Equity Purchase Agreement, dated as of December 15, 2011, by and among General Maritime Corporation, Oaktree Principal Fund V, L.P., Oaktree Principal Fund V (Parallel), L.P., Oaktree FF Investment Fund, L.P. Class A, and OCM Asia Principal Opportunities Fund, L.P

 

 

 

 

THIS EQUITY PURCHASE AGREEMENT (this “Agreement”) is made as of December 15, 2011, by and among General Maritime Corporation, a Marshall Islands corporation (the “Company”), Oaktree Principal Fund V, L.P., Oaktree Principal Fund V (Parallel), L.P., Oaktree FF Investment Fund, L.P. - Class A, and OCM Asia Principal Opportunities Fund, L.P., each a Cayman Islands exempted limited partnership (each, an “Oaktree Fund,” and collectively, “Oaktree”).

 

 

WHEREAS, on November 17, 2011, the Company filed a voluntary petition under Chapter 11 of the Bankruptcy Code in the Bankruptcy Court, and the Company’s Chapter 11 case is being administered under Case No. 11-15285 (MG) (the “Chapter 11 Case”);

 

WHEREAS, in connection with the restructuring contemplated under that certain Restructuring Support Agreement of the Company filed on November 17, 2011 (as amended from time to time, the “Restructuring Support Agreement”), the Company has determined that its successful reorganization requires, among other things, deleveraging its balance sheet by means of a significant new equity investment;

 

WHEREAS, in accordance with the deadlines in the Restructuring Support Agreement, the Company intends to propose a plan of reorganization on the terms set forth in the plan term sheet (the “Plan Term Sheet”) attached as an exhibit to the Restructuring Support Agreement and that is otherwise in form and substance reasonably acceptable to Oaktree (the “Plan”), to effectuate this deleveraging by (i) converting all of the Supporting Oaktree Lenders’ claims under the Oaktree Facility into equity (subject to dilution on terms set forth in the Plan and consistent with the Plan Term Sheet) of Reorganized GMR to be outstanding on the Effective Date pursuant to, and subject to the Restructuring Transactions set forth in the Plan, and (ii) selling Reorganized Equity, subject to the Restructuring Transactions set forth in the Plan, which together with the equity issued pursuant to clause (i) shall equal 100% of the equity of Reorganized GMR;

 

WHEREAS, the Company has determined that a direct equity investment by Oaktree in an amount equal to $175 million (the “Equity Investment Amount”) in exchange for the issuance by Reorganized GMR of the Reorganized Equity, is the most appropriate method at this time by which to effectuate the deleveraging and obtain the necessary new equity investment;

 

WHEREAS, in consideration of the agreements from the Company under the Restructuring Support Agreement, the issuance of the Commitment Fee and the payment of the Expense Reimbursement and Break-Up Fee, as applicable, Oaktree is willing, on the terms and subject to the conditions set forth herein, to fund the Equity Investment Amount on the Effective Date in exchange for the issuance by Reorganized GMR to Oaktree of the Reorganized Equity;

 

 

WHEREAS, the Company may, in connection with the Plan and in Oaktree’s sole discretion, permit third parties (the “Equity Investment Participants”) to participate in the investment of the Equity Investment Amount (the “Participation Offering”) on terms and conditions agreed to by Oaktree and the Company, whereby in lieu of Oaktree investing the entire Equity Investment Amount, the Equity Investment Participants would subscribe for such number of shares of Reorganized Equity as permitted by Oaktree.  In the event that any Equity Investment Participants subscribe for shares of Reorganized Equity in a Participation Offering, Oaktree would subscribe for only those shares of Reorganized Equity representing that portion of the Equity Investment Amount not purchased by such Equity Investment Participants; and

 

WHEREAS, the Parties agree that any valuations of the Company’s assets or estates, whether implied or otherwise, arising from this Agreement shall not be binding for any other purpose, including determining recoveries under the Plan, and that this Agreement does not limit the Parties’ rights regarding valuation in the Chapter 11 Case.

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained in this Agreement, the Parties hereby agree as follows:

 

 

For purposes of this Agreement, the following terms will have the meanings set forth below, and capitalized terms used but not defined herein shall have the meanings ascribed to them in the Restructuring Support Agreement:

 

“2010 Credit Facility” means the Amended and Restated Credit Agreement, dated as of May 6, 2010, among the Company, as parent, Arlington Tankers, Ltd. and General Maritime Subsidiary Corporation as guarantors, General Maritime Subsidiary II Corporation as borrower, various lenders, and Nordea Bank Finland Plc, New York Branch as administrative agent and collateral agent, as amended or restated from time to time.

 

“2010 Exit Facility” means the new loans extended in respect of the 2010 Credit Facility as of the Effective Date, on terms consistent in all material respects with the Restructuring Support Agreement and otherwise acceptable in accordance with Section 1(e) of the Restructuring Support Agreement.

 

“2011 Credit Facility” means the Second Amended and Restated Credit Agreement, dated as of May 6, 2011, among the Company, as parent, Arlington Tankers, Ltd. and General Maritime Subsidiary II Corporation as guarantors, General Maritime Subsidiary Corporation as borrower, various lenders, and Nordea Bank Finland Plc, New York Branch as administrative agent and collateral agent, as amended or restated from time to time.

 

“2011 Exit Facility” means the new loans extended in respect of the 2011 Credit Facility as of the Effective Date, on terms consistent in all material respects with the Restructuring Support Agreement and otherwise acceptable in accordance with Section 1(e) of the Restructuring Support Agreement.

 

“Accounts Payable Threshold” has the meaning set forth in Section 9.10.

 

 

“Actual Knowledge of Oaktree” means the actual knowledge of Stephen A. Kaplan, B. James Ford and Adam C. Pierce, after reasonable inquiry with such persons’ direct reports within Oaktree.

 

“Actual Knowledge of the Company” means the actual knowledge of Jeffrey D. Pribor, John P. Tavlarios, John C. Georgiopoulos, Peter C. Georgiopoulos and Leo Vrondissis and Christopher F. Allwin, after reasonable internal inquiry with such persons’ direct reports within the Company.

 

“Affiliate” has the meaning set forth in section 101(2) of the Bankruptcy Code.

 

“Agreement” has the meaning set forth in the preface above.

 

“Alternative Transaction” means the consummation of a restructuring transaction with respect to all or substantially all of the assets of the Company in one or a series of related transactions (but for the avoidance of doubt, not a credit bid by the Supporting Credit Facility Lender under the DIP Credit Agreement), other than pursuant to the Plan.

 

“Amended Organizational Documents” means the amended and restated articles of incorporation and by-laws or other applicable organizational documents of Reorganized GMR with such terms as set forth in the Plan Term Sheet and to be filed in connection with the Plan in substantially the form reasonably acceptable to Oaktree.

 

“Approval Motion” means the motion filed by the Company on November 22, 2011 with the Bankruptcy Court requesting that the Bankruptcy Court approve the Company’s entry into this Agreement.

 

“Approval Order” means that order entered by the Bankruptcy Court (a) authorizing the Company and Oaktree to enter into and perform this Agreement, and authorizing the Company to (i) issue the Commitment Fee on the Effective Date, (ii) pay the Expense Reimbursement and (iii) pay the Break-Up Fee, as applicable, and (b) granting the Approval Motion, which shall not deviate in form or substance in a manner that is materially adverse to Oaktree, without Oaktree’s consent, from the form of order filed with the Bankruptcy Court as an attachment to the Approval Motion.

 

“Approvals” means all governmental approvals and authorizations that are required under applicable law, including the Bankruptcy Code, for the Company to take corporate action.

 

“Bankruptcy Code” means title 11 of the United States Code, 11 U.S.C. §§ 101-1532, as applicable to the Chapter 11 Case.

 

“Bankruptcy Court” means the United States Bankruptcy Court for the Southern District of New York, or any other court having jurisdiction over the Chapter 11 Case.

 

“Bankruptcy Rules” means the Federal Rules of Bankruptcy Procedure, as applicable to the Chapter 11 Case, promulgated under 28 U.S.C. § 2075 and the general, local and chambers rules of the Bankruptcy Court.

 

 

“Bonus Pool” means the bonus pool established in the amount of $650,000 to be allocated among the Company’s eligible non-Insider (as defined in section 101(31) of the Bankruptcy Code) United States employees.

 

“Break-Up Fee” means a break-up fee payable, in accordance with Section 2.2, to Oaktree or a designated Affiliate of any Oaktree Fund in cash in an amount equal to $12.5 million, which fee upon entry of the Approval Order shall constitute an allowed administrative expense obligation of the Company pursuant to the Bankruptcy Code but shall be junior, and subject to the prior satisfaction in full (as provided in Section 2.2) of all outstanding obligations under the Prepetition Senior Facilities (including, for the avoidance of doubt, all obligations under Interest Rate Protection Agreements and Other Hedging Agreements as defined thereunder) and the DIP Credit Agreement, including any related adequate protection obligations.

 

“Business Day” means any day other than a Saturday, Sunday or “legal holiday” (as defined in Bankruptcy Rule 9006(a)).

 

“Cash” means the amount of cash and cash equivalents (including marketable securities) held by the GMR Parties as determined on a consolidated basis in accordance with GAAP.

 

“Chapter 11 Case” has the meaning set forth in preface above.

 

“Claim” has the meaning assigned to it in section 101(5) of the Bankruptcy Code.

 

“Closing” means the closing of the sale and purchase of the Oaktree Commitment Shares pursuant to Section 2.1 hereof.

 

“Closing Date” has the meaning set forth in Section 2.3(a).

 

“COBRA” means Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the Code, and any similar state law.

 

“Code” means the Internal Revenue Code of 1986, as amended.

 

“Commission” has the meaning set forth in Section 3.9(a).

 

“Commitment Fee” means the penny warrants exercisable at any time, and from time to time, for a period of 5 years for all or a portion of 5.0% of the Reorganized Equity upon terms satisfactory to Oaktree and the Company, to be delivered to Oaktree or a designated Affiliate of any Oaktree Fund in accordance with in accordance with Section 2.2.

 

“Commitment Fee Warrant Shares” means the shares of Reorganized Equity underlying the Commitment Fee.

 

“Company” has the meaning set forth in the preface above.

 

“Company Intellectual Property” has the meaning set forth in Section 3.13(a).

 

 

“Company SEC Documents” has the meaning set forth in Section 3.9(a).

 

“Confirmation Order” has the meaning set forth in Section 8.2.

 

“DIP Budget” means the budget for the GMR Parties periodically approved pursuant to the DIP Credit Agreement.

 

“DIP Credit Agreement” means that certain Senior Secured Superpriority Debtor-in-Possession Credit Agreement, dated as of November 17, 2011, among the Company and all of its subsidiaries party thereto from time to time, as guarantors, General Maritime Subsidiary Corporation and General Maritime Subsidiary II Corporation, as borrowers, various lenders and Nordea Bank Finland plc, New York Branch, as administrative agent and collateral agent.

 

“Disclosure Information” means the Company’s financial projections and Budget (as defined in the Plan Term Sheet), including any variance analysis with respect to the Budget, valuation analyses, liquidation analyses, a list of Joining Parties (as defined in the Restructuring Support Agreement), information regarding the Company’s insurance policies, information relating to any bonus or severance program to be honored or established during the Chapter 11 Case or approved and administered in connection with the Plan, a list of all of the Company’s material tax liabilities, a list all contracts, agreements, leases or other arrangements to which the Company is a party and which will be assumed or rejected by the Company during the Chapter 11 Case or in connection with the Plan, including any cure costs to be paid in connection with such assumption (to the extent that such information is determined by the parties hereto prior to the termination of any confidentiality agreement contemplated by Section 5.7(a)), any information pertaining to the GMR Parties, which is not designated as “professional eyes only”, provided by the Company to third parties for the purpose of soliciting proposals for an Alternative Transaction and covenants and other terms to be negotiated in respect of the New Senior Loans (as defined in the Plan Term Sheet), in each case, shared with Oaktree pursuant to the terms of a confidentiality agreement contemplated by Section 5.7(a).

 

“Disclosure Statement” has the meaning set forth in the Restructuring Support Agreement.

 

“Effective Date” means the Business Day that the Plan becomes effective pursuant to the terms of the Plan, which date shall not occur on a date later than that specified in the Milestones, unless agreed to by Oaktree in its sole discretion (subject only to the last sentence of Section 2.3(a)).

 

“Employee Benefit Plan” means each “employee benefit plan” (as defined in Section 3(3) of ERISA) and each other benefit or compensation plan, program, agreement or arrangement maintained, sponsored, contributed or required to be contributed to by any GMR Party or any ERISA Affiliate or with respect to which any GMR Party or any ERISA Affiliate has any current or potential liability or obligation.

 

 

“Environmental Claims” means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, directives, claims, liens, notices of noncompliance or violation, investigations or proceedings relating in any way to any Environmental Law or any permit issued, or any approval given, under any such Environmental Law, including, without limitation, (a) any and all by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law, and (b) any and all by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief in connection with alleged injury or threat of injury to health, safety or the environment due to the presence of Hazardous Materials.

 

“Environmental Law” means, whenever in effect, all federal, state, local, international and foreign statutes, regulations, ordinances, laws, treaties, protocols, rules, regulations, codes, binding and enforceable guidelines or written policies, and similar provisions having the force or effect of law, all judicial and administrative orders and determinations, all contractual obligations and all common law concerning public health and safety, worker health and safety, pollution or protection of the environment, or relating to Hazardous Materials.

 

“Equity Incentive Program” means a post-Effective Date equity incentive program providing for the issuance of equity interests of Reorganized GMR representing, in the aggregate, 10% of the common equity interests of Reorganized GMR or such other amount as agreed to between Oaktree and the Company, on a fully-diluted basis, to eligible employees, directors or officers of the Company, as set forth in the Plan.  The form, amount, allocation and vesting schedule of such common equity interests pursuant to such equity incentive program will be (i) mutually agreed upon by Oaktree and the Company and be set forth in a schedule to the Plan to be filed with the Bankruptcy Court prior to confirmation of the Plan or (ii) to the extent not determined in accordance with the preceding sub-clause (i) as of the date that is fourteen (14) days before the commencement of the hearing on confirmation of the Plan, determined by the new board of directors established after the Effective Date.

 

“Equity Investment Amount” has the meaning set forth in the preface above.

 

“Equity Investment Participant” has the meaning set forth in the preface above.

 

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

 

“ERISA Affiliate” means each Subsidiary of the Company and each Person that is or at any relevant time was considered a single employer with any GMR Party under Section 414 of the Code.

 

“Exchange Act” has the meaning set forth in Section 3.9(a).

 

“Expense Reimbursement” means the reimbursement of all reasonable and documented advisor fees, and out-of-pocket costs and expenses, in each case, of Houlihan Lokey Capital, Inc. and Kirkland & Ellis LLP, and the reasonable and documented out-of-pocket expenses of Oaktree (including reasonable travel expenses), which have been or are incurred in anticipation of, during or otherwise in connection with the Chapter 11 Case, including in connection with the negotiation, preparation and implementation of the transactions contemplated under the Plan, this Agreement, the Equity Commitment Letter, the Term Sheet or the Restructuring Support Agreement, payable to Oaktree or a designated Affiliate of any Oaktree Fund (including, for the avoidance of doubt, Oaktree’s costs and expenses incurred in connection with collecting the Break-Up Fee).

 

 

“GAAP” means United States generally accepted accounting principles, consistently applied.

 

“GMR Parties” means the Company, together with each of its Subsidiaries.

 

“Governmental Authority” means any (i) government; (ii) governmental or quasi-governmental authority of any nature (including any governmental agency, branch, department, official or entity and any court or other tribunal); or (iii) body exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power of any nature, in the case of any of clause (i) through (iii), whether federal, state, local, municipal, foreign, supranational or of any other jurisdiction.

 

“Hazardous Materials” shall mean: (a) any petroleum or petroleum products, radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde foam insulation, transformers or other equipment that contain dielectric fluid containing levels of polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of “hazardous substances,” “hazardous waste,” “hazardous materials,” “extremely hazardous substances,” “restricted hazardous waste,” “toxic substances,” “toxic pollutants,” “contaminants,” or “pollutants,” or words of similar import, under any applicable Environmental Law; and (c) any other chemical, material or substance, exposure to which is prohibited, limited or regulated by any governmental authority, or for which liability or standards of conduct may be imposed, under Environmental Laws.

 

“Intellectual Property” means all of the following in any jurisdiction throughout the world: (i) patents, patent applications and patent disclosures; (ii) trademarks, service marks, trade dress, trade names, corporate names, logos and slogans (and all translations, transliterations, adaptations, derivations and combinations of the foregoing) and Internet domain names, together with all goodwill associated therewith; (iii) copyrights and copyrightable work; (iv) registrations and applications for any of the foregoing; (v) trade secrets, confidential information, know-how, manufacturing processes and methods, customer lists, formulae, and inventions; (vi) computer software (including source code, executable code, data, databases and documentation); and (vii) all other intellectual property.

 

“Knowledge of the Company” means the actual knowledge of Jeffrey D. Pribor, John P. Tavlarios, John C. Georgiopoulos, Peter C. Georgiopoulos, Leo Vrondissis and Christopher F. Allwin and, in each case, all facts of which any such Person or Persons, after reasonable inquiry (which inquiry shall include any inquiry that an officer of such title would reasonably conduct), should be aware.

 

 

“Material Adverse Effect” means any change, effect, event, development, circumstance or state of facts which has had or would reasonably be expected to have a materially adverse effect on (i) the condition (financial or otherwise), business, performance, operations or property of the GMR Parties taken as a whole, without regard to the duration or persistence, (ii) the ability of the Company, subject to the Approvals, to perform its obligations under this Agreement, or (iii) subject to the Approvals, the validity or enforceability of this Agreement, against the Company; provided, however, that Material Adverse Effect shall specifically exclude any change, effect, event, development, circumstance or state of facts arising from (a) general worldwide economic, political or financial market conditions, including acts of war, acts of terrorism or natural disasters, so long as such change, effect, event, development, circumstance or state of facts does not disproportionately and adversely affect the GMR Parties in any material respect as compared to similarly situated companies in the industries in which the GMR Parties operate, (b) conditions affecting the Company in the industry where the Company operates (except to the extent such change, effect, event, development, circumstance or state of facts has a disproportionate adverse effect on the Company and its Subsidiaries relative to other participants in such industry, taken as a whole), (c) the fact of the delisting of the Company’s equity interests from the New York Stock Exchange, (d) the fact of the deregistration of the Company’s equity interests by the Commission, (e) the fact of the pursuit, filing or prosecution of the Chapter 11 Case, (f) the negotiation, announcement or consummation of this Agreement, including, but not limited to the announcement of the identity of Oaktree or any communication by the Company or Oaktree of any plans or intentions regarding the operation of the Company’s business, prior to or following the Closing, (g) any act or omission of the Company required by the terms of this Agreement, or otherwise taken with the prior written consent of Oaktree, or (h) any change in applicable law or GAAP.

 

“Material Contract” has the meaning set forth in Section 3.16.

 

“Material Permits” has the meaning set forth in Section 3.17.

 

“Milestones” means the deadlines specified in the milestones set forth on Exhibit D to the Restructuring Support Agreement, which exhibit is incorporated into this Agreement by reference and expressly made a term hereof as extended or waived by Oaktree in order to accommodate court schedules or otherwise, it being understood that Oaktree is the only Party that may modify the Milestones (and such modification shall be in the sole discretion of Oaktree, subject only to the last sentence of Section 2.3(a)).

 

“Money Laundering Laws” has the meaning set forth in Section 3.27.

 

“Most Recent Unaudited Financial Statements” has the meaning set forth in Section 3.9(b).

 

“Oaktree” has the meaning set forth in the preface above.

 

“Oaktree Commitment Shares” has the meaning set forth in Section 2.1(a).

 

“Oaktree Conversion Shares” has the meaning set forth in Section 2.1(a).

 

“Oaktree Fees” has the meaning set forth in Section 2.2(a).

 

“Oaktree Fund” has the meaning set forth in the preface above.

 

“Oaktree Shares” has the meaning set forth in Section 2.1(a).

 

 

“OCM Marine Investments” means OCM Marine Investments CTB, Ltd., a Cayman Islands exempt company.

 

“Participation Offering” has the meaning set forth in the preface above.

 

“Participation Offering Shares” means the shares of Reorganized Equity acquired by the Equity Investment Participants in the Participation Offering, if any.

 

“Participation Offering Term Sheet” has the meaning set forth in Section 2.1(b).

 

“Party” means the Company or any Oaktree Fund, individually, and “Parties” means the Company and Oaktree, collectively.

 

“PBGC” has the meaning set forth in Section 3.20.

 

“Pension Plan” has the meaning set forth in Section 3.20.

 

“Permitted Liens” has the meaning set forth in the DIP Credit Agreement.

 

“Permitted Update” has the meaning set forth in Section 12.14.

 

“Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a Governmental Authority.

 

“Plan” has the meaning set forth in the Restructuring Support Agreement.

 

“Plan Term Sheet” has the meaning set forth in the preface above.

 

“Prepetition Senior Facilities” means the 2011 Credit Facility, together with the 2010 Credit Facility.

 

“Purchased Shares” means the Oaktree Commitment Shares and the Participation Offering Shares, if any, acquired in accordance with Section 2.1.

 

“Registration Agreement” means a registration rights agreement or similar agreement, governing certain rights and obligations among securityholders of Reorganized GMR with respect to the registration of securities of Reorganized GMR for offering or sale, which agreement may be entered into, in the event a Participation Offering is conducted and the Equity Investment Participants thereunder acquire Reorganized Equity, in form and substance consistent in all material respects with the Participation Offering Term Sheet and otherwise reasonably acceptable to Oaktree.

 

“Reorganized Equity” means the shares of common stock or other equity securities of Reorganized GMR authorized to be issued pursuant to the Plan and the Amended Organizational Documents, which shall be subject to the Restructuring Transactions as set forth in the Plan.

 

 

“Reorganized GMR” means General Maritime Corporation, a Marshall Islands Corporation, as reorganized pursuant to the Plan on or after the Effective Date.

 

“Restructuring Support Agreement” has the meaning set forth in the preface above.

 

“Restructuring Transactions” means the transactions contemplated by the Plan and the Restructuring Support Agreement.

 

“SEC Financial Statements” has the meaning set forth in Section 3.9(b).

 

“Securities Act” means the United States Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

“Securityholders Agreement” means a securityholders agreement or similar agreement, governing certain rights and obligations among securityholders of Reorganized GMR, which agreement may be entered into in the event a Participation Offering is conducted and the Equity Investment Participants thereunder acquire Reorganized Equity, in form and substance consistent in all material respects with the Participation Offering Term Sheet and otherwise reasonably acceptable to Oaktree.

 

“Subsidiary” means, with respect to any entity, any corporation, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, limited liability company or other business entity, a majority of the partnership, limited liability company or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof.  For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a partnership, limited liability company or other business entity if such Person or Persons shall be allocated a majority of partnership, limited liability company or other business entity gains or losses or shall be or control the managing director or general partner of such partnership, limited liability company or other business entity.

 

“Tax” and “Taxes” means any (i) federal, state, local and foreign taxes, charges, fees, levies or other similar assessments or liabilities (including, without limitation, income, receipts, revenue, ad valorem, value added, excise, real or personal property, sales, occupation, service, stamp, transfer, registration, natural resources, severance, premium, windfall or excess profits, environmental, customs, duties, use, licensing, withholding, employment, social security, unemployment, disability, payroll, share, capital, surplus, alternative, minimum, add-on minimum, estimated, franchise or any other taxes, charges, fees, levies or other similar assessments or liabilities of any kind whatsoever), whether computed on a separate, consolidated, unitary or combined basis or in any other manner, and includes any interest, fines, penalties, assessments, deficiencies or additions thereto, (ii) any and all liability for amounts described in (i) of any member of an affiliated, consolidated, combined or unitary group of which any of the GMR Parties (or any predecessor thereof) is or was a member, and (iii) any and all liability for amounts described in (i) of any Person imposed on any of the GMR Parties as a transferee or successor, by contract, pursuant to any law, rule or regulation, or otherwise.

 

 

“Tax Return” means any federal, state, local, foreign and other applicable return, declaration, report, claim for refund, information return or statement or other document (including any related or supporting schedules, statements or information) with respect to any Tax filed or required to be filed with the U.S. Internal Revenue Service or any other Governmental Authority or taxing authority or agency or in connection with the determination, assessment or collection of any Tax of any party or the administration of any laws, regulations or administrative requirements relating to any Tax.

 

“Vessel” means, collectively, all sea going vessels and tankers at any time owned by the GMR Parties, and, individually, any of such vessels.

 

“Update” has the meaning set forth in Section 12.14.

 

 

 

(a)           In consideration for payment by Oaktree to the Company of the Equity Investment Amount net of the cash proceeds received by the Company in connection with a Participation Offering pursuant to Section 2.1(b), if any, Oaktree shall purchase a number of shares of Reorganized Equity equal to 100% of the Reorganized Equity outstanding immediately after the Effective Date (not taking into account the Commitment Fee, and subject to the dilution as a result of the Equity Incentive Program), minus (i) the Participation Offering Shares, if any, and (ii) the shares of Reorganized Equity issued in respect of the Supporting Oaktree Lenders’ allowed Claims under the Oaktree Facility in accordance with the Plan (the “Oaktree Conversion Shares”).  The allocation of the Reorganized Equity among the Oaktree Conversion Shares, the Oaktree Commitment Shares and the Participation Offering Shares shall be as provided for in the Plan.  The shares of Reorganized Equity so purchased by Oaktree under this Section 2.1(a) are referred to herein as the “Oaktree Commitment Shares.”  The Oaktree Commitment Shares together with the Oaktree Conversion Shares and the Commitment Fee Warrant Shares are collectively referred to herein as the “Oaktree Shares”).  For the avoidance of doubt, if the Participation Offering is not consummated on or before the Closing Date (and no Person acquires any Reorganized Equity on or before the Closing Date), then, (i) on the Closing Date, subject to the terms and conditions hereof, Oaktree shall pay to the Company the entire Equity Investment Amount in consideration for the issuance and sale by the Company of the Oaktree Commitment Shares and (ii) any and all proceeds from the sale of Participation Offering Shares, if any, following the Closing, shall be paid to Oaktree or its designee rather than the Company.

 

 

(b)           The Company hereby agrees and acknowledges that the decision to conduct a Participation Offering (including the identity of the Equity Investment Participants and the amounts that may be invested by any such Person) shall be made by Oaktree in its sole discretion.  If Oaktree determines to conduct a Participation Offering, Oaktree shall determine the terms and conditions of a Participation Offering, and will prepare a term sheet setting forth such terms and conditions (the “Participation Offering Term Sheet”); provided, however, that if any portion of the Participation Offering is a rights offering or other offering of securities by the Company or otherwise imposes material obligations upon the Company, the form, terms, conditions, structure and process of such offering shall be subject to the reasonable consent of the Company.  The Parties agree that the Participation Offering will occur in accordance with the Participation Offering Term Sheet in connection with consummation of the Plan; provided, that the Participation Offering, if any, shall not cause the Company to fail to meet any of the Milestones in accordance with the terms of the Restructuring Support Agreement (unless such Milestone is extended or waived by Oaktree in its sole discretion in order to accommodate court schedules or otherwise, or extended in accordance with the last sentence of Section 2.3(a).  If any portion of the Participation Offering is a rights offering or other offering of securities by the Company or otherwise imposes material obligations upon the Company, then (x) the Company shall provide copies of all documents, instruments, agreements and other materials to be entered into, delivered, distributed or otherwise used in connection with the Participation Offering for review and comment by Oaktree and (y) the Company shall prepare the definitive documents for the Participation Offering which shall not deviate in any material respect from the Participation Offering Term Sheet without Oaktree’s consent and will be filed with the Bankruptcy Court in connection with the Plan.  Notwithstanding the foregoing, the parties hereto acknowledge and agree that (i) any Participation Offering will be conducted in compliance with all applicable laws, including, but not limited to, securities laws and Money Laundering Laws, (ii) in no event shall the Company be required to issue or sell any Purchased Shares or any other securities to any Person subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department and (iii) each participant in any Participation Offering shall provide such customary representations and warranties to the Company as the Company may reasonably request.

 

(c)           The Company shall deliver to Oaktree and each Equity Investment Participant, if any, all of the Purchased Shares purchased by such Person, as applicable, pursuant to Sections 2.1(a) and 2.1(b), in a manner consistent with, and pursuant to, the procedures set forth in the Plan.  Notwithstanding anything to the contrary in this Agreement, Oaktree, may in its sole discretion designate that some or all of the Oaktree Shares be issued in the name of and delivered to, one or more Affiliates of any Oaktree Fund.

 

 

(a)           The Company acknowledges and agrees that Oaktree has expended considerable time and expense in connection with this Agreement and the Restructuring Support Agreement and the negotiation thereof, that Oaktree incurs considerable risk in providing its commitment under the terms of this Agreement, and that this Agreement and the Restructuring Support Agreement provide value to, and are beneficial to, the Company’s estate.  The Company further acknowledges and agrees in accordance with the Approval Order (once entered), that the Company’s delivery of the Commitment Fee shall be paid on the Effective Date and its compliance with the requirements of Section 2.2(b)(iii) shall be a condition precedent to the Effective Date, and that the delivery of the Commitment Fee and payment of the Expense Reimbursement and Break-Up Fee, as applicable, are integral to this Agreement and the Restructuring Support Agreement and Oaktree’s agreement to proceed with the transactions contemplated hereby and the Restructuring.  Accordingly, subject to entry of the Approval Order, the Company hereby agrees to provide the following consideration to Oaktree or a designated Affiliate of any Oaktree Fund in exchange for Oaktree’s agreement to enter into and perform its obligations under this Agreement pursuant to the terms hereof:

 

 

(i)            the Commitment Fee;

 

(ii)           the Break-Up Fee; and

 

(iii)          the Expense Reimbursement (collectively, with the Commitment Fee and the Break-Up Fee, the “Oaktree Fees”).

 

(b)           Subject only to entry of the Approval Order, the Company shall pay the Oaktree Fees as follows:

 

(i)            the Commitment Fee shall be delivered to Oaktree or a designated Affiliate of any Oaktree Fund on the Effective Date; provided, that, for the avoidance of doubt, the Commitment Fee shall not be paid to Oaktree if the Closing does not occur;

 

(ii)            in the event that this Agreement is terminated by the Company pursuant to Section 11.3(c), and/or the Company terminates the Restructuring Support Agreement pursuant to Section 13(a)(ii) thereof, on or before the consummation of an Alternative Transaction, the Company shall pay the Break-Up Fee to Oaktree or a designated Affiliate of any Oaktree Fund, following the satisfaction of the outstanding obligations under the Prepetition Senior Facilities and the DIP Credit Agreement in full, in cash or other treatment acceptable to the Supporting Credit Facility Lenders.  The Company shall direct that the Break-Up Fee is paid directly to Oaktree or a designated Affiliate of any Oaktree Fund on or before the consummation of an Alternative Transaction following the satisfaction of the outstanding obligations under the Prepetition Senior Facilities and the DIP Credit Agreement in full, in cash or other treatment acceptable to the Supporting Credit Facility Lenders; and

 

(iii)           the Expense Reimbursement shall be paid within five (5) Business Days of invoice during the course of the Chapter 11 Case through and including the Closing Date or, in the event the Effective Date does not occur, through and including the date of termination of this Agreement. The Expense Reimbursement upon entry of the Approval Order shall be allowed administrative expense obligations of the Company under the Bankruptcy Code but shall be junior and subject to the outstanding obligations under the Prepetition Senior Facilities and the DIP Credit Agreement, including any related adequate protection obligations.  The only Expense Reimbursement required to be paid by the Company prior to Closing pursuant to this Section 2.2(b)(iii), shall be the reasonable and documented out-of-pocket expenses of Oaktree (including reasonable travel expenses) and the monthly fees and expenses of Houlihan Lokey Capital, Inc. and Kirkland & Ellis LLP, and any additional fees relating to the consummation of any transaction (including fees of Houlihan Lokey Capital, Inc.) shall not be payable unless and until the Closing is consummated (it being understood that such additional fees shall be paid by the Company at the Closing).

 

 

 

(a)           Subject to the satisfaction or, if permissible, waiver of the conditions set forth in Section 8, Section 9 and Section 10, the Closing shall take place on the Effective Date, at the offices of Kramer Levin Naftalis & Frankel LLP, 1177 Avenue of the Americas, New York, NY 10036, or at such other time and place as the Parties may agree (the date on which the Closing occurs, the “Closing Date”).  For the avoidance of doubt, the Parties agree that the consummation of the Participation Offering, if any, will not be a condition to the closing of the transactions otherwise contemplated by this Agreement, and the Participation Offering shall not otherwise impede or delay the Closing; provided that in the event that Oaktree and any Person are not able to consummate the intended participation by such Person in the Participation Offering at or prior to the Closing, nothing in this Agreement shall prevent Oaktree from transferring Oaktree Commitment Shares to such Person as determined by Oaktree in its sole discretion.  Notwithstanding anything to the contrary herein or the Restructuring Support Agreement, Oaktree shall not have the discretion to extend the Milestones with respect to the occurrence of the Closing or the Effective Date to a date that is later than that specified in the Milestones without the written consent of the Company, which consent shall not be unreasonably withheld.

 

(b)           At the Closing, (i) Reorganized GMR shall deliver the Oaktree Commitment Shares to be purchased by, and sold to, Oaktree pursuant to Section 2.1, (ii) Oaktree, in full payment for the Oaktree Commitment Shares to be purchased by, and sold to, Oaktree pursuant to Section 2.1, shall pay to the Company as provided in Section 2.1, by wire transfer of immediately available funds, cash in the amount equal to the Equity Investment Amount, net of the cash proceeds received by the Company in connection with a Participation Offering pursuant to Section 2.1(b), if any, to the account or accounts designated by the Company, and (iii) all other transactions contemplated by the Plan shall be consummated.

 

Section 3.            Representations and Warranties of the Company.  The Company represents and warrants to Oaktree as follows:

 

 

 

 

3.4         Capitalization of the Company; Due Issuance and Authorization of Reorganized Equity.  As of the Effective Date, and prior to giving effect to the Restructuring Transactions, the authorized capital stock of the Company will consist only of shares of Reorganized Equity as disclosed in the Plan.  As of the Effective Date, after giving effect to the Restructuring Transactions, the Oaktree Shares and Participation Offering Shares, if any, the number and par value per share of which shall be set forth in the Plan, and the Commitment Fee Warrant Shares and the equity interests, if any, reserved for issuance under the Equity Incentive Program, shall represent the only issued and outstanding capital stock of the Company.  Except as set forth on Schedule 3.4, as of the Effective Date, all of the issued and outstanding (i) Oaktree Shares, assuming the accuracy of the representations and warranties of Oaktree set forth in Sections 4.8 – 4.11, will not be issued in violation of the Securities Act or any other applicable securities laws (including state “blue sky” laws) and (ii) Participation Offering Shares, if any, assuming that any Equity Investment Participants in the Participation Offering provide the same representations and warranties as set forth in Sections 4.8 – 4.11, will not be issued in violation of the Securities Act or any other applicable securities laws (other than with respect to state “blue sky” laws).  Except for the Commitment Fee and Equity Incentive Program, and except as contemplated by the Plan, as of the Effective Date, the Company will not have issued, granted or entered into any commitment to issue or grant any options, warrants, rights or other securities convertible into or exchangeable or exercisable for shares of Reorganized Equity.  As of the Effective Date and except as contemplated by the Plan (including the Restructuring Transactions set forth therein) and the Equity Incentive Program, the GMR Parties will not have agreed to repurchase or redeem any securities of the Company and shall not have granted any authorized stock appreciation, phantom stock, profit participation or similar rights or any registration rights with respect to securities of the Company.

 

 

 

 

 

 

(a)           The Company has filed all reports, schedules, forms, statements and other documents with the Securities and Exchange Commission (the “Commission”) required to be filed by the Company pursuant to the Securities Act or the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the “Exchange Act”) since January 1, 2008 (the “Company SEC Documents”).  As of their respective effective dates (in the case of Company SEC Documents that are registration statements filed pursuant to the requirements of the Securities Act) and as of their respective dates of filing (in the case of all other Company SEC Documents), the Company SEC Documents complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and except to the extent amended or superseded by a subsequent filing with the SEC prior to the date of this Agreement, as of such respective dates, none of the Company SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.  Except as set forth on Schedule 3.9(a), none of the Subsidiaries of the Company is subject to the periodic reporting requirements of the Exchange Act.  Except as set forth on Schedule 3.9(a), as of the date hereof: (i) there are no outstanding or unresolved comments in comment letters from the Commission staff with respect to any of the Company SEC Documents, and (ii) to the Knowledge of the Company none of the Company SEC Documents is the subject of ongoing Commission review or outstanding Commission investigation.

 

 

(b)           The financial statements of the GMR Parties included in the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2011 (the “Most Recent Unaudited Financial Statements”) and the financial statements of the GMR Parties included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2010 (the “SEC Financial Statements”) at the time filed complied as to form in all material respects with applicable accounting requirements (including GAAP) and with the published rules and regulations of the Commission with respect thereto, and the SEC Financial Statements and the Most Recent Unaudited Financial Statements have been prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto), and fairly present in all material respects (subject, in the case of the Most Recent Unaudited Financial Statements, to normal recurring audit adjustments) the consolidated financial position of the GMR Parties as at the dates thereof and the consolidated results of their operations and cash flows for the periods then ended.

 

(c)           Except (i) as set forth on Schedule 3.9(c)(i), (ii) as disclosed in the Company’s Annual Report on Form 10-K for the year ended December 31, 2010 and all subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K filed by the Company with the Commission prior to the date hereof, (iii) for any transactions contemplated by the Plan or otherwise contemplated by this Agreement, (iv) as and to the extent disclosed or reserved against on the balance sheet included in the SEC Financial Statements, or (v) as incurred in the ordinary course of business since the date of the balance sheet included in the Most Recent Unaudited Financial Statements (except as set forth on Schedule 3.9(c)(v), none of which is material and none of which relates to breach of contract, breach of warranty, tort, infringement, or violation of law), the Company does not have any material obligation or liability (whether accrued, absolute, contingent, unliquidated or otherwise, whether or not known to any GMR Party, whether due or to become due and regardless of when asserted) required to be disclosed as a liability pursuant to GAAP.

 

 

3.11        Environmental.  Except as set forth on Schedule 3.11, (a) the GMR Parties are and have been for the past three (3) years in compliance in all material respects with all applicable Environmental Laws, and the GMR Parties are not liable for any material penalties, fines or forfeitures for failure to comply with any of the foregoing, (b) all licenses, permits, registrations, approvals or other authorizations required under any Environmental Law for the operation of the business of the GMR Parties and the operation of their Vessels have been secured and maintained and the GMR Parties are and have been for the past three (3) years in compliance in all material respects therewith, (c) the GMR Parties are not in any respect in noncompliance with, breach of or default under any applicable writ, order, judgment, injunction, or decree with respect to Environmental Laws to which any of the GMR Parties is a party or which would affect the ability of the GMR Parties to operate any Vessel, property or other facility and no event has occurred and is continuing which, with the passage of time or the giving of notice or both, would constitute noncompliance, breach of or default thereunder, (d) the GMR Parties have not received or been subject to any Environmental Claims and there are no Environmental Claims pending or, to the knowledge of the GMR Parties, threatened, against the GMR Parties in respect of which an unfavorable decision, ruling or finding has resulted or could reasonably be expected to result in a material liability pursuant to any Environmental Laws (other than Environmental Claims that have been fully and finally adjudicated or otherwise determined with no material continuing or future obligations and all fines, penalties and other costs, if any, payable by the GMR Parties in respect thereof have been paid in full or which are fully covered by insurance (including permitted deductibles)), (e) there are no facts, circumstances, conditions or occurrences on any Vessel, property or other facility currently or formerly owned or operated by the GMR Parties that is reasonably likely (1) to result in an Environmental Claim against the GMR Parties or any Vessel, property or other facility owned or operated by the GMR Parties, in respect of which an unfavorable decision, ruling or finding has resulted or could reasonably be expected to result in a material liability pursuant to any applicable Environmental Law, or (2) to cause such Vessel, property or other facility to be subject to any restrictions on its ownership, occupancy, use or transferability under any Environmental Law, except in each such case, such Environmental Claims or restrictions that individually or in the aggregate are not reasonably likely to have a Material Adverse Effect, (f) Hazardous Materials have not been generated, used, treated or stored on, transported to or from, released on or from, disposed of, or handled, and no Person has been exposed to any such Hazardous Materials, at any location, including any Vessel, property or other facility at any time owned or operated by the GMR Parties, where such occurrence or event has given or could reasonably be expected to give rise to a material liability pursuant to any Environmental Laws (other than such liabilities resulting from Environmental Claims that have been fully and finally adjudicated or otherwise determined with no material continuing or future obligations and all fines, penalties and other costs, if any, payable by the GMR Parties in respect thereof have been paid in full or which are fully covered by insurance (including permitted deductibles)), (g) the GMR Parties have not assumed, undertaken, provided an indemnity with respect to, or otherwise become subject to, any material liability of any other Person relating to Environmental Laws, and (h) to their knowledge, the GMR Parties have no material liability with respect to the presence or alleged presence of asbestos in any product or item or at or upon any property or facility.

 

 

 

 

(a)           Schedule 3.13(a)(i) sets forth as of the date hereof, a complete and correct list of (i) all of the patented or registered Intellectual Property and pending patent applications and applications for registrations of other Intellectual Property owned by any GMR Party, and (ii) all unregistered trademarks and service marks owned by any GMR Party and currently used in connection with any material product or service of the GMR Parties, and (iii) all unregistered copyrights owned by any GMR Party embodied in or necessary to any material product or service of the GMR Parties.  Subject to the Approvals, except as set forth on Schedule 3.13(a)(ii), and subject to any Permitted Liens (as such term is defined in the DIP Credit Agreement) the GMR Parties own and possess all right, title and interest in and to all of the Intellectual Property set forth on Schedule 3.13(a)(i) and own and possess all right, title and interest in and to, or otherwise have the right to use pursuant to, to the Knowledge of the Company, valid and enforceable licenses, all other Intellectual Property that is used in, or necessary for, the operation of its and their respective businesses as presently conducted (collectively, “Company Intellectual Property”), without, to the Knowledge of the Company, infringement upon or conflict with the material rights of any other Person with respect thereto.

 

(b)           The conduct of the businesses of the GMR Parties as currently conducted does not infringe, misappropriate or otherwise conflict with, and has not infringed, misappropriated or otherwise conflicted with, in any material respect, any Intellectual Property of any third Person, and to the Knowledge of the Company, there are no facts or circumstances that would reasonably be expected to result in any of the foregoing nor any current or anticipated claims against any GMR Party relating to the foregoing.  To the Knowledge of the Company, no third Person has infringed, misappropriated or otherwise conflicted with, in any material respect, any Company Intellectual Property, and to the Knowledge of the Company, there are no facts or circumstances that would reasonably be expected to result in any of the foregoing or of any current or anticipated claims against a third Person relating to the foregoing.

 

 

 

 

 

 

 

 

(a)           Except as set forth on Schedule 3.19(a), (i) all Tax Returns required to be filed by or on behalf of the GMR Parties have been duly and timely filed with the appropriate Governmental Authorities in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which to make such filings); (ii) each such Tax Return is true, correct, accurate and prepared in accordance with applicable law; (iii) all income and other material Taxes payable by or on behalf of any GMR Party have been fully and timely paid except to the extent such Taxes are being contested in good faith by appropriate proceedings and are identified on Schedule 3.19(a), and adequate reserves or accruals for Taxes have been provided in the balance sheet included as part of the Most Recent Unaudited Financial Statements in respect of any period for which Tax Returns have not yet been filed or for which Taxes are not yet due and owing; (iv) the GMR Parties have timely withheld and paid to the appropriate Governmental Authority all amounts required to have been withheld and paid in connection with amounts paid or owing to any shareholder, employee, creditor, independent contractor or other third party and have complied with all applicable Tax Return filing and information reporting obligations with respect thereto; and (v) no agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of a material amount of Taxes (including any applicable statute of limitation), has been executed or filed with any Governmental Authority by or on behalf of any GMR Party.

 

(b)           Except as set forth on Schedule 3.19(b), all deficiencies asserted or assessments made as a result of any examinations by any Governmental Authority of the Taxes or Tax Returns of or covering or including the GMR Parties have been fully paid.  There is no audit, claim, action, suit, proceeding, investigation or request for a private letter ruling or other formal or informal tax guidance pending with respect to any of the GMR Parties in respect of any Taxes in any jurisdiction, nor has there been any such activity during the five-year period ending on the Effective Date.  None of the GMR Parties have been informed of the commencement or anticipated commencement of any such activity, nor are any of the GMR Parties aware that any such activity is contemplated by any taxing authority.  None of the GMR Parties has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency, which period (after giving effect to such extension or waiver) has not expired.

 

 

(c)           None of the GMR Parties is (i) is a party to any “reportable transaction” within the meaning of Section 1.6011-4 of the Treasury Regulations or (ii) is or has ever been a “United States Real Property Holding Company” within the meaning of Section 897 of the Code.

 

(d)           With respect to each taxable year of each of the GMR Parties that ends within the five years preceding the Effective Date, each of the GMR Parties has at all times qualified for a complete exemption from U.S. federal income taxation on income from the international operation of ships under Section 883 of the Code.  With respect to each such taxable year, none of the income of the GMR Parties, including income exempt from U.S. federal income taxation under Section 883 of the Code, is effectively connected with the conduct of a trade or business in the United States within the meaning of Section 887(b)(4) of the Code.

 

(e)           Schedule 3.19(e) lists each GMR Party and whether each such entity is treated for Tax purposes as a corporation, association, partnership or other entity, or whether such entity is disregarded for Tax purposes.

 

 

 

 

(a)           Schedule 3.22(a) contains a correct and complete list of the top twenty (20) customers and the top twenty (20) vendors and suppliers of the GMR Parties, quantified by the value of products and services provided or agreed to be provided to such customers or by such vendors and suppliers, in each case, during the period from January 1, 2011 through November 30, 2011, to the extent invoiced.

 

(b)           As of the date hereof, to the Actual Knowledge of the Company and except as set forth on Schedule 3.22(b), no such customer or supplier intends to terminate or materially reduce its business with any GMR Party.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

5.2          Operation of Business.  Subject to the terms and conditions of this Agreement and in accordance with the terms hereof, and subject to the Approvals and the transactions contemplated by the Plan, from the date hereof through the pendency of the Chapter 11 Case, the Company will, and will cause its Subsidiaries (including, for the avoidance of doubt, any Subsidiary that is not a debtor-in-possession in the Chapter 11 Case) to continue to operate in the ordinary course of business consistent with past practice and the DIP Budget and use its commercially reasonably efforts to keep intact the assets, operations and relationships of its business and will promptly inform Oaktree about any change, effect, event, development, circumstance or state of facts that could reasonably be expected to result in a Material Adverse Effect. Without limiting the foregoing, the Company will not, and will cause its Subsidiaries not to, enter into, materially modify or terminate any Material Contract without the prior written consent of Oaktree (which shall not be unreasonably withheld); provided, however that in the event that Oaktree does not expressly grant or deny any request from the Company for consent pursuant to this Section 5.2 with respect to the entry into, material modification or termination of a Material Contract within three (3) days after the request by the Company for such consent, Oaktree will be deemed to have consented to such request; provided, further that the Company may, without the prior written consent of Oaktree, enter into any time charter contract, agreement or arrangement, which has a duration of less than six (6) months.

 

5.3          No Inconsistent Actions.  Subject to the terms and conditions of this Agreement (including but not limited to the provisions of Section 7.4 hereof) and the Restructuring Support Agreement and in accordance with the terms thereof, the Company shall not, and shall cause its Subsidiaries not to, take any actions that are materially inconsistent with this Agreement or the Restructuring Support Agreement.

 

 

 

 

 

 

(a)           Subject to applicable law and subject to the execution by the Company and Oaktree or its advisors, and continued effectiveness of an agreement (in form and substance reasonably acceptable to each of the Company and Oaktree) regarding maintaining the confidentiality of any information provided in connection with the transactions contemplated by this Agreement, upon reasonable notice, the Company shall (and shall cause its Subsidiaries to) afford Oaktree and its directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, reasonable access, upon reasonable notice during normal business hours, and at other reasonable times, throughout the period prior to the Effective Date, to its and its Subsidiaries’ employees, properties, books, contracts, records, lenders and advisors and, during such period, the Company shall (and shall cause its Subsidiaries to) furnish promptly to Oaktree and its advisors all information concerning its business, properties and personnel as may reasonably be requested by Oaktree, including, for the avoidance of doubt, the same information and material shared with the lenders in connection with the DIP Credit Agreement; provided, however, that if at any time one or more advisors of Oaktree is party to an effective confidentiality agreement contemplated by this Section 5.7(a) and Oaktree is not party to such an effective confidentiality agreement, then the Company shall only be required to provide such advisor(s) with access to information pursuant to this Section 5.7(a) in lieu of any other party listed above; provided, further, that (except as expressly provided for in any effective confidentiality agreement contemplated by this Section 5.7(a)), the Company or its representatives may designate certain information (other than any Disclosure Information) to be provided by the Company in accordance with the terms of this Agreement as “professional eyes only” in its sole discretion, in which case such information will only be provided by the Company or the Company’s representatives to Oaktree’s financial and legal advisors on the condition that such financial and legal advisors do not share any such information designated as “professional eyes only” with Oaktree or any of its other representatives. Nothing in this Section 5.7 shall require the Company to deliver to Oaktree any information or materials in connection with an Alternative Transaction.  All such information and materials regarding an Alternative Transaction shall be governed by Section 7.4 and not this Section 5.7.

 

 

(b)           Notwithstanding anything to the contrary herein, the Company shall not be required to deliver to Oaktree any information or materials that are (i) subject to the attorney-client privilege or other similar privilege, absent entry into a common interest, joint defense or similar agreement in form and substance reasonably acceptable to the Company and any parties to such agreement, or (ii) confidential information of a third party, the disclosure of which is restricted by a confidentiality agreement between any GMR Party and such third-party.

 

(c)           The Parties agree and acknowledge that the receipt of any confidential information in accordance with the terms of this Agreement is not a violation of any existing agreement between the Parties not to receive non-public information, including pursuant to (x) the Oaktree Facility and (y) the Investment Agreement, dated as of March 29, 2011, as amended, between OCM Marine Investments and the Company.

 

 

 

 

 

 

 

 

 

 

 

6.2          Limitations on Transfer.  Oaktree shall not sell, transfer, assign, pledge, grant a participation interest in, or otherwise dispose of, directly or indirectly, its right, title, or interest in respect of Oaktree’s interest in the Oaktree Facility in whole or in part to a transferee that also participates in the Participation Offering hereunder, unless such transferee complies with Section 6 of the Restructuring Support Agreement.

 

 

 

Section 7.            Additional Covenants.  The Company and Oaktree hereby agree to do the following:

 

 

“THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR APPLICABLE STATE SECURITIES LAWS (“STATE ACTS”) AND MAY NOT BE SOLD, ASSIGNED, PLEDGED OR TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR STATE ACTS COVERING SUCH SECURITIES OR THE SECURITIES ARE SOLD AND TRANSFERRED IN A TRANSACTION THAT IS EXEMPT FROM OR NOT SUBJECT TO THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.”

 

 

 

 

Section 8.            Conditions to the Parties’ Obligations.  The obligations of each of Oaktree and the Company to consummate the Closing are subject to the satisfaction or waiver in writing of each of the following conditions as of the Effective Date:

 

 

 

 

 

 

Section 9.            Conditions to Oaktree’s Obligations.  The obligations of Oaktree to consummate the Closing are subject to the satisfaction (or the waiver in writing by Oaktree in its sole discretion) of each of the following conditions as of the Effective Date:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Section 10.          Conditions to the Company’s Obligations.  The obligations of the Company hereunder are subject to the satisfaction (or the waiver in writing by the Company in its sole discretion) of the following conditions as of the Effective Date:

 

 

 

 

 

 

 

(a)           if Oaktree and the Company agree to terminate this Agreement by mutual written consent;

 

(b)           if the lenders under the Prepetition Senior Facilities (or a steering committee acting on their behalf) have directed the Company to commence an Acceptable Sale Process pursuant to the terms of the DIP Credit Agreement, and such direction has not been withdrawn or otherwise rendered ineffective by the Bankruptcy Court within ten (10) Business Days; or

 

(c)           if there shall be any final non-appealable order entered by a Governmental Authority of competent jurisdiction having valid enforcement authority permanently restraining, prohibiting or enjoining the GMR Parties or Oaktree from consummating the transactions contemplated hereby.

 

 

(a)           if the Company has failed to meet any of the Milestones in accordance with the terms of the Restructuring Support Agreement, including, for the avoidance of doubt, entry of the Approval Order on or before December 15, 2011 (unless such Milestone is extended or waived by Oaktree in its sole discretion in order to accommodate court schedules or otherwise, it being understood that, subject only to the last sentence of Section 2.3(a), Oaktree is the only party entitled to modify or waive the Milestones;

 

 

(b)           if the Definitive Documents (as defined in the Plan Term Sheet) filed by the Company with the Bankruptcy Court include terms that are inconsistent with the Plan Term Sheet in any material respect, unless otherwise reasonably acceptable to Oaktree;

 

(c)           if Company files any motion or other request for relief seeking (A) to voluntarily dismiss the Chapter 11 Case, (B) conversion of the Chapter 11 Case to chapter 7 of the Bankruptcy Code, (C) appointment of a trustee or an examiner with expanded powers pursuant to section 1104 of the Bankruptcy Code in the Chapter 11 Case or (D) to effectuate a plan of reorganization other than the Plan or seek any other relief that, if approved, would render the Plan incapable of consummation on the terms set forth herein;

 

(d)           if any court (including the Bankruptcy Court) declares that any material provision of this Agreement is unenforceable in whole or in part;

 

(e)           if the Bankruptcy Court enters an order (A) dismissing the Chapter 11 Case, (B) converting the Chapter 11 Case to a case under chapter 7 of the Bankruptcy Code, (C) appointing a trustee or an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code in the Chapter 11 Case or (D) the effect of which would render the Plan incapable of consummation on the terms set forth in the Restructuring Support Agreement;

 

(f)           if the Company files any motion, or the Bankruptcy Court enters any order, approving a payment to any party (whether in cash or other property or whether as adequate protection, settlement of a dispute, or otherwise) that would be materially inconsistent with the treatment of such party under this Agreement;

 

(g)           if any Event of Default (as defined in the DIP Credit Agreement) by the Company occurs under the DIP Credit Agreement and such breach is not cured or waived within five (5) Business Days after the occurrence of such event of default;

 

(h)           upon the failure of any of the conditions set forth in Section 8 or Section 9 to be satisfied (except where such failure is the result of Oaktree’s failure to satisfy its obligations under this Agreement), which failure is not cured within seven (7) days following the date of Oaktree’s delivery to the Company of notification thereof;

 

(i)             any material breach by the Company of any of its obligations under this Agreement, and any such breach is not cured or waived within five (5) Business Days after receipt by the Company of written notice thereof from Oaktree;

 

(j)             any court of competent jurisdiction or other competent governmental or regulatory authority shall have issued an order making illegal or otherwise restricting, preventing, or prohibiting the Restructuring (as defined in the Restructuring Support Agreement) in a manner that cannot be reasonably remedied by the Company;

 

 

(k)           upon the occurrence of a material breach by the Company or the Supporting Credit Facility Lenders of any of their obligations under the Restructuring Support Agreement, and the failure to cure such breach upon the terms set forth in the Restructuring Support Agreement; or

 

(l)            upon the termination of the Restructuring Support Agreement by Oaktree pursuant to Section 13(c)(viii) thereof.

 

 

(a)           any material breach by Oaktree of any of its obligations under this Agreement, and any such breach is not cured or waived within five (5) Business Days after receipt by Oaktree of written notice thereof from the Company;

 

(b)           upon the termination of the Restructuring Support Agreement by the Company pursuant to Section 13(a)(i) thereof;

 

(c)           if the Company’s board of directors determines, in good faith and upon the advice of its advisors, in its sole discretion, that continued pursuit of the Plan is inconsistent with its fiduciary duties; or

 

(d)           the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any injunction, judgment, decree, charge, ruling or order preventing consummation of a material portion of the Restructuring.

 

 

 

(a)           In the event of termination of this Agreement in accordance with this Section 11, the provisions of this Agreement shall immediately become void and of no further force and effect (other than Section 2.2 (subject to the prior satisfaction of the outstanding obligations under the Prepetition Senior Facilities and the DIP Credit Agreement in full, in cash or other treatment acceptable to the Supporting Credit Facility Lenders), this Section 11, Section 12 and other than in respect of any liability of any Party for any breach of this Agreement prior to such termination, which shall in each case expressly survive any such termination).

 

 

(b)           No termination of this Agreement pursuant to Section 11 shall be effective until written notice thereof is given to the non-terminating party specifying the provision hereof pursuant to which such termination is made.

 

 

If to Oaktree:

 

Oaktree Capital Management, L.P.

333 South Grand Ave., 28th Floor

Los Angeles, California 90071

Facsimile:   ###-###-####

Attention:          B. James Ford

Adam Pierce

***@***, ***@***

 

with copies (which shall not constitute notice) to:

 

Kirkland & Ellis LLP

333 South Hope Street

Los Angeles, California 90071

Facsimile: (213) 680-8500

Attention:          Damon R. Fisher and Peter P. Massumi

***@***, ***@***

 

and

 

Kirkland & Ellis LLP

601 Lexington Avenue

New York, NY 10022

Facsimile: (212) 446-4900

Attention:          Edward O. Sassower and Brian E. Schartz

***@***, ***@***

 

 

If to the Company, to:

 

General Maritime Corporation

299 Park Avenue

New York, New York 10171

Facsimile: (212) 763-5607

Attention:         Chief Financial Officer

***@***

 

with copies (which shall not constitute notice) to:

 

Kramer Levin Naftalis & Frankel LLP

1177 Avenue of the Americas

New York, New York 10036

Facsimile:   ###-###-####

Attention:         Kenneth H. Eckstein, Douglas H. Mannal and Shari K. Krouner

***@***, ***@***, ***@***

 

All such notices, requests and other communications will (i) if delivered personally to the address as provided in this Section 12.1, by electronic mail to the electronic mail address as provided in this Section 12.1, or by facsimile transmission to the facsimile number as provided in this Section 12.1, be deemed given on the day so delivered, or, if delivered after 5:00 p.m. local time of the recipient or on a day other than a Business Day, then on the next proceeding Business Day, (ii) if delivered by mail in the manner described above to the address as provided in this Section 12.1, be deemed given on the earlier of the third (3rd) Business Day following mailing or upon receipt and (iii) if delivered by overnight courier to the address as provided for in this Section 12.1, be deemed given on the earlier of the first (1st) Business Day following the date sent by such overnight courier or upon receipt, in each case regardless of whether such notice, request or other communication is received by any other Person to whom a copy of such notice is to be delivered pursuant to this Section 12.1.  Either Party from time to time may change its address, electronic mail address, facsimile number or other information for the purpose of notices to that Party by giving notice specifying such change to the other Party.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(a)           if the Company enters into a time charter contract, agreement or arrangement with a duration of less than six (6) months after the date hereof without the consent of Oaktree, the Company may update Schedule 3.16 to include such time charter contracts, agreements or arrangements;

 

 

(b)           if the Company enters into, materially modifies or terminates any Material Contract with the prior written consent of Oaktree (or if such consent is deemed to have been given in accordance with Section 5.2), the Company may update Schedule 3.16 to reflect such entry into, material modification of or termination of such Material Contract changes; and

 

(c)           if the Company takes any specific action, or forbears from taking any specific action, after obtaining the express prior written consent of Oaktree (it being understood that Oaktree shall not be deemed, solely for the purpose of this Section 12.14(c), to have consented to any specific action or forbearance from the taking of any specific action unless the request delivered by the Company to Oaktree in writing specifically requests consent to such specific action or forbearance), the Company may update the Schedules to reflect the fact of such specific action or the fact of such specific forbearance from action (it being understood that the Company may not update the Schedules with respect to any matter arising as a consequence of such action).

 

Notwithstanding anything in this Section 12.14 to the contrary, in the event that the Company is permitted to make any update pursuant to clauses (a), (b) or (c) above (a “Permitted Update”), then such Permitted Update shall modify this Agreement for the purposes of determining whether (x) the closing condition set forth in Section 9.12 has been satisfied and (y) Oaktree’s rights under Section 11.2 are applicable, and such Permitted Update shall not be a basis for (A) the assertion by Oaktree of a failure of a closing condition set forth herein to be satisfied, (B) Oaktree asserting a claim for any legal remedy in equity or at law, or (C) Oaktree’s termination of this Agreement.  For the avoidance of doubt, the action described in the written request by the Company to Oaktree must be specific and, for example, shall not include actions that are described in the DIP Budget unless the Company has separately and specifically requested consent with respect to such action.

 

 

IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the date first written above.

 

 

 

	OAKTREE PRINCIPAL FUND V, L.P.
	By:       Oaktree Principal Fund V GP, L.P.
	Its:        General Partner
	By:       Oaktree Principal Fund V GP Ltd.
	Its:        General Partner
	By:       Oaktree Capital Management, L.P.
	Its:        Director