OCEAN RIG UDW INC.
OCEAN RIG UDW INC.
OCEAN RIG UDW INC.
(ii) Subject to Article 5.1, the issuance of certificates for Class A Common Shares or Class B Common Shares (as applicable) upon conversion of shares of Common Shares shall be made without charge for any stamp or other similar tax in respect of such issuance. However, if the Common Shares issuable upon conversion under Article 3.7(ii) are to be issued in a name or names other than that of the holder of the Common Shares to be so converted, the person or persons requesting the issuance of a certificate in respect thereof shall pay to the Company the amount of any tax which may be payable in respect of such Transfer or shall establish to the satisfaction of the Company that such tax has been paid or is not required to be paid.
(iii) If the outstanding Shares (or securities convertible or exchangeable into or exercisable for Shares) issued and outstanding shall have been increased, decreased, changed into or exchanged for a different number or kind of shares or securities, in any such case as a result of a reorganization, recapitalization, reclassification, share dividend, Stock Split, Reverse Stock Split, or other similar change in capitalization, an appropriate and proportionate adjustment shall be made to the Conversion Ratio to give holders of Shares that elect to convert such Shares the same economic effect as contemplated by these Articles prior to such event.
(iv) In connection with any conversion of any shares of Common Shares, pursuant to this Article 3.7, neither the Company nor any director, officer, employee or agent of the Company shall be liable in any manner for any action taken or omitted in good faith.
prior to the Termination Date, there shall be no restrictions on the Transfer of Shares without the approval of the Majority Lender Directors or as otherwise required by applicable law and further provided that the Directors shall not issue Common Shares of any class if such issuance would result in there being insufficient authorized but unissued Common Shares of such class of Common Shares to effect the conversion in accordance with Article 3.7 of all the Common Shares of the other class of Common Shares then issued and outstanding.
and warranties with respect to the unencumbered title to its Shares, its power, authority and legal right to Transfer such Shares and, the enforceability of relevant agreements against such Dragged Shareholder, (ii) to enter into reasonable and customary covenants to complete the Transfer of such Dragged Shareholder's Shares in connection with such Drag-Along Sale and (iii) to enter into reasonable and customary indemnification obligations with respect to the foregoing; provided, that all representations, warranties, covenants and indemnities shall be made by the Dragged Shareholders severally and not jointly; provided, further, that any indemnification obligation (including, if applicable, with respect to representations made by the Company) shall be pro rata based on the consideration received by the Shareholders, in each case in an amount not to exceed the aggregate proceeds received by Shareholders in connection with the Drag-Along Sale.
6.2.4 At the closing of any Drag-Along Sale pursuant to this Article 6.2 structured as the acquisition of Shares, the Dragged Shareholders shall deliver at such closing, against payment of the purchase price therefor, certificates (or evidence thereof) representing its Shares to be sold, duly endorsed for Transfer or accompanied by duly endorsed stock or share powers, evidence of good title to the Shares, the absence of liens, encumbrances and adverse claims with respect thereto, and such other documents as are reasonably requested by the Drag-Along Sellers and the Company for the proper Transfer of such Shares on the books of the Company.
Period may be sold by the Company at any time thereafter on the same terms and conditions as are set forth in the applicable Company Sale Notice.
amendments, modifications and supplements thereto, in each case promptly, and in no event later than two business days, following its receipt thereof;
(unless otherwise provided by the terms of issue of the Shares of that class) may, whether or not the Company is being wound up, be varied without the consent of the shareholders of the issued Shares of that class where such variation is considered by the Directors not to have a material adverse effect upon such rights; otherwise, any such variation shall be made only with the consent in writing of the shareholders of not less than two-thirds of the issued Shares of that class, or with the approval of a resolution passed by a majority of not less than two-thirds of the votes cast at a separate meeting of the shareholders of the Shares of that class. Notwithstanding the above, and that any such variation may not have a material adverse effect, the Directors reserve the right to obtain consent from the shareholders of Shares of the relevant class. To any such meeting all the provisions of these Articles relating to general meetings shall apply mutatis mutandis, except that the necessary quorum shall be one Person holding or representing by proxy at least one third of the issued Shares of the class and that any shareholder of Shares of the class present in Person or by proxy may demand a poll.
The Company may, in so far as the Statute permits, pay a commission to any Person in consideration of his subscribing or agreeing to subscribe (whether absolutely or conditionally) or procuring or agreeing to procure subscriptions (whether absolutely or conditionally) for any Shares. Such commissions may be satisfied by the payment of cash and/or the issue of fully or partly paid-up Shares. The Company may also on any issue of Shares pay such brokerage as may be lawful.
The Company shall not be bound by or compelled to recognise in any way (even when notified) any equitable, contingent, future or partial interest in any Share, or (except only as is otherwise provided by these Articles or the Statute) any other rights in respect of any Share other than an absolute right to the entirety thereof in the holder.
Subject to the provisions of the Statute, the Company may by resolution of the Directors change the location of its Registered Office. The Company may, in addition to its Registered Office, maintain such other offices or places of business, either within or without the Cayman Islands, as the Directors determine.
to the meeting that the business was not properly brought before the meeting and such business shall not be transacted.
Any corporation or other non-natural person which is a Member may in accordance with its constitutional documents, or in the absence of such provision by resolution of its directors or other governing body, authorise such Person as it thinks fit to act as its representative at any meeting of the Company or of any class of Members, and the Person so authorised shall be entitled to exercise the same powers on behalf of the corporation which he represents as the corporation could exercise if it were an individual Member.
permitted, or which has not been declared to have been duly deposited by the chairman, shall be invalid.
Shares in the Company that are owned by the Company or a Subsidiary of the Company shall not be allowed to be voted at any meeting and shall not be counted in determining the total number of outstanding Shares at any given time. For purposes of clarity, Treasury Shares may not be voted and will not be counted in determining the total number of outstanding Shares at any given time.
Board), provided, however, that the CEO Appointing Person's right to appoint directors shall expire immediately upon the termination of the Management Agreement in accordance with the terms thereof;
(c) to the extent the number of directors designated pursuant to the preceding clauses of this Article 19.1.2 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.
(a) the Director gives notice in writing to the Company that he resigns the office of Director; or
(b) the Director dies, becomes bankrupt or makes any arrangement or composition with his creditors generally; or
(c) the Director is found to be or becomes of unsound mind.
(ii) The Company shall deliver notice of each proposed action of the Board of Directors and each committee thereof (including any proposed action by written consent) and each meeting of the Board of Directors and each committee thereof (including telephonic or teleconferenced meetings) substantially concurrently with any notice given to the members of the Board of Directors or such committee, as the case may be.
(iii) The Company agrees to permit each Observer to attend in person or by conference call and participate in all meetings of the Board of Directors and each committee thereof and to distribute all materials distributed for or at any such meeting (including any meeting agenda or board package) and all other information and materials distributed to members of the Board of Directors or such committee, as the case may be, in each case, substantially concurrently with any such information or materials distributed to the members of the Board of Directors or such committee, as the case may be.
(iv) No Observer shall be entitled to vote at a meeting of the Board of Directors and each committee thereof.
(v) Each Observer may provide all materials distributed to such Observer in its capacity as Observer to the Lender Appointing Person that designated such Observer.
(vi) The Company shall pay all reasonable and documented out-of-pocket expenses incurred by each Observer in connection with attending regular and special meetings of the Board of Directors and each committee thereof.
Registered Office of the Company (i) in respect of the Extraordinary General Meeting held in accordance with Article 19.3, within ten (10) calendar days of the deemed receipt by that shareholder (in accordance with Article 14.11) of the Accelerated Termination Notice, or (ii) in all other circumstances, not less than ten (10) calendar days after the deemed receipt by that shareholder (in accordance with Article 14.11) of the Standard Termination Notice nor more than one hundred eighty (180) calendar days prior to the one-year anniversary of the immediately preceding Annual General Meeting.
Prior to the Termination Date, the following limitations apply in relation to the activities of the Company:
In furtherance of the foregoing, to the extent one or more officers of the Company or any of its Subsidiaries are directed to take any action by not less than two Lender Directors pursuant to this Article 19.13.3 and fail to promptly take such action as directed, not less than two Lender Directors shall have the power and authority to hire and appoint, and set the compensation and other employment terms for, one or more authorized officers of the Company and delegate authority to such officer or officers to take such action.
so chosen shall hold office until the next election of the class for which such directors shall have been chosen and until their successors shall be elected and qualified. No decrease in the number of directors shall shorten the term of any incumbent director. Notwithstanding the foregoing, and except as otherwise required by law, whenever the holders of any one or more series of preferred shares shall have the right, voting separately as a class, to elect one or more directors of the Company, the then authorised number of directors shall be increased by the number of directors so to be elected, and the terms of the director or directors elected by such holders shall expire at the next succeeding Annual General Meeting. Notwithstanding any other provisions of these Articles, this Article 20.1 shall only be amended by an Enhanced Special Resolution.
A Director who is present at a meeting of the board of Directors at which action on any Company matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent from such action with the person acting as the chairman or secretary of the meeting before the adjournment thereof or shall forward such dissent by registered post to such person immediately after the adjournment of the meeting. Such right to dissent shall not apply to a Director who voted in favour of such action.
vote of a majority of the disinterested Directors, or, if the votes of the disinterested Directors are insufficient to constitute an act of the Board of Directors, by unanimous vote of the disinterested Directors; or (ii) the material facts as to his relationship or interest and as to the shareholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the shareholders; or (iii) the contract or transaction is fair as to the Company as of the time it is authorised, approved or ratified, by the Board of Directors, a committee thereof or the shareholders. Common or interested Directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.
The Directors shall cause minutes to be made in books kept for the purpose of recording all appointments of officers made by the Directors, all proceedings at meetings of the Company or the holders of any class of Shares and of the Directors, and of committees of the Directors, including the names of the Directors present at each meeting.
and may also authorise any such attorney or authorised signatory to delegate all or any of the powers, authorities and discretions vested in him.
Subject to Article 19.13.2(d), the Board may from time to time, in its discretion, fix the amounts which shall be payable to members of the Board of Directors and to members of any committee, for attendance at the meetings of the Board or of such committee and for services rendered to the Company generally.
exceeding sixty calendar days preceding the date fixed for the payment of any dividend, the making of any distribution, the allotment of any rights or the taking of any other action, as a record time for the determination of the shareholders entitled to receive any such dividend, distribution, or allotment or for the purpose of such other action.
The Directors may at any time capitalise any sum standing to the credit of any of the Company's reserve accounts or funds (including the share premium account and capital redemption reserve fund) or any sum standing to the credit of the profit and loss account or otherwise available for distribution; appropriate such sum to Members in the proportions in which such sum would have been divisible amongst such Members had the same been a distribution of profits by way of Dividend or other distribution; and apply such sum on their behalf in paying up in full unissued Shares for allotment and distribution credited as fully paid-up to and amongst them in the proportion aforesaid. In such event the Directors shall do all acts and things required to give effect to such capitalisation, with full power given to the Directors to make such provisions as they think fit in the case of Shares becoming distributable in fractions (including provisions whereby the benefit of fractional entitlements accrue to the Company rather than to the Members concerned). The Directors may authorise any person to enter on behalf of all of the Members interested into an agreement with the Company providing for such capitalisation and matters incidental or relating thereto and any agreement made under such authority shall be effective and binding on all such Members and the Company.
agreed to protect the confidentiality of the disclosed information; and (c) the restrictions contained in clauses (a) and (b) above will not apply to any disclosed information that: (i) was in the public domain at the time it was received by the Shareholder; or (ii) enters the public domain, through no action of the Shareholder or any of its employees, agents, or advisors, subsequent to the time it was received by the Shareholder. Notwithstanding anything to the contrary in this Article 30.3, each such 5% Shareholder Party may provide prospective purchasers of its Shares with due diligence information held by it, provided that such prospective purchaser has entered into a non-disclosure agreement with such disclosing 5% Shareholder Party on terms at least as restrictive on such prospective purchaser as this Article 30.3 is on such Member.
questions related thereto. Such conference calls shall be open to all interested parties and the Company shall provide access to each such conference call on the Company's website.
of the carrying out of their functions unless that liability arises through the actual fraud or wilful default of such Indemnified Person. No person shall be found to have committed actual fraud or wilful default under this Article 32 unless or until a court of competent jurisdiction shall have made a final and un-appealable finding to that effect.
Unless the Directors otherwise prescribe, the financial year of the Company shall end on 31st December in each year and, following the year of incorporation, shall begin on 1st January in each year.
If the Company is exempted as defined in the Statute, it shall, subject to the provisions of the Statute and with the approval of a Special Resolution, have the power to register by way of continuation as a body corporate under the laws of any jurisdiction outside the Cayman Islands and to be deregistered in the Cayman Islands.
The Seal, if any, shall be circular in form, with the name of the Company in the circumference and such other appropriate legend as the Board of Directors may from time to time determine.
On and following the Termination Date, the Company or any of its Subsidiaries cannot amend, modify, replace or refinance (including without limitation any sale, assignment, transfer, conveyance, disposal, pledge, swap, repo, sub-participation or refinancing of), any Company-Held Debt and any transaction relating to or involving such Company-Held Debt (other than the termination or cancellation thereof by the Company or any of its Subsidiaries), unless such amendment, modification, replacement or refinancing is approved by Enhanced Special Resolution.
The Company shall have the power to merge or consolidate with one or more other constituent companies (as defined in the Statute) upon such terms as the Directors may determine and (to the extent required by the Statute) with the approval of a Special Resolution. Prior to the Termination Date, any of action undertaken pursuant to this Article 37 shall also be subject to the approval of Majority Lender Directors pursuant to Article 19.13.1 hereof.
The Company may, with the sanction of an Enhanced Special Resolution, present a petition to the Grand Court of the Cayman Islands seeking to wind up the Company.
Each of the following actions, whether by the Company or any of its Subsidiaries:
(1) Any guarantee, assumption or incurrence of, or grant of any security interests by the Company or any of its Subsidiaries to secure, indebtedness, other than (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 (as amended modified, replaced or refinanced on and as of the date hereof), and any transaction relating to or involving such indebtedness; (iii) refinancing of the Term Loan Facility on no less favorable terms to the Group Companies (the "Permitted Facility Refinancing"); (iv) $200,000,000 super senior revolver as permitted pursuant to the Term Loan Facility (the "Permitted Revolver"); and (v) guarantees associated with drilling contracts.
(2) Any transaction relating to or involving any indebtedness acquired, owned or held by the Company or any of its Subsidiaries as a result of, or following, the consummation of the restructuring described in Schedule 3 (Restructuring) of the Restructuring Agreement the ("Company-Held Debt"), including without limitation any sale, assignment, transfer, conveyance, disposal, pledge, swap, repo, sub-participation or refinancing thereof.
interests in the Company possessing either (x) a majority of the economic rights or (y) voting power to elect a majority of the Board (whether by merger, consolidation or sale or transfer of the Company's equity interests) or (ii) all or substantially all of the assets of any Company;
This Insider Trading Policy (this "Policy") provides guidelines to directors, observers, officers, employees, agents, advisors and consultants of OCEAN RIG UDW INC. and its subsidiaries (the "Company") with respect to transactions in the Company's securities (such as common shares, options to buy or sell common shares, warrants and convertible securities) and derivative securities relating to the Company's common shares, whether or not issued by the Company (such as exchange-traded options) for the purpose of promoting compliance with applicable securities laws.
To avoid even the appearance of impropriety, additional restrictions on trading Company securities apply to the Company's directors, observers, officers and certain other members of management who we refer to as being in the "Window Group." See Section III.
The Company reserves the right to amend or rescind this Policy or any portion of it at any time and to adopt different policies and procedures at any time consistent with the Second Amended and Restated Memorandum and Articles of Association of the Company. In the event of any conflict or inconsistency between this Policy and any other materials distributed by the Company, this Policy shall govern. If a law conflicts with this Policy, you must comply with the law.
You should read this Policy carefully and ask questions of the Company's Outside U.S. Counsel. As used herein, "Outside U.S. Counsel" means Gary Wolfe, Esq. of Seward & Kissel LLP or such other attorney as shall be designated from time to time by the Chief Financial Officer of the Company. Additionally, those insiders identified by the Company as being in the "Window Group" and who have been notified that they have been so identified must promptly sign and return the certification attached as Annex A acknowledging receipt and review of this Policy to:
Harbour Drive, Grand Cayman, Cayman Islands
| I. | Definitions and Explanations |
A. Material, Non-Public Information
| 1. | What Information is "Material"? |
It is not possible to define all categories of material information. However, information should be regarded as material if there is a substantial likelihood that it would be considered important to an investor in making an investment decision regarding the purchase or sale of the Company's securities. Information that is likely to affect the price of a company's securities is almost always material. It is also important to remember that either positive or negative information may be material.
While it may be difficult under this standard to determine whether particular information is material, there are various categories of information that are particularly sensitive and, as a general rule, should always be considered material information. Common examples of material information include:
| · | 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; |
| · | Changes in the Company's credit rating; |
| · | New equity or debt offerings; |
| · | Significant developments in litigation or regulatory proceedings; and |
| · | Changes in senior management. |
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The above list is for illustration purposes only. If securities transactions become the subject of scrutiny, they will be viewed after-the-fact and with the benefit of hindsight. Therefore, before engaging in any securities transaction, you should consider carefully how the Securities and Exchange Commission ("SEC") and others might view your transaction in hindsight and with all of the facts disclosed.
| 2. | What Information is "Non-Public"? |
Information is "non-public" if it has not been previously disclosed to the general public and is otherwise not generally available to the investing public. In order for information to be considered "public," it must be widely disseminated in a manner making it generally available to the investing public and the investing public must have had time to absorb the information fully. Generally, one should allow one full Trading Day following publication as a reasonable waiting period before information is deemed to be public.
B. Related Person
"Related Person" means, with respect to the Company's insiders:
| · | 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. |
Although a person's parent or sibling may not be considered a Related Person (unless living in the same household), a parent or sibling may be considered a "tippee" for securities law purposes.
C. Trading Day
"Trading Day" means a day on which national stock exchanges or the Over-The-Counter Bulletin Board Quotation System are open for trading, and a "Trading Day" begins at the time trading begins.
This Policy prohibits insiders from trading or "tipping" others who may trade in the Company's securities while aware of Material, Non-Public Information about the Company. Insiders are also prohibited from trading or tipping others who may trade in the securities of another company if they learn Material, Non-Public Information about the
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INSIDER TRADING POLICY, PAGE 3
other company in connection with their employment by or relationship with the Company. These illegal activities are commonly referred to as "insider trading."
All insiders should treat Material, Non-Public Information about the Company's business partners with the same care required with respect to Material, Non-Public Information related directly to the Company.
A. Trading on Material, Non-Public Information
No insider or Related Person shall engage in any transaction involving a purchase or sale of the Company's securities, including any offer to purchase or offer to sell, during any period commencing with the date that he or she is aware of Material, Non-Public Information concerning the Company, and ending at the beginning of the second Trading Day following the date of public disclosure of the Material, Non-Public Information, or at the time that the information is no longer material.
B. Tipping Others of Material, Non-Public Information
No insider shall disclose or tip Material, Non-Public Information to any other person (including Related Persons) where the Material, Non-Public Information may be used by that person to his or her profit by trading in the securities of the company to which the Material, Non-Public Information relates, nor shall the insider or the Related Person make recommendations or express opinions on the basis of Material, Non-Public Information as to trading in the Company's securities.
C. Confidentiality of Material, Non-Public Information
Material, Non-Public Information relating to the Company is the Company's property and the unauthorized disclosure of Material, Non-Public Information is prohibited. If an insider receives any inquiry from outside the Company (such as a securities analyst) for information (particularly financial results and/or projections) that may be Material, Non-Public Information, the inquiry should be referred to the Company's Chief Financial Officer and the Company's Outside U.S. Counsel, who are responsible for coordinating and overseeing the release of that information to the investing public, securities analysts and others in compliance with applicable laws and regulations.
D. Post-Termination Transactions
The guidelines set forth in this Section II continue to apply to transactions in the Company's securities even after the insider has terminated employment or other service relationship with the Company as follows: if the insider is aware of Material, Non-Public Information when his or her employment or service relationship terminates, the insider may not trade in the Company's securities until that information has become public or is no longer material.
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E. Certain Exceptions
The exercise of share options or vesting of restricted shares under the Company's plans, the exercise of a tax withholding right pursuant to which a person has elected to have the Company withhold shares subject to an option or award of restricted shares to satisfy tax withholding obligations and the purchase of shares through a Company employee share purchase plan, if any, are exempt from this Section II. This Section II does apply, however, to any sale of shares acquired by exercising any such option, the vesting of restricted shares or pursuant to a share purchase plan, including any such sale as part of a broker-assisted cashless exercise of an option or any other market sale for the purpose of generating the cash needed to pay the exercise price of an option.
| III. | Additional Trading Guidelines and Requirements for Window Group |
A. Blackout Period and Trading Window
The period (i) beginning at the close of market on the last calendar day of each fiscal quarter or year and (ii) ending after one full Trading Day following the date of public disclosure of the financial results for that fiscal quarter ("Blackout Period") is a particularly sensitive period of time for transactions in the Company's securities from the perspective of compliance with applicable securities laws. This sensitivity is due to the fact that those certain insiders identified by the Company as being in the "Window Group" will, during the Blackout Period, often be aware of Material, Non-Public Information about the expected financial results for the quarter. Those insiders in the Window Group are prohibited from trading during the Blackout Period. Insiders who have not been identified as being in the Window Group should adhere to the general prohibitions set forth in this Policy.
To ensure compliance with this Policy and applicable federal and state securities laws, the Company requires that the Window Group refrain from executing transactions involving the purchase or sale of the Company's securities other than during the period commencing at the open of market after the expiration of one full Trading Day following the date of public disclosure of the financial results for a particular fiscal quarter or year and continuing until the close of market on the last calendar day of each fiscal quarter or year ("Trading Window"). The safest period for trading in the Company's securities, assuming the absence of Material, Non-Public Information, is generally the first 10 days of the Trading Window.
The prohibition against trading during the Blackout Period encompasses the fulfillment of "limit orders" by any broker, and the brokers with whom the limit order is placed must be so instructed at the time it is placed. The prohibition against trading during the Blackout Period does not apply to transactions involving (1) the exercise of share options or vesting of restricted shares under the Company's plans (however, any shares acquired must be held until the Blackout Period has expired), (2) the exercise of a tax withholding right pursuant to which a person has elected to have the Company withhold shares subject to an option or award of restricted shares
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to satisfy tax withholding requirements or (3) the purchase of shares through a Company employee share purchase plan, if any (however, any shares so acquired must be held until the Blackout Period has expired). The Blackout Period does apply, however, to any sale of shares as part of a broker-assisted cashless exercise of an option or any other market sale for the purpose of generating the cash needed to pay the exercise price of an option.
From time to time, the Company may also prohibit the Window Group from trading the Company's securities because of developments known to the Company and not yet disclosed to the public. In this event, the Window Group may not engage in any transaction involving the purchase or sale of the Company's securities until the information has been known publicly for at least two full Trading Days and should not disclose to others the fact of the trading suspension.
It should be noted that even during the Trading Window, any person aware of Material, Non-Public Information concerning the Company should not engage in any transactions in the Company's securities until the information has been known publicly for at least one full Trading Day, whether or not the Company has recommended a suspension of trading to that person. Trading in the Company's securities during the Trading Window should not be considered a "safe harbor," and all insiders should use good judgment at all times.
B. Pre-Clearance of Trades
The Company has determined that the Window Group must not trade in the Company's securities, even during a Trading Window, without first complying with the Company's "pre-clearance" process. Any director or other member of the Window Group must contact the Company's Outside U.S. Counsel prior to commencing any trade in the Company's securities. The Outside U.S. Counsel will consult, as necessary, with senior management before clearing any proposed trade. Any proposed trade cleared by the Company's Outside U.S. Counsel shall be reported immediately to the Company's Chief Financial Officer.
Please note that clearance of a proposed trade by the Company's Outside U.S. Counsel does not constitute legal advice regarding or otherwise acknowledge that a member of the Window Group does not possess Material, Non-Public Information. Employees must ultimately make their own judgments regarding, and are personally responsible for determining, whether they are in possession of Material, Non-Public Information.
C. Hardship Waivers
The guidelines specified in Sections II and III may be waived, at the sole discretion of the chairman of the Audit Committee of the Company. If compliance would create severe hardship or prevent an insider within the Window Group from complying with a court order, as in the case of a divorce settlement. Any exception
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approved by the Audit Committee chairman shall be reported immediately to the Company's Outside U.S. Counsel.
| IV. | Planned Trading Programs |
Rule 10b5-1 under the Securities Exchange Act of 1934, as amended (the "Exchange Act") provides an affirmative defense to an allegation that a trade has been made on the basis of Material, Non-Public Information. Under the affirmative defense, insiders may purchase and sell securities even when aware of Material, Non-Public Information. To meet the requirements of Rule 10b5-1, each of the following elements must be satisfied.
| · | 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. |
The general requirements of Rule 10b5-1 are as follows:
| · | 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. |
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| · | 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. |
Since adopting a Rule 10b5-1 Plan is tantamount to an investment decision, the Rule 10b5-1 Plan may be adopted only during an open Trading Window when both (1) insider purchases and sales are otherwise permitted under this Policy and (2) the insider does not possess any Material, Non-Public Information. All adoptions of a Rule 10b5-1 Plan and any proposed alterations, modifications or early terminations of a Rule 10b5-1 Plan must be pre-cleared in writing in advance of adoption by the Outside U.S. Counsel and prompt disclosure regarding the plan's adoption, alteration, modification or early termination may be made through a press release or Current Report on Form 6-K. Insiders are not permitted to have multiple Rule 10b5-1 Plans in operation. Further, please note that if trading in the Company's shares is suspended for any reason, such suspension shall take effect notwithstanding the existence of a Rule 10b5-1 Plan.
| V. | Potential Criminal and Civil Liability and/or Disciplinary Action |
A. SEC Enforcement Action
The adverse consequences of insider trading violations can be significant and currently include, without limitation, the following:
| 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. |
OCEAN RIG UDW INC.
INSIDER TRADING POLICY, PAGE 8
B. Disciplinary Action by the Company
Persons who violate this Policy may be subject to disciplinary action by the Company.
* * * *
This document states a policy of OCEAN RIG UDW INC. and is not intended to be regarded as the rendering of legal advice.
OCEAN RIG UDW INC.
INSIDER TRADING POLICY, PAGE 9
ANNEX A
INSIDER TRADING POLICY
CERTIFICATION
I have read and understand the Insider Trading Policy (the "Policy") of OCEAN RIG UDW INC. (the "Company"). I agree that I will comply with the policies and procedures set forth in the Policy. I understand and agree that, if I am an employee of the Company or one of its subsidiaries or other affiliates, my failure to comply in all respects with the Company's policies, including the Policy, is a basis for termination for cause of my employment with the Company and any subsidiary or other affiliate to which my employment now relates or may in the future relate.
I am aware that this signed Certification will be filed with my personal records in the Company's Human Resources Department.
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| Signature | |
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| Type or Print Name | |
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| Date | |
SCHEDULE 4
SCHEME SANCTION ORDER
IN THE GRAND COURT OF THE CAYMAN ISLANDS
FINANCIAL SERVICES DIVISION
CAUSE NO. FSD 101 OF 2017 (RPJ)
In Open Court
4, 5 and 6 September 2017
Before the Honourable Mr. Justice Parker
IN THE MATTER OF SECTION 86 OF THE COMPANIES LAW (2016 REVISION)
AND IN THE MATTER OF OCEAN RIG UDW INC. (IN PROVISIONAL LIQUIDATION)
__________________________________
ORDER
__________________________________
UPON hearing the Petition presented herein by Ocean Rig UDW Inc. (in provisional liquidation) (the "Petitioner") on 22 May 2017
AND UPON reading the affidavits set out in the Schedule annexed to this Order and the respective exhibits thereto
AND UPON hearing Leading Counsel for the Petitioner, Leading Counsel for the Ad Hoc Group, Leading Counsel for Highland Capital Management LP, Counsel for the Joint Provisional Liquidators and Counsel for the DISH Group
THIS COURT HEREBY SANCTIONS the Scheme of Arrangement, a copy of which is annexed hereto, pursuant to section 86(2) of the Companies Law (2016 Revision) so as to be binding on the Petitioner and the Scheme Creditors (as defined therein)
AND IT IS HEREBY ORDERED AND DIRECTED AS FOLLOWS:
| 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. |
DATED this 15 day of September 2017
FILED this 15 day of September 2017
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| THE HONORABLE JUSTICE PARKER | |
Schedule
| 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; |
and the exhibits thereto
IN THE GRAND COURT
OF THE CAYMAN ISLANDS
FINANCIAL SERVICES DIVISION | FSD Cause No. 102 of 2017 |
IN THE MATTER OF OCEAN RIG UDW INC.
(IN PROVISIONAL LIQUIDATION)
– and –
IN THE MATTER OF THE COMPANIES LAW (2016 Revision)
_________________
SCHEME OF ARRANGEMENT
(under section 86 of the Companies Law (2916 Revision))
BETWEEN
OCEAN RIG UDW INC,
(IN PROVISIONAL LIQUIDATION)
AND
THE UDW SCHEME CREDITORS
(as hereinafter defined)
_________________
PRELIMINARY
RECITALS
UDW is 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.
The common stock of UDW is currently listed on the NASDAQ on the Global Select Market. The NASDAQ previously indicated an intention to suspend trading and to delist UDW's common stock. UDW appealed the delisting action and received a conditional exception staying the delisting of its common stock subject to certain conditions, including the Restructuring becoming effective on or before 25 September 2017 and
UDW demonstrating compliance with all initial listing requirements for NASDAQ at such time. Following an annual general meeting of shareholders held on 24 April 2017, the authorised share capital of UDW was increased to one trillion (1,000,000,000,000) common shares of a par value of US$0.01 each and five hundred million (500,000,000) preferred shares of a par value of US$0.01 each.
The Group issued the following 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), |
UDW has provided guarantees in relation to each of the 2017 Notes, the DFH Credit Facility and the DOV Credit Facility.
The 2019 Notes were issued by UDW pursuant to the 2019 Notes Indenture and the 2017 Notes were issued by DRH pursuant to the 2017 Notes Indenture. The 2019 Notes and the 2017 Notes are held under an arrangement whereby:
| (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. |
The 2019 Notes and the 2017 Notes will remain in global form for the purposes of this UDW Scheme. The 2017 Notes Trustee and the 2019 Notes Trustee are not UDW Scheme Creditors for the purposes of this UDW Scheme.
(C) PURPOSE OF THE SCHEMES AND THE RESTRUCTURING
The Restructuring comprises four separate but connected schemes of arrangement: this UDW Scheme; the DFH Scheme; the DOV Scheme and the DRH Scheme.
The Schemes if approved, will restructure the Existing Debt as follows:
| (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, |
provided that the sum of: (i) the DFH Transfer Portion; and (ii) the DFH Release Portion, of each DFH Scheme Creditor shall together be equal to that DFH Scheme Creditor's DFH Scheme Claims;
| (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, |
provided that the sum of: (1) the DCV Transfer Portion; and (ii) the DOV Release Portion, of each DOV Scheme Creditor shall together be equal to that DOV Scheme Creditor's DOV Scheme Claims; and
| (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. |
The Restructuring has been promulgated by the Scheme Companies, acting by and under the authority of the JPLs, and includes various measures which are intended to ensure that UDW and the Group can continue to operate as a going concern.
Each of the UDW Scheme, the DFH Scheme and the DOV Scheme is inter-conditional upon each other and each must be approved by the relevant Scheme Creditors at the relevant Scheme Meeting and sanctioned by the Cayman Court in order for any of them to become effective. The DRH Scheme is conditional upon: (i) the DRH Scheme being approved by the DRH Scheme Creditors at the DRH Scheme Meeting and sanctioned by the Cayman Court: and (ii) each of the UDW Scheme, the DFH Scheme and the DOV Scheme being approved at the relevant Scheme Meeting and sanctioned by the Cayman
Court, in order for the DRH Scheme to become effective. If each of this UDW Scheme, the DFH Scheme and the DOV Scheme is sanctioned but the DRH Scheme is not sanctioned, the Restructuring will proceed without the DRH Scheme.
| (D) | BINDING ON THIRD PARTIES |
Pursuant to the Group Undertaking and the Information Agent Undertaking, the Scheme Companies (on behalf of each member of the Group) and the Information Agent have undertaken to be bound by and perform the terms of this UDW Scheme and insofar as is applicable, to execute or procure to be executed all such documents, and to do or procure to be done all such acts and things, that are consistent with and reasonably required for the purposes of giving effect to this UDW Scheme.
Pursuant to the DFH Administrative Agent Undertaking, the DOV Administrative Agent Undertaking, the DFH Collateral Agent Undertaking, the DOV Collateral Agent Undertaking, the New Administrative Agent Undertaking, the New Collateral Agent Undertaking and the Holding Period Trustee Undertaking, the DFH Administrative Agent, the DOV Administrative Agent, the DFH Collateral Agent, the DOV Collateral Agent, the New Administrative Agent, the New Collateral Agent and the Holding Period Trustee (as applicable) have agreed, upon instructions from UDW (acting by its directors, the JPLs or other duly appointed representatives) or if applicable, the relevant Agent, to execute or procure to be executed all such documents and do or procure to be done all such acts and things, that are consistent with and reasonably required for the purposes of giving effect to the terms of this UDW Scheme that apply to them.
THIS UDW SCHEME
| 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"). |
In this UDW Scheme, unless the context otherwise requires or otherwise expressly provides for:
| (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, |
(each a "UDW Scheme Condition" and, together, the "UDW Scheme Conditions").
| 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. |
The:
| (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 |
Each UDW Scheme Creditor (for itself and, to the extent that it has authority to do so, its Nominated Recipient(s), if any) hereby on and from the Restructuring Effective Date.
| (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): |
| (b) | sell and distribute the net proceeds arising from the sale of, |
the Trust Consideration it holds on behalf of a UDW Scheme Creditor to that relevant UDW Scheme Creditor and/or its Nominated Recipient(s), provided that the relevant UDW Scheme Creditor and/or its Nominated Recipient(s) (as applicable) has:
| (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. |
| 13.1 | 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, |
save that to the extent that the 2017 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.
| 13.6 | 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, |
without limitation, the UDW DOV Release) and deliver such executed documents to UDW to be held in escrow until the Restructuring Effective Date.
| 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 |
Letter or Part 7 of the Lender Claim Letter. UDW shall instruct the Transfer Agent to issue New Marginable Shares to such UDW Scheme Creditors and/or their Nominated Recipient(s) promptly after the Information Agent receives such validly completed Account Holder Letter and/or Lender Claim Letter.
| (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. |
| 14.1 | 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. |
With effect from completion of the Restructuring Effective Date, each UDW Scheme Creditor hereby irrevocably covenants with UDW for the benefit of UDW and each of the
Protected Parties, to the extent permitted by law, subject to clause 16 in relation to the JPLs only:
| (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, |
save that this clause 14.2 shall not apply to any Preserved UDW Claims or, in the event that the DRH Sanction Order is not granted, the 2017 Notes Creditors with respect to the DRH Silo only.
| 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. |
This UDW Scheme shall be unaffected by any present or future liquidation of UDW (including, for the avoidance of doubt, any provisional liquidation of UDW) and shall in those circumstances remain in force according to its terms.
| 18. | RELIANCE FOR SECTION 3(A)(10) EXEMPTION |
In sanctioning this UDW Scheme, the Cayman Court has been apprised of the fact that UDW will rely on the Cayman Court's ruling with respect to this UDW Scheme for the Section 3(a)(10) exemption under the United States Securities Act of 1933 for the issuance of the UDW New Share Consideration to be distributed to UDW Scheme Creditors in exchange for the UDW Scheme Claims subject to the sanction of this UDW Scheme by the Cayman Court.
| 19. | APPLICATION TO THE CAYMAN COURT FOR DIRECTIONS |
Without prejudice to any rights that UDW might otherwise have in connection with this UDW Scheme or any aspect of it, UDW shall be entitled to make an application to the Cayman Court for directions at any time in connection with any matter arising under or in relation to this UDW Scheme.
| 20. | FOREIGN REPRESENTATIVE |
Either one of the JPLs shall be authorised to act as the representative of UDW on and in connection with the Chapter 15 Proceedings or any application for recognition and assistance in relation to this UDW Scheme in any jurisdiction and under whatever law.
UDW (or, to the extent legally permitted, another member of the Group) will pay in full and within a reasonable period all costs, charges, expenses and disbursements incurred by UDW and the JPLs in connection with the negotiation, preparation and implementation of this UDW Scheme as and when they arise, including, but not limited to, the costs of holding the UDW Scheme Meeting, the costs of obtaining the sanction of the Cayman Court and the costs of placing the notices (if any) required by this UDW Scheme.
| 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. |
UDW may, at or in connection with the UDW Sanction Hearing and with the consent of the holders of a simple majority by value of the UDW Scheme Claims, implement on behalf of all UDW Scheme Creditors any modification of, or addition to, this UDW Scheme and/or the UDW Restructuring Documents or any terms or conditions that the Cayman Court may think fit to approve or impose and which would not directly or
indirectly have a material adverse effect on the rights or interests of UDW Scheme Creditors, or any UDW Scheme Creditor, under this UDW Scheme.
| 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 |
if any obligation is to be performed under the terms of this UDW Scheme on a date other than a Business Day and is not capable of being performed on such date, the relevant obligation shall be performed on the next Business Day,
| 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, |
provided that if deemed receipt of any Notice occurs after 6:00 p.m. or is not on a Business Day, deemed receipt of the Notice shall be 9:00 a.m. on the next Business Day. References to time in this clause are to local time in the country of the addressee.
| 26.3 | The addresses for Notices are as follows: |
FAO Iraklis Sbarounis, c/o Ocean Rig Cayman Management Services SEZC Limited, 3rd Floor Flagship Building Harbour Drive, Grand Cayman, Cayman Islands
Email: ocrcayman@ocean-rig.com
Copied to:
FAO Ocean Rig Processing, c/o Prime Clerk LLC, 830 Third Avenue, 3rd Floor, New York, NY 10022
| Phone: | +1 855-631-5346 (toll-free US and Canada)
+1 917-460-0913 (international) |
Email: oceanrigteam@primeclerk.com
and
Eleanor G. Fisher
Kalo (Cayman) Limited, 38 Market Street, 2nd Floor, Suite 4208, Camana Bay, Grand Cayman, KY1-9006, Cayman Islands
Email: oceanrig@kaloadvisors.ky
Fax: +1 345 946 0082
Simon Appell
AlixPartners Services UK LLP, 6 New Street Square, London EC4A 3BF, United Kingdom
Email: oceanrio@alixpartners.com
Fax: +44 20 7098 7401;
| (b) | in the case of a UDW Scheme Creditor, |
the Information Agent Website;
sent through the Cleaning Systems to the relevant Account Holders;
| (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)). |
| 27.1 | 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 |
jurisdiction to hear and determine any suit, action or proceeding and to settle any dispute which may arise out of the Explanatory Statement or any provision of this UDW Scheme or its implementation or out of any action taken or omitted to be taken under this UDW Scheme or in connection with the administration of this UDW Scheme.
| 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. |
SCHEDULE 1
UDW DEED OF COVENANT AND RELEASE
DEED OF COVENANT AND RELEASE
This deed is made on [***] 2017
BETWEEN:
| (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. |
BACKGROUND
| (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. |
IT IS AGREED as follows,
| 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. |
| 2.1 | 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. |
With effect from completion of the Restructuring Effective Date, each UDW Scheme Creditor hereby irrevocably covenants with UDW for the benefit of UDW and each of the Protected Parties, to the extent permitted by law, subject to clause 4 in relation to the JPLs only:
| (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, 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, |
save that this clause 3 shall not apply to any Preserved Claims or, in the event that the DRH Sanction Order is not granted, the 2017 Notes Creditors with respect to the DRH Silo only.
| 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. |
| 5.1 | 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). |
If any provision of this deed is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, it shall be deemed to be severed from this deed and the parties to this deed shall use all reasonable efforts to replace such provision with one having an effect as close as possible to the deficient provision. The remaining provisions will remain in full force in that jurisdiction and all provisions will continue in full force in any other jurisdiction.
This deed may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this deed.
This deed and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with Cayman Islands law
The Courts of Grand Cayman have exclusive jurisdiction to settle any dispute (contractual or otherwise) arising out of or in connection with this deed (including a dispute regarding the existence, validity or termination of this deed)
IN WITNESS of which this deed has been duly executed and delivered on the date first appearing on this deed.
EXECUTED AS A DEED by | ) | |
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: | | |
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: | | |
EXECUTED AS A DEED by | ) | |
| 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 | | |
| in the presence of: | | |
| | | |
| Witness signature: | | |
| | | |
| Name (print): | | |
| | | |
| Address: | | |
| | | |
| | | |
| | | |
| | | |
| | | |
SCHEDULE 2
UDW 2017 NOTES RELEASE
PARTIAL RELEASE OF
NOTE GUARANTEE AND PLEDGE AND SECURITY AGREEMENT
THIS PARTIAL RELEASE OF NOTE GUARANTEE AND PLEDGE AND SECURITY AGREEMENT (this "Release") is made as of [***], 2017 by U.S. BANK NATIONAL ASSOCIATION, as Trustee (in such capacity, the ("Trustee") and [by [●]] Noteholder Collateral Agent (in such capacity, the "Collateral Agent" and, together with the Trustee, the "Agents"), and by SIMON APPELL and ELEANOR FISHER, as joint provisional liquidators of Ocean Rig UDW Inc. (in provisional liquidation) (the "Parent"), solely for the purposes of obtaining the benefit of the exclusion of personal liability (the "JPLs").
RECITALS:
WHEREAS, reference is made to that certain Indenture, dated as of September 20, 2012, as amended by that certain supplemental indenture, dated as of January 23, 2013, that certain second supplemental indenture, dated as of January 30, 2013 and that certain third supplemental indenture, dated as of March 15, 2013 (as so amended and further amended, the "Indenture"), by and among Drill Rigs Holdings Inc. (in provisional liquidation) (the "Issuer"), the Parent, the other guarantor parties thereto and the Agents:
WHEREAS, pursuant to the Indenture, the Parent provided a Note Guarantee pursuant to which it guaranteed all obligations of the Issuer to the Holders or the Agents under the Indenture and the Collateral Agreements (as defined in the Indenture) (collectively, the "Transaction Documents");
WHEREAS, pursuant to that certain Pledge and Security Agreement. dated as of September 20, 2012, among the Parent. the Issuer. the Subsidiaries of the Issuer from time to time party thereto and the Collateral Agent (as may be amended, restated, supplemented, replaced or otherwise modified from time to time, the "Pledge and Security Agreement"), the Parent granted to the Collateral Agent a security interest in certain of its assets and property as Collateral to secure the Obligations (as defined in the Pledge and Security Agreement) under the Transaction Documents;
WHEREAS, pursuant to the Pledge and Security Agreement, the Subsidiary Grantors (as defined in the Pledge and Security Agreement) granted to the Collateral Agent a security interest in certain of their assets and property as Collateral to secure the Obligations, including the Note Guarantee provided by the Parent;
WHEREAS, pursuant to a scheme of arrangement proposed by the Parent under section 86 of the Companies Law (2016 Revision) of the Cayman Islands (the "UDW Scheme"), the obligations of the Parent under the Transaction Documents have been released on the Restructuring Effective Date in consideration for the UDW Scheme Consideration;
WHEREAS, pursuant to the order of the Grand Court of the Cayman Islands dated [****] 2017 (the "Sanction Order") and the UDW Scheme, the Agents are authorized to release the Parent from its obligations under the Transaction Documents and those certain Note
Guarantee and Pledge and Security Agreement referred to above, which the Agents have agreed to do in accordance with the terms of this Release;
WHEREAS, the UDW Scheme has been recognized as a "foreign [non]main proceeding" and has been given full force and effect under Chapter 15 of the U.S. Bankruptcy Court pursuant to an order of the U.S. Bankruptcy Court on [***] 2017; and
WHEREAS, the Trustee has received the UDW 2017 Notes Trustee Instruction and the Trustee has provided signed and delivered and the Collateral Agent has received the UDW 2017 Notes Collateral Agent Instruction, pursuant to which the Agents have been instructed to enter into this Release on behalf of the UDW Scheme Creditors.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows:
AGREEMENT:
1. Definitions. The term "2017 Notes Trustee Fees and Expenses" shall mean the reasonable compensation, fees, expenses, disbursements and indemnity claims of the Trustee and the Collateral Agent, including without limitation, any fees, expenses and disbursements of attorneys, advisors or agents retained or utilized by the Trustee or the Collateral Agent invoiced prior to the Restructuring Effective Date. Capitalized terms used herein and not defined herein shall have the meaning ascribed to such terms in the Indenture or the UDW Scheme, as applicable.
2. Release of Guarantee Obligations of the Parent. Pursuant to the terms of the UDW Scheme and subject to the occurrence of the UDW Scheme Steps and payment of the 2017 Notes Trustee Fees and Expenses, on the Restructuring Effective Date, the Parent is hereby fully and forever released and discharged from its obligations under the Note Guarantee provided under the Indenture and no Person will have any right, power, privilege or interest with respect to such obligations of the Parent; provided, however, that all obligations of each other Guarantor under the Indenture remain in full force and effect except as with respect to the Parent's obligations released and discharged hereby.
3. Release of Security Interests Granted by the Parent. (a) Pursuant to the terms of the UDW Scheme and subject to the occurrence of the UDW Scheme Steps and payment of the 2017 Notes Trustee Fees and Expenses, on the Restructuring Effective Date, the Collateral Agent hereby fully and forever releases its security, interest in and to all of the Pledged Collateral (as defined in the Pledge and Security Agreement) pledged by the Parent under the Pledge and Security Agreement (such portion of the Collateral so released. the "Released Collateral"); provided, however, that the Collateral Agent shall continue to hold a valid, effective and perfected security interest in and to all other Collateral under the Pledge and Security Agreement and all obligations of each other Grantor (as defined in the Pledge and Security Agreement) thereunder remain in full force and effect.
(b) The Collateral Agent hereby (i) agrees to return each certificate evidencing Equity Interests pledged by the Parent (along with any stock power or other similar
instrument) to the extent in the possession of the Collateral Agent, to the Parent by overnight courier to the following address: Bill Haft Orrick, Herrington & Sutcliffe, LLP at 51 W 52nd Street, New York, NY 10019, United States of America, and (ii) authorizes the Parent or its counsel to make filings terminating all financing statements naming the Parent as the debtor with respect to the Collateral Agreements in any appropriate filing or recording office in accordance with the Uniform Commercial Code as enacted in any and all relevant jurisdictions or any other relevant applicable law and (iii) agrees to take such steps as may be reasonably requested by the Parent (at the cost and expense of the Parent) to evidence and give effect to the release as provided herein.
4. Release of Security Interests Granted by the Subsidiary Grantors. To the extent that any Collateral pledged by any Subsidiary Grantor has secured any of the obligations of the Parent under the Transaction Documents, such pledge of Collateral is hereby fully and forever released.
5. Subsidiary Guarantors as Third Party Beneficiaries. Each of the Guarantors (other than the Parent) is an intended third party beneficiary under this Release and shall be entitled to enforce this Release as if it were a party hereto.
6. No Liability of Joint Provisional Liquidators. The JPLs act as agents for and on behalf of the Parent and neither they nor their firm, affiliated firms, employees, advisers, agents, partners, directors, members, officers or representatives shall incur any personal liability whatsoever under this Release, whether in contract, tort (including negligence) or restitution or by reference to any other remedy or right in any jurisdiction or forum by reason of entering into this Release except in the case of its or their fraud, wilful default or wilful misconduct.
7. No Liability of Agents. The Agents make and give this Release: (a) without any representation, warranty or liability of any nature whatsoever, and (b) solely pursuant to the UDW 2017 Notes Trustee instruction and UDW 2017 Notes Collateral Agent Instruction, respectively.
8. JURY TRIAL WAIVER. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS RELEASE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
9. Governing Law. This Release shall be construed in accordance with and be governed by the law of the State of New York.
10. Submission to Jurisdiction. The parties hereto hereby irrevocably submit to the jurisdiction of the courts of the State of New York and of the United States District Court for the Southern District of New York in any action or proceeding brought against them under this Release and waive any objection that they may now or hereafter have to the laying of venue in any such proceeding. Notwithstanding anything herein to the contrary, the parties hereto may bring any legal action or proceeding in any other appropriate jurisdiction.
11. Counterparts. This Release may be signed in any number of counterparts (and by different parties hereto in different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single contract. Any counterpart delivered by facsimile, PDF or other electronic means shall have the same import and effect as original counterparts and shall be valid, enforceable and binding for the purposes of this Release.
12. Successors and Assigns. The provisions of this Release shall be binding upon the parties and their respective successors and/or assigns.
13. Entire Agreement. This Release and the documents referenced herein constitute the entire agreement, and supersedes all prior agreements of the parties hereto with respect to the subject matter hereof.
[Remainder of page intentionally left blank: signature pages to follow.]
IN WITNESS WHEREOF, the parties hereto have caused this Release to be executed by their duly authorized representatives as of the date and year first above written.
| | U.S. BANK NATIONAL ASSOCIATION, as Trustee |
| | | |
| | | |
| | By: | |
| | | Name: |
| | | Title: |
| | U.S. BANK NATIONAL ASSOCIATION, as Noteholder Collateral Agent |
| | | |
| | | |
| | By: | |
| | | Name: |
| | | Title: |
Signature Page to Partial Release - UDW Scheme (DRH)
AGREED AND ACCEPTED AS OF DATE FIRST ABOVE WRITTEN
| | 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 |
Signature Page to Partial Release - (UDW Scheme - DRH)
SCHEDULE 3
UDW DFH RELEASE
DFH PARTIAL RELEASE OF
GUARANTY AGREEMENT AND PLEDGE AND SECURITY AGREEMENT
THIS PARTIAL RELEASE OF GUARANTY AGREEMENT AND PLEDGE AND SECURITY AGREEMENT (this ''Release") is made as of [***], 2017 by DEUTSCHE BANK AG NEW YORK BRANCH ("DBNY"), as Administrative Agent (in such capacity, the "Administrative Agent") and as Pari Passu Collateral Agent (in such capacity, the "Collateral Agent" and, together with the Administrative Agent, the "Agents") and by SIMON APPELL and ELEANOR FISHER, as joint provisional liquidators of Ocean Rig UDW Inc. (in provisional liquidation) (the "Parent"), solely for the purposes of obtaining the benefit of the exclusion of personal liability (the "JPLs").
RECITALS:
WHEREAS, reference is made to that certain Credit Agreement. dated as of July 12, 2013, as amended and restated as of February 7, 2014 and as further amended as of April 20, 2017 (as so amended and restated and further amended, supplemented or otherwise modified from time to time. the "Credit Agreement"), by and among Drillships Financing Holding Inc. (in provisional liquidation) ("DFH"), Drillships Projects Inc., ("Finco"), the Parent, the lenders party thereto (the "UDW Scheme Creditors") and the Agents;
WHEREAS, pursuant to that certain Guarantee Agreement, dated as of July 12, 2013, among the Parent, DFH, Finco. the Subsidiaries of the Parent from time to time party thereto and the Agents (as may be amended, restated, supplemented, replaced or otherwise modified from time to time, the "Guarantee Agreement"), the Parent guaranteed the obligations of the Loan Parties under the Loan Documents;
WHEREAS, pursuant to that certain Pledge and Security Agreement, dated as of July 12, 2013, among the Parent, the Borrower, Finco, the Subsidiaries of the Borrower party thereto and the Collateral Agent (as may be amended, restated, supplemented, replaced or otherwise modified from time to time the "Pledge and Security Agreement"), the Parent granted to the Collateral Agent a security interest in certain of its assets and property as Collateral to secure the obligations of the Loan Parties under the Guarantee Agreement and the other Loan Documents;
WHEREAS, pursuant to a scheme of arrangement proposed by the Parent under section 86 of the Companies Law (2016 Revision) of the Cayman Islands (the "UDW Scheme"), the obligations of the Parent under the Loan Documents have been released on the Restructuring Effective Date in consideration for the UDW Scheme Consideration;
WHEREAS, pursuant to the order of the Grand Court of the Cayman Islands dated [***] 2017 (the "Sanction Order") and the UDW Scheme, the Agents are authorized to release the Parent from its obligations under the Loan Documents, including those certain Guarantee Agreement and Pledge and Security Agreement referred to above, which the Agents have undertaken to do;
[WHEREAS, the UDW Scheme has been recognized as a "foreign [non]main proceeding" and has been given full force and effect under Chapter 15 of the U.S. Bankruptcy Court pursuant to an order of the U.S. Bankruptcy Court on [***] 2017;] and
WHEREAS, the Administrative Agent has received the UDW DFH Administrative Agent Instruction and the Administrative Agent has provided signed and delivered and the Collateral Agent has received the UDW DFH Collateral Agent Instruction, pursuant to which the Agents have been instructed to enter into this Release on behalf of the UDW Scheme Creditors.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows:
AGREEMENT:
1. Definitions. Capitalized terms used herein and not defined herein shall have the meaning ascribed to such terms in the Credit Agreement or the UDW Scheme, as applicable.
2. Release of Guarantee Obligations of the Parent. Pursuant to the terms of the UDW Scheme, on the Restructuring Effective Date, the Parent is hereby fully and forever released and discharged from its obligations under the Guarantee Agreement and no Person will have any right, power, privilege or interest with respect to such obligations of the Parent; provided, however, that all obligations of each other Guarantor under the Guarantee Agreement remain in full force and effect.
3. Release of Security Interests Granted by the Parent. (a) Pursuant to the terms of the UDW Scheme, on the Restructuring Effective Date, the Collateral Agent hereby fully and forever releases its security interest in and to all of the Collateral (as defined in the Pledge and Security Agreement) pledged or otherwise granted by the Parent under the Pledge and Security Agreement (such portion of the Collateral so released, the "Released Collateral"); provided, however, that the Collateral Agent shall continue to hold a valid, effective and perfected security interest in and to all other Collateral under the Pledge and Security Agreement and all obligations of each other Grantor (as defined in the Pledge and Security Agreement) thereunder remain in full force and effect.
(b) The Collateral Agent hereby (i) agrees to transfer each certificate evidencing Equity Interests pledged by the Parent (along with any stock power or other similar instrument) within 10 Business Days of the date hereof (as may be extended by the Parent in its sole discretion) to DBNY in its capacity as collateral agent under the New Credit Agreement, (ii) authorizes the Parent or its counsel to make filings terminating all financing statements naming the Parent as the debtor with respect to the Security Documents in any appropriate filing or recording office in accordance with the Uniform Commercial Code as enacted in any and all relevant jurisdictions or any other relevant applicable law and (iii) agrees to take such steps as may be reasonably requested by the Parent to evidence and give effect to the release as provided herein.
4. No Liability of Joint Provisional Liquidators. The JPLs act as agents for and on behalf of the Parent and neither they nor their firm, affiliated firms, employees, advisers, agents, partners, directors, members, officers or representatives shall incur any personal liability
whatsoever under this Release, whether in contract, tort (including negligence) or restitution or by reference to any other remedy or right in any jurisdiction or forum by reason of entering into this Release except in the case of its or their fraud, wilful default or wilful misconduct.
5. JURY TRIAL WAIVER. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS RELEASE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
6. Governing Law. This Release shall be construed in accordance with and be governed by the law of the State of New York.
7. Submission to Jurisdiction. The parties hereto hereby irrevocably submit to the jurisdiction of the courts of the State of New York and of the United States District Court for the Southern District of New York in any action or proceeding brought against them under this Release and waive any objection that they may now or hereafter have to the laying of venue in any such proceeding. Notwithstanding anything herein to the contrary, the parties hereto may bring any legal action or proceeding in any other appropriate jurisdiction.
8. Counterparts. This Release may be signed in any number of counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Any counterpart delivered by facsimile, PDF or other electronic means shall have the same import and effect as original counterparts and shall be valid, enforceable and binding for the purposes of this Release.
9. Successors and Assigns. The provisions of this Release shall be binding upon the parties and their respective successors and/or assigns.
10. Entire Agreement. This Release and the documents referenced herein constitute the entire agreement, and supersedes all prior agreements of the parties hereto with respect to the subject matter hereof.
[Remainder of page intentionally left blank: signature pages to follow.]
IN WITNESS WHEREOF, the parties hereto have caused this Release to be executed by their duly authorized representatives as of the date and year first above written.
| | DEUTSCHE BANK AG NEW YORK BRANCH, as Administrative Agent and Collateral Agent |
| | | |
| | | |
| | By: | |
| | | Name: |
| | | Title: |
Signature Page to Partial Release - UDW Scheme (DFH)
AGREED AND ACCEPTED AS OF THE DATE FIRST ABOVE WRITTEN
| | 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 |
| | | |
| | | |
Signature Page to Partial Release (UDW Scheme - DFH)
| | 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 |
| | |
Signature Page to Partial Release (UDW Scheme - DFH)
SCHEDULE 4
UDW DOV RELEASE
DOV PARTIAL RELEASE OF
GUARANTY AGREEMENT AND PLEDGE AND SECURITY AGREEMENT
THIS PARTIAL RELEASE OF GUARANTY AGREEMENT AND PLEDGE AND SECURITY AGREEMENT (this "Release") is made as of [***], 2017 by DEUTSCHE BANK AG NEW YORK BRANCH ("DBNY"), as Administrative Agent (in such capacity, the "Administrative Agent") and as Pari Passu Collateral Agent (in such capacity, the "Collateral Agent" and, together with the Administrative Agent, the "Agents") and by SIMON APPELL and ELEANOR FISHER, as joint provisional liquidators of Ocean Rig UDW Inc. (in provisional liquidation) (the "Parent"), solely for the purposes of obtaining the benefit of the exclusion of personal liability (the "JPLs").
RECITALS:
WHEREAS, reference is made to that certain Credit Agreement, dated as of July 25, 2014 (as may be amended, restated, supplemented, replaced or otherwise modified from time to time, the "Credit Agreement"), by and among Drillships Ocean Ventures Inc. (in provisional liquidation) ("DOV"), Drillships Ventures Projects Inc. ("Finco"), the Parent, the lenders party thereto (the "UDW Scheme Creditors") and the Agents;
WHEREAS, pursuant to that certain Guarantee Agreement, dated as of July 25, 2014, among the Parent, DOV, Finco, the Subsidiaries of the Parent from time to time party thereto and the Agents (as may be amended, restated, supplemented, replaced or otherwise modified from time to time, the "Guarantee Agreement"), the Parent guaranteed the obligations of the Loan Parties under the Loan Documents;
WHEREAS, pursuant to that certain Pledge and Security Agreement, dated as of July 25, 2014, among the Parent, the Borrower, Finco, the Subsidiaries of the Borrower party thereto and the Collateral Agent (as may be amended, restated, supplemented, replaced or otherwise modified from time to time, the "Pledge and Security Agreement"), the Parent granted to the Collateral Agent a security interest in certain of its assets and property as Collateral to secure the obligations of the Loan Parties under the Guarantee Agreement and the other Loan Documents;
WHEREAS, pursuant to a scheme of arrangement proposed by the Parent under section 56 of the Companies Law (2016 Revision) of the Cayman Islands (the "UDW Scheme"), the obligations of the Parent under the Loan Documents have been released on the Restructuring Effective Date in consideration for the UDW Scheme Consideration;
WHEREAS, pursuant to the order of the Grand Court of the. Cayman Islands dated [***] 2017 (the "Sanction Order") and the UDW Scheme, the Agents are authorized to release the Parent from its obligations under the Loan Documents, including those certain Guarantee Agreement and Pledge and Security Agreement referred to above, which the Agents have undertaken to do;
[WHEREAS, the UDW Scheme has been recognized as a "foreign [non]main proceeding" and has been given full force and effect under Chapter 15 of the Bankruptcy Court pursuant to an order of the U.S. Bankruptcy Court on [***] 2017;] and
WHEREAS, the Administrative Agent has received the UDW DOV Administrative Agent Instruction and the Administrative Agent has provided signed and delivered and the Collateral Agent has received the UDW DOV Collateral Agent instruction, pursuant to which the Agents have been instructed to enter into this Release on behalf of the UDW Scheme Creditors.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows:
AGREEMENT:
1. Definitions. Capitalized terms used herein and not defined herein shall have the meaning ascribed to such terms in the Credit Agreement or the UDW Scheme, as applicable.
2. Release of Guarantee Obligations of the Parent. Pursuant to the terms of the UDW Scheme, on the Restructuring Effective Date, the Parent is hereby fully and forever released and discharged from its obligations under the Guarantee Agreement and no Person will have any right, power, privilege or interest with respect to such obligations of the Parent; provided, however, that all obligations of each other Guarantor under the Guarantee Agreement remain in full force and effect.
3. Release of Security interests Granted by the Parent. (a) Pursuant to the terms of the UDW Scheme, on the Restructuring Effective Date, the Collateral Agent hereby fully and forever releases its security interest in and to all of the Collateral (as defined in the Pledge and Security Agreement) pledged or otherwise granted by the Parent under the Pledge and Security Agreement (such portion of the Collateral so released, the "Released Collateral"), provided, however, that the Collateral Agent shall continue to hold a valid, effective and perfected security interest in and to all other Collateral under the Pledge and Security Agreement and all obligations of each other Grantor (as defined in the Pledge and Security Agreement) thereunder remain in full force and effect.
(b) The Collateral Agent hereby (i) agrees to transfer each certificate evidencing Equity Interests pledged by the Parent (along with any stock power or other similar instrument) within 10 Business Days of the date hereof (as may be extended by the Parent in its sole discretion) to DBNY in its capacity as collateral agent under the New Credit Agreement, (ii) authorizes the Parent or its counsel to make filings terminating all financing statements naming the Parent as the debtor with respect to the Security Documents in any appropriate filing or recording office in accordance with the Uniform Commercial Code as enacted in any and all relevant jurisdictions or any other relevant applicable law and (iii) agrees to take such steps as may be reasonably requested by the Parent to evidence and give effect to the release as provided herein.
4. No Liability of Joint Provisional Liquidators. The JPLs act as agents for and on behalf of the Parent and neither they nor their firm, affiliated firms, Employees, advisers, agents, partners, directors, members, officers or representatives shall incur any personal liability whatsoever under this Release, whether in contract, tort (including negligence) or restitution or by reference to any other remedy, or right in any jurisdiction or forum by reason of entering into this Release except in the case of its or their fraud, wilful default or wilful misconduct.
5. JURY TRIAL WAIVER. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS RELEASE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
6. Governing Law. This Release shall be construed in accordance with and be governed by the law of the State of New York.
7. Submission to Jurisdiction. The parties hereto hereby irrevocably submit to the jurisdiction of the courts of the State of New York and of the United States District Court for the Southern District of New York in any action or proceeding brought against them under this Release and waive any objection that they may now or hereafter have to the laying of venue in any such proceeding. Notwithstanding anything herein to the contrary, the parties hereto may bring any legal action or proceeding in any other appropriate jurisdiction.
8. Counterparts. This Release may be signed in any number of counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Any counterpart delivered by facsimile, PDF or other electronic means shall have the same import and effect as original counterparts and shall be valid, enforceable and binding for the purposes of this Release.
9. Successors and Assigns. The provisions of this Release shall be binding upon the parties and their respective successors and/or assigns.
10. Entire Agreement. This Release and the documents referenced herein constitute the entire agreement, and supersedes all prior agreements of the parties hereto with respect to the subject matter hereof.
[Remainder of page intentionally left blank: signature pages to follow.]
IN WITNESS WHEREOF, the parties hereto have caused this Release to be executed by their duly authorized representatives as of the date and year first above written.
| | DEUTSCHE BANK. AG NEW YORK BRANCH, as Administrative Agent and Collateral Agent |
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| | By: | |
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Signature Page to Partial Release – UDW Scheme (DOV)
AGREED AND ACCEPTED AS OF THE DATE. FIRST ABOVE WRITTEN
| | OCEAN RIG UDW INC. (IN PROVISIONAL LIQUIDATION) acting by Simon Appell and Eleanor Fisher as provisional liquidators (without personal liability) |
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| | Simon Appell |
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| | Eleanor Fisher |
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| | OCEAN RIG UDW INC. (IN PROVISIONAL LIQUIDATION) |
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| | By: | |
| | | Name: |
| | | Title: Director |
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Signature Page to Partial Release – (UDW Scheme – DOV)
| | 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 |
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| | Simon Appell |
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| | Eleanor Fisher |
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Signature Page to Partial Release (UDW Scheme – DOV)
SCHEDULE 5
UDW 2019 NOTES RELEASE
RELEASE OF
NOTES
THIS RELEASE OF NOTES (this "Release") is made as of [***], 2017 by [DEUTSCHE BANK TRUST COMPANY AMERICAS], as Trustee (in such capacity, the "Trustee") and by SIMON APPELL and ELEANOR FISHER, as joint provisional liquidators of Ocean Rig UDW Inc. (in provisional liquidation) (the "Issuer"), solely for the purposes of obtaining the benefit of the exclusion of personal liability (the "JPLs").
RECITALS:
WHEREAS, reference is made to that certain Indenture, dated as of March 26, 2014, by and between the Issuer and the Trustee;
WHEREAS, pursuant to a scheme of arrangement proposed by the Issuer under section 86 of the Companies Law (2016 Revision) of the Cayman Islands (the "UDW Scheme"), the Obligations of the Issuer under the Indenture have been released on the Restructuring Effective Date in consideration for the UDW Scheme Consideration;
WHEREAS, pursuant to the order of the Grand Court of the Cayman Islands dated [***] 2017 (the "Sanction Order") and the UDW Scheme, the Trustee is authorized to release the Issuer from its obligations under the Indenture, which the Trustee has agreed to do in accordance with the terms of this Release;
[WHEREAS, the UDW Scheme has been recognized as a foreign [non]main proceeding" and has been given full force and effect under Chapter 15 of the U.S. Bankruptcy Court pursuant to an order of the U.S. Bankruptcy Court on [***] 2017;] and
WHEREAS, the Trustee has received the 2019 Notes Trustee Instruction, pursuant to which the Trustee has been instructed to enter into this Release on behalf of the UDW Scheme Creditors.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows:
AGREEMENT:
1. Definitions. Capitalized terms used herein and not defined herein shall have the meaning ascribed to such terms in the Indenture or the UDW Scheme, as applicable.
2. Release. Pursuant to the terms of the UDW Scheme, on the Restructuring Effective Date, the Issuer is hereby fully and forever released and discharged from its Obligations under the Indenture and no Person will have any right, power, privilege or interest with respect to such Obligations of the Issuer.
3. JURY TRIAL WAIVER. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS RELEASE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
4. No Liability of Joint Provisional Liquidators. The JPLs act as agents for and on behalf of the Issuer and neither they nor their firm, affiliated firms, employees, advisers, agents, partners, directors, members, officers or representatives shall incur any personal liability whatsoever under this Release, whether in contract, tort (including negligence) or restitution or by reference to any other remedy or right in any jurisdiction or forum by reason of entering into this Release except in the case of its or their fraud, wilful default or wilful misconduct.
5. Governing Law. This Release shall be construed in accordance with and be governed by the law of the State of New York.
6. Submission to Jurisdiction. The parties hereto hereby irrevocably submit to the jurisdiction of the courts of the State of New York and of the United States District Court for the Southern District of New York in any action or proceeding brought against them under this Release and waive any objection that they may now or hereafter have to the laying of venue in any such proceeding. Notwithstanding anything herein to the contrary, the parties hereto may bring any legal action or proceeding in any other appropriate jurisdiction.
7. Counterparts. This Release may be signed in any number of counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but an of which when taken together shall constitute a single contract. Any counterpart delivered by facsimile, PDF or other electronic means shall have the same import and effect as original counterparts and shall be valid, enforceable and binding for the purposes of this Release.
8. Successors and Assigns. The provisions of this Release shall be binding upon the parties and their respective successors and/or assigns.
9. Entire Agreement. This Release constitutes the entire agreement, and supersedes all prior agreements of the parties hereto with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Release to be executed by their duly authorized representatives as of the date and year first above written.
| | DEUTSCHE BANK TRUST COMANY, as Trustee |
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| | By: | |
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Signature Page to Partial Release – UDW Scheme (UDW)
AGREED AND ACCEPTED AS OF THE DATE FIRST ABOVE WRITTEN:
| | OCEAN RIG UDW INC. (IN PROVISIONAL LIQUIDATION) acting by Simon Appell and Eleanor Fisher as provisional liquidators (without personal liability) |
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| | |
| | |
| | Simon Appell |
| | |
| | |
| | |
| | Eleanor Fisher |
| | |
| | OCEAN RIG UDW INC. (IN PROVISIONAL LIQUIDATION) |
| | | |
| | | |
| | By: | |
| | | Name: |
| | | Title: Director |
| | | |
| | | |
Signature Page to Partial Release (UDW Scheme – UDW)
| | 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 |
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| | |
| | Simon Appell |
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| | Eleanor Fisher |
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Signature Page to Partial Release (UDW Scheme – UDW)
