Capital/Financing Update • Feb 12, 2020
Capital/Financing Update
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Denne melding til obligasjonseierne er kun utarbeidet på engelsk. For informasjon vennligst kontakt Nordic Trustee AS
Oslo, 12 February 2020
Nordic Trustee AS acts as bond trustee (the "Bond Trustee") for the Bondholders in the abovementioned bond issues DOFSUB07 (outstanding amount of NOK 508,000,000), DOFSUB08 (outstanding amount of USD 175,000,000) and DOFSUB09 (outstanding amount of NOK 900,000,000) (each a "Bond Issue", collectively the "Bond Issues" or the "Bonds"), all issued by DOF Subsea AS (the "Issuer" or the "Company").
All capitalised terms used herein shall have the meaning assigned to them in the bond agreement for DOFSUB07 dated 16 January 2013 (as amended on 19 December 2017, 6 September 2019 and 25 November 2019), the bond terms for DOFSUB08 dated 13 March 2017 (as amended on 6 September 2019) and the bond terms for DOFSUB09 dated 26 November 2018 (as amended on 6 September 2019), and made between the Bond Trustee and the Issuer (each, the "Bond Terms"), unless otherwise set out herein. References to Clauses and paragraphs are references to Clauses and paragraphs of the relevant Bond Terms.
The Issuer has requested that the Bond Trustee issues this request for a Bondholders' Meeting in each of the Bond Issues pursuant to Clause 16 (Bondholders' Meeting) for DOFSUB07 and Clause 15 (Bondholders' Decisions) for DOFSUB08 and DOFSUB09, of the respective Bond Terms, to consider approval of the Revised Proposal (as defined in section 3 below).
The information in this summons regarding the Issuer and market conditions are provided by the Issuer, and the Bond Trustee expressly disclaims all liability whatsoever related to such information.
Reference is made to the summons for Bondholders' Meetings in the Bond Issues dated 5 December 2019 (the "Initial Summons") and the Company's announcement regarding the results from the Bondholders' Meetings of 20 December 2019 (the "Announcement").
As explained in the Announcement, the proposal to the Bondholders set out in the Initial Summons (the "Initial Proposal") and the Refinancing (as defined in the Initial Summons) was approved by the Bondholders' Meetings in each of the three Bond Issues, but in consideration of the support by the 07 Ad Hoc Group (as defined in the Initial Summons) of the Refinancing, the Company undertook not to implement the Initial Proposal until certain changes to the Initial Proposal have been approved by the Bondholders in each of DOFSUB07, DOFSUB08 and DOFSUB09.
In summary, the proposed changes to the Initial Proposal are as follows:
1 For the avoidance of doubt, references to the "initial maturity date" of the Senior Secured Facilities in this summons do not include any option to extend the maturity of the Senior Secured Facilities, or any extension to the Senior Secured Facilities after the Effective Date.
To enable the Issuer to implement the Refinancing, the Issuer requests that the Bondholders adopt the Revised Proposal, which incorporate these changes and will update and supersede the Initial Proposal.
The Group expects to reach agreement with the secured lenders to the DOF Subsea group (excluding lenders to any joint ventures) (the "Secured Lenders") on the terms for a long-term financial plan. A summary of the key terms for the senior secured facilities agreements (the "Senior Secured Facilities Agreements") is set out in Attachment 2 hereto (such key terms are referred to as the "Senior Secured Facilities Refinancing Key Terms"). The equity contributions from the Issuer's direct and indirect shareholders will remain as described in the Initial Summons.
The new maturity dates for the Bonds will be finally set as a function of the new initial maturity date for the Senior Secured Facilities, which will be on or about 30 April 2024.
The Refinancing involves, and the Company proposes the following, amendments to the Bond Terms for DOFSUB07:
The Floating Rate is currently 3 months NIBOR plus 7.00% p.a. margin.
The definition of "Margin" shall be amended to read:
" "Margin" means, from and including:
For the avoidance of doubt references to the Maturity Date in this definition shall mean the Maturity Date as extended in accordance with the Revised Proposal.
Clause 9.1 of the Bond Terms shall be amended to read:
"The Issuer shall pay interest on the Face Value of the Bonds from, and including, the Issue Date at the Bond Reference Rate plus the Margin (together the "Floating Rate"). In respect of the period from [ o] 2020 to and including the Interest Payment Date in October 2022 only, 5.00% per annum of the Margin accruing on or before the Interest Payment Date in October 2022 shall be paid on each Interest Payment Date as paymentin-kind interest ("PIK Interest") through the issuance of additional Bonds, while the remaining interest accruing shall be paid in cash."
The following shall be added as a new clause 9.7 of the Bond Terms:
"The Issuer shall pay any accrued PIK Interest on the Bonds by issuing additional Bonds to the Bondholders on each relevant Interest Payment Date. The amount of additional Bonds issued to a Bondholder shall be calculated as the product of (x) the aggregate amount of accrued PIK Interest on the Bonds for the interest period ending on the relevant Interest Payment Date and (y) a fraction, the numerator of which is the aggregate amount of Bonds held by that Bondholder and the denominator of which is the aggregate amount of all the Bonds, provided that the total amount of additional Bonds issued to a Bondholder shall be rounded to the nearest NOK 1.00. "
To provide for the repayment of the Bonds in full (including, for avoidance of doubt, the amount of the Scheduled Instalment) 9 calendar days after the initial maturity date of the Senior Secured Facilities, the definition of "Maturity Date" shall be amended to read:
" "Maturity Date" means [ .]". Any adjustments will be made according to the Business Day Convention."
Clause 10.1 (Maturity) of the Bond Terms shall be amended to read:
"The Bonds shall mature in full on the Maturity Date and shall be repaid by the Issuer at par (a price equal to 100% of the Face Value) plus accrued interest."
2 To be set to the Effective Date.
3 To be set to the Effective Date.
4 To be set as the date falling 9 calendar days after the initial maturity date of the Senior Secured Facilities (i.e. on or about 9 May 2024).
Clause 10 (Maturity of the Bonds and Redemption) of the Bond Terms shall be amended to include a voluntary early redemption option of the Issuer, by inserting a new Clause 10.2 (based on the Bond Trustee's standard Bond Terms template) which shall read:
A new definition of "Call Option Repayment Date" shall be included in the Bond Terms, which shall read:
""Call Option Repayment Date" means the settlement date for the Call Option determined by the Issuer pursuant to Clause 10.2 (Voluntary early redemption - Call Option) or a date agreed upon between the Bond Trustee and the Issuer in connection with such redemption of Bonds."
Clause 10.2 (Change of Control) in the existing Bond Terms will be renumbered as Clause 10.3.
(v) = Alignment of the Financial Covenants:
Paragraph (c) (Financial Covenants) of Clause 13.4 (Special Covenants) is to be aligned with the financial covenants in the Senior Secured Facilities Agreements.
In addition, to ensure continued alignment of the financial covenants between the Bond Terms and the Senior Secured Facilities Agreements, a "most favoured nation clause" shall be included.
On the basis of the current negotiations between the Group and its Secured Lenders:
" "Working Capital" means, at any time, the consolidated book value of the total current assets of the Group less the consolidated book value of the total current liabilities of the Group (excluding the current portion of long term debt), in each case in accordance with IFRS."
The proposed amendments to paragraphs (c)(1) and (c)(2) of Clause 13.4 (Special Covenants) (and the defined terms used in those financial covenants) are not necessarily final and may be updated so that the financial covenants in the Amended 07 Bond Terms are aligned with the final terms of the Senior Secured Facilities Agreements.
Paragraph (a) (Dividends restrictions) of Clause 13.4 (Special Covenants) is to be aligned with the applicable terms of the Senior Secured Facilities Agreements. On the basis of the current negotiations between the Group and its Secured Lenders:
"The Issuer shall not, during the term of the Bonds, make any Distributions, unless an IPO Event has occurred."
" "Distributions" means, whether in cash or in kind and including without limitation by any total return swaps or instruments with similar effect (i) any dividend payment, repurchase of shares or any loans or other distributions or payments to the Issuer's direct or indirect shareholders and (ii) any service (whether with respect to principal, interest, fees, costs or otherwise) of Subordinated Loans."
The proposed amendments to paragraph (a) (Dividends restrictions) of Clause 13.4 (Special Covenants) (and the defined terms used in that paragraph) are not necessarily final and may be updated so that the dividend restriction in the Amended 07 Bond Terms is aligned with the final terms of the Senior Secured Facilities Agreements.
Clause 13.3 (General Covenants) shall be amended to include a new subparagraph (i) which shall read:
"(i) Financial Indebtedness
The Issuer shall not, and shall procure that no other Group Company will, incur, create or permit to subsist any Financial Indebtedness, other than Permitted Financial Indebtedness."
A new definition of "Existing Bond Issues" shall be included in the Bond Terms, which shall read.
" "Existing Bond Issues" means the existing bond issues of the Issuer with ISIN NO 001 0788177 (DOFSUB08) and ISIN NO 001 0836810 (DOFSUB09)."
A new definition of "Permitted Financial Indebtedness" shall be included in the Bond Terms, which shall read:
A new definition of "Future Unsecured Bonds" shall be included in the Bond Terms, which shall read:
" "Future Unsecured Bonds" means any future unsecured bonds issued by the Issuer with (a) no amortisation and with a maturity date falling no less than 18 months after the maturity date for the Issuer's bond issue with ISIN NO 001 0836810 (DOFSUB09) (as adjusted) and (b) no Financial Support from any other Group Company."
A new definition of "Financial Support" shall be included in the Bond Terms, which shall read:
" "Financial Support" means any loans, guarantees, Security or other financial assistance (whether actual or contingent)."
A new definition of "Senior Secured Facility" shall be included in the Bond Terms, which shall read:
" "Senior Secured Facility" means any senior secured facility provided by commercial banks, and/or export credit agencies incurred by the Issuer or any Group Company for the purpose of financing existing vessels or assets, and with cross collateral in all relevant vessels, the principal amount of which (when aggregated with the outstanding principal amount under any other such facility) shall not exceed USD [680,000,000] 3 (or its equivalent). "
Clause 13.3 (General Covenants) shall be amended to include a new subparagraph (j) which shall read:
A new definition of "Permitted Security" shall be included in the Bond Terms, which shall read:
" "Permitted Security" means:
5 To be set to the amount available under the Senior Secured Facility as at the Effective Date.
Clause 13.3 (General Covenants) shall be amended to include a new subparagraph (k) which shall read:
" (k) Call or redemption of the Existing Bonds
The Issuer shall not call or redeem any bonds under any Existing Bond Issue or any Future Unsecured Bonds unless the Bonds are redeemed in cash in full on or before such call or redemption."
(k) Inclusion of new covenant regarding cancellation of Bonds:
Clause 13.3 (General Covenants) shall be amended to include a new subparagraph (1) which shall read:
"(l) Cancellation of Bonds
The Issuer shall procure that all Bonds beneficially held by Laco AS (either directly or indirectly) as at [the Effective Date]6 as soon as possible and in any event by 30 September 2020 will be cancelled or converted into equity in the Issuer."
(l) Inclusion of "Most Favoured Nation" clause:
Clause 13.3 (General Covenants) shall be amended to include a new subparagraph (m) which shall read:
6 To be defined as the effective date for the Amended DOFSUB07 Bond Terms.
The entering into effect of the amendments to the Bond Terms as set out above shall be subject to, inter alia, the finalisation and execution of amended and restated Bond Terms, including the amendment and restatement agreement relating thereto, documenting the amendments, the customary closing conditions for their effectiveness and the conditions precedent to the implementation of the Revised Proposal set out in this summons (together the "Amended DOFSUB07 Bond Terms"). Without prejudice to the specific amendments described in this paragraph 2.1, in the event that any undertaking, covenant, or default or event of default provision granted in favour of any Bondholder under the Bond Terms for the DOFSUB08 Bonds or DOFSUB09 Bonds are more onerous on the Issuer than the Bond Terms for the DOFSUB07 Bonds, any such undertaking, covenant, or default or event of default provision shall be included in the Amended DOFSUB07 Bond Terms. The Amended DOFSUB07 Bond Terms shall be in a form satisfactory to the Bond Trustee (in consultation with the Bond Trustee Advisors).
For the avoidance of doubt the Amended DOFSUB07 Bond Terms will also include, as applicable, the amendments made to the original bond terms in the amendment agreement no. 1 dated 19 December 2017 and the amendment agreement dated 6 September 2019, adjusted to reflect the amendments set out in this summons letter and the Revised Proposal.
The Refinancing involves, and the Company proposes the following, amendments to the Bond Terms for DOFSUB08:
The Interest Rate is currently 9.50 per cent. per annum.
The definition of "Interest Rate" shall be amended to read:
" "Interest Rate" means, from and including:
For the avoidance of doubt references to the Maturity Date in this definition shall mean the Maturity Date as extended in accordance with the Revised Proposal.
(ii) Extension of the Maturity Date:
The Maturity Date is currently 14 March 2022.
The definition of "Maturity Date" shall be amended to read:
" "Maturity Date" means [ o] 10, adjusted according to the Business Day Convention."
7 To be set to the Effective Date.
8 To be set equal to USD Semi Annual 30/360 (vs 3 months LIBOR) 5 years interest swap plus 400 bps at the Effective Date (as defined below).
9 To be set equal to USD Semi Annual 30/360 (vs 3 months LIBOR) 5 years interest swap plus 800 bps at the Effective Date
10 The Maturity Date for the DOFSUB08 Bonds will be set as the date falling 382 calendar days after the Maturity Date for the DOFSUB07 Bonds (i.e. being on or about 26 May 2025).
Clause 10 (Redemption and Repurchase of Bonds) of the Bond Terms shall be amended to include a voluntary early redemption of the Issuer, by inserting a new Clause 10.2 (based on the Bond Trustee's standard Bond Terms template) which shall read:
A new definition of "Call Option Repayment Date" shall be included in the Bond Terms, which shall read:
" "Call Option Repayment Date" means the settlement date for the Call Option determined by the Issuer pursuant to Clause 10.2 (Voluntary early redemption - Call Option) or a date agreed upon between the Bond Trustee and the Issuer in connection with such redemption of Bonds. "
Clause 10.2 (Mandatory repurchase due to a Put Option Event) in the existing Bond Terms will be renumbered as Clause 10.3.
Clause 10.3 (Early redemption option due to a tax event) in the existing Bond Terms will be renumbered as Clause 10.4.
(iv) Redemption price on the Maturity Date:
Clause 10.1 (Redemption of Bonds) of the Bond Terms shall be amended to read:
"The Outstanding Bonds will mature in full on the Maturity Date and shall be redeemed by the Issuer on the Maturity Date at a price equal to 115 per cent. of the Nominal Amount."
Clause 13.16 (Financial Covenants) is to be aligned with the financial covenants in the Senior Secured Facilities Agreements.
In addition, to ensure continued alignment of the financial covenants between the Bond Terms and the Senior Secured Facilities Agreements, a "most favoured nation clause" shall be included.
On the basis of the current negotiations between the Group and its Secured Lenders:
" "Excess Value" means the positive or negative difference between the Market Value of the Vessels and the book value of the Vessels."
""Market Value" means the consolidated fair market value of the Vessels in NOK determined quarterly as the average of independent valuations of such Vessels (for vessels under construction, estimated market value of a delivered vessel adjusted for remaining capex) obtained from two independent and well reputed sale and purchase brokers familiar with the market for such vessels appointed by the Issuer and approved by the Bond Trustee. Such valuations shall be made on the basis of a sale for prompt delivery for cash at arm's length on normal commercial terms as between a willing buyer and seller, on an "as is where is" basis, free of any existing charter or other contract of employment. The cost of such determination shall be for the account of the Issuer "
" "Value Adjusted Equity" means the Book Equity adjusted to take into account any Excess Value."
""Value Adjusted Equity Ratio" means Value Adjusted Equity to Value Adjusted Total Assets."
" "Value Adjusted Total Assets" means the consolidated book value of the Group's total assets in accordance with IFRS adjusted to take into account any Excess Value
""Vessels" means all and any vessel owned by a Group Company including any vessels under construction."
" "Working Capital" means, at any time, the consolidated book value of the total current assets of the Group less the consolidated book value of the total current liabilities of the Group (excluding the current portion of long term debt), in each case in accordance with IFRS "
The proposed amendments to paragraphs (a) and (b) of Clause 13.16 (Financial Covenants) (and the defined terms used in those financial covenants) are not necessarily final and may be updated so that the financial covenants in the Amended 08 Bond Terms are aligned with the final terms of the Senior Secured Facilities Agreements.
Clause 13.11 (Distributions and servicing of Subordinated Loans) is to be aligned with the applicable terms of the Senior Secured Facilities Agreements. On the basis of the current negotiations between the Group and its Secured Lenders:
"The Issuer shall not, during the term of the Bonds, make any Distributions, unless an IPO Event has occurred."
""Distributions" means, whether in cash or in kind and including without limitation by any total return swaps or instruments with similar effect (i) any dividend payment, repurchase of shares or any loans or other distributions or payments to the Issuer's direct or indirect shareholders and (ii) any service (whether with respect to principal, interest, fees, costs or otherwise) of Subordinated Loans."
The proposed amendments to Clause 13.11 (Distributions and servicing of Subordinated Loans) (and the defined terms used in that Clause) are not necessarily final and may be updated so that the dividend restriction in the Amended 08 Bond Terms is aligned with the final terms of the Senior Secured Facilities Agreements.
(vii) Aligning the Financial Indebtedness Restrictions:
Clause 13.13 (Financial Indebtedness) shall be amended to read:
A new definition of "Existing Bond Issues" shall be included in the Bond Terms, which shall read:
" "Existing Bond Issues" means the existing bond issues of the Issuer with ISIN NO 001 06700144 (DOFSUB07) and ISIN NO 001 0836810 (DOFSUB09)."
The definition of "Permitted Financial Indebtedness" shall be amended to read:
" "Permitted Financial Indebtedness" means any Financial Indebtedness:
A new definition of "Future Unsecured Bonds" shall be included in the Bond Terms, which shall read:
" "Future Unsecured Bonds" means any future unsecured bonds issued by the Issuer with (a) no amortisation and with a maturity date falling no less than 18 months after the maturity date for the Issuer's bond issue with ISIN NO 001 0836810 (DOFSUB09) (as adjusted) and (b) no Financial Support from any other Group Company."
The definition of "Financial Support" shall be amended to read:
" "Financial Support" means any loans, guarantees, Security or other financial assistance (whether actual or contingent). "
A new definition of "Senior Secured Facility" shall be included in the Bond Terms, which shall read:
""Senior Secured Facility" means any senior secured facility provided by commercial banks, and/or export credit agencies incurred by the Issuer or any Group Company for the purpose of financing existing vessels or assets, and with cross collateral in all relevant vessels, the principal amount of which (when aggregated with the outstanding principal amount under any other such facility) shall not exceed USD [680,000.000]]1] (or its equivalent). "
The definition of "Existing Bonds" shall be deleted.
(viii) Permitted Security:
The definition of "Permitted Security" shall be amended to read:
" "Permitted Security" means:
11 To be set to the amount available under the Senior Secured Facility as at the Effective Date.
Clause 13.14 (Negative Pledge) of the Bond Terms shall be amended to read:
The entering into effect of the amendments to the Bond Terms as set out above shall be subject to, inter alia, the finalisation and execution of amended and restated Bond Terms, including the amendment and restatement agreement relating thereto, documenting the customary closing conditions for their effectiveness and the conditions precedent to the implementation of the Revised Proposal set out in this summons (together the "Amended DOFSUB08 Bond Terms"). The Amended DOFSUB08 Bond Terms shall be in a form satisfactory to the Bond Trustee.
For the avoidance of doubt the Amended DOFSUB08 Bond Terms will also include, as applicable, the amendments made to the original bond terms in the amendment agreement dated 6 September 2019. adjusted to reflect the amendments set out in this summons letter and the Revised Proposal.
The Refinancing involves, and the Company proposes the following, amendments to the Bond Terms for DOFSUB09:
The Interest Rate is currently 3 months NIBOR plus 8.00% p.a. margin.
The definition of "Margin" shall be amended to read:
" "Margin" means, from and including:
For the avoidance of doubt references to the Maturity Date in this definition shall mean the Maturity Date as extended in accordance with the Revised Proposal.
Extension of the Maturity Date: (ii)
The Maturity Date is currently 27 November 2023.
The definition of "Maturity Date" shall be amended to read:
" "Maturity Date" means [ o]13, adjusted according to the Business Day Convention."
(iii) Inclusion of a voluntary early redemption option (call option):
Clause 10 (Redemption and Repurchase of Bonds) of the Bond Terms shall be amended to include a voluntary early redemption option of the Issuer, by inserting a new Clause 10.2 (based on the Bond Trustee's standard Bond Terms template) which shall read:
12 To be set to the Effective Date.
13 The Maturity Date for the DOFSUB09 Bonds will be set as the date falling as the date falling 515 calendar days after the Maturity Date for the DOFSUB07 Bonds (i.e. being on or about 6 October 2025).
A new definition of "Call Option Repayment Date" shall be included in the Bond Terms, which shall read:
""Call Option Repayment Date" means the settlement date for the Call Option determined by the Issuer pursuant to Clause 10.2 (Voluntary early redemption - Call Option) or a date agreed upon between the Bond Trustee and the Issuer in connection with such redemption of Bonds."
Clause 10.2 (Mandatory repurchase due to a Put Option Event) in the existing Bond Terms will be renumbered as Clause 10.3.
Clause 10.3 (Early redemption option due to a tax event) in the existing Bond Terms will be renumbered as Clause 10 4
(iv) Redemption price on the Maturity Date:
Clause 10.1 (Redemption of Bonds) of the Bond Terms shall be amended to read:
"The Outstanding Bonds will mature in full on the Maturity Date and shall be redeemed by the Issuer on the Maturity Date at a price equal to 115 per cent. of the Nominal Amount."
(v) Alignment of the Financial Covenants:
Clause 13.16 (Financial Covenants) is to be aligned with the financial covenants in the Senior Secured Facilities Agreements.
In addition, to ensure continued alignment of the financial covenants between the Bond Terms and the Senior Secured Facilities Agreements a "most favoured nation clause" shall be included.
On the basis of the current negotiations between the Group and its Secured Lenders:
""Excess Value" means the positive or negative difference between the Market Value of the Vessels and the book value of the Vessels."
""Market Value" means the consolidated fair market value of the Vessels in NOK determined quarterly as the average of independent valuations of such Vessels (for vessels under construction, estimated market value of a delivered vessel adjusted for remaining capex) obtained from two independent and well reputed sale and purchase brokers familiar with the market for such vessels appointed by the Issuer and approved by the Bond Trustee. Such valuations shall be made on the basis of a sale for prompt delivery for cash at arm's length on normal commercial terms as between a willing buyer and seller, on an "as is where is" basis, free of any existing charter or other contract of employment. The cost of such determination shall be for the account of the Issuer "
" "Value Adjusted Equity" means the Book Equity adjusted to take into account any Excess Value."
""Value Adjusted Equity Ratio" means Value Adjusted Equity to Value Adjusted Total Assets "
" "Value Adjusted Total Assets" means the consolidated book value of the Group's total assets in accordance with IFRS adjusted to take into account any Excess Value "
" "Vessels" means all and any vessel owned by a Group Company including any vessels under construction."
" Working Capital" means, at any time, the consolidated book value of the total current assets of the Group less the consolidated book value of the total current liabilities of the Group (excluding the current portion of long term debt), in each case in accordance with IFRS."
The proposed amendments to paragraphs (a) and (b) of Clause 13.16 (Financial Covenants) (and the defined terms used in those financial covenants) are not necessarily final and may be updated so that the financial covenants in the Amended 09 Bond Terms are aligned with the final terms of the Senior Secured Facilities Agreements.
Alignment of the dividend restrictions: (vi)
Clause 13.7 (Dividends and distributions) is to be aligned with the applicable terms of the Senior Secured Facilities Agreements. On the basis of the current negotiations between the Group and its Secured Lenders:
"The Issuer shall not, during the term of the Bonds, make any Distributions, unless an IPO Event has occurred."
""Distributions" means, whether in cash or in kind and including without limitation by any total return swaps or instruments with similar effect (i) any dividend payment, repurchase of shares or any loans or other distributions or payments to the Issuer's direct or indirect shareholders and (ii) any service (whether with respect to principal, interest, fees, costs or otherwise) of Subordinated Loans."
The proposed amendments to Clause 13.7 (Dividends and distributions) (and the defined terms used in that Clause) are not necessarily final and may be updated so that the dividend restriction in the Amended 09 Bond Terms is aligned with the final terms of the Senior Secured Facilities Agreements.
Clause 13.9 (Financial Indebtedness) shall be amended to read:
The Issuer shall not, and shall procure that no other Group Company will, incur, create or permit to subsist any Financial Indebtedness, other than Permitted Financial Indebtedness."
A new definition of "Existing Bond Issues" shall be included in the Bond Terms, which shall read:
" "Existing Bond Issues" means the existing bond issues of the Issuer with ISIN NO 001 06700144 (DOFSUB07) and ISIN NO 001 0788177 (DOFSUB08)."
The definition of "Permitted Financial Indebtedness" shall be amended to read:
" "Permitted Financial Indebtedness" means any Financial Indebtedness:
The definition of "Financial Support" shall be amended to read:
" "Financial Support" means any loans, guarantees, Security or other financial assistance (whether actual or contingent). "
A new definition of "Senior Secured Facility" shall be included in the Bond Terms, which shall read:
" "Senior Secured Facility" means any senior secured facility provided by commercial banks, and/or export credit agencies incurred by the Issuer or any Group Company for the purpose of financing existing vessels or assets, and with cross collateral in all relevant vessels, the principal amount of which (when aggregated with the outstanding principal amount under any other such facility) shall not exceed USD {680,000,000}14 (or its equivalent). "
The definition of "Permitted Security" shall be amended to read:
Clause 13.10 (Negative Pledge) of the Bond Terms shall be amended to read:
The entering into effect of the amendments to the Bond Terms as set out above shall be subject to, inter alia, the finalisation and execution of an amended and restated Bond Terms, including the amendment and restatement agreement relating thereto, documenting the amendments, the customary closing
14 To be set the amount available under the Senior Secured Facility as at to the Effective Date.
conditions for their effectiveness and the conditions precedent to the implementation of the Revised Proposal set out in this summons (together the "Amended DOFSUB09 Bond Terms"). The Amended DOFSUB09 Bond Terms shall be in a form satisfactory to the Bond Trustee.
For the avoidance of doubt the Amended DOFSUB09 Bond Terms will also include, the amendments made to the original bond terms in the amendment agreement dated 6 September 2019, adjusted to reflect the amendments set out in this summons letter and the Revised Proposal.
The Issuer proposes that the Bondholders of each of the Bond Issues resolve (as applicable) (the "Revised Proposal"):
Bondholders shall have any liability whatsoever to any Bondholders or any other person in connection with the exercise (or non-exercise) of any such discretion which is exercised in good faith; and
(ix) to waive any obligation of the Issuer in any of the Bond Terms that are reasonably necessary to waive in order to implement and complete the Refinancing.
In the event that the Revised Proposal is approved by each Bondholders' Meeting for each Bond Issue, the implementation of the Revised Proposal shall be subject to the following conditions precedent being satisfied (or waived), as determined by the Bond Trustee, no later than on 30 April 2020 (the "Longstop Date"):
(x) repetition of all representations and warranties of the respective Bond Terms on the date of each of the Amended DOFSUB07 Bond Terms, the Amended DOFSUB08 Bond Terms and the Amended DOFSUB09 Bond Terms and on the Effective Date (as defined below),
provided, however, that effective immediately upon the approval of the Revised Proposal by a 2/3 majority of Voting Bonds present at the Bondholders' Meeting for each Bond Issue the payment date for the Scheduled Instalment under DOESUB07 shall be deferred from 28 February 2020 to the Longstop Date.
The date the Bond Trustee confirms to the Issuer that the above conditions precedent have been satisfied (or waived), and the Revised Proposal become effective, shall be referred to as the (the "Effective Date").
If the Effective Date has not occurred by the Longstop Date the approvals and authorisations granted by each of the Bondholders' Meetings in respect of the Revised Proposal will lapse.
In the event that the Revised Proposal is approved by each Bondholders' Meeting, it shall be a condition subsequent to that approval that:
however, in each case only in a level of detail (determined by the Issuer acting in good faith) that would be typically contained in a prospectus for the issue of shares or debt securities, and/or in an annual report, of a company listed on the Oslo Børs.
Other than the waivers and amendments contemplated by the Revised Proposal, the terms and conditions of each of the Bond Terms will remain unchanged and continue to apply in their existing form.
For the avoidance of doubt, the Revised Proposal supersedes the Initial Proposal including the Schedule attached thereto. In the event that the Revised Proposal is approved by the Bondholders' Meeting for each Bond Issue, the approvals and authorisations granted by each of the Bondholders' Meetings in respect of the Initial Proposal will lapse and no longer be of any effect.
The Issuer believes that the new capital structure resulting from the Refinancing would be sustainable in the current market environment and secure operational and financial stability for the Group until the market is expected to have recovered, for the benefit of all stakeholders. In the Company's opinion, the Revised Proposal represents the best alternative for the Bondholders and its other stakeholders, given the current circumstances.
The request is put forward to the Bondholders without further evaluation or recommendations from the Bond Trustee. Nothing herein shall constitute a recommendation to the Bondholders from the Bond Trustee. The Bondholders must independently evaluate whether the Revised Proposal is acceptable and vote accordingly.
The Issuer has informed the Bond Trustee that the Issuer has received indication of support for the Revised Proposal from major Bondholders in each of the Bond Issues.
For further information about the Issuer, please visit the Issuer's website www.dofsubsea.com.
Bondholders are also invited to contact either of the Financial Advisers for further information:
Telephone: +47 22 01 60 82
+47 99 64 80 34
Jan Erik Klepsland
Ola Nygård Telephone: +47 22 01 61 86 +47 41 21 34 10 [email protected]
Pareto Securities AS:
Rolf Kristiansen +47 22 87 87 46/+47 908 56 712 [email protected]
[email protected] [email protected] Christian Ramm
Magnus Drageset
Telephone: +47 22 01 61 41
+47 41 21 34 10
Each of the Financial Advisers acts solely for the Issuer and no-one else in connection herewith. No due diligence investigations have been carried out by the Financial Advisers with respect to the Issuer, and each of the Financial Advisers expressly disclaims any and all liability whatsoever in connection with the Revised Proposal (including but not limited to the information contained herein).
Bondholders are hereby summoned to Bondholders' Meetings in each of the Bond Issues:
"The Revised Proposal (as defined in section 3 of the summons to the Bondholders' Meetings in each Bond Issue) is approved by the Bondholders' Meeting, subject to the conditions set out in section 4 of the summons to the Bondholders' Meetings in each Bond Issue. The Revised Proposal is only adopted provided that the Bondholders' Meetings for all three Bond Issues approve the Revised Proposal.
The Bond Trustee is authorised to enter into the necessary agreements in connection with decisions made by the Bondholders' Meeting in the relevant Bond Issue as well as carry out necessary completion work, including making necessary amendments to the Bond Terms in each Bond Issue."
To approve the above resolution in each Bond Issue, Bondholders representing at least 2/3 of the Voting Bonds in each Bond Issue represented in person or by proxy at the relevant Bondholders' Meeting must vote in favour of the resolution. In order to form a quorum, at least 5/10 of the Voting Bonds in each Bond Issue must be represented at the relevant Bondholders' Meeting.
Please find attached a Bondholder's Form from the Securities Depository (VPS), indicating your bondholding at the printing date. The Bondholder's Form will serve as proof of ownership of the Bonds and of the voting rights at the bondholders' meeting. (If the bonds are held in custody - i.e. the owner is not registered directly in the VPS - the custodian must confirm; (i) the owner of the bonds, (ii) the aggregate nominal amount of the bonds and (iii) the account number in VPS on which the bonds are registered.)
The individual bondholder may authorise Nordic Trustee AS to vote on its behalf, in which case the Bondholder's Form also serves as a proxy. A duly signed Bondholder's Form, authorising Nordic Trustee AS to vote, must then be returned to the Bond Trustee in due time before the meeting is scheduled (by scanned e-mail, telefax or post - please see the first page of this letter for further details).
At the Bondholders' Meeting votes may be cast based on Bonds in the relevant Bond Issue held at close of business on the day prior to the date of the Bondholders' Meeting. In the event that Bonds have been transferred to a new owner after the Bondholder's Form was made, the new Bondholder must bring to the Bondholders' Meeting or enclose with the proxy, as the case may be, evidence which the Bond Trustee accepts as sufficient proof of the ownership of the Bonds.
For practical purposes, we request those who intend the Bondholders' Meeting, either in person or by proxy other than to Nordic Trustee AS, to notify the Bond Trustee by telephone or by e-mail ([email protected]) within 16:00 hours (4 pm) (Oslo time) the Business Day before the relevant meeting takes place.
Yours sincerely Nordic Trustee AS
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Enclosed:
The outstanding debt under the Group's existing senior secured facilities (other than to any joint venture) will be extended on the basis of the following key terms:
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