRH Scheme Consideration (it being understood that the DRH Scheme Shares that would otherwise be distributed to the DRH Holders who properly exercise the DRH Put Option to receive the DRH Put Consideration will be transferred to the DRH Put Underwriters upon the payment of the DRH Put Price).
|
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.
|
4.1 |
This Amendment shall constitute a Restructuring Document for purposes of the RSA. Except as specifically amended by this Amendment, the RSA shall remain unchanged and unwaived and shall remain in full force and effect and is hereby ratified and confirmed. The amendment set forth herein shall be limited precisely as provided for herein to the provisions expressly amended herein and shall not be deemed to be an amendment or waiver of any right, power or remedy of any party hereto under, or an amendment or 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.
|
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.
|
Ocean Rig UDW Inc.
as Parent
|
||||
By:
|
/s/ Anthony Kandylidis
|
|||
Name:
Anthony Kandylidis
|
||||
Title:
President & CFO
|
||||
AVENUE COPPERS OPPORTUNITIES FUND, L.P.
|
|||
By:
Avenue COPPERS Opportunities Fund GenPar, LLC,
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name:
Sonia Gardner
|
|||
Title:
Member
|
|||
AVENUE-ASRS EUROPE OPPORTUNITIES FUND, L.P.
|
|||
By:
Avenue-ASRS Copper Europe Opportunities Fund GenPar, LLC,
its General Partner |
|||
By:
GL ASRS Europe Partners, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name:
Sonia Gardner
|
|||
Title:
Member
|
|||
AVENUE ENERGY OPPORTUNITIES FUND, L.P.
|
|||
By:
Avenue Energy Opportunities Partners, LLC,
its General Partner |
|||
By:
GL Energy Opportunities Partners, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name:
Sonia Gardner
|
|||
Title:
Member
|
|||
AVENUE ENTRUST CUSTOMIZED PORTFOLIO SPC ON BEHALF AND FOR THE
ACCOUNT OF AVENUE US/EUROPE DISTRESSED SEGREGATED PORTFOLIO
|
|||
By:
|
/s/ Sonia Gardner
|
||
Name:
Sonia Gardner
|
|||
Title:
Member
|
|||
AVENUE EUROPE OPPORTUNITIES MASTER FUND L.P.
|
|||
By:
Avenue Europe Opportunities Fund GenPar, LLC,
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name:
Sonia Gardner
|
|||
Title:
Member
|
|||
AVENUE EUROPE SPECIAL SITUATIONS FUND III (U.S.), L.P.
|
|||
By:
Avenue Europe Capital Partners III, LLC,
its General Partner |
|||
By:
GL Europe Partners III, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name:
Sonia Gardner
|
|||
Title:
Member
|
|||
AVENUE EUROPE SPECIAL SITUATIONS FUND III (EURO), L.P.
|
|||
By:
Avenue Europe Capital Partners III, LLC,
its General Partner |
|||
By:
GL Europe Partners III, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name:
Sonia Gardner
|
|||
Title:
Member
|
|||
AVENUE INVESTMENTS, L.P.
|
|||
By:
Avenue Partners, LLC
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name:
Sonia Gardner
|
|||
Title:
Member
|
|||
AVENUE PPF OPPORTUNITIES FUND, L.P.
|
|||
By:
Avenue PPF Opportunities Fund GenPar, LLC,
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name:
Sonia Gardner
|
|||
Title:
Member
|
|||
AVENUE SPECIAL OPPORTUNITIES FUND II, L.P.
|
|||
By:
Avenue SO Capital Partners II, LLC,
its General Partner |
|||
By:
GL SO Partners II, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name:
Sonia Gardner
|
|||
Title:
Member
|
|||
MANAGED ACCOUNTS MASTER FUND SERVICES – MAP10
a Sub Trust of Managed Accounts Master Fund Services |
|||
By:
Avenue Capital Management II, L.P.
its Investment Manager |
|||
By:
Avenue Capital Management II GenPar, LLC
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name:
Sonia Gardner
|
|||
Title:
Member
|
|||
BLUEMOUNTAIN GUADALUPE PEAK FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name:
David M. O'Mara
|
|||
Title:
Deputy General Counsel
|
|||
BLUEMOUNTAIN MONTENVERS MASTER FUND SCA SICAV-SIF
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name:
David M. O'Mara
|
|||
Title:
Deputy General Counsel
|
|||
BLUEMOUNTAIN TIMBERLINE LTD.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name:
David M. O'Mara
|
|||
Title:
Deputy General Counsel
|
|||
BLUEMOUNTAIN KICKING HORSE FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name:
David M. O'Mara
|
|||
Title:
Deputy General Counsel
|
|||
BLUEMOUNTAIN LOGAN OPPORTUNITIES MASTER FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name:
David M. O'Mara
|
|||
Title:
Deputy General Counsel
|
|||
BLUEMOUNTAIN SUMMIT TRADING L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name:
David M. O'Mara
|
|||
Title:
Deputy General Counsel
|
|||
BLUEMOUNTAIN FOINAVEN MASTER FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name:
David M. O'Mara
|
|||
Title:
Deputy General Counsel
|
|||
BLUEMOUNTAIN CREDIT ALTERNATIVES MASTER FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ David M. O'Mara
|
||
Name:
David M. O'Mara
|
|||
Title:
Deputy General Counsel
|
|||
Elliott Associates, LP
|
||||
By:
|
Elliott Capital Advisors, L.P., General Partner
|
|||
By:
|
Braxton Associates, Inc., General Partner
|
|||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Springfield Associates, LLC
|
||||
By:
|
Elliott Associates, L.P., as managing member
|
|||
By:
|
Elliott Capital Advisors, L.P., as general partner
|
|||
By:
|
Braxton Associates, Inc., as general partner
|
|||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Elliott International, LP
|
||||
By:
|
Elliott International Capital Advisors, Inc., as Attorney-in-Fact
|
|||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Kensington International Limited
|
||||
By:
|
Elliott International Capital Advisors, Inc., as Attorney-in-Fact
|
|||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
Queensferry M LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry A LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry C LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry E LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry H LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
Upton A LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Upton C LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry Y LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Upton E LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Athena Investments Holdings LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
Upton I LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry B LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Upton B LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Upton D LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry N LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
Queensferry O LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry P LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry Q LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry S LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry U LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry W LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry X LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Lovington Onshore LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Jesmond Holdings LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Bristol Partners LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry F LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry G LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry I LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry J LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry L LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
GIM Holdings LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Clementine Ltd.
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Benjamin Capital Ltd.
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Columbia Point Limited
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Winter Valley Offshore LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
Queensferry D LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Upton F LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry R LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry V LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry Z LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
HATHOR CAPITAL LIMITED
|
||||
By:
|
/s/ James Murphy
|
|||
Name:
James Murphy
|
||||
Title:
Attorney-in-Fact
|
||||
RICIMER CAPITAL LIMITED
|
||||
By:
|
/s/ James Murphy
|
|||
Name:
James Murphy
|
||||
Title:
Attorney-in-Fact
|
||||
SILVER TEAL CAPITAL LIMITED
|
||||
By:
|
/s/ James Murphy
|
|||
Name:
James Murphy
|
||||
Title:
Attorney-in-Fact
|
||||
CASTLE APRON CAPITAL LIMITED
|
||||
By:
|
/s/ James Murphy
|
|||
Name: James Murphy
|
||||
Title: Attorney-in-Fact
|
||||
LION POINT MASTER L.P.
|
||||
By:
Lion Point Capital, LP,
its investment manager |
||||
By:
|
/s/ James Murphy
|
|||
Name:
James Murphy
|
||||
Title:
COO/CFO
|
||||
1.
|
WAIVER
|
1.1 |
As of the date hereof, the parties hereto hereby waive all obligations of any Group Member with respect to Clauses 3.3(i), (j) and (k) of the RSA as they apply to the Reverse Stock Split and the Cancellation.
|
1.2 |
As of the date hereof, the parties hereto hereby waive the condition at Clause 9(c), 9(e), in respect of the Post-Completion Restructuring Documents only, and (f) of the RSA as a condition necessary for the Restructuring Effective Date to occur.
|
2.
|
CONDITIONS TO EFFECTIVENESS AND INFORMATION SHARING
|
3.
|
REPRESENTATIONS AND WARRANTIES
|
3.1 |
The Supporting Creditors party hereto represent and warrant that they constitute the Majority Supporting Lenders under the RSA.
|
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.
|
AMENDMENT TO THE RSA
|
(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.
|
10.2 |
Within five Business Days of the New Parent Articles being adopted, Parent shall procure that each rig or vessel owning member of the Group and their direct and indirect holding companies (excluding Parent) has amended its
|
organisational documents to include an express provision prohibiting it from taking any action not in accordance with the New Parent Articles."
|
5.
|
REFERENCE TO AND EFFECT ON THE RSA
|
6.
|
HEADINGS
|
7.
|
APPLICABLE LAW
|
8.
|
COUNTERPARTS
|
8.1 |
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.
|
8.2 |
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.
|
Ocean Rig UDW Inc.,
as Parent
|
||||
By:
|
/s/ Anthony Kandylidis
|
|||
Name:
Anthony Kandylidis
|
||||
Title:
President & CFO
|
||||
GL EUROPE LUXEMBOURG III (US) INVESTMENTS S.A.R.L.
|
|||||
By:
|
/s/ Jorrit Crompvoets
|
By:
|
/s/ Sharon Callahan
|
||
Name:
Jorrit Crompvoets
|
Name:
Sharon Callahan
|
||||
Title:
Manager
|
Title:
Manager
|
||||
By:
|
|
|||
|
||||
|
AVENUE ENERGY OPPORTUNITIES FUND, L.P.
|
|||
By:
Avenue Energy Opportunities Partners, LLC,
its General Partner |
|||
By:
GL Energy Opportunities Partners, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name:
Sonia Gardner
|
|||
Title:
Managing Member
|
|||
By:
|
|
|||
|
||||
|
GL EUROPE ASRS INVESTMENTS S.A.R.L.
|
|||||
By:
|
/s/ Jorrit Crompvoets
|
By:
|
/s/ Sharon Callahan
|
||
Name:
Jorrit Crompvoets
|
Name:
Sharon Callahan
|
||||
Title:
Manager
|
Title:
Manager
|
||||
By:
|
|
|||
|
||||
|
GL EUROPE LUXEMBOURG S.A.R.L.
|
|||||
By:
|
/s/ Jorrit Crompvoets
|
By:
|
/s/ Sharon Callahan
|
||
Name:
Jorrit Crompvoets
|
Name:
Sharon Callahan
|
||||
Title:
Manager
|
Title:
Manager
|
||||
By:
|
|
|||
|
||||
|
GL EUROPE LUXEMBOURG III (EUR) INVESTMENTS S.A.R.L.
|
|||||
By:
|
/s/ Jorrit Crompvoets
|
By:
|
/s/ Sharon Callahan
|
||
Name:
Jorrit Crompvoets
|
Name:
Sharon Callahan
|
||||
Title:
Manager
|
Title:
Manager
|
||||
By:
|
|
|||
|
||||
|
AVENUE INVESTMENTS, L.P.
|
|||
By:
Avenue Partners, LLC,
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name:
Sonia Gardner
|
|||
Title: Managing
Member
|
|||
AVENUE PPF OPPORTUNITIES FUND, L.P.
|
|||
By:
Avenue PPF Opportunities Fund GenPar, LLC,
its General Partner |
|||
By:
|
/s/ Sonia Gardner
|
||
Name:
Sonia Gardner
|
|||
Title: Managing
Member
|
|||
AVENUE SPECIAL OPPORTUNITIES FUND II, L.P.
|
|||
By:
Avenue SO Capital Partners II, LLC,
its General Partner |
|||
By:
GL SO Partners II, LLC,
its Managing Member |
|||
By:
|
/s/ Sonia Gardner
|
||
Name:
Sonia Gardner
|
|||
Title: Managing
Member
|
|||
BLUEMOUNTAIN GUADALUPE PEAK FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ Kyle Brady
|
||
Name:
Kyle Brady
|
|||
Title:
Associate General Counsel
|
|||
BLUEMOUNTAIN MONTENVERS MASTER FUND SCA SICAV-SIF
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ Kyle Brady
|
||
Name:
Kyle Brady
|
|||
Title:
Associate General Counsel
|
|||
BLUEMOUNTAIN TIMBERLINE LTD.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ Kyle Brady
|
||
Name:
Kyle Brady
|
|||
Title:
Associate General Counsel
|
|||
BLUEMOUNTAIN KICKING HORSE FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ Kyle Brady
|
||
Name:
Kyle Brady
|
|||
Title:
Associate General Counsel
|
|||
BLUEMOUNTAIN LOGAN OPPORTUNITIES MASTER FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ Kyle Brady
|
||
Name:
Kyle Brady
|
|||
Title:
Associate General Counsel
|
|||
BLUEMOUNTAIN SUMMIT TRADING L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ Kyle Brady
|
||
Name:
Kyle Brady
|
|||
Title:
Associate General Counsel
|
|||
BLUEMOUNTAIN FOINAVEN MASTER FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ Kyle Brady
|
||
Name:
Kyle Brady
|
|||
Title:
Associate General Counsel
|
|||
BLUEMOUNTAIN CREDIT ALTERNATIVES MASTER FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ Kyle Brady
|
||
Name:
Kyle Brady
|
|||
Title:
Associate General Counsel
|
|||
BLUEMOUNTAIN FURSAN FUND L.P.
|
|||
By:
BlueMountain Capital Management, LLC,
its investment manager |
|||
By:
|
/s/ Kyle Brady
|
||
Name:
Kyle Brady
|
|||
Title:
Associate General Counsel
|
Amundi Absolute Return Canyon Fund P.C., in respect of Amundi Absolute Return
Canyon Reflection Fund |
|||
acting by
Canyon Capital Advisors, LLC,
its Trading Manager,
|
|||
acting by:
|
/s/ Jonathan M. Kaplan
|
||
Name:
Jonathan M. Kaplan
|
|||
Title:
Authorized Signatory
|
|||
Canyon-ASP Fund, L.P.
|
|||
acting by
Canyon Capital Advisors, LLC,
its Investment Advisor,
|
|||
acting by:
|
/s/ Jonathan M. Kaplan
|
||
Name:
Jonathan M. Kaplan
|
|||
Title:
Authorized Signatory
|
|||
Canyon-GRF Master Fund II, L.P.
|
|||
acting by
Canyon Capital Advisors, LLC,
its Investment Advisor,
|
|||
acting by:
|
/s/ Jonathan M. Kaplan
|
||
Name:
Jonathan M. Kaplan
|
|||
Title:
Authorized Signatory
|
|||
Canyon-SL Value Fund, L.P.
|
|||
acting by
Canyon Capital Advisors, LLC,
its Investment Advisor,
|
|||
acting by:
|
/s/ Jonathan M. Kaplan
|
||
Name:
Jonathan M. Kaplan
|
|||
Title:
Authorized Signatory
|
|||
Canyon Balanced Master Fund, Ltd.
|
|||
acting by
Canyon Capital Advisors, LLC,
its Investment Advisor,
|
|||
acting by:
|
/s/ Jonathan M. Kaplan
|
||
Name:
Jonathan M. Kaplan
|
|||
Title:
Authorized Signatory
|
|||
Canyon Blue Credit Investment Fund, L.P.
|
|||
acting by
Canyon Capital Advisors, LLC,
its co-Investment Advisor,
|
|||
acting by:
|
/s/ Jonathan M. Kaplan
|
||
Name:
Jonathan M. Kaplan
|
|||
Title:
Authorized Signatory
|
|||
acting by
Canyon Partners Real Estate, LLC,
its co-Investment Advisor,
|
|||
acting by:
|
/s/ Jonathan M. Kaplan
|
||
Name:
Jonathan M. Kaplan
|
|||
Title:
Authorized Signatory
|
|||
Canyon Distressed Opportunity Investing Fund II, L.P.
|
|||
acting by
Canyon Capital Advisors, LLC,
its Investment Advisor,
|
|||
acting by:
|
/s/ Jonathan M. Kaplan
|
||
Name:
Jonathan M. Kaplan
|
|||
Title:
Authorized Signatory
|
|||
Canyon Distressed Opportunity Master Fund II, L.P.
|
|||
acting by
Canyon Capital Advisors, LLC,
its Investment Advisor,
|
|||
acting by:
|
/s/ Jonathan M. Kaplan
|
||
Name:
Jonathan M. Kaplan
|
|||
Title:
Authorized Signatory
|
|||
Canyon NZ-DOF Investing, L.P.
|
|||
acting by
Canyon Capital Advisors, LLC,
its Investment Advisor,
|
|||
acting by:
|
/s/ Jonathan M. Kaplan
|
||
Name:
Jonathan M. Kaplan
|
|||
Title:
Authorized Signatory
|
|||
Canyon Value Realization Fund, L.P.
|
|||
acting by
Canyon Capital Advisors, LLC,
its Investment Advisor,
|
|||
acting by:
|
/s/ Jonathan M. Kaplan
|
||
Name:
Jonathan M. Kaplan
|
|||
Title:
Authorized Signatory
|
|||
Canyon Value Realization MAC 18 Ltd.
|
|||
acting by
Canyon Capital Advisors, LLC,
its Investment Advisor,
|
|||
acting by:
|
/s/ Jonathan M. Kaplan
|
||
Name:
Jonathan M. Kaplan
|
|||
Title:
Authorized Signatory
|
|||
EP Canyon Ltd. (formerly known as Permal Canyon IO Ltd.)
|
|||
acting by
Canyon Capital Advisors, LLC,
its Investment Advisor,
|
|||
acting by:
|
/s/ Jonathan M. Kaplan
|
||
Name:
Jonathan M. Kaplan
|
|||
Title:
Authorized Signatory
|
|||
Permal Managed Account Platform ICAV for and on behalf of P Canyon IE
|
|||
acting by
Canyon Capital Advisors, LLC,
its Investment Advisor,
|
|||
acting by:
|
/s/ Jonathan M. Kaplan
|
||
Name:
Jonathan M. Kaplan
|
|||
Title:
Authorized Signatory
|
|||
The Canyon Value Realization Master Fund, L.P.
|
|||
acting by
Canyon Capital Advisors, LLC,
its Investment Advisor,
|
|||
acting by:
|
/s/ Jonathan M. Kaplan
|
||
Name:
Jonathan M. Kaplan
|
|||
Title:
Authorized Signatory
|
|||
Elliott Associates, LP
|
||||
By:
|
Elliott Capital Advisors, L.P., General Partner
|
|||
By:
|
Braxton Associates, Inc., General Partner
|
|||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Springfield Associates, LLC
|
||||
By:
|
Elliott Associates, L.P., as managing member
|
|||
By:
|
Elliott Capital Advisors, L.P., as general partner
|
|||
By:
|
Braxton Associates, Inc., as general partner
|
|||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Elliott International, LP
|
||||
By:
|
Elliott International Capital Advisors, Inc., as Attorney-in-Fact
|
|||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Kensington International Limited
|
||||
By:
|
Elliott International Capital Advisors, Inc., as Attorney-in-Fact
|
|||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
Queensferry M LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry A LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry C LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry E LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry H LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
Upton A LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Upton C LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry Y LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Upton E LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Athena Investments Holdings LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
Upton I LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry B LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Upton B LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Upton D LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry N LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
Queensferry O LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry P LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry Q LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry S LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry U LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry W LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry X LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Lovington Onshore LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Jesmond Holdings LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Bristol Partners LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry F LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry G LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry I LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry J LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry L LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
GIM Holdings LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Clementine Ltd.
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Benjamin Capital Ltd.
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Columbia Point Limited
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Winter Valley Offshore LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
Queensferry D LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Upton F LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry R LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry V LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
||||
Queensferry Z LLC
|
||||
By:
|
/s/ Elliot Greenberg
|
|||
Name:
Elliot Greenberg
|
||||
Title:
Vice President
|
HATHOR CAPITAL LIMITED
|
||||
By:
|
/s/ James Murphy
|
|||
Name:
James Murphy
|
||||
Title:
Attorney-in-Fact
|
||||
RICIMER CAPITAL LIMITED
|
||||
By:
|
/s/ James Murphy
|
|||
Name:
James Murphy
|
||||
Title:
Attorney-in-Fact
|
||||
SILVER TEAL CAPITAL LIMITED
|
||||
By:
|
/s/ James Murphy
|
|||
Name:
James Murphy
|
||||
Title:
Attorney-in-Fact
|
||||
CASTLE APRON CAPITAL LIMITED
|
||||
By:
|
/s/ James Murphy
|
|||
Name: James Murphy
|
||||
Title: Attorney-in-Fact
|
||||
LION POINT MASTER L.P.
|
||||
By:
Lion Point Capital, LP,
its investment manager |
||||
By:
|
/s/ James Murphy
|
|||
Name:
James Murphy
|
||||
Title:
COO/CFO
|
||||
OZ Special Master Fund, Ltd.
|
|||||||
By:
OZ Management LP,
its investment manager
|
|||||||
By:
Och-Ziff Holding Corporation,
its general partner
|
|||||||
By:
|
/s/ Wayne Cohen
|
||||||
Name:
Wayne Cohen
|
|||||||
Title:
President and Chief Operating Officer
|
|||||||
Och-Ziff Capital Structure Arbitrage Master Fund Ltd.
|
|||||||
By:
OZ Management LP,
its investment manager
|
|||||||
By:
Och-Ziff Holding Corporation,
its general partner
|
|||||||
By:
|
/s/ Wayne Cohen
|
||||||
Name:
Wayne Cohen
|
|||||||
Title:
President and Chief Operating Officer
|
|||||||
DRILLSHIP HYDRA OWNERS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
DRILLSHIP PAROS OWNERS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
DRILLSHIP KITHIRA OWNERS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
DRILLSHIP SKOPELOS OWNERS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
DRILLSHIP SKIATHOS OWNERS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
DRILLSHIP SKYROS OWNERS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
DRILLSHIP KYTHNOS OWNERS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
AGON SHIPPING INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
DRILLSHIPS FINANCE HOLDING INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
DRILLSHIPS OCEAN VENTURES INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
DRILLSHIPS VENTURES PROJECTS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
DRILLSHIPS PROJECTS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
DRILL RIGS HOLDINGS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
OCEAN RIG 1 INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
OCEAN RIG 2 INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
OCEAN RIG UDW INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
OCEAN RIG 1 SHAREHOLDERS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
OCEAN RIG 2 SHAREHOLDERS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
DRILL RIGS OPERATIONS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
OR NORGE OPERATIONS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
DRILLSHIPS HOLDINGS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
DRILLSHIPS INVESTMENTS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
DRILLSHIP HYDRA SHAREHOLDERS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
DRILLSHIP PAROS SHAREHOLDERS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
DRILLSHIPS HOLDINGS OPERATIONS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
OCEAN RIG BLACK SEA COÖPERATIEF U.A.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
OCEAN RIG BLACK SEA OPERATIONS B.V.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
KITHIRA SHAREHOLDERS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
SKOPELOS SHAREHOLDERS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
OCEAN RIG DRILLING OPERATIONS COÖPERATIEF U.A.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
OCEAN RIG DRILLING OPERATIONS B.V.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
DRILLSHIPS INVESTMENT OPERATIONS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
OCEAN RIG CUANZA OPERATIONS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
DRILLSHIP SKIATHOS SHAREHOLDERS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
DRILLSHIP SKYROS SHAREHOLDERS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
DRILLSHIP KYTHNOS SHAREHOLDERS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
DRILLSHIPS OCEAN VENTURES OPERATIONS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
OCEAN RIG CUBANGO OPERATIONS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
OCEAN RIG OPERATIONS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
OCEAN RIG MANAGEMENT SERVICES INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
OCEAN RIG CAYMAN MANAGEMENT SERVICES SEZC LIMITED
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
OCEAN RIG NORTH SEA AS
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
OCEAN RIG AS
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
OCEAN RIG OFFSHORE MANAGEMENT LIMITED
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
OR CREWING LIMITED
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
OCEAN RIG MANAGEMENT INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
EASTERN MED CONSULTANTS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
OCEAN RIG INVESTMENT INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
PRIMELEAD LIMITED
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
SHIP INVESTMENT OCEAN HOLDINGS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
KALAMBO OPERATIONS INC.
|
|||||
By:
|
/s/ Savvas Tournis
|
||||
Name: Savvas Tournis
|
|||||
Title: Attorney-in-Fact
|
Transamerica Life Insurance Company
|
|||||
BY: AEGON USA, as its Investment Advisor
|
|||||
By:
|
/s/ Rishi Goel
|
||||
Name: Rishi Goel
|
|||||
Title: Vice President
|
By:
|
|||||
Name:
|
|||||
Title:
|
AEGON Companies Pension Trust
|
|||||
BY: AEGON USA, as its Investment Advisor
|
|||||
By:
|
/s/ Ruth Dominguez
|
||||
Name: Ruth Dominguez
|
|||||
Title: Associate Director
|
By:
|
|||||
Name:
|
|||||
Title:
|
Banc of America Credit Products Inc.
|
|||||
By:
|
/s/ Margaret Sang
|
||||
Name: Margaret Sang
|
|||||
Title: Authorized Signatory
|
Barclays Bank PLC
|
|||||
By:
|
/s/ Salvatore Russo
|
||||
Name: Salvatore Russo
|
|||||
Title: Authorized Signatory
|
JPMBI re Blackrock Bankloan Fund
|
|||||
BY: BlackRock Financial Management Inc., as Sub-Advisor
|
|||||
By:
|
/s/ Rob Jacobi
|
||||
Name: Rob Jacobi
|
|||||
Title: Authorized Signatory
|
By:
|
|||||
Name:
|
|||||
Title:
|
Mass Mutual BlackRock Select Allocation Fund
|
|||||
BY: BlackRock Financial Management Inc., its Sub-Advisor
|
|||||
By:
|
/s/ Rob Jacobi
|
||||
Name: Rob Jacobi
|
|||||
Title: Authorized Signatory
|
By:
|
|||||
Name:
|
|||||
Title:
|
BlackRock Debt Strategies Fund, Inc.
|
|||||
BY: BlackRock Financial Management Inc., its Sub-Advisor
|
|||||
By:
|
/s/ Rob Jacobi
|
||||
Name: Rob Jacobi
|
|||||
Title: Authorized Signatory
|
By:
|
|||||
Name:
|
|||||
Title:
|
BlackRock Credit Strategies Income Fund of BlackRock Funds II
|
|||||
By: BlackRock Advisors, LLC, its Investment Advisor
|
|||||
By:
|
/s/ Rob Jacobi
|
||||
Name: Rob Jacobi
|
|||||
Title: Authorized Signatory
|
By:
|
|||||
Name:
|
|||||
Title:
|
BlackRock Floating Rate Income Strategies Fund, Inc.
|
|||||
BY: BlackRock Financial Management, Inc., its Sub-Advisor
|
|||||
By:
|
/s/ Rob Jacobi
|
||||
Name: Rob Jacobi
|
|||||
Title: Authorized Signatory
|
By:
|
|||||
Name:
|
|||||
Title:
|
BlackRock Floating Rate Income Trust
|
|||||
By: BlackRock Advisors, LLC, its Investment Advisor
|
|||||
By:
|
/s/ Rob Jacobi
|
||||
Name: Rob Jacobi
|
|||||
Title: Authorized Signatory
|
By:
|
|||||
Name:
|
|||||
Title:
|
BlackRock Funds II, BlackRock Floating Rate Income Portfolio
|
|||||
By: BlackRock Advisors, LLC, its Investment Advisor
|
|||||
By:
|
/s/ Rob Jacobi
|
||||
Name: Rob Jacobi
|
|||||
Title: Authorized Signatory
|
By:
|
|||||
Name:
|
|||||
Title:
|
BlackRock Limited Duration Income Trust
|
|||||
BY: BlackRock Financial Management, Inc., its Sub-Advisor
|
|||||
By:
|
/s/ Rob Jacobi
|
||||
Name: Rob Jacobi
|
|||||
Title: Authorized Signatory
|
By:
|
|||||
Name:
|
|||||
Title:
|
BlackRock Senior Floating Rate Portfolio
|
|||||
BY: BlackRock Investment Management, LLC, its Investment Advisor
|
|||||
By:
|
/s/ Rob Jacobi
|
||||
Name: Rob Jacobi
|
|||||
Title: Authorized Signatory
|
By:
|
|||||
Name:
|
|||||
Title:
|
BLUEMOUNTAIN GUADALUPE PEAK FUND L.P.
|
|||||||
By: BlueMountain Capital Management, LLC, its investment manager
|
|||||||
By:
|
/s/ David M. O'Mara
|
||||||
Name: David M. O'Mara
|
|||||||
Title: Deputy General Counsel
|
BLUEMOUNTAIN MONTENVERS MASTER FUND SCA SICAV-SIF
|
||||||
By: BlueMountain Capital Management, LLC, its investment manager
|
||||||
By:
|
/s/ David M. O'Mara
|
|||||
Name: David M. O'Mara
|
||||||
Title: Deputy General Counsel
|
BLUEMOUNTAIN TIMBERLINE LTD.
|
||||||
By: BlueMountain Capital Management, LLC, its investment manager
|
||||||
By:
|
/s/ David M. O'Mara
|
|||||
Name: David M. O'Mara
|
||||||
Title: Deputy General Counsel
|
BLUEMOUNTAIN KICKING HORSE FUND L.P.
|
|||||||
By: BlueMountain Capital Management, LLC, its investment manager
|
|||||||
By:
|
/s/ David M. O'Mara
|
||||||
Name: David M. O'Mara
|
|||||||
Title: Deputy General Counsel
|
BLUEMOUNTAIN LOGAN OPPORTUNITIES MASTER FUND L.P.
|
||||||
By: BlueMountain Capital Management, LLC, its investment manager
|
||||||
By:
|
/s/ David M. O'Mara
|
|||||
Name: David M. O'Mara
|
||||||
Title: Deputy General Counsel
|
BLUEMOUNTAIN SUMMIT TRADING L.P.
|
||||||
By: BlueMountain Capital Management, LLC, its investment manager
|
||||||
By:
|
/s/ David M. O'Mara
|
|||||
Name: David M. O'Mara
|
||||||
Title: Deputy General Counsel
|
BLUEMOUNTAIN FOINAVEN MASTER FUND L.P.
|
|||||||
By: BlueMountain Capital Management, LLC, its investment manager
|
|||||||
By:
|
/s/ David M. O'Mara
|
||||||
Name: David M. O'Mara
|
|||||||
Title: Deputy General Counsel
|
BLUEMOUNTAIN CREDIT ALTERNATIVES MASTER FUND L.P.
|
||||||
By: BlueMountain Capital Management, LLC, its investment manager
|
||||||
By:
|
/s/ David M. O'Mara
|
|||||
Name: David M. O'Mara
|
||||||
Title: Deputy General Counsel
|
BLUEMOUNTAIN FURSAN FUND L.P.
|
||||||
By: BlueMountain Capital Management, LLC, its investment manager
|
||||||
By:
|
/s/ David M. O'Mara
|
|||||
Name: David M. O'Mara
|
||||||
Title: Deputy General Counsel
|
CITIBANK, N.A.
|
||||||
By:
|
/s/ Brian S. Broyles
|
|||||
Name: Brian S. Broyles
|
||||||
Title: Attorney-in-Fact
|
CITIGROUP FINANCIAL PRODUCTS INC.
|
||||||
By:
|
/s/ Brian S. Broyles
|
|||||
Name: Brian S. Broyles
|
||||||
Title: Attorney-in-Fact
|
Deutsche Bank AG Cayman Islands Branch
|
||||||
By:
|
/s/ Andrew MacDonald
|
|||||
Name: Andrew MacDonald
|
||||||
Title: Assistant Vice President
|
By:
|
/s/ Hoi Yeun Chin
|
|||||
Name: Hoi Yeun Chin
|
||||||
Title: Assistant Vice President
|
HSBC BANK PLC
|
||||||
By:
|
/s/ Leo Chan
|
|||||
Name: Leo Chan
|
||||||
Title: Authorized Signatory
|
Hathor Capital Limited
|
|||||
By:
|
/s/ Didric Cederholm
|
||||
Name: Didric Cederholm
|
|||||
Title: Attorney in-fact
|
Ricimer Capital Limited
|
|||||
By:
|
/s/ Didric Cederholm
|
||||
Name: Didric Cederholm
|
|||||
Title: Attorney in-fact
|
Silver Teal Capital Limited
|
|||||
By:
|
/s/ Didric Cederholm
|
||||
Name: Didric Cederholm
|
|||||
Title: Attorney in-fact
|
Castle Apron Capital Limited
|
|||||
By:
|
/s/ Didric Cederholm
|
||||
Name: Didric Cederholm
|
|||||
Title: Attorney in-fact
|
Lion Point Master, LP
|
|||||
By:
|
/s/ Didric Cederholm
|
||||
Name: Didric Cederholm
|
|||||
Title: Managing Member
|
Venture VII CDO, Limited
|
|||||
BY: its investment advisor,
MJX Asset Management, LLC
|
|||||
By:
|
/s/ John Calaba
|
||||
Name: John Calaba
|
|||||
Title: Managing Director
|
By:
|
|||||
Name:
|
|||||
Title:
|
Venture X CLO, Limited
|
|||||
By its Collateral Manager,
MJX Venture Management, LLC
|
|||||
By:
|
/s/ John Calaba
|
||||
Name: John Calaba
|
|||||
Title: Managing Director
|
By:
|
|||||
Name:
|
|||||
Title:
|
VENTURE XII CLO, Limited
|
|||||
BY: its investment advisor
MJX Venture Management, LLC
|
|||||
By:
|
/s/ John Calaba
|
||||
Name: John Calaba
|
|||||
Title: Managing Director
|
By:
|
|||||
Name:
|
|||||
Title:
|
VENTURE XIII CLO, Limited
|
|||||
BY: its Investment Advisor
MJX Asset Management, LLC
|
|||||
By:
|
/s/ John Calaba
|
||||
Name: John Calaba
|
|||||
Title: Managing Director
|
By:
|
|||||
Name:
|
|||||
Title:
|
Venture XVII CLO, Limited
|
|||||
BY: its investment advisor, MJX Asset Management, LLC
|
|||||
By:
|
/s/ John Calaba
|
||||
Name: John Calaba
|
|||||
Title: Managing Director
|
By:
|
|||||
Name:
|
|||||
Title:
|
VENTURE XIV CLO, Limited
|
|||||
By: its Investment advisor MJX Asset Management, LLC
|
|||||
By:
|
/s/ John Calaba
|
||||
Name: John Calaba
|
|||||
Title: Managing Director
|
By:
|
|||||
Name:
|
|||||
Title:
|
VENTURE XIX CLO, Limited
|
|||||
BY: its investment advisor MJX Asset Management, LLC
|
|||||
By:
|
/s/ John Calaba
|
||||
Name: John Calaba
|
|||||
Title: Managing Director
|
By:
|
|||||
Name:
|
|||||
Title:
|
VENTURE XV CLO, Limited
|
|||||
By: its investment advisor MJX Asset Management, LLC
|
|||||
By:
|
/s/ John Calaba
|
||||
Name: John Calaba
|
|||||
Title: Managing Director
|
By:
|
|||||
Name:
|
|||||
Title:
|
Morgan Stanley Senior Funding, Inc.
|
|||||
By:
|
/s/ John Ragusa
|
||||
Name: John Ragusa
|
|||||
Title: Authorized Signatory
|
By:
|
|||||
Name:
|
|||||
Title:
|
Oppenheeimer Master Loan Fund, LLC
|
||||||
Brown Brothers Harriman & Co. acting
|
By:
|
/s/ Thomas Glenn
|
||||
as agent for Oppenheimer Funds, Inc.
|
Name: Thomas Glenn
|
|||||
Title: Assistant Vice President
|
Oppenheeimer Senior Floating Rate Plus Fund
|
||||||
Brown Brothers Harriman & Co. acting
|
By:
|
/s/ Thomas Glenn
|
||||
as agent for Oppenheimer Funds, Inc.
|
Name: Thomas Glenn
|
|||||
Title: Assistant Vice President
|
Oppenheeimer Senior Floating Rate Fund
|
||||||
Brown Brothers Harriman & Co. acting
|
By:
|
/s/ Thomas Glenn
|
||||
as agent for Oppenheimer Funds, Inc.
|
Name: Thomas Glenn
|
|||||
Title: Assistant Vice President
|
Oppenheeimer Fundamental Alternatives Fund
|
||||||
Brown Brothers Harriman & Co. acting
|
By:
|
/s/ Thomas Glenn
|
||||
as agent for Oppenheimer Funds, Inc.
|
Name: Thomas Glenn
|
|||||
Title: Assistant Vice President
|
OZ Special Master Fund Ltd.
|
|||||
By:
|
OZ Management LP, its Investment Manager
|
||||
By:
|
Och-Ziff Holding Corporation, its General Partner
|
||||
By:
|
/s/ Alesia J. Hass
|
||||
Name: Alesia J. Hass
|
|||||
Title: CFO
|
By:
|
|||||
Name:
|
|||||
Title:
|
Och-Ziff Capital Structure Arbitrage Master Fund, Ltd.
|
|||||
By:
|
OZ Management LP, its Investment Manager
|
||||
By:
|
Och-Ziff Holding Corporation, its General Partner
|
||||
By:
|
/s/ Alesia J. Hass
|
||||
Name: Alesia J. Hass
|
|||||
Title: CFO
|
By:
|
|||||
Name:
|
|||||
Title:
|
Pacific Asset Management Senior Loan Fund
|
|||||
By:
|
Pacific Life Fund Advisors LLC (doing business as Pacific Asset Management), in its capacity as Investment Manager
|
||||
By:
|
/s/ Anar Majmudar
|
||||
Name: Anar Majmudar
|
|||||
Title: Authorized Signatory
|
By:
|
/s/ Norman Yang
|
||||
Name: Norman Yang
|
|||||
Title: Authorized Signatory
|
PACIFIC FUNDS FLOATING RATE INCOME
|
|||||
By:
|
Pacific Life Fund Advisors LLC (doing business as Pacific Asset Management), in its capacity as Investment Advisor
|
||||
By:
|
/s/ Anar Majmudar
|
||||
Name: Anar Majmudar
|
|||||
Title: Authorized Signatory
|
By:
|
/s/ Norman Yang
|
||||
Name: Norman Yang
|
|||||
Title: Authorized Signatory
|
Pacific Asset Management Bank Loan Fund L.P.
|
|||||
By:
|
Pacific Life Fund Advisors LLC (doing business as Pacific Asset Management), in its capacity as Investment Advisor
|
||||
By:
|
/s/ Anar Majmudar
|
||||
Name: Anar Majmudar
|
|||||
Title: Authorized Signatory
|
By:
|
/s/ Norman Yang
|
||||
Name: Norman Yang
|
|||||
Title: Authorized Signatory
|
PACIFIC SELECT FUNDS-FLOATING RATE INCOME PORTFOLIO
|
|||||
By:
|
Pacific Life Fund Advisors LLC (doing business as Pacific Asset Management), in its capacity as Investment Advisor
|
||||
By:
|
/s/ Anar Majmudar
|
||||
Name: Anar Majmudar
|
|||||
Title: Authorized Signatory
|
By:
|
/s/ Norman Yang
|
||||
Name: Norman Yang
|
|||||
Title: Authorized Signatory
|
WATER AND POWER EMPLOYEES' RETIREMENT, DISABILITY, AND DEATH BENEFIT INSURANCE PLAN (for WATER AND POWER EMPLOYEES' RETIREMENT PLAN AND RETIREE HEALTH BENEFITS FUND)
|
|||||
By:
|
Pacific Life Fund Advisors LLC (doing business as Pacific Asset Management), in its capacity as Investment Advisor
|
||||
By:
|
/s/ Anar Majmudar
|
||||
Name: Anar Majmudar
|
|||||
Title: Authorized Signatory
|
By:
|
/s/ Norman Yang
|
||||
Name: Norman Yang
|
|||||
Title: Authorized Signatory
|
Washington Mill CLO Ltd.
|
|||||
By:
|
Shenkman Capital Management, Inc.
as Collateral Manager |
||||
By:
|
/s/ Justin Slatky
|
||||
Name: Justin Slatky
|
|||||
Title: CO-CIO
|
By:
|
|||||
Name:
|
|||||
Title:
|
Sudbury Mill CLO, Ltd.
|
|||||
By:
|
Shenkman Capital Management, Inc.
as Collateral Manager |
||||
By:
|
/s/ Justin Slatky
|
||||
Name: Justin Slatky
|
|||||
Title: CO-CIO
|
By:
|
|||||
Name:
|
|||||
Title:
|
Principal Funds Inc. – Diversified Real Asset Fund
|
|||||
BY:
|
Symphony Asset Management LLC
|
||||
By:
|
/s/ Gunther Stein
|
||||
Name: Gunther Stein
|
|||||
Title: CEO/CIO
|
By:
|
|||||
Name:
|
|||||
Title:
|
Symphony CLO VIII, Limited Partnership
|
|||||
BY:
|
Symphony Asset Management LLC
|
||||
By:
|
/s/ Gunther Stein
|
||||
Name: Gunther Stein
|
|||||
Title: CEO/CIO
|
By:
|
|||||
Name:
|
|||||
Title:
|
Nuveen Symphony Floating Rate Income Fund
|
|||||
BY:
|
Symphony Asset Management LLC
|
||||
By:
|
/s/ Gunther Stein
|
||||
Name: Gunther Stein
|
|||||
Title: CEO/CIO
|
By:
|
|||||
Name:
|
|||||
Title:
|
Symphony CLO XIV, Ltd
|
|||||
By:
|
Symphony Asset Management LLC
|
||||
By:
|
/s/ Gunther Stein
|
||||
Name: Gunther Stein
|
|||||
Title: CEO/CIO
|
By:
|
|||||
Name:
|
|||||
Title:
|
Symphony Floating Rate Senior Loan Fund
|
|||||
By:
|
Symphony Asset Management LLC
|
||||
By:
|
/s/ Gunther Stein
|
||||
Name: Gunther Stein
|
|||||
Title: CEO/CIO
|
By:
|
|||||
Name:
|
|||||
Title:
|
Nuveen Short Duration Credit Opportunities Fund
|
|||||
BY:
|
Symphony Asset Management LLC
|
||||
By:
|
/s/ Gunther Stein
|
||||
Name: Gunther Stein
|
|||||
Title: CEO/CIO
|
By:
|
|||||
Name:
|
|||||
Title:
|
California Street CLO IX, Limited Partnership
|
|||||
By:
|
Symphony Asset Management LLC
|
||||
By:
|
/s/ Gunther Stein
|
||||
Name: Gunther Stein
|
|||||
Title: CEO/CIO
|
By:
|
|||||
Name:
|
|||||
Title:
|
California Street CLO XII, Ltd
|
|||||
By:
|
Symphony Asset Management LLC
|
||||
By:
|
/s/ Gunther Stein
|
||||
Name: Gunther Stein
|
|||||
Title: CEO/CIO
|
By:
|
|||||
Name:
|
|||||
Title:
|
Menard Inc.
|
|||||
By:
|
Symphony Asset Management LLC
|
||||
By:
|
/s/ Gunther Stein
|
||||
Name: Gunther Stein
|
|||||
Title: CEO/CIO
|
By:
|
|||||
Name:
|
|||||
Title:
|
Municipal Employees' Annuity and Benefit Fund of Chicago
|
|||||
BY:
|
Symphony Asset Management LLC
|
||||
By:
|
/s/ Gunther Stein
|
||||
Name: Gunther Stein
|
|||||
Title: CEO/CIO
|
By:
|
|||||
Name:
|
|||||
Title:
|
Nuveen Floating Rate Income Opportunity Fund
|
|||||
BY:
|
Symphony Asset Management LLC
|
||||
By:
|
/s/ Gunther Stein
|
||||
Name: Gunther Stein
|
|||||
Title: CEO/CIO
|
By:
|
|||||
Name:
|
|||||
Title:
|
Nuveen Floating Rate Income Fund
|
|||||
BY:
|
Symphony Asset Management LLC
|
||||
By:
|
/s/ Gunther Stein
|
||||
Name: Gunther Stein
|
|||||
Title: CEO/CIO
|
By:
|
|||||
Name:
|
|||||
Title:
|
Nuveen Senior Income Fund
|
|||||
BY:
|
Symphony Asset Management LLC
|
||||
By:
|
/s/ Gunther Stein
|
||||
Name: Gunther Stein
|
|||||
Title: CEO/CIO
|
By:
|
|||||
Name:
|
|||||
Title:
|
Nuveen Symphony Credit Opportunities Fund
|
|||||
BY:
|
Symphony Asset Management LLC
|
||||
By:
|
/s/ Gunther Stein
|
||||
Name: Gunther Stein
|
|||||
Title: CEO/CIO
|
By:
|
|||||
Name:
|
|||||
Title:
|
WHITEBOX ASYMMETRIC PARTNERS, LP
|
|||||
By:
|
/s/ Mark Strefling
|
||||
Name: Mark Strefling
|
|||||
Title: Partner & CEO
|
WHITEBOX MULTI-STRATEGY PARTNERS, LP
|
|||||
By:
|
/s/ Mark Strefling
|
||||
Name: Mark Strefling
|
|||||
Title: Partner & CEO
|
Yours faithfully,
|
||||
Director
|
||||
Ocean Rig UDW Inc.
|
Dr. Renato Cefai
|
|||
Director of MARE SERVICES LIMITED
|
|||
Sole Director
|
|||
TMS Offshore Services Ltd.
|
Exhibit 4.51
|
(1) |
Ocean Rig UDW Inc.
,
a company registered by way of continuation as an exempted company in the Cayman Islands with its registered office at PO 309, Ugland House, South Church Street, Grand Cayman, Cayman Islands (the
"
Depositor
"
);
|
(2) |
Each of the subsidiaries of the Depositor listed on Schedule 4 to this Agreement (each a
"
Subsidiary
"
and collectively the
"
Subsidiaries
"
);
|
(3) |
TMS Offshore Services Ltd.,
a company incorporated under the laws of the Marshall Islands with its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 (the
"
Recipient
"
);
and
|
(4) |
MaplesFS Limited,
a company incorporated under the laws of the Cayman Islands, whose principal office is at PO Box 1093, Boundary Hall, Cricket Square, Grand Cayman, KY1-1102, Cayman Islands (the
"
Escrow Agent
"
).
|
(A) |
The Depositor, the Subsidiaries and the Recipient wish to appoint the Escrow Agent to provide in the Cayman Islands (or such other jurisdiction as may be agreed from time to time) certain escrow agent services, and the Escrow Agent has agreed to provide such services in accordance with the terms of this Agreement.
|
(B) |
The Escrow Agent has established and maintains a segregated account in its own name for the use and benefit of certain clients and the Escrow Agent has agreed to permit the Depositor, the Subsidiaries and the Recipient to use such account on the terms and subject to the conditions specified in this Agreement.
|
" Escrow Property " |
means the sum of US$5,000,000, plus such interest as may accrue from time to time in accordance with Clause 3.1;
|
" Standard Terms " |
means the attached terms and conditions forming part of this Agreement; and
|
" Transaction Documents " |
means each of (i) the Management Services Agreement dated on or about 22 September 2017, between, the Depositor, the Recipient and the Subsidiaries from time to time parties thereto (the
"
Management Agreement
"
),
and; (ii) the Individual Management Agreements entered into between each of the Owners (as defined in the Management Agreement) and the Recipient dated on or about 22 September 2017.
|
3.1 |
The Escrow Agent has established and maintains a segregated account in its own name with the Escrow Bank for the use and benefit of certain clients and agrees to hold any sums deposited into the Escrow Account by the Depositor in accordance with the terms of this Agreement. The Escrow Agent shall hold the funds so deposited in trust separate from the property of the Escrow Agent so that the funds do not form part of the property of the Escrow Agent. The Escrow Account shall be an interest-bearing account, and interest on the Escrow Property shall accrue at such rate as the Escrow Agent shall receive on such amounts from time to time. The Escrow Agent shall apply such interest to the Escrow Property on a monthly basis, and such interest shall form part of the Escrow Property once applied.
|
3.2 |
Subject always to sufficient funds being available from the Escrow Property, within 45 days after the receipt by the Escrow Agent of joint written instructions from the Depositor and the Recipient in the form of a Transfer Notice on a Business Day, the Escrow Agent shall instruct the Escrow Bank to transfer the funds specified in the Transfer Notice to the account, or accounts, specified in the Transfer Notice. As soon as is reasonably practicable after such transfer the Escrow Agent shall notify the parties of the transfer having been made. If Escrow Property in an amount less than US$5,000,000 is transferred pursuant to a Transfer Notice, the Depositor agrees to make, or cause to be made, a further deposit within ten (10) Business Days of the date of Escrow Agent has notified the parties of the transfer in an amount equal to the amount transferred, such that the Escrow Property will again total at least US$5,000,000 following such deposit.
|
3.3 |
Subject always to sufficient funds being available from the Escrow Property, upon presentation by the Depositor or the Recipient of an arbitration order certified by such party to have been obtained in accordance with Clause 16 of the Management Agreement, the Escrow Agent shall instruct the Escrow Bank to transfer the funds specified in the arbitration order to such account as the party specified in the arbitration order may direct in writing. The Escrow Agent shall not be responsible for verifying the accuracy of the arbitration order, or for any action taken by it in accordance with the arbitration order.
|
3.4 |
Subject always to sufficient funds being available from the Escrow Property, within 15 days after the receipt by the Escrow Agent of written instructions from the Recipient, pursuant to its right to draw upon the Escrow Property in accordance with Clause 8.6 of the Management Agreement, in the form of a TMS Transfer Notice on a Business Day, the Escrow Agent shall instruct the Escrow Bank to transfer the funds specified in the TMS Transfer Notice to the account, or accounts, specified in the TMS Transfer Notice. As soon as is reasonably practicable after such transfer the Escrow Agent shall notify the parties of such transfer having been made. The Escrow Agent shall not be responsible for verifying the Recipient's entitlement under the Transaction Documents to any amounts transferred pursuant to a TMS Transfer Notice, or for any action taken by it in accordance with a TMS Transfer Notice.
|
3.5 |
Except as permitted by Clauses 3.2 through 3.4, or under the Standard Terms no other transfers shall be made from the Escrow Account.
|
3.6 |
Notwithstanding any other provision of this Agreement, in making or instructing the making of any payment out of the Escrow Account, the Escrow Agent may withhold or deduct any sum which in its opinion it is obliged by law to so withhold or deduct and any sum determined by it to be payable or likely to be payable to it under the terms of this Agreement and the Escrow Agent is authorised to pay any bank charges, taxation and other liabilities referable to the operation of the Escrow Account and all fees, costs, expenses and amounts payable out of the funds at the time being standing to the credit of the Escrow Account.
|
3.7 |
The Escrow Agent may refuse to act on a Transfer Notice if, in its sole and unfettered discretion, to do so would constitute a criminal or regulatory offence in the Cayman Islands.
|
4.2 |
The Escrow Agent shall be paid a fee of US$5,000 (the
"
Escrow Fee
"
)
by Depositor for providing the Services (pro-rated for part years, subject to clause 4.3 below). The Escrow Fee shall be payable on or about the date of this Agreement and annually thereafter in advance on or about 1 January in each year.
|
4.3 |
The Escrow Agent shall rebate 50% only of the Escrow Fee if the effective date of termination of this Agreement (whatever the reason for termination) is at any time:
|
4.4 |
The Escrow Agent shall also be paid a fee of US$500 in respect of each transfer of funds made pursuant a Transfer Notice for an amount other than the full amount of the Escrow Property at the termination of the Agreement.
|
4.5 |
The Escrow Agent shall also be paid by Depositor or reimbursed for its out-of-pocket expenses including, without limitation, photocopying, fax, telephone, postage and other communications charges and such other expenses as may be properly incurred pursuant to this Agreement by the Escrow Agent including any wire transfer fees.
|
SIGNED
by
|
|||
duly authorised for
|
)
|
||
and on behalf of
|
)
|
/s/ Savvas Tournis
|
|
Ocean Rig UDW Inc.
|
)
|
Attorney in fact
|
|
)
|
Name: Savvas Tournis
|
||
SIGNED
by
|
|||
duly authorised for
|
)
|
||
and on behalf of
|
)
|
/s/ Iraklis Sbarounis
|
|
each of the
Subsidiaries
|
)
|
Attorney in fact
|
|
)
|
Name: Iraklis Sbarounis
|
||
SIGNED
by
|
|||
duly authorised for
|
)
|
||
and on behalf of
|
)
|
/s/ Dr. Renato Cefai
|
|
TMS Offshore Services Ltd.
|
)
|
Director
|
|
)
|
Name: Dr. Renato Cefai
|
||
SIGNED
by
|
|||
duly authorised for
|
)
|
||
and on behalf of
|
)
|
/s/ Wendy Ebanks
|
|
MaplesFS Limited
|
)
|
Authorised Signatory
|
|
)
|
|||
Interpretation
These Standard Terms form part of the Agreement between the Depositor, the Subsidiaries, the Recipient and the Escrow Agent. In these Standard Terms, the following capitalised words and expressions shall have the following meanings (being additional to those defined in Clause 1 of the Agreement):
"
Agreement
"
means the escrow agreement to which these Standard Terms are attached and of which these Standard Terms form a part;
"
Authorised Persons
"
means such persons as may be authorised by the Depositor and the Recipient respectively from time to time and notified to the Escrow Agent in writing signed by a Director of the Depositor or the Recipient respectively. A certified copy of the relevant resolution of the board of Directors of the relevant company shall be conclusive evidence of the authority of an Authorised Person to act, such authority to continue in full force and effect until the Escrow Agent receives written notice to the contrary from one or more Directors of the relevant company. The first Authorised Persons shall be those persons listed in Schedule 1 to the Agreement completed by each of the Depositor and the Recipient;
"
Business Day
"
means a day (other than a Saturday or Sunday or public holiday) on which banks in New York and the Cayman Islands are open for non-automated business;
"
Director
"
means the directors of the Depositor and/or the Recipient as the context permits;
"
Electronic Transactions Law
"
means the Electronic Transactions Law (2003 Revision) of the Cayman Islands;
"
Escrow Account
"
means the account with the Escrow Bank referred to in Clause 3.1 of the Agreement;
"
Escrow Bank
"
means the One Wall Street, New York branch of BNY Mellon or such other bank whether inside or outside the United States of America, as MaplesFS shall in its sole discretion determine;
"
Gross Negligence
"
in relation to a person means a standard of conduct beyond negligence whereby that person acts with reckless disregard for the consequences of a breach of a duty of care owed to another;
"
Maples Group
"
means the Escrow Agent, any direct or indirect holding or subsidiary company of the Escrow Agent as well as the firm of Maples and Calder and any entities, whether partnerships, companies or otherwise, owned or controlled by, or under common control with or affiliated with, Maples and Calder as may be established from time to time;
"
Services
"
means the services set out in Clause 3 of the Agreement;
"
Term
"
means the period commencing on the Effective Date and terminating on the [ten (10)] year anniversary of the Effective Date, or such other date as the parties may agree in writing;
"
TMS Transfer Notice
"
means a transfer notice received by the Escrow Agent completed and signed by Authorised Persons of the Recipient in the form of Schedule 3 to the Agreement; and
|
"
Transfer Notice
"
means a transfer notice received by the Escrow Agent completed and signed by Authorised Persons of both the Depositor and the Recipient in the form of Schedule 2 to the Agreement.
In the Agreement:
(a)
any reference to a Recital, Clause, Section
or
Schedule is to the relevant Recital, Clause
or
Schedule of or to the Agreement;
(b)
the Clause headings are included for convenience only and shall not affect the interpretation of the Agreement;
(c)
use of the singular includes the plural and vice versa;
(d)
use of any gender includes the other gender;
(e)
any phrase introduced by the terms "including", "include", "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
(f)
references to any document or agreement are to be construed as references to such document or agreement as is in force for the time being and as amended, varied, supplemented, substituted o
r
novated from time to time;
(g)
no person shall be found to have committed actual fraud, wilful default or Gross Negligence unless or until a court of the Cayman Islands has reached a final non-appealable determination to that effect; and
(h)
sections 8, 17 and 19(3) of the Electronic Transactions Law shall not apply.
Duties of the Escrow Agent
The parties agree that the Escrow Agent's duties under the Agreement shall be limited by and subject to the following provisions of this section. The Escrow Agent:
(a)
makes no representation as to the validity, value, authenticity or collectability of any document or instrument held by or delivered to it;
(b)
shall not be required or be under any liability to take any legal action under the Agreement to request or require that any of the other parties comply with any of their respective obligations arising under the Agreement or otherwise;
(c)
shall not be under any obligation to enquire as to, check or monitor or be in any way responsible for, the other parties' compliance with any of their obligations under the Agreement or the Transaction Documents and shall
be
entitled to assume without enquiry that all such parties are duly performing and observing all their respective obligations and duties. Specifically (but without prejudice to the generality of the foregoing) the Escrow Agent is not responsible for any shortfall in the Escrow Account by reason of failure by any person to make any payment of funds including (without limitation) any payment of funds into the Escrow Account;
|
(d)
may in relation to the Agreement act on the opinion or advice of or any information obtained from any lawyer or other expert whether obtained by the Escrow Agent or any other party and shall not be responsible for any loss occasioned by so acting. Any such opinion, advice or information may be sent or obtained by such means as the Escrow Agent thinks fit and the Escrow Agent shall not be liable for acting on any opinion, advice or information although the same shall contain some error or shall not be authentic;
(e)
shall not be regarded or treated for any purposes as having any notice or knowledge of any of the provisions of any arrangements relevant to the matters hereby contemplated which are not expressly set out in the Agreement;
(f)
shall be entitled to have regard only to the express terms of the Agreement as to the discharge of its duties and the exercise of any of its rights as Escrow Agent and shall have no responsibility to ensure that the terms of the Agreement are consistent with the terms of the Transaction Documents;
(g)
shall be under no duty to enforce payment of any amount which is to be paid into the Escrow Account;
(h)
shall be entitled to accept and rely upon without further enquiry any Transfer Notice signed or purporting to be signed by one Authorised Person on behalf of the Depositor and one Authorised Person on behalf of the Recipient and shall be entitled to accept and rely upon without further enquiry any other instrument, notice or instruction received pursuant to the Agreement (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and accuracy of any information contained therein) which the Escrow Agent shall reasonably believe to be genuine, to have been signed by an Authorised Person or Director of the relevant party and conforming with the provisions of the Agreement;
(i)
shall promptly seek clarification from the Depositor and the Recipient in the event that it is of the opinion that it is unclear how it is required to act under the Agreement and it may in its absolute discretion and without liability for any loss resulting therefrom refrain from taking any action pending receipt to its satisfaction of such clarification or an order of a court of competent jurisdiction binding on the Escrow Agent;
(j)
shall not be liable for any loss arising out of the liquidation, insolvency, composition, administration, reorganisation or any analogous procedure of or relating to the Escrow Bank and shall not be under any obligation to enquire as to, check or monitor the financial standing or otherwise of the Escrow Bank and shall not be responsible for the credit rating of the Escrow Bank;
(k)
shall have no responsibility for ensuring that any particular amount of money is actually available from the Escrow Bank or for the receipt by the payee of any money ordered by the Escrow Agent to be paid from the Escrow Account; and
|
(I)
shall in no event have any liability to any person for indirect loss, including (without limitation) loss of business, loss of profit or any type of consequential loss arising out of or in connection with the Agreement, in each case whether or not the Escrow Agent has been advised of the possibility of such loss and howsoever incurred.
Representations and Warranties
Each of the parties represents and warrants to the other that:
(a)
it is duly incorporated and in good standing under the laws of its place of incorporation and has and will at all times have the necessary power to enter into and perform its obligations under the Agreement and has duly authorised the execution of the Agreement;
(b)
the Agreement constitutes its legal, binding and enforceable obligation;
(c)
the execution, delivery, observance and performance of the Agreement will not result in any violation of any law, statute, ordinance, rule or regulation applicable to it; and
(d)
it has obtained all the necessary authorisations and consents to enable it to enter into the Agreement and the necessary authorisations and consents will remain in full force and effect at all times during the term of the Agreement.
Liability and Indemnity
The Escrow Agent shall not be liable for any damages, losses, costs or expenses whatsoever to or of the Depositor, the Subsidiaries or the Recipient at any time from any cause whatsoever unless caused by the Escrow Agent's own actual fraud, wilful default or Gross Negligence.
The Depositor and the Recipient jointly and severally agree to indemnify and hold harmless the Escrow Agent, its successors and assigns and their respective directors, officers, shareholders, employees and agents, and, where any of these are companies, their respective directors, officers, shareholders, employees and agents (collectively, the
"
Indemnified Persons
"
)
and each of them, as the case may be, against all liabilities, obligations, losses, damages, penalties, actions, proceedings, claims, judgments, demands, costs, expenses or disbursements of any kind (including legal fees and expenses) whatsoever which they or any of them may incur or be subject to in consequence of the Agreement or as a result of the performance of the functions and services provided for under the Agreement except as a result of the actual fraud, wilful default or Gross Negligence of the relevant Indemnified Person and this indemnity shall expressly inure to the benefit of any such Indemnified Person existing or future.
Unless caused by their actual fraud, the maximum aggregate liability of the Indemnified Persons for any cause or reason whatsoever shall be limited to three (3) times the fees received by the Escrow Agent under the Agreement.
Force Majeure
The Escrow Agent shall not be liable or deemed to be in default for any failure or delay in performance of any duty in whole or in part arising out of or caused by circumstances beyond its direct and reasonable control including (but without limitation) acts of God; acts of terrorism; interruption, delay in or loss due to partial or complete failure of electrical power, of computer
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(hardware or software) or communication services, of banking or payments services and systems; act of civil or military authority; sabotage; war or other Governmental action; civil disturbance or riot; strike or other industrial dispute; national emergency; flood, earthquake, fire or other catastrophe; Government, judicial or self-regulatory organisation order, rule or regulation; energy or nature resource difficulty or shortage; and inability to obtain or timely to obtain materials, equipment or transportation.
Confidential Information
Each party undertakes that it will not at any time hereafter use, divulge or communicate to any person, except to its professional representatives or advisers or as may be required to be disclosed by any applicable law or required to be disclosed to, or is accessible by, any stock exchange or governmental, judicial, regulatory or supervisory body or authority, any confidential information concerning the business or affairs of the other party or of any member of the group of companies or other entities to which the other party belongs which may have or may in the future come to its knowledge and each of the parties shall use its reasonable endeavours to prevent the publication or disclosure of any confidential information concerning such matters.
No Commercial Advice
The parties agree that the Escrow Agent is not responsible for the commercial structuring of the Depositor, the Subsidiaries or the Recipient or their investment objectives, investment restrictions and strategies or for the rendering of investment, commercial, accounting, legal or any other advice whatsoever to them or any other person.
No Partnership and No Employment Relationship
Nothing in the Agreement shall constitute a partnership between the Escrow Agent and any of the Depositor, the Subsidiaries or the Recipient.
The directors, officers, employees or agents of the Escrow Agent shall not be deemed to be employees of any of the Depositor, the Subsidiaries or the Recipient or entitled to any remuneration or other benefits from them.
The Escrow Agent shall be entitled to provide its services to any other person, firm or corporation.
Termination
The Agreement shall continue until terminated in accordance with the terms of the Agreement.
The Agreement shall terminate automatically at the end of the Term and upon such termination, the Escrow Agent shall transfer the funds in the Escrow Account to an account designated by the Depositor. Following such transfer of the Escrow Property to an account designated by the Depositor, the Escrow Agent shall automatically be discharged from its obligations under the Agreement.
The Depositor and the Recipient shall have the power to jointly remove the Escrow Agent and to appoint a new escrow agent on each giving at least 30 days' written notice to the Escrow Agent. Upon receipt of such notice, the Escrow Agent shall take all reasonable actions necessary to transfer the Escrow Property to an account designated by the Depositor and the Recipient. If the Escrow Agent does not receive such transfer instructions before its removal takes effect, the Escrow Agent may send instruction to the Escrow Bank to transfer the Escrow
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Property into court in the Cayman Islands to hold on behalf of the Recipient, the Subsidiaries and the Depositor until the appointment of a replacement escrow agent to administer the Escrow Property. Following the transfer of the Escrow Property to an account designated by the Depositor and the Recipient or the Courts of the Cayman Islands, the Escrow Agent shall automatically be discharged from its obligations under the Agreement.
The Escrow Agent may terminate the Agreement with immediate effect in the event that either or both of the Depositor or the Recipient commits any breach of its obligations under the Agreement; and
(a)
such breach is not capable of remedy; or
(b)
where such breach is capable of remedy fails, within fourteen days of receipt of notice served by the Escrow Agent requiring it so to do, to make good such breach.
The Escrow Agent may terminate the Agreement on giving 30 days' written notice to the Depositor, the Subsidiaries and the Recipient. Promptly after any such notice, the Depositor and the Recipient shall give the Escrow Agent joint written instructions regarding the transfer of the Escrow Property to a replacement escrow agent or otherwise to an account designated by the Depositor and the Recipient. If the Escrow Agent does not receive such instructions before its resignation takes effect, the Escrow Agent may send instruction to the Escrow Bank to transfer the Escrow Property into court in the Cayman Islands to hold on behalf of the Recipient, the Subsidiaries and the Depositor until the appointment of a replacement escrow agent to administer the Escrow Property in accordance with the terms of the Agreement or as otherwise agreed by the Depositor and the Recipient. Following the transfer of the Escrow Property to a replacement escrow agent, an account designated by the Depositor and the Recipient or the Courts of the Cayman Islands, the Escrow Agent shall automatically be discharged from its obligations under the Agreement.
The provisions of the Liability and Indemnity, Confidential Information, Notices, Third Party Rights and Governing Law and Jurisdiction Sections of these Standard Terms shall continue to apply notwithstanding the termination of the Agreement.
Notices
Notices to be given under the Agreement shall be delivered by hand or mailed to the address of the relevant party set out herein (or such other address or facsimile number or email address as may be notified in writing from time to time) and where mailed shall be deemed to be duly given on the fifth day after the date of mailing.
Data Protection
The Depositor, the Subsidiaries and Recipient acknowledge and agree that the Escrow Agent may collect, process and store materials, data, information and content relating to the Depositor, the Subsidiaries and the Recipient, or its or their principals, affiliates, shareholders, directors, officers, employees and agents
("Data")
and that such Data may be transferred, disclosed, stored, processed and maintained by the Escrow Agent electronically on servers, or in hard copy or original format, in a number of different jurisdictions, including, and outside of, the Cayman Islands and/or any of the other jurisdictions where Maples Group has a presence. In this regard, parties explicitly consent to the transfer of all Data, into
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and out of any such jurisdictions (subject always to the confidentiality obligations of the Escrow Agent set out above).
Counterparts
The Agreement may be executed in any number of counterparts each of which when executed and delivered shall constitute an original and all such counterparts together constituting one and the same agreement.
Severance
If any provision of the Agreement shall be determined to be void or unenforceable in whole or in part for any reason whatsoever such invalidity or unenforceability shall not affect the remaining provisions or any part thereof contained within the Agreement and such void or unenforceable provisions shall be deemed to be severable from any other provision or part thereof herein contained.
Assignment
The Escrow Agent may assign or novate the Agreement to any other entity within the Maples Group. Subject thereto, the Agreement may not be assigned by either party save with the written consent of the other party.
Entire Agreement
The Agreement supersedes all previous agreements between the Escrow Agent and the Depositor, the Subsidiaries and the Recipient for the provision of escrow agent services to the Depositor, the Subsidiaries and the Recipient. The Agreement sets out the entire agreement and understanding between the parties with respect to its subject matter.
Variation
No amendment or variation of the Agreement shall be valid unless it is in writing and signed by or on behalf of each party. Provided that the Agreement may be amended by the Escrow Agent to the extent that an amendment is required to ensure the Escrow Agent's ongoing compliance with applicable
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laws and regulations including but not limited to anti-money laundering legislation. The Depositor, the Subsidiaries and/or the Recipient's continuing acceptance of the Services after notice of any such amendment shall be regarded as acceptance of the amendment to the Agreement.
Third Party Rights
A person who is not a party to the Agreement may not, in its own right or otherwise, enforce any term of the Agreement except that the Indemnified Persons may, in their own right, enforce their rights pursuant to the Liability and Indemnity provisions of the Agreement subject to and in accordance with the provisions of the Contracts (Rights of Third Parties) Law, 2014 as amended, modified, re-enacted or replaced.
Notwithstanding any other term of the Agreement, the consent of any person who is not a party to the Agreement (including, without limitation, any Indemnified Person) is not required for any amendment to, or variation, release, rescission or termination of the Agreement.
Governing Law and Jurisdiction
The Agreement and any dispute, claim, suit, action or proceeding of whatever nature arising out of or in any way related to it or its formation (including any non-contractual disputes or claims) are governed by, and shall be construed in accordance with, the laws of the Cayman Islands.
Each of the parties to the Agreement irrevocably agrees that the courts of the Cayman Islands shall have exclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with the Agreement, and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts.
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Name
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Title
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Signature
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Name
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Title
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Signature
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Name
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Title
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Signature
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Name
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Title
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Signature
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Name:
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Title:
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Date:
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Name of bank:
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[ ]
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Address of bank:
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[ ]
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Account number:
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[ ]
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Account Name:
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[ ]
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Sort/Swift code:
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[ ]
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Authorised Signatory
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Authorised Signatory
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for and on behalf of
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for and on behalf of
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Ocean Rig UDW
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TMS Offshore Services Ltd.
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Date:
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Date:
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Name of bank:
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[ ]
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Address of bank:
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[ ]
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Account number:
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[ ]
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Account Name:
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[ ]
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Sort/Swift code:
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[ ]
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Authorised Signatory
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||
for and on behalf of
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||
TMS Offshore Services Ltd.
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Date:
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1.
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Drill Rigs Holdings Inc. of Marshall Islands
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2.
|
Drillships Holdings Inc. of Marshall Islands
|
3.
|
Drillships Investment Inc. of Marshall Islands
|
4.
|
Drillships Ocean Ventures Inc. of Marshall Islands
|
5.
|
Ocean Rig Operations Inc. of Marshall Islands
|
6.
|
Ocean Rig 1 Shareholders Inc. of Marshall Islands
|
7.
|
Ocean Rig 2 Shareholders Inc. of Marshall Islands
|
8.
|
Drillship Hydra Shareholders Inc. of Marshall Islands
|
9.
|
Drillship Paros Shareholders Inc. of Marshall Islands
|
10.
|
Drillships Holdings Operations Inc. of Marshall Islands
|
11.
|
Kithira Shareholders Inc. of Marshall Islands
|
12.
|
Skopelos Shareholders Inc. of Marshall Islands
|
13.
|
Drillship Skiathos Shareholders Inc. of Marshall Islands
|
14.
|
Drillship Skyros Shareholders Inc. of Marshall Islands
|
15.
|
Drillship Kythnos Shareholders Inc. of Marshall Islands
|
16.
|
Primelead Limited of Cyprus
|
17.
|
Olympia Rig Angola Holding S.A. of Angola
|
18.
|
Alley Finance Co. of Marshall Islands
|
19.
|
Ocean Rig 1 Inc. of Marshall Islands
|
20.
|
Ocean Rig 2 Inc. of Marshall Islands
|
21.
|
Drillship Hydra Owners Inc. of Marshall Islands
|
22.
|
Drillship Paros Owners Inc. of Marshall Islands
|
23.
|
Ocean Rig Angola Operations Inc. of Marshall Islands
|
24.
|
Drillship Kithira Owners Inc. of Marshall Islands
|
25.
|
Drillship Skopelos Owners Inc. of Marshall Islands
|
26.
|
Drillship Skiathos Owners Inc. of Marshall Islands
|
27.
|
Drillship Skyros Owners Inc. of Marshall Islands
|
28.
|
Drillship Kythnos Owners Inc. of Marshall Islands
|
29.
|
Ocean Rig UDW LLC of US
|
30.
|
Olympia Rig Angola, LDA of Angola
|
31.
|
Ocean Rig Rio de Janeiro Servicos de Petroleo Ltda. of Brazil
|
32.
|
Algarve Finance Ltd. of Marshall Islands
|
33.
|
Ocean Rig 1 Greenland Operations Inc. of Marshall Islands
|
34.
|
Ocean Rig Corcovado Greenland Operations Inc. of Marshall Islands
|
35.
|
Ocean Rig Gabon Operations Inc. of Marshall Islands
|
36.
|
Ocean Rig Poseidon Operations Inc. of Marshall Islands
|
37.
|
Ocean Rig Drilling Operations Cooperatief U.A. of Netherlands
|
38.
|
Drillships Ocean Ventures Operations Inc. of Marshall Islands
|
39.
|
Ocean Rig Canada Inc. of Canada
|
40.
|
Ocean Rig Do Brazil Servicos de Petroleo Ltda. of Brazil
|
41.
|
Ocean Rig Global Chartering Inc. of Marshall Islands
|
42.
|
Ocean Rig Falkland Operations Inc. of Marshall Islands
|
43.
|
Drill Rigs Operations Inc. of Marshall Islands
|
44.
|
Ocean Rig Black Sea Cooperatief U.A. of Netherlands
|
45.
|
Ocean Rig Olympia Operations Ghana Limited of Ghana
|
46.
|
Ocean Rig Drilling Operations B.V. of Netherlands
|
47.
|
Ocean Rig Block 33 Brasil Coöperatief U.A. of Netherlands
|
48.
|
Ocean Rig North Sea AS of Norway
|
49.
|
Ocean Rig EG Operations Inc. of Marshall Islands
|
50.
|
Ocean Rig Black Sea Operations B.V. of Netherlands
|
51.
|
Drillships Investment Operations Inc.
|
52.
|
Ocean Rig Block 33 Brasil B.V. of Netherlands
|
53.
|
Ocean Rig AS of Norway
|
54.
|
Ocean Rig Offshore Management Limited of Jersey
|
55.
|
Ocean Rig Norway Operations Inc. of Marshall Islands
|
56.
|
Ocean Rig Namibia Operations Inc. of Marshall Islands
|
57.
|
Ocean Rig Cunene Operations Inc. of Marshall Islands
|
58.
|
Ocean Rig Spares Inc. of Marshall Islands
|
59.
|
Ocean Rig Liberia Operations Inc. of Marshall Islands
|
60.
|
Ocean Rig Cuanza Operations Inc. of Marshall Islands
|
61.
|
Ocean Rig Cubango Operations Inc. of Marshall Islands
|
62.
|
Ocean Rig UK Limited of UK
|
63.
|
Ocean Rig Ireland Operations Inc. of Marshall Islands
|
64.
|
Ocean Rig West Africa Operations Inc. of Marshall Islands
|
65.
|
Ocean Rig Management Inc. of Marshall Islands
|
66.
|
Eastern Med Consultants Inc. of Marshall Islands
|
67.
|
Drillships Financing Holding Inc. of Marshall Islands
|
68.
|
Drillships Projects Inc. of Delaware
|
69.
|
Bluesky Shareholders Inc. of Marshall Islands
|
70.
|
Bluesky Owners Inc. of Marshall Islands
|
71.
|
Ireland Drilling Crew Inc. of Marshall Islands
|
72.
|
Drillship Santorini Owners Inc. of Marshall Islands
|
73.
|
Drillship Santorini Shareholders Inc. of Marshall Islands
|
74.
|
South Africa Drilling Crew Inc. of Marshall Islands
|
75.
|
Drillship Crete Owners Inc. of Marshall Islands
|
76.
|
Drillship Crete Shareholders Inc. of Marshall Islands
|
77.
|
Drillship Amorgos Owners Inc. of Marshall Islands
|
78.
|
Drillship Amorgos Shareholders Inc. of Marshall Islands
|
79.
|
Ocean Rig Congo Operations Inc. of Marshall Islands
|
80.
|
Drillships Ventures Projects Inc. of Delaware
|
81.
|
OCR Falklands Drilling Inc. of Marshall Islands
|
82.
|
OR Global Block Operators Inc. of Marshall Islands
|
83.
|
OR Crewing Limited of Jersey
|
84.
|
OR Benguela Operations Inc. of Marshall Islands
|
85.
|
Ocean Rig Investments Inc. of Marshall Islands
|
86.
|
OR Norge Operations Inc. of Marshall Islands
|
87.
|
OR Senegal Operations Inc. of Marshall Islands
|
88.
|
Agon Shipping Inc. of Marshall Islands
|
89.
|
Ocean Rig Management Services Inc. of Marshall Islands
|
90.
|
Ocean Rig Operations Holdings Inc. of Marshall Islands
|
91.
|
Ocean Rig Cayman Management Services SEZC Limited of Cayman Islands
|
92.
|
Ship Investment Ocean Holdings Inc. of Marshall Islands
|
Name of Subsidiary
|
Jurisdiction of Incorporation
|
Drill Rigs Holdings Inc.
|
Marshall Islands
|
Ocean Rig 1 Shareholders Inc.
|
Marshall Islands
|
Ocean Rig 1 Inc.
|
Marshall Islands
|
Ocean Rig 2 Shareholders Inc
|
Marshall Islands
|
Ocean Rig 2 Inc.
|
Marshall Islands
|
Drill Rigs Operations Inc.
|
Marshall Islands
|
Drillships Holdings Inc.
|
Marshall Islands
|
Drillship Hydra Shareholders Inc.
|
Marshall Islands
|
Drillship Hydra Owners Inc.
|
Marshall Islands
|
Drillship Paros Shareholders Inc.
|
Marshall Islands
|
Drillship Paros Owners Inc.
|
Marshall Islands
|
Drillships Holdings Operations Inc.
|
Marshall Islands
|
Drillships Investment Inc.
|
Marshall Islands
|
Kithira Shareholders Inc.
|
Marshall Islands
|
Drillship Kithira Owners Inc.
|
Marshall Islands
|
Skopelos Shareholders Inc.
|
Marshall Islands
|
Drillship Skopelos Owners Inc.
|
Marshall Islands
|
Drillships Investment Operations Inc.
|
Marshall Islands
|
Ocean Rig Cuanza Operations Inc.
|
Marshall Islands
|
Drillships Ocean Ventures Inc.
|
Marshall Islands
|
Drillship Skiathos Shareholders Inc.
|
Marshall Islands
|
Drillship Skiathos Owners Inc.
|
Marshall Islands
|
Drillship Skyros Shareholders Inc.
|
Marshall Islands
|
Drillship Skyros Owners Inc.
|
Marshall Islands
|
Drillship Kythnos Shareholders Inc.
|
Marshall Islands
|
Drillship Kythnos Owners Inc.
|
Marshall Islands
|
Drillships Ocean Ventures Operations Inc.
|
Marshall Islands
|
Ocean Rig Cubango Operations Inc.
|
Marshall Islands
|
Ocean Rig Operations Inc.
|
Marshall Islands
|
Drillships Financing Holding Inc.
|
Marshall Islands
|
Agon Shipping Inc.
|
Marshall Islands
|
Ocean Rig Global Chartering Inc.
|
Marshall Islands
|
Drillship Alonissos Shareholders Inc.
|
Marshall Islands
|
Drillship Alonissos Owners Inc.
|
Marshall Islands
|
Ocean Rig Management Inc.
|
Marshall Islands
|
Eastern Med Consultants Inc.
|
Marshall Islands
|
Ocean Rig Black Sea Cooperatief U.A.
|
Netherlands
|
Ocean Rig Black Sea Operations B.V.
|
Netherlands
|
Ocean Rig Drilling Operations Cooperatief U.A.
|
Netherlands
|
Ocean Rig Drilling Operations B.V.
|
Netherlands
|
Ocean Rig Block 33 Brasil Cooperatief U.A.
|
Netherlands
|
Ocean Rig Block 33 Brasil B.V.
|
Netherlands
|
Ocean Rig Olympia Operations Ghana Limited
|
Ghana
|
Primelead Limited
|
Cyprus
|
Ocean Rig UDW LLC
|
U.S.
|
Drillships Projects Inc.
|
Delaware, U.S.
|
Drillship Alonissos Stock Trust
|
Delaware, U.S.
|
Ocean Rig Canada Inc.
|
Canada
|
Ocean Rig North Sea AS
|
Norway
|
Ocean Rig AS
|
Norway
|
Olympia Rig Angola Holding S.A.
|
Angola
|
Olympia Rig Angola Limitada
|
Angola
|
Ocean Rig Deepwater Drilling Limited
|
Nigeria
|
Ocean Rig do Brasil Servicos de Petroleo Ltda.
|
Brazil
|
Ocean Rig Rio de Janeiro Servicos de Petroleo Ltda.
|
Brazil
|
Ocean Rig Offshore Management Limited
|
Jersey
|
OR Crewing Limited
|
Jersey
|
OCR Falklands Drilling Inc.
|
Marshall Islands
|
Drillships Ventures Projects Inc.
|
Delaware, U.S.
|
Drillship Santorini Shareholders Inc.
|
Marshall Islands
|
Drillship Santorini Owners Inc.
|
Marshall Islands
|
Drillship Crete Shareholders Inc.
|
Marshall Islands
|
Drillship Crete Owners Inc.
|
Marshall Islands
|
Drillship Amorgos Shareholders Inc.
|
Marshall Islands
|
Drillship Amorgos Owners Inc.
|
Marshall Islands
|
OR Benguela Operations Inc.
|
Marshall Islands
|
Ocean Rig Investments Inc.
|
Marshall Islands
|
OR Norge Operations Inc.
|
Marshall Islands
|
Ocean Rig Management Services Inc.
|
Marshall Islands
|
Ocean Rig Cayman Management Services SEZC Limited
|
Cayman Islands
|
Ship Investment Ocean Holdings Inc.
|
Marshall Islands
|
Kalambo Operations Inc.
|
Marshall Islands
|
Sub-Saharan Drilling Inc.
|
Marshall Islands
|
/s/ Pankaj Khanna
|
|
Pankaj Khanna
|
|
President and Chief Executive Officer (Principal Executive Officer)
|
|
/s/ Iraklis Sbarounis
|
|
Iraklis Sbarounis
|
|
Chief Financial Officer (Principal Financial Officer)
|
|
/s/ Pankaj Khanna
|
|
Pankaj Khanna
|
|
President and Chief Executive Officer (Principal Executive Officer)
|
|
/s/ Iraklis Sbarounis
|
|
Iraklis Sbarounis
|
|
Chief Financial Officer (Principal Financial Officer)
|
|