NORSK TILLITSMANN ASA

Transkript

1 Denne melding til obligasjonseierne er kun utarbeidet på engelsk For informasjon vennligst kontakt Norsk Tillitsmann ASA. To the bondholders in: ISIN NO FRN Interoil Exploration and Production ASA Senior Secured Callable and Putable Bond Issue 2007/2012 Oslo, 3 February 2010 Proposal to authorise reimbursement of bondholder funding and the petition for bankruptcy of Interoil Exploration and Production ASA - Summons to Bondholder s Meeting 1. BACKGROUND 1.1 Acceleration of the Loan and collection of the Outstanding Loan Norsk Tillitsmann ASA ( NTM / Norsk Tillitsmann ) is appointed loan trustee for the holders of bonds (the Bondholders ) in the above mentioned loan with ISIN NO (the Loan ), established under the loan agreement dated 27 April 2007 (the Loan Agreement ) with Interoil Exploration and Production ASA as borrower (the Borrower ). All capitalized terms used herein shall have the meaning assigned to them in the Loan Agreement unless otherwise stated in this summons. The Borrower failed to make repayment of the instalment of the Loan on the Payment Date falling on 5 May 2009, as required by Clause 10.1 of the Loan Agreement. This was, prima facie, an Event of Default under Clause 15.1 (a) of the Loan Agreement, which was not remedied in accordance with Clause 15.1 (a), and the Loan was declared by NTM to be in default on 22 May Pursuant to a creditors agreement dated 12 June 2009, certain bondholders, who together hold Bonds representing in excess of 2/3 of the Outstanding Loan, agreed on certain terms to a standstill with respect to their claims under the Loan Agreement (the Creditors Agreement ). In particular, the intention of the Creditors Agreement was to achieve a satisfactory voluntary arrangement for (i) the sale of the Loan Security and (ii) the repayment of the Loan, in consideration of which an extension for repayment of the Loan and a grace period was granted, whereby collection under the Loan Agreement was temporarily suspended. M A IL IN G A D D R E S S P.O.B O X I 4 7 O V IK A, N - O I lt ) O S L O L O C A T IO N H A A K O N V II G A TE I, O S L O, N O R W A Y fax org.nr» no MVA mail@trustee.no

2 The Creditors Agreement was terminatedlm l21 December 2009, its purpose not having been fulfilled, and the temporary suspension of the collection of the Outstanding Loan was lifted. In particular, the Borrower has failed to make repayment of the Loan which remains in default. The amounts due under the Loan Agreement were declared to be immediately due and payable on 23 December 2009, after NTM received an instruction to declare such a default by a majority of the Bondholders collectively representing 72.3% of the Outstanding Loan under the Loan Agreement (the Instructing Bondholders ). Following consultation with and the instructions from the Instructing Bondholders, NTM has filed a petition for the enforced sale of the Loan Security. NTM is also considering filing a petition for the bankruptcy of the Borrower on the grounds that the Borrower is no longer willing and capable to protect the interests of its creditors, either directly or through providing appropriate instructions to its subsidiaries, including Interoil Exploration and Production Latin America AS. 1.2 Filing for enforcement proceedings Pursuant to an instruction letter dated 13 January 2010 (the Instruction Letter ) issued on behalf of the Instructing Bondholders, NTM was instructed to instruct or procure the instruction of Advokatfirmaet Thommessen AS to file the petition for the enforcement of the Loan Security (the Enforcement Proceedings ). The Instructing Bondholders have agreed to cover the costs and expenses incurred by NTM in connection with the Enforcement Proceedings (the Costs ), provided that NTM does not receive reimbursement from the Issuer following request, and on the basis that (subject to obtaining approval of the reimbursement mechanism by a Bondholders meeting) NTM shall reimburse to the Instructing Bondholders on a pro rata basis any payments made by them to NTM ahead of any distributions by NTM to Bondholders with respect to the Bonds. Accordingly, it is proposed that the Bondholders meeting authorises NTM to reimburse the Instructing Bondholders for any fees, costs and expenses incurred by them in connection with the Enforcement Proceedings out of amounts NTM receives from the Issuer or otherwise in respect of the Bonds. This reimbursement will be made ahead of any payment of principal, interest, premium or otherwise to Bondholders under the Bonds. The effect of this will be that the Costs will be borne by all Bondholders and not just the Instructing Bondholders. It is also proposed, for the sake of good order, that the decision to file the petition for enforcement of the Loan Security is affirmed by a Bondholder meeting. 1.3 Filing for bankruptcy proceedings As the Bondholders will be aware, the Court of Appeals (Lagmannsretten) in another case involving NTM as loan trustee, ruled that NTM can not file the claim for payment of a guarantee in its own name under the current legislation. The Court of Appeal s decision has been further appealed by NTM to the Supreme Court. The decision of the Court of Appeals has resulted in NTM s legal capacity to file a petition for bankruptcy in its own name (on behalf of the bondholders) being disputed by the borrower in another case, namely the petition for bankruptcy against Petromena ASA

3 www. (m.stee.no However, NTM has previously established a foundation (stiftelse) solely set up with the purpose to protect bondholders rights through processes of restructuring (the Foundation ). In the Petromena case the Foundation acquired, through its wholly owned subsidiary NTM Refectio III AS a minor portion of the issued bonds. NTM Refectio III AS then filed for bankruptcy. The court concluded that NTM Refectio III AS had a cause of action according to the Civil Procedure Act, and this company was also considered a creditor who, according to the Norwegian Bankruptcy Act Section 60 had the right to file for bankruptcy. However, the court emphasized the importance that the petition for bankruptcy was filed in accordance with/by consent from the Bondholders and NTM. The petition to open bankruptcy in Petromena ASA was finally sustained following a bondholders meeting affirming NTM s decision to file a petition for bankruptcy and consenting to NTM Refectio III AS filing the petition. In the present case, it may be necessary in order to protect Bondholders interests, to file a bankruptcy petition against the Borrower. If this becomes necessary, and to minimise the risk of the petition to file for bankruptcy being dismissed by the courts, NTM will set up a new company, named NTM Refectio V AS ( Refectio AS ), wholly owned by the Foundation, which would acquire Bonds and become the petitioning creditor. In the interests of time and expedience, NTM proposes that the same Bondholders meeting also resolves and approves the filing of a petition for bankruptcy of the Borrower (on the terms set out in this summons) by Refectio AS. Furthermore, since there is judicial precedence that one of the Bondholders have standing to sue and are claimholders in substantive terms in accordance with the Norwegian Bankruptcy Act, NTM propose that the Bondholders meeting authorises NTM to (i) consent to Refectio AS (and any other Bondholder together with NTM) filing the petition in its own name and on its own behalf as an individual Bondholder, and (ii) enter into agreements with Refectio AS to give effect to this. Accordingly, NTM proposes that the Bondholders meeting authorises NTM to file or procure the filing of a bankruptcy petition against the Borrower if instructed to do so by the Instructing Bondholders. The Instructing Bondholders shall have absolute discretion whether to give this instruction and shall have no liability to any Bondholder, or otherwise for giving or failing to give this instruction. NTM may require an indemnity for all cost and liability incurred by NTM related to actions taken according to the instructions before acting upon the instructions. The Instructing Bondholders may agree to cover the fees, costs, expenses and other liabilities incurred by NTM in connection with such a bankruptcy filing (the Bankruptcy Costs ). NTM proposes that the Bondholders meeting also authorises NTM to reimburse the Instructing Bondholders in respect of any Bankruptcy Costs met by them out of any amounts NTM receives from the Issuer or its trustee in bankruptcy, or otherwise in respect of the Bonds. This reimbursement will be made ahead of any payment of principal, interest, premium or otherwise to Bondholders with respect to the Bonds. The effect of this will be that the Bankruptcy Costs will be borne by all Bondholders and not just the Instructing Bondholders. In the event that it becomes relevant to take possession of the pledged assets, it may be pertinent to set up an SPY to hold and conduct a sale of the assets. Such an SPV will be set up similarly to the above mentioned Refectio AS, and be fully owned by the Foundation. The -3 -

4 fees, costs, expenses and other liabilities' incurred by such an SPY shall also be considered part of the Costs and/or the Bankruptcy Costs. INFORMATION ON REFECTIO AS AND ITS OWNER Refectio AS will be a Norwegian limited company fully owned by Stiftelsen Refectio (the Foundation), duly supervised by the Norwegian Foundation Authority (Stiftelsestilsynet). Norwegian foundations are subject to supervision and control by the Foundation Authority in order to secure that the foundations are loyal to their purposes. The basic element in the supervision and control is that the Foundation Authority also has the power to make decisions in accordance with the Foundation legislation of One of the powers granted this way, is to enact an Executive Committee in cases where the foundation has no such body, and to dismiss representatives of the Executive Committee if they are unqualified or have not fulfilled their duties. About Refectio AS Refectio AS will be established as a single purpose vehicle and registered with the Norwegian Business Register. The company holds no other assets than the share capital of NOK , has no activities or employees, and is established solely for the purpose of protecting the interests of the bondholders who hold bonds issued by the Borrower. This includes taking enforcement action before the courts and other actions which are necessary to fulfil the purpose of protecting the bondholders. Refectio AS is represented by the Board which consists of Mr. Ragnar Sjoner, managing director of NTM. A change of director may take place in connection with filing of bankruptcy proceedings. About Stiftelsen Refectio: The objective of the foundation is, pursuant to further agreement with NTM, to acquire or have the disposal over assets in connection with NTM s management of outstanding loans, for which there is a risk of default and where NTM ASA is the trustee for the relevant loan, as well as to hold and to realise acquired assets. The basic capital of the foundation is NOK 200,000. The foundation s paid-in capital may subsequently be increased by contribution from the founder or others. The foundation s acquisitions or dispositions over assets are implemented through companies with limited liability in which the foundation has controlling interest. The foundation is represented by a Board of Directors composed in compliance with the provisions of 27 of the Foundation Act. 3. THE PROPOSAL Norsk Tillitsmann proposes the following resolution (Norwegian translation for the purpose of documentation before the Norwegian courts): - 4 -

5 (a) (b) (c) (d) (e) (f) (g) (h) (i) l i i f NORSK TILLITSMANN ASA The Bondholders affirm thede'tisiott to petition for the enforcement of the Loan Security. The Bondholders instruct Norsk Tillitsmann to file/ or procure the filing of the bankruptcy petition against Interoil Exploration and Production ASA, if instructed to do so by the Instructing Bondholders. NTM may require an indemnity for all cost and liability incurred by NTM related to actions taken according to the instructions before acting upon the instructions. The Bondholders release and absolve the Instructing Bondholders from any liability whatsoever in relation to any instruction given or not given by the Instructing Bondholders to Norsk Tillitsmann to file/ or procure the filing of the bankruptcy petition against Interoil Exploration and Production ASA and acknowledge and agree that the Instructing Bondholders shall have complete discretion whether to provide this instruction. The Bondholders release and absolve Norsk Tillitsmann from any liability whatsoever in relation to any instruction given to them by the Instructing Bondholders (but without releasing Norsk Tillitsmann from liability for gross negligence, fraud or wilful misconduct in implementing such instructions). The Bondholders resolve that if Norsk Tillitsmann is instructed by the Instructing Bondholders that a bankruptcy petition shall be filed, that Refectio AS (if appropriate, together with any additional Bondholder(s)) may file the petition in its own name and on its own behalf as an individual Bondholder. The Bondholders acknowledge and agree that this action is not contrary to the provision of the Loan Agreement. Subject to Norsk Tillitsmann receiving instructions from the Instructing Bondholders, as set out in paragraph (e) above, the Bondholders authorise Norsk Tillitsmann to (i) consent to Refectio AS (and any other Bondholder together with NTM) filing the petition in its own name and on its own behalf as an individual Bondholder, and (ii) enter into agreements with Refectio AS to give effect to this. The Bondholders authorise and instruct Norsk Tillitsmann to pay the legal fees, costs, expenses and other liabilities incurred in connection with the enforcement of the Loan Security and the bankruptcy petition referred to above, including reimbursement to the Instructing Bondholders of (i) the Costs, and (ii) the Bankruptcy Costs and any other costs and fees incurred by Norsk Tillitsmann, Refectio AS and other SPV s established to protect the Bondholders interests in the process, and funded or not funded by the Instructing Bondholders, out of amounts recovered or received by Norsk Tillitsmann in connection with the Bonds and before it makes any payment or distribution of principal, interest, premium or otherwise to Bondholders with respect to the Bonds. The Bondholders authorize the Instructing Bondholders to instruct, or procure the instruction of an appointed administrator for the Enforcement Proceedings, including the issuance of a mandatory letter, and to carry out all negotiations which are deemed to be reasonably necessary to protect or pursue the Bondholders' interests and to give the approvals and authorizations referred to in resolution (i) below; The Bondholders authorize NTM (without the need for further approval from the Bondholders meeting) to issue any instruction letters and enter into agreements - 5 -

6 . NORSK TILLITSMANN ASA required to give effect to (h)aboye', iilsuch form as the Instructing Bondholders may approve; and (j) The Bondholders release and absolve the Instructing Bondholders from any responsibility towards or any liability to any of the Bondholders, NTM or the Borrower or any other party in respect of actions taken by them or omitted to be taken by them, whether before or after the date of this resolution (but without releasing the Instructing Bondholders from liability for gross negligence, fraud or wilful misconduct in giving such instructions). Norwegian translation: (a) (b) (c) (d) (e) (f) (g) Obligasjonseierne stadfester beslutningen om å begjære tvangsdekning av pantesikkerhetene knyttet til låneavtalen. Obligasjonseierne instruerer Norsk Tillitsmann til å begjære eller besørge begjæring om konkurs i Jnteroil Exploration and Production ASA, dersom Instructing Bondholders (som definert overfor) gir instruksjon om det. Norsk Tillitsmann kan kreve å bli hold skadesløs for omkostninger og ansvar påført Norsk Tillitsmann som følge av instruksjoner før instruksjoner iverksettes. Obligasjonseierne fritar Instructing Bondholders fra ethvert ansvar i forbindelse med enhver instruksjon gitt eller ikke gitt av Instructing Bondholders til Norsk Tillitsmann om å begjære eller besørge begjæring om konkurs i Interoil Exploration and Production ASA, og erkjenner og aksepterer at Instructing Bondholders rett til å instruere eller ikke instruere Norsk Tillitsmann er diskresjonær. Obligasjonseierne fritar Norsk Tillitsmann fra ethvert ansvar i forbindelse med enhver instruksjon gitt av Instructing Bondholders til Norsk Tillitsmann (men uten å frita Norsk Tillitsmann for ansvar for grov uaktsomhet eller svikaktig opptreden utvist i forbindelse med gjennomføring av slike instrukser). Obligasjonseierne beslutter at dersom Norsk Tillitsmann blir instruert av Instructing Bondholders om å fremme konkursbegjæringen, kan Refectio AS (som definert ovenfor) (alene eller sammen med en eller flere Bondholders) fremme konkursbegjæringen i eget navn og på egne vegne i egenskap av å være obligasjonseier. Obligasjonseierne anser ikke begjæringen for å være i strid med låneavtalen. Såfremt Norsk Tillitsmann blir instruert av Instructing Bondholders om å fremme konkursbegjæringen jfpunkt (e) overfor, gir Obligasjonseierne Norsk Tillitsmann fullmakt til å (i) samtykke til at Refectio AS begjærer Interoil Exploration and Production ASA konkurs i eget navn og på egne vegne i egenskap av å være obligasjonseier, og (ii) inngå avtaler med Refectio AS for å effektuere konkursbegjæringen. Obligasjonseierne gir Norsk Tillitsmann fullmakt til og instruks om å betale rettsgebyr, kostnader og utlegg påløpt i forbindelse med begjæringen om tvangsdekning av pantesikkerhetene og konkursbegjæringen referert til ovenfor, herunder refundere Instucting Bondholders for (i) Costs (som definert overfor) og (ii) Bankruptcy Costs (som definert overfor,) og eventuelle andre kostnader og fees påløpt for Norsk Tillitsmann, Refectio AS og andre SPV er som er etablert for å ivareta Obligasjonseiernes interesser i prosessen og som er eller ikke er dekket av Instructing Bondholders, med beløp Norsk Tillitsmann mottar fra utsteder og/eller til fordeling blant Obligasjonseierne, og slik at disse kostnadene skal dekkes før noen utbetaling av hovedstol, renter, eller annet utestående til Obligasjonseierne av utestående beløp under låneavtalen

7 (h) (i) (j) 0 NORSK TILLITSMANN ASA Obligasjonseierne gir InstructingBondholders fullmakt til å instruere eller besørge instruksjon en oppnevnt medhjelper i tvangssalget (Enforcement Proceedings), herunder utstede mandatbrev, og gjennomføre alle forhandlinger som anses nødvendige for å ivareta Obligasjonseiernes interesser, og å gi slike samtykker og fullmakter som det vises til i punkt (i) nedenfor. Obligasjonseierne gir Norsk Tillitsmann fullmakt til (uten ytterligere samtykke fra Obligasjonseiermøter) å utstede slike instruksjoner og inngå slike avtaler som er nødvendige for å effektuere punkt (h) overfor, i en form godkjent av Instructing Bondholders. Obligasjonseierne fritar Instructing Bondholders fra ethvert ansvar overfor Obligasjonseierne, Norsk Tillitsmann eller Låntager eller andre i forbindelse med handlinger eller unnlatelser utført av Instructing Bondholders, før eller etter tidspunktet for dette vedtaket (men uten å frita Instructing Bondholders for ansvar for grov uaktsomhet eller svikaktig opptreden utvist i forbindelse med å gi slike instrukser). * * * For more information about the Proposal, please contact Norsk Tillitsmann ASA. 4. BONDHOLDERS MEETING Bondholders are hereby summoned to a Bondholders meeting: Time: Place: 15 February 2010 at 13:00 hours (Oslo time), The premises of Norsk Tillitsmann ASA, Haakon VIIs gt 1, 0161 Oslo - 5th floor Agenda: 1. Approval of the summons. 2. Approval of the agenda. 3. Election of two persons to co-sign the minutes together with the chairman. 4. Consent to certain proposals: It is proposed that the Bondholders meeting resolve the following: The Bondholders meeting approves the Proposal as described in clause 3 in the summons to this Bondholders meeting. To approve the above resolution, Bondholders representing at least 1/2 of the Bonds represented in person or by proxy at the meeting must vote in favour of the resolution. In order to have a quorum, at least 5/10 of the voting Bonds must be represented at the meeting. If the proposal is not adopted, the Bond Agreement will remain unchanged

8 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.) PLEASE NOTE: Bonds that were drawn and marked for redemption as part of the USD instalment that was due in May 2009 (the Drawn Bonds ) may not show correctly on the subsequent statements. Bondholders may however vote also for the Drawn Bonds. Bondholders affected holding their Bonds through the Norwegian securities register should receive separate voting forms for the Drawn Bonds together with this summons. Bondholders affected with Bonds held through Euroclear (or similar) may also vote for their Drawn Bonds, but will have to submit documentation that shows their holdings of Drawn Bonds, for instance a copy of the notification that the bonds were drawn for redemption. The individual bondholder may authorise Norsk Tillitsmann to vote on its behalf, in which case the Bondholder s Form also serves as a proxy. A duly signed Bondholder s Form, authorising Norsk Tillitsmann to vote, must then be returned to Norsk Tillitsmann in due time before the meeting is scheduled (by scanned , telefax or post - please see the first page of this letter for further details). 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 to attend the bondholders meeting, either in person or by proxy other than to Norsk Tillitsmann, to notify Norsk Tillitsmann by telephone or by (at set out at the first page of this letter) within 16:00 hours (4 pm) (Oslo time) the Banking Day before the meeting takes place. fcturs sincerely. olfsk. Tillitsmatan ASA uelsen